Appeal from the Circuit Court of Cook County. No. 92-L-2598. Honorable Jennifer Duncan-Brice, Judge Presiding.
As Corrected October 18, 1996. Released for Publication November 18, 1996.
The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., concurs. Cahill, J., dissents.
The opinion of the court was delivered by: Theis
JUSTICE THEIS delivered the opinion of the court:
The plaintiff, Vera Davis, brought this wrongful death action on behalf of her husband, Calvin Davis, based on a strict product liability theory. On May 31, 1991, Calvin, a garbage collector for the Village of Skokie, had been operating a garbage-packing device located at the rear of his truck, when the truck began to move. As Calvin ran to the front of the truck and attempted to enter the cab, he fell. The truck ran over him, causing fatal injuries. Following the accident, the plaintiff brought an action against several defendants, including (1) Navistar International Transportation Corporation ("Navistar"), the manufacturer of the truck's cab and chassis, (2) Pak-Mor Manufacturing Company ("Pak-Mor"), the manufacturer of the packing device which was added to the chassis to transform it into a garbage truck, and (3) Daniel Krall & Co., Inc. ("Krall"), the company which sold the packing device to the Village of Skokie and installed it onto the chassis. The plaintiff maintained that the garbage truck, including its packing control switch, constituted an unreasonably dangerous product. It was undisputed that the switch wiring of the truck had been altered to permit the operation of the packing device with the truck in gear. The plaintiff argued that the defendants had a duty to guard against the alteration of the switch wiring. Pak-Mor and Krall filed motions for summary judgment, arguing that they could not have foreseen the alteration of the switch wiring. Navistar also filed a motion for summary judgment on the grounds that the alleged dangerous condition involved systems incorporated onto the cab and chassis after they left Navistar's control. The trial court granted summary judgment in favor of all three defendants. The plaintiff now appeals. Upon review, we conclude that a genuine issue of material fact exists as to whether a garbage truck operator easily could alter the truck's switch wiring and whether an incentive to alter the switch exists within the garbage collection industry. For the reasons which follow, we affirm summary judgment in favor of Navistar, and reverse the trial court's judgment as to Pak-Mor and Krall.
On appeal, several facts are undisputed. The cab and chassis supplied by Navistar had a neutral safety switch which was designed to prevent the truck's engine from being started with the transmission in gear. The packer body supplied by Pak-Mor contained a packer control switch which Krall installed on the chassis by wiring it to the neutral safety switch. If properly wired, the garbage-packing device is operable only if the transmission is in neutral. Ideally, a garbagetruck operator should place the truck in neutral and set the parking brake before exiting the cab to collect and pack garbage.
In this case, a post-accident inspection of the truck revealed that the wires connecting the packer control switch to the neutral safety switch had been altered to permit the operation of the packing device with the truck in gear. The record contains a diagram showing the manner in which the Packer control switch was rewired to bypass the safety feature. The diagram shows that the switch consisted of six wires attached to six terminals. Whoever altered the switch merely moved a wire from one terminal to another. Thus far, the identity of the individual who altered the wiring is unknown. The parties do not dispute that the truck was wired properly when it left the defendants' control.
Pak-Mor and Krall moved for summary judgment on the grounds that they had no duty to construct a foolproof garbage truck to prevent the alteration of the packing device after it left their control. In response, the plaintiff contended that the miswiring of the packing control switch was reasonably foreseeable. In support of her argument, the plaintiff offered the affidavit of Daniel Pacheco, an expert in engineering. Pacheco's affidavit stated that, in the waste disposal industry, truck operators have an incentive to alter the wiring of the neutral start switch/control switch to allow for "packing on the run." This procedure enables the truck operators to pack garbage while the truck is in gear, resulting in faster completion of their work. Pacheco stated that engineers in the industry were aware of this phenomenon and devised the neutral start switch in order to prevent packing on the run.
Pacheco further indicated that the switch in question failed to meet industry standards because it easily could be overcome by simple rewiring. Pacheco concluded that the truck design presented an unreasonably dangerous condition "in that it failed to incorporate an electrical system design that could not be readily overridden to allow the operation of the PAK-MOR packer while the vehicle was in gear." Moreover, Pacheco concluded that the improper wiring could have been prevented if permanently wired connectors were used in the truck.
In ruling on the motion for summary judgment, the trial court found Pacheco's affidavit insufficient because it did not state expressly that the modification of the switch can be accomplished by someone who does not possess special, expert knowledge. The trial courtdetermined that there was no evidence that the modification of the wiring easily could have been accomplished by a garbage truck operator. The court concluded that Krall and Pak-Mor could not have foreseen that the safety switch would have been altered, and granted the motion for summary judgment. Likewise, the court granted Navistar's motion for summary judgment.
Initially, we address Navistar's status on appeal. Based on the record and briefs before us, we determine that the plaintiff has waived appellate review of summary judgment as to Navistar. Supreme Court Rule 341(e) requires an appellant to advance specific contentions, supported by a discussion of the relevant facts and law. 155 Ill. 2d R. 341(e). In her briefs, the plaintiff merely makes passing reference to Navistar. Therefore, she has waived review of the trial court's ruling.
Nonetheless, the plaintiff cannot show that Navistar had a duty to anticipate that the chassis could become unreasonably dangerous after it left Navistar's control. See Depre v. Power Climber, Inc., 263 Ill. App. 3d 116, 635 N.E.2d 542, 200 Ill. Dec. 203 (1994). The record shows that Navistar only knew that its chassis could serve any number of uses. When the chassis left Navistar's control, the packer control switch had not yet been attached. At oral argument, the plaintiff conceded that there was no evidence that Navistar knew that the chassis would be used as a part of a garbage truck. Therefore, we affirm the trial court's order granting summary judgment in favor of Navistar.
We next consider the trial court's decision to grant summary judgment in favor of Pak-Mor and Krall. Before reaching the merits of this issue, we take the opportunity to clarify a matter in the record. The plaintiff's notice of appeal, dated July 7, 1995, states that she appeals from the trial court's June 12, 1995, order. The June 12 order granted Navistar's motion for summary judgment and included finality language with respect to an order dated May 31, 1995. Based on the record before us, we determine that the notice of appeal specifying the June 12 order necessarily entails an appeal from the May 31 order. We note that the May 31 order (1) denied the plaintiff's motion for reconsideration, (2) granted Pak-Mor's and Krall's amended motion for summary judgment, and (3) continued the case for a hearing on Navistar's motion for summary judgment. In her motion for reconsideration, the plaintiff asked the court to reconsider its earlier summary judgment ruling in light of the amended expert affidavit of Daniel Pacheco. On appeal, the defendants argue theinferences that may or may not be drawn from Pacheco's affidavit. Also, the defendants filed an "Amended Motion for Summary Judgment" which expressly addresses the assertions contained in the amended expert affidavit. In ruling on the so-called "Motion for Reconsideration," the trial court considered the affidavit. Therefore, based on the record and arguments of the parties on appeal, we determine that the amended expert affidavit of Daniel Pacheco is properly before us, and that we may review it de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992).
Turning to the plaintiff's contentions, she first argues that a genuine issue of material fact remains regarding the ease with which a garbage truck operator could alter the switch wiring on the truck, thereby rendering it an unreasonably dangerous product. The plaintiff directs us to review the expert affidavit of Daniel Pacheco. She argues that the defendants knew or should have known that, at the time of the decedent's injury, truck operators had an incentive to alter ...