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12/29/95 BENNER A. ROOT AND ESTHER ROOT v. JH

December 29, 1995

BENNER A. ROOT AND ESTHER ROOT, PLAINTIFFS-APPELLANTS
v.
JH INDUSTRIES, INC., DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE STEPHEN A. SCHILLER JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

On January 25, 1990, plaintiff Benner Root sustained injuries while moving equipment with a van ramp. On January 21, 1992, he filed a three-count complaint against JH Industries, Inc. (JH). Count I is based on strict products liability, count II seeks relief pursuant to a theory of a breach of express warranty and count III was brought on behalf of Esther Root and seeks recovery based on loss of consortium.

On November 20, 1992, JH filed a motion for summary judgment, stating that in 1987, JH had purchased all the assets of Copperloy Corporation, which manufactured the ramp. On December 13, 1993, plaintiffs filed an answer to the motion for summary judgment, asserting that JH held itself out as the manufacturer of the van ramp, thereby estopping it from denying that JH is the manufacturer of the ramp. Plaintiff also asserted that JH failed to exercise due diligence in certifying the identity of the manufacturer.

On October 18, 1994, Judge Stephen Schiller granted JH's motion for summary judgment. On appeal, plaintiffs raise three issues: (1) whether the trial court erred in its interpretation of Hebel v. Sherman Equipment (1982), 92 Ill. 2d 368, 442 N.E.2d 199, 65 Ill. Dec. 888, and in its application to the facts of the instant case; (2) whether JH Industries, Inc.'s advertising and promotional materials estop JH from denying that it was the manufacturer of the ramp; and (3) whether JH acted with reasonable diligence in disclosing Copperloy's existence.

BACKGROUND

Plaintiff Benner A. Root was employed by Boyer-Rosen Moving and Storage Company. On January 25, 1990, plaintiff moved and unloaded material from a moving truck at or near the 2600 block of north Clark Street in Chicago, Illinois. Plaintiff used a van ramp to transport the materials. Snow and ice began to collect on the van ramp, and while plaintiff was moving the equipment up the ramp, he slipped and fell, injuring himself.

On January 21, 1992, plaintiffs filed a complaint against JH Industries. The complaint alleged that the van ramp was not reasonably safe in design and manufacture in one or more of the following respects: (a) it failed to contain any warnings to the user of the danger of slippage that could result when water, snow or ice accumulated on the surface of the van ramp, rendering the van ramp unreasonably dangerous; (b) it failed to contain a non slip surface or strips, rendering the van ramp unreasonably unsafe and dangerous for its intended use; (c) it failed to contain any warnings to the user of the propensity of the van ramp to become slippery if exposed to the weather; (d) it failed to specify and warn of the appropriate angle of the van ramp and the ground; and (e) it failed to specify and warn of the height limitation for the use of the van ramp from the rear or side of a truck.

On November 20, 1992, JH filed a motion for summary judgment based on an affidavit of the president of JH, asserting that JH did not manufacture the van ramp. JH stated that the van ramp was manufactured by the Copperloy Corporation (Copperloy). In 1987, JH purchased all the assets of Copperloy. The sale included the right to use the Copperloy trademark and the right to continue to manufacture products previously manufactured and marketed by Copperloy. JH's records revealed that Copperloy sold the van ramp to the Iden Company on September 21, 1981.

In response to the motion for summary judgment, plaintiffs offered evidence of their contention that JH held itself out as the manufacturer of the ramp. A catalog distributed by JH was attached to plaintiffs' response. On the first page of the catalog, the Copperloy trademark is placed next to "JH Industries, Inc." On the last page, the Copperloy trademark is placed directly above "JH Industries, Inc." On the second page, JH states "Quality *** Another word for Copperloy for over 30 years." JH also states in the catalog: "Areas which are too confined or crowded for efficient flow of freight and materials can be converted into productive space with the appropriate equipment from JH Industries." The catalog also contains a picture of individuals working on equipment bearing only the Copperloy trademark.

On October 18, 1994, Judge Stephen Schiller granted JH's motion for summary judgment, finding that JH was not the apparent manufacturer of the van ramp. Plaintiffs appeal.

We ...


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