Murphy v. Mancari's Chrysler Plymouth, Inc.

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-1642 Rel

Case Date: 03/31/2008

Preview:SECOND DIVISION March 31, 2008

No. 1-07-1642

JOSEPH P. MURPHY and PATRICIA MURPHY, Plaintiffs-Appellants, v. MANCARI'S CHRYSLER PLYMOUTH, INC., a Corporation, Defendant-Appellee (DaimlerChrysler Corporation, Defendant).

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Appeal from the Circuit Court of Cook County

No. 06 L 9445

Honorable Jeffrey Lawrence, Judge Presiding.

JUSTICE KARNEZIS delivered the opinion of the court: Plaintiffs Joseph and Patricia Murphy bought a Chrysler Sebring automobile from defendant Mancari's Chrysler Plymouth, Inc. (Mancari's). In 2005, Joseph sustained permanent spinal cord injuries when the Sebring rolled over while he was driving it. In 2006, plaintiffs filed a personal injury action asserting strict product liability claims against Mancari's and DaimlerChrsyler Corporation, the manufacturer of the vehicle.1 Mancari's moved to dismiss the strict liability count against it pursuant to section 2-621

Plaintiffs also filed a negligence count against Mancari's, but it is not at issue in this appeal. The strict liability count against DaimlerChrysler Corporation is also not at issue here.

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1-07-1642 of the Illinois Code of Civil Procedure (735 ILCS 5/2-621 (West 2006)),2 asserting it was not the manufacturer of the vehicle. The court granted the motion to dismiss. It also granted plaintiffs' request for leave to file an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) and certified the following question for our review: "To state a claim for strict liability in tort against a defendant other than a manufacturer who has filed an affidavit complying with 735 ILCS 5/2-621(a), must a plaintiff relying upon the 'actual knowledge of the defect' exception contained in 735 ILCS 5/2-621(c)(2) allege only that said defendant had actual knowledge of the physical characteristics of the product that plaintiff claims were unreasonably dangerous, or, in the alternative, must plaintiff allege actual knowledge of the physical characteristics of the product and actual knowledge that said characteristics made the product unreasonably dangerous?" (Emphasis in original.) We allowed plaintiffs' petition for interlocutory appeal. In answer to the court's question, for the reasons that follow, we find that a plaintiff relying upon the "actual knowledge of the defect" exception contained in section 2-621(c)(2) (735 ILCS 5/2-621(c)(2) (West 2006)) to avoid dismissal of its strict liability claim against a nonmanufacturer defendant must allege that the nonmanufacturer defendant had actual knowledge of the physical

Public Act 89-7 amended section 2-621 (735 ILCS 5/2-621) effective March 9, 1995. However, in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997), our supreme court, held the act unconstitutional in its entirety. Accordingly, the version of section 2-621 that was in effect before the 1995 amendment is applicable to this case. 2

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1-07-1642 characteristics of the product that the plaintiff claims were unreasonably dangerous and that said characteristics made the product unreasonably dangerous. We remand to the circuit court for further proceedings in light of this determination. Pursuant to section 2-621, also known as the "seller's exception," a nonmanufacturer defendant in a strict product liability action may be dismissed from the action if it certifies the correct identity of the manufacturer of the product which allegedly caused the injury. 735 ILCS 5/2-621 (West 2006); Saieva v. Budget Rent-A-Car of Rockford, 227 Ill. App. 3d 519, 525, 591 N.E.2d 507, 511 (1992). Once the plaintiff has sued the product manufacturer and the manufacturer has answered or otherwise pleaded, the court must dismiss the strict liability claim against the certifying defendant(s). 735 ILCS 5/2-621(b) (West 2006); Kellerman v. Crowe, 119 Ill. 2d 111, 113-14, 518 N.E.2d 116, 117 (1987). When a defendant complies with the requirements of section 2-621, its dismissal from a strict liability action is mandatory. Lamkin v. Towner, 138 Ill. 2d 510, 532, 563 N.E.2d 449, 459 (1990). A plaintiff may move at any time for reinstatement of a previously dismissed defendant if an action against the product manufacturer would be impossible or unavailing. 735 ILCS 5/2621(b) (West 2006); Kellerman, 119 Ill. 2d at 114, 518 N.E.2d at 118. Section 2-621(c) provides three exceptions to the mandatory dismissal of a complying defendant. 735 ILCS 5/2-621(c) (west 2006). A plaintiff can forestall dismissal of a defendant if it shows one of the following: "(1) That the defendant has exercised some significant control over the

