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03/31/95 JAMES BITTLER AND BARBARA BITTLER v. DOYEN

March 31, 1995

JAMES BITTLER AND BARBARA BITTLER, PLAINTIFFS-APPELLANTS,
v.
DOYEN AND ASSOCIATES, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Robert Boharic, Judge Presiding.

As Corrected May 10, 1995.

The Honorable Justice Tully delivered the opinion of the court: Rizzi and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

On March 28, 1991, plaintiffs, James Bittler (hereinafter James) and his wife Barbara Bittler (hereinafter Barbara), filed a fifth amended complaint at law against D.P. Way Corporation, a/k/a D.P. Way Company or D.P. Way Division of Canon Industries, Inc. (hereinafterD.P. Way), Doyen and Associates, Inc. (hereinafter Doyen), and White & Company, Inc. (hereinafter White). Subsequent to this filing, D. P. Way and White settled their claims with plaintiffs and on October 18, 1991, the trial court granted summary judgment in favor of the remaining defendant, Doyen. (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005 (now 735 ILCS 5/2-1005 (West 1992)).) It is from this order plaintiffs now appeals pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we affirm.

FACTUAL STATEMENT

On June 3, 1984, James sustained personal injuries when he was struck in the head by the tailgate door of an Ultravac vacuum loader, a truck-mounted vacuum loader and cleaner, as it was being lowered by a co-employee. Plaintiffs brought this cause of action to recover damages for injuries suffered by James as a result of this incident and the consequential loss of consortium suffered by Barbara. The complaint sounded in both negligence and strict liability and was brought against D.P. Way, the manufacturer of the Ultravac unit, White, the exclusive sales representative for D.P. Way in northern Illinois and Indiana, and Doyen, an engineering consultant engaged by Commonwealth Edison Company, Inc. (hereinafter Edison), the ultimate purchaser of the Ultravac Unit. Doyen was consulted by Edison on its fugitive dust program at nine fossil fuel stations. Edison previously installed stationary equipment which required mobile vacuum units to serve as a vacuum source at each of the stations. Initially, Edison and Doyen met to discuss Edison's requirements regarding the units. Edison provided Doyen with their specific requirements as to the configuration of the truck chassis, the engine, and the functional requirements for the vacuum loader itself.

Thereafter, Doyen's role was limited to producing final bid specifications under Edison's direction and evaluating bids received for their general conformance with the technical requirements of the specifications. Once the bids were so approved by Doyen, they were turned over to the engineering department at Edison. Edison was solely responsible for deciding which bid to accept. Doyen did not offer any recommendation as to which bid was best nor was Doyen ever requested by Edison to inspect the final truck mounted vacuum loader for conformance with the bid specifications compiled by Doyen.

Edison chose D.P. Way to design and manufacture the truck mounted vacuum loader for use in this project. The truck mounted vacuum loader selected by Edison, the Ultravac, had been designed by D.P. Way several years prior to the compilation of the specifications drawn by Doyen. In fact, it had been redesigned in 1979 and re-introduced in the marketplace in 1980. Thus, Edison essentially purchased what was an evolved design and not a custom product.

We first consider plaintiffs' contention that the trial court erred in granting summary judgment to Doyen under the theory of strict product liability. The question is whether an independent consultant retained by the ultimate purchaser of a product to compile design specifications for the sole purpose of soliciting bids for the manufacture of that product, can be held strictly liable in tort. "The applicable standard of review for evaluating the propriety of a trial court's entry of summary judgment is de novo." ( King v. Linemaster Switch Corporation (1992), 238 Ill. App. 3d 729, 732, 606 N.E.2d 584, 179 Ill. Dec. 752.) It is well settled law in Illinois that summary judgment is proper only when the pleadings, depositions, affidavits, and admissions on file show that no genuine issue of fact exists and that defendant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005 (now 735 ILCS 5/2-1005 (West 1992)); Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304, 135 Ill. Dec. 557.) "Whether a duty exists is a question of law to be determined by a court, and thus a motion for summary judgment properly addresses the issue of duty." Grove v. City of Park Ridge (1992), 240 Ill. App. 3d 659, 608 N.E.2d 421, 181 Ill. Dec. 348.

The doctrine of strict liability, as set forth in section 402A of the Restatement (Second) of Torts (1965) and adopted by the Illinois Supreme Court in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612. 210 N.E.2d 182, states:

"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ...


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