Lamkin v. Towner

615 N.E.2d 1208, 246 Ill. App. 3d 201, 186 Ill. Dec. 151

• Court: Appellate Court of Illinois
• Decided: June 16, 1993
• Docket: 5-91-0132, 5-91-0133
• Status: Published

Opinions

JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Jason Lamkin, a minor, by his mother and next friend, Carol A. Lamkin (No. 5 — 91—0132), along with Dustin Troy Pace, a minor, by his mother and next friend, Robin R. Pace, and Robin R. Pace (No. 5 — 91—0133), appeal from summary judgments entered in favor of defendant manufacturer, Gallatin Aluminum Products, Inc. (hereinafter the manufacturer). Summary judgments were also entered in favor of the other named defendants, but plaintiffs contest only the summary judgments entered in favor of the manufacturer. In this cause, we are asked to consider whether the trial court erred in entering summary judgments in favor of the manufacturer. We reverse and remand.

The facts and procedural history relevant to the issue presented are as follows. On March 2, 1983, plaintiff, Jason Lamkin, two years old, lived with his mother in an apartment in Alton. On that date, Jason’s mother was vacuuming his bedroom on the second floor and moved the bed beneath a window in order to vacuum the area where Jason’s bed was usually positioned, approximately one foot beneath the window. Jason’s mother opened the window before vacuuming, but a screen was in place. As she reached to turn off the vacuum, she heard a grunting noise and turned to see Jason’s feet going out the window. Jason fell headfirst onto the pavement below. Jason suffered a cerebral contusion and a skull fracture. The record does not reveal the extent of Jason’s recovery.

On September 1, 1982, plaintiff, Dustin Pace, aged 18 months, lived with his mother in the same apartment building as Jason Lamkin. On that morning, Dustin’s mother left a window open in Dustin’s second-floor bedroom. The window was covered by a screen. Later in the day, Dustin’s mother was drying her hair. Upon completion, she turned off the hair dryer and heard something hit. She ran into Dustin’s bedroom and saw the screen was off the window. She ran downstairs and outside and found Dustin lying on the ground. The record does not reveal the extent of Dustin’s injuries.

On February 28, 1985, Jason Lamkin and his mother brought a negligence and products liability action in Madison County for injuries Jason sustained in his fall through the screen. On the same date, Dustin Pace and his mother also filed a negligence and products liability action in Madison County for injuries sustained from his fall from the same apartment building. Named as defendants in plaintiffs’ complaints were: the owner of the apartment building, Stan Towner; the renovator/builder of the building, Pat Dooling and Kenneth Vaneck, a partnership; the retailer of the windows and screens, Carroll Supply & Service; and the manufacturer of the windows and screens, Gallatin Aluminum Products, Inc. All defendants in both cases filed motions for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) based on the absence of any legal duty on their part on which liability could be predicated. The retailer also filed a motion to dismiss pursuant to section 2 — 621 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621). The trial court denied all defendants’ motions for summary judgments along with the retailer’s motion to dismiss. On December 18, 1987, the trial court granted defendants’ motions for a finding for interlocutory appeal in each case pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). This court granted leave to appeal in each case, the cases were consolidated, and we affirmed the trial court’s denial of defendants’ motions for summary judgment and the retailer’s motion to dismiss. (Lamkin v. Towner (1989), 190 Ill. App. 3d 631, 546 N.E.2d 1020.) Our supreme court granted defendants’ petitions for leave to appeal and ultimately reversed and remanded for further proceedings consistent with its opinion. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) On remand, the trial court entered summary judgment in favor of all defendants in both cases. Plaintiffs appeal the entry of summary judgment in favor of the manufacturer only. On this court’s own motion, we once again consolidate these cases.

Plaintiffs contend that the facts available to the trial court when it granted the manufacturer’s motions for summary judgment were not sufficient to support the entry of such judgment, and that our supreme court’s decision does not require the entry of summary judgment in favor of the manufacturer. (See Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) The manufacturer replies that the supreme court's decision required the trial court to enter summary judgment in favor of the manufacturer, and that the facts available to the trial court when it granted defendant’s motion for summary judgment were sufficient to support the entry of such judgment. After careful study of our supreme court’s decision in this matter, we do not believe that summary judgment in favor of the manufacturer was appropriate under these circumstances.

