Graham v. Bostrom Seating, Inc.

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0409 Rel

Case Date: 01/11/2010

Preview:NO. 5-08-0409
N O T IC E Decision filed 01/11/10. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ MARK GRAHAM, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 05-L-659 ) BOSTROM SEATING, INC., ) H.O. BOSTROM, INTERNATIONAL ) TRUCK AND ENGINE CORPORATION, ) BOSTROM SEATING CORPORATION, ) NAVISTAR CORPORATION, CASSENS ) CORPORATION, CASSENS TRANSPORT ) COMPANY, and CASSENS & SONS, INC., ) Honorable ) Daniel J. Stack, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________ JUSTICE WEXSTTEN delivered the opinion of the court: The plaintiff, Mark Graham, appeals the Madison County circuit court's grant of a summary judgment in favor of the defendant, Cassens & Sons, Inc. (CS). The circuit court granted a summary judgment in favor of CS because it found CS was not in the chain of distribution for the sale of the vehicle-hauler truck upon which the plaintiff's claims arose and was therefore not liable under the theory of products liability. 1 The plaintiff raises three
1

disposition of the same.

The plaintiff's complaint against CS sounded in three counts: (1) products liability,

(2) negligence, and (3) breach of warranty. In its order, however, the circuit court did not treat these distinctive claims as being materially different, and on appeal, the parties have only briefed the products liability count. Thus, we only address that claim. See 210 Ill. 2d R. 341(h)(7) ("Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing"). 1

points on appeal: (1) that the circuit court erred in finding that CS was not within the chain of distribution, (2) that as a matter of Illinois law, "brokers" and "facilitators" are liable for products liability claims, and (3) that even if a "facilitator" or "broker" is not liable under Illinois law, there is a genuine issue of material fact about whether CS would even so qualify. Because we find that a question of fact exists about whether CS was in the chain of distribution for the sale of the truck at issue, we do not address the remaining points. FACTS AND PROCEDURAL BACKGROUND In the plaintiff's complaint, he claimed that he was injured while using a 1997 International truck equipped with a defective seat

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