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10/18/96 JAMES E. MURPHY AND SUSAN MURPHY v.

October 18, 1996

JAMES E. MURPHY AND SUSAN MURPHY, PLAINTIFFS-APPELLANTS,
v.
GENERAL MOTORS CORP. AND KUSTOM ELECTRONICS, INC., DEFENDANTS, AND PALOS AUTO GLASS & TRIM, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Jennifer Duncan-Brice, Judge Presiding.

Released for Publication November 27, 1996.

Justice Leavitt* delivered the opinion of the Court. McNamara, J., concurs. Zwick, P.j., dissents.

The opinion of the court was delivered by: Leavitt

Justice Leavitt* delivered the opinion of the Court:

On August 19, 1989, the plaintiff, James E. Murphy, was employed as a police officer by the Village of Palos Park Police Department (the Department). On that day, his squad car was a 1988 Chevrolet Caprice manufactured by the defendant, General Motors Corp. (G.M.C.). While driving the car after responding to a call about a burglar alarm, Officer Murphy drove over a bump in the road. As he did, he heard a "pop," and the front seat of the car fell backwards, slid off of its track and collapsed into the rear seat of the vehicle. Officer Murphy, now facing upward, lost control of the vehicle, and he was injured as it ran off the roadway into a ditch.

Officer Murphy brought this action alleging that various acts of negligence by the defendants caused his accident. Murphy's wife, Susan, brought an action for loss of consortium. Specifically, as concerns this appeal, the plaintiffs alleged that two months before the accident, the defendant, Palos Auto Glass & Trim, Inc. (Palos Auto), had negligently repaired the car seat frame. The trial judge entered summary judgment in favor of Palos Auto, ruling that the plaintiffs could not establish that Palos Auto proximately caused the accident. Specifically, the judge ruled that an affidavit submitted by the plaintiff's expert was speculative as to the cause of the accident. The plaintiffs contend their expert is qualified to testify and that they have, therefore, presented evidence sufficient to raise a jury question as to Palos Auto's liability.

Our review of an order granting summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). Summary judgment is appropriate only when the pleadings, together with any depositions, admissions, or affidavits on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c); LaSalle National Bank v. Skidmore, Owings & Merrill, 262 Ill. App. 3d 899, 902, 635 N.E.2d 564, 200 Ill. Dec. 225 (1994). We construe all reasonable inferences to be drawn from the facts in a light most favorable to the non-moving party. LaSalle National Bank, 262 Ill. App. 3d at 902. Although the respondent need not prove his case at the summary judgment stage, he is required to present evidentiary facts to support the elements of his cause of action. Helms v. Chicago Park District, 258 Ill. App. 3d 675, 679, 630 N.E.2d 1016, 196 Ill. Dec. 851 (1994). Summary judgment in favor of the defendant is appropriate where the plaintiff has not established an essential element of the cause of action. Webber v. Armstrong World Industries, Inc., 235 Ill. App. 3d 790, 795-96, 601 N.E.2d 286, 175 Ill. Dec. 889 (1992); Ray Dancer, Inc., v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

Palos Auto's motion for summary judgment asserted that because the car seat had been destroyed, the plaintiffs could not prove that its conduct in repairing the seat frame proximately caused the plaintiffs' injuries. Of course, in order to prevail on a negligence claim, a plaintiff must show that a defendant's breach of a duty proximately caused the plaintiff's injuries. Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990). To defeat a motion for summary judgment, a plaintiff must establish that there is a reasonable certainty that the defendant's acts caused the injury. Schultz v. Hennessy Industries, Inc., 222 Ill. App. 3d 532, 540, 584 N.E.2d 235, 165 Ill. Dec. 56. In this regard, the record reveals the following.

Approximately two months prior to Officer Murphy's accident, the Department had contracted with Palos Auto to repair the driver's seat in Murphy's squad car. Robert Norris, the owner of Palos Auto, testified at his deposition that he had examined the seat frame before repairs were undertaken. His company had repaired this type of seat before, and he was familiar with it. Norris stated that the seat his company repaired was a G.M.C. seat. Without consulting G.M.C.'s product specifications, an employee of Palos Auto repaired the seat back by performing a "mig" weld on its frame. G.M.C's product specifications provide that "spot resistance" welding should be used to repair these seats.

Following the accident, the squad car was taken to an auto repair business owned by Raymond Holzinger. Holzinger testified at his deposition that when the vehicle arrived, he examined the front seat and concluded that due to its condition, it could not be repaired. Therefore, the front seat was removed from the vehicle and a replacement front seat was installed. After removing the seat, Holzinger disposed of it. Before he discarded it, however, he examined it and discovered that repair work had previously been performed on the seat frame. Specifically, he noted an apparent break in the frame that had been repaired by a weld. Although the weld had not broken in the accident, there was a "bend" in the frame one to two inches from the point of the weld.

In their opposition to Palos Auto's motion for summary judgment, the plaintiffs presented the affidavit of Dr. Crispin Hales, an engineering and metallurgy expert. Hales reviewed the plaintiffs' complaint, the depositions of Holzinger, Norris and Murphy, in addition to the engineering specifications for the seat frame issued by General Motors. These specifications included information about the seat frame's metal composition and physical properties. The specifications also indicated that only spot-welding should be used to repair such seats. Based upon the above information, Hales was of the opinion that assuming the seat frame had been manufactured in accordance with G.M.C.'s specifications, the mig weld performed by Palos Auto would have reduced the strength of the seat frame and caused it to fail. Hales also offered a second opinion, based on the physical properties of the seat frame, that the defendant should have replaced rather than repaired the seat.

The trial judge "struck" Dr. Hales' affidavit in its entirety because she considered his opinions to be speculative. She reasoned that because the seat was unavailable, the plaintiffs could not presume the fact that the seat had, in fact, been manufactured according to G.M.C.'s specifications. The judge ruled that, as a result, the plaintiffs were precluded from relying upon Hales' opinion as to the propriety of mig-welding. Therefore, the plaintiffs could not establish that Palos Auto's negligence reduced the strength of the seat frame. The trial judge did not state any reason as to why Hales' second opinion was inadmissible. Specifically, the judge found:

"Without the seat frame this case is thrown into a speculative arena ... The problem with the expert's affidavit is that one has to presume that the seat back was manufactured in accordance with the manufacturer's drawings, specifications, and additional information provided by GM. Without the seat back, how can this presumption be made? *** He [the plaintiffs' expert] cannot make that presumption that this was built in accordance with specifications because he hasn't seen it, because the seat frame is gone. *** I don't think his testimony is competent because it presumes facts that cannot be supported by the evidence."

In denying the plaintiffs' motion to reconsider the entry of summary judgment, the judge stressed that the seat frame had been innocently destroyed; hence, the grant of summary judgment was not to be interpreted ...


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