The standards governing whether summary judgment should be granted are set forth in section 2 — 1005(c) of the Code, which states in pertinent part:

“The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).)

Summary judgment is a drastic remedy. It must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 473 N.E.2d 531.) In passing on a summary judgment motion the trial court is, therefore, required to construe the pleadings, affidavits, depositions, and admissions on file strictly against the moving party and liberally in favor of the opponent. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) Only if these materials establish that the movant’s entitlement to summary judgment is free from doubt may such a motion be granted. Fremont Indemnity Co. v. Special Earth Equipment Corp. (1985), 131 Ill. App. 3d 108, 112, 474 N.E.2d 926, 930.

In Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449, our supreme court reversed the trial court’s denial of all defendants’ motions for summary judgment and remanded for further proceedings consistent with its opinion. Specifically, the supreme court found that the landlord did not have any duty to maintain a window screen sufficiently strong to support the weight of a minor child and that the landlord could not be held liable for plaintiffs’ injuries because there was no evidence that the landlord retained any control over the leased apartments. (Lamkin, 138 Ill. 2d at 519, 563 N.E.2d at 453.) The supreme court also held that the renovator/builder did not owe any common law duty to the apartment residents to install child-proof windows, even if such a screen was available, due to the overwhelming economic and social consequences which would be placed on every apartment renovator/builder by such a duty. (Lamkin, 138 Ill. 2d at 524, 563 N.E.2d at 455.) Specifically, the supreme court stated that potential consequences would be that renovators/builders would cease installing windows or, at a minimum, install windows that would not open. The opinion also noted that the costs of conforming with such a duty would be staggering. (Lamkin, 138 Ill. 2d at 524-25, 563 N.E.2d at 455.) As to the retailer, the supreme court found that it was a non-manufacturer entitled to dismissal of the products liability claim pursuant to section 2 — 621(c)(1) of the Code of Civil Procedure, because it had no knowledge of any defects in the window which allegedly caused plaintiffs’ injuries and did nothing that would have created the alleged defects. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(c)(1) through (c)(3); Lamkin, 138 Ill. 2d at 532, 563 N.E.2d at 459.) The retailer’s duty to sell a screen sufficiently strong to support the weight of a minor child was also discussed along with the manufacturer’s duty; however, the supreme court’s discussion of the section 2— 621 motion leaves no doubt that the retailer should not be a party to this action. With regard to the manufacturer’s duty, the supreme court stated:

“A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) .by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs. See generally Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 219-20, [412 N.E.2d 959,] citing Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 427-28, 573 P.2d 443, 452, 143 Cal. Rptr. 225, 234-35.

There has been no evidence presented in the form of affidavits, depositions, testimony or other evidentiary materials to support a finding on a motion for summary judgment that the window screens failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. ***

The window screens were simply serving the purpose for which they were created when the accidents occurred. Even assuming that ‘the ordinary [person]’ may recognize the potential for a screen to restrict a fall from a window, we cannot conclude that, in the event a window screen fails to prevent the fall of a minor leaning against it, ‘the ordinary [person]’ would consider the screen dangerous beyond his original contemplation of the product. A consumer may rightfully expect a product to safely do the job for which it was built or for a foreseeable similar use, but neither a retailer nor a manufacturer can be held strictly liable for injuries resulting from the misuse of its product.

Likewise, there has been no evidence presented in the form of affidavits, depositions, testimony or other evidentiary materials to support a finding on a motion for summary judgment that the window screens’ design proximately caused appellees’ injuries. Appellees allege in their complaints that:

‘(a) The screens readily popped out from the frames;

(b) The screens were not securely fastened within tracks on the windows;

(c) There are no secure latches, locks or other devices to fix the window screens to the frames.’

Appellees fail to provide evidence of how the window screens’ design could have been altered to create a safer screen, such as the one described by appellees, or any evidence of the form and feasibility of the alternative screen design. (See, e.g., Palmer, 82 Ill. 2d at 218, [412 N.E.2d at 963].) In light of appellees’ failure to provide any evidence to support their allegations, we cannot conclude that, as a matter of law, the window screens are ‘defective or unreasonably dangerous’