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1-07-1642 design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage; or (2) That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or (3) That the defendant created the defect in the product which caused the injury, death or damage." 735 ILCS 5/2-621(c) (West 2006). The certified question concerns the exception stated in section 2-621(c)(2), pursuant to which a court may not dismiss a defendant otherwise eligible for dismissal from the suit if the plaintiff shows that the defendant "had actual knowledge of the defect in the product which caused the injury, death or damage." 735 ILCS 5/2-621(c)(2) (West 2006). Plaintiffs' complaint alleged that the design of the Sebring proximately caused Joseph's injuries and the benefits of the design did not outweigh the risk of danger inherent in the design. In salient part, plaintiffs alleged the Sebring was in an unreasonably dangerous condition when it left Mancari's control because: (a) the windshield and roof of the convertible vehicle were designed with inadequate strength and failed to dissipate the energy of a foreseeable rollover in a safe manner and (b) the Sebring was not equipped with a sufficient roll bar or other devices to protect Joseph from traumatic injury in a reasonably foreseeable rollover. They alleged Mancari's knew before the occurrence that the Sebring was not equipped with a sufficient roll bar or 4

1-07-1642 other devices to protect Joseph but did not warn plaintiffs. Mancari's moved to dismiss pursuant to section 2-621(b) because DaimlerChrysler manufactured the Sebring. It attached an affidavit by Mancari's general manager identifying DaimlerChrysler as the manufacturer. The affidavit also asserted Mancari's did not at any time regulate or direct DaimlerChrysler in its design, testing or inspection of the Sebring; did not exercise any control over design or manufacturing of the Sebring; did not then or now have any actual knowledge of the alleged defects referenced in the complaint; and did not create any of the alleged defects. Plaintiffs responded by asserting Mancari's should not be dismissed because the exception stated in section 2-621(c)(2), for a defendant who had "actual knowledge of the defect," applied. 735 ILCS 5/2-621(c)(2) (West 2006). They asserted they had adequately pled the exception by their assertion that "[b]efore the occurrence, Mancari's knew, but did not warn plaintiffs that the vehicle was not equipped with a sufficient toll bar or other devices to protect Joseph from traumatic injuries in a reasonably foreseeable manner." Plaintiffs attached the deposition of Mancari's general manager to show Mancari's had actual knowledge of the defects of which plaintiffs complained. Plaintiffs did not allege that Mancari's knew that the windshield and roof and/or lack of roll bar created an unreasonably dangerous condition. Instead, they argued it was their burden to show Mancari's had actual knowledge of the conditions plaintiffs claimed made the Sebring defective and not that Mancari's believed those conditions were in

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1-07-1642 fact defective or unreasonably dangerous. Mancari's responded that the section 2-621(c)(2) exception did not apply because having "actual knowledge of a defect" presupposes that a defect existed and the defendant knew of the alleged defect and the deposition showed Mancari's had no actual knowledge that the windshield design or lack of roll bar were defects as plaintiffs claimed. The court granted Mancari's motion to dismiss, but asks us to decide whether a plaintiff asserting the section 2-621(c)(2) exception to avert dismissal of a nonmanufacturer defendant must "allege only that said defendant had actual knowledge of the physical characteristics of the product that plaintiff claims were unreasonably dangerous, or, in the alternative, must plaintiff allege actual knowledge of the physical characteristics of the product and actual knowledge that said characteristics made the product unreasonably dangerous?" (Emphasis in original.) In a product liability action based on strict liability, the inability of a defendant to know of or prevent the risk is not a defense because fault is not an issue. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 156, 879 N.E.2d 893, 899 (2007). Under common law, all entities in the distributive chain of an allegedly defective product, including manufacturers, sellers, wholesalers, distributors and lessors of the product, are strictly liable in product liability actions for injuries resulting from that product. Kellerman v. Crowe, 119 Ill. 2d 111, 113, 518 N.E.2d 116, 117 (1987); Root v. JH Industries, Inc., 277 Ill. App. 3d 502, 506, 660 N.E.2d 195, 197 (1995). Strict liability is imposed upon any party " 'who sells any product in a defective condition unreasonably

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1-07-1642 dangerous to the user or consumer or to his property.' " Lamkin v. Towner, 138 Ill. 2d 510, 528, 563 N.E.2d 449, 457 (1990), quoting Restatement (Second) of Torts

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