FOURTH DIVISION

FILED: 1/28/99

No. 1-98-1925

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Prompt Air, Inc., appeals from an order of the circuit court dismissing its strict product liability claim against the defendant, Firewall Forward, Inc. In determining the propriety of the circuit court's dismissal order, we are required to address the circumstances under which the installer of defective component parts can be held strictly liable in tort for resulting damages.

The plaintiff filed the instant action against the defendant and Kelpak Industries, Inc. (Kelpak), seeking recovery for damages sustained when an airplane the plaintiff owned was required to make a forced landing due to engine failure. The complaint, pled in three counts, sought recovery against the defendant on a strict liability theory and against Kelpak for both strict liability and fraud. In its complaint, the plaintiff alleged that, in November 1988, Porsche-Galesburg Aircraft Sales (Porsche) contracted with the defendant for the overhaul of the subject airplane's engine. In that same month, the defendant delivered the engine's turbocharger to Kelpak to be overhauled and repaired. After Kelpak completed its work, it delivered the turbocharger back to the defendant. Thereafter, the defendant completed its overhaul of the engine, reassembled it, and returned the aircraft to Porsche. The plaintiff purchased the airplane in August 1995. On December 20, 1995, while one of the plaintiff's employees was operating the aircraft, the engine lost all power, necessitating a forced landing. According to the plaintiff, the engine failed because the turbocharger was defective. Specifically, the plaintiff alleged that "the turbocharger was defective, unsafe, and not reasonably safe for its intended use in that it contained automotive parts rather than airplane parts."

Kelpak filed a special appearance and was dismissed from this action in response to its motion contesting the court's power to exercise in personam jurisdiction over it. The plaintiff has not contested Kelpak's dismissal, and Kelpak is not a party to this appeal.

The defendant moved for involuntary dismissal of the plaintiff's claim against it, contending that, as a mere installer of the turbocharger, it is not subject to strict tort liability for the plaintiff's damages. The motion was brought pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1996)), and was supported by reference to the factual allegations in the plaintiff's complaint and the affidavit of the defendant's president. The plaintiff responded to the motion but filed no counteraffidavits. The circuit court, relying on the holding in Hinojasa v. Automatic Elevator Co., 92 Ill. App. 3d 351, 416 N.E.2d 45 (1980), found that the plaintiff had no "cognizable cause of action as pleaded" and granted the defendant's motion. The plaintiff has appealed. For the reasons which follow, we reverse the order dismissing its strict tort liability claim against the defendant, and remand the cause to the circuit court for further proceedings.

As we held in Mayfield v. Acme Barrel Co., 258 Ill. App. 3d 32, 34, 629 N.E.2d 690 (1994):

"Section 2-619 affords a defendant an expeditious means to obtain a summary disposition of an action based upon an affirmative bar to the plaintiff's right to recovery. [Citation.] In ruling upon a motion brought pursuant to that section, a court must accept as true all well-pled facts in the complaint under attack [citation], and draw all inferences from those facts which are favorable to the plaintiff [citation]. However, conclusions of fact or law in the complaint which are not supported by specific factual allegations are not taken as true and are not considered by the court in ruling on the motion. [Citation.] Such a motion should only be granted in those cases where there are no material facts in dispute and the defendant is entitled to be dismissed as a matter of law."

Since the resolution of a section 2-619 motion is a question of law, our review is de novo. Ko v. Eljer Industries, Inc., 287 Ill. App. 3d 35, 39, 678 N.E.2d 641 (1997).

Section 2-619(a)(9) of the Code permits a defendant to seek an order of dismissal based upon evidentiary material establishing that the claim asserted against it is barred by "affirmative matter" avoiding the legal effect of or defeating the claim. 735 ILCS 5/2-619(a)(9) (West 1996). However, in the context of section 2-619(a)(9), "affirmative matter" must be something more than evidence offered to refute the allegations contained in the complaint, which allegations must be taken as true for the purposes of a motion to dismiss. Bucci v. Rustin, 227 Ill. App. 3d 779, 782, 592 N.E.2d 297 (1992); Cioni v. Gearhart, 201 Ill. App. 3d 853, 856, 559 N.E.2d 494 (1990).

Based upon the well-pled allegations in the plaintiff's complaint and reasonable inferences drawn therefrom, we assume for the purposes of our review that the defendant overhauled the plane's engine and reassembled it using a defective turbocharger. From the uncontradicted affidavit submitted in support of the defendant's motion, we will also assume that the defendant did not overhaul the turbocharger and did not incorporate automotive parts therein. However, the affidavit of the defendant's president admits both that the turbocharger is a component part of the engine and that it was the defendant who sent the turbocharger to Kelpak to be overhauled. That affidavit goes on to state:

"Firewall bills its customers a flat rate, with some cost contingencies, for overhauling an engine. In the instant matter, as is company practice, the bill for services contained no specific cost or profit for Kelpak's overhaul of the turbocharger."

The defendant argues that, as an installer of a component part supplied by Kelpak, it was not involved in the sale of a product, received no profit from placing the defective turbocharger in the stream of commerce, and is, therefore, not subject to liability under the doctrine of strict tort liability. See Hinojasa, 92 Ill. App. 3d at 354. We believe that this argument, although viscerally appealing, fails to survive close scrutiny.

In Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182 (1965), our supreme court adopted the concept of strict tort liability as expressed in section 402A of the Restatement (Second) of Torts. Under this section, strict liability is imposed upon "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer." Restatement (Second) of Torts