Appeal from the Circuit Court of Lee County. No. 97--L--20 Honorable David T. Fritts, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
On April 6, 1993, Steven Rogers was killed when the Clark forklift he was operating overturned and landed on top of him. Pamela Rogers, individually and as administrator of the estate of Steven Rogers, sued Geraghty Industrial Equipment, Inc. (Geraghty), and Clark Equipment Company (Clark). Geraghty was a distributor of Clark equipment and was the predecessor company of Material Handling Services, Inc. (MHS). The parties refer to defendant distributor as MHS, so we will do the same.
Plaintiff's complaint contained claims of strict liability and negligence. The strict liability claim was dismissed pursuant to the statute of repose (735 ILCS 5/13--213 (West 1998)). Both defendants filed motions for summary judgment on the remaining negligence count. The trial court denied Clark's motion for summary judgment but granted summary judgment in favor of MHS. The court made a determination pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement of or appeal from the summary judgment order. Plaintiff appeals the summary judgment order in favor of MHS, arguing that (1) a genuine issue of material fact existed as to whether MHS voluntarily undertook to notify the forklift owner of the availability of a safety seat for the forklift; and (2) this court should recognize a common-law duty to notify of postsale safety improvements.
In 1971, Clark manufactured the forklift involved in the decedent's accident and sold it to the Illinois Department of Transportation (IDOT). The accident happened during the course of the decedent's employment with the Illinois Department of Central Management Services.
When the forklift was manufactured, it was not equipped with a seatbelt or any type of restraining device. In the early 1980s, Clark developed an operator restraint system (ORS) consisting of a winged back seat and a seat belt that could be retrofitted onto older forklifts to help prevent injury in the event of a lateral overturn. The ORS only fit on forklift models C300 and C500. The forklift at issue in this case was a model CFY20.
In 1983 and 1984, Clark undertook a retrofit campaign, called the Phase I campaign, to provide customers who owned C300 and C500 model forklifts with the ORS. To that end, Clark sent letters to customers believed to own the C300 and C500 forklifts. The letters informed the forklift owners that Clark would provide the ORS for free and bear the cost of installing the ORS on qualifying forklift models. Clark's dealers, such as MHS, performed the ORS installation and Clark reimbursed the dealers. The dealers were required to participate in the Phase I campaign.
IDOT received a letter from Clark informing it of the retrofit program. IDOT sent a reply card to Clark identifying two forklifts, one of which was the one involved in the decedent's accident. Clark informed IDOT by letter that it had received IDOT's reply card. The letter stated in relevant part:
"You submitted a reply to Clark, listing your equipment. A printout of your equipment that is not included in this offer is attached. Older model internal combustion and electric powered lift trucks are being reviewed by engineering. No disposition has been made and your records will be kept on file for any future announcements.
If you have any questions regarding the equipment you submitted or operation safety needs, contact your local Clark dealer."
By 1992, Clark had developed a "universal seat ORS" (universal seat) that would fit on all models of Clark forklifts. The program for informing customers of the availability of the universal seat was known as Phase II. Unlike Phase I, Clark did not contact customers directly to inform them of the universal seat's availability. Instead, Clark told its dealers, including MHS, to inform customers that the universal seat was available. Also unlike Phase I, the customer was responsible for paying for the installation of the universal seat. MHS did not notify IDOT that the universal seat was available for the forklift involved in Steven Rogers's accident.
In its motion for summary judgment, MHS argued that it owed no duty to plaintiff's decedent. Plaintiff responded that MHS voluntarily undertook a duty to notify IDOT of the availability of a safety seat for the forklift. Plaintiff also raised the argument that the trial court should recognize a common-law duty to notify of postsale improvements under the facts of this case. Both plaintiff and the trial court recognized, however, that the trial court was bound by Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879 (1999), in which the court declined to recognize a common-law duty to retrofit a tractor with a safety device that would have eliminated the hazard that caused the decedent's accident. The trial court ruled that MHS did not voluntarily undertake a duty to notify and, consequently, granted summary judgment for MHS. Plaintiff filed a timely notice of appeal.
According to section 2--1005(c) of the Code of Civil Procedure (735 ILCS 5/2--1005(c) (West 1998)), a court should enter summary judgment if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A reviewing court should reverse an order granting summary judgment if the evidence shows that a genuine issue of material fact exists or if the judgment is incorrect as a matter of law. American Family Mutual Insurance Co. v. Hinde, 302 Ill. App. 3d 227, 231 (1999). We apply a de novo standard of review to the trial court's decision to grant summary judgment. Hinde, 302 Ill. App. 3d at 231. When evaluating the facts, we construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229, 234 (1990).
Summary judgment in favor of a defendant is proper when a plaintiff has not established an essential element of a cause of action. Lavazzi v. McDonald's Corp., 239 Ill. App. 3d 403, 408 (1992). One of the essential elements of a negligence action is the existence of a duty that the defendant owed to the plaintiff. Lavazzi, 239 Ill. App. 3d at 408.
Here, plaintiff claims that MHS voluntarily undertook the duty to notify its customer, IDOT, of the availability of the universal seat. Apparently, plaintiff contends that MHS's alleged duty extended to the decedent as a foreseeable user of the forklift. Whether a defendant has voluntarily undertaken a legal duty to a plaintiff is a question of law. Lavazzi, 239 Ill. App. 3d at 409. Any duty imposed on a defendant under this theory is limited to the extent of the undertaking. Frye v. Medicare-Glaser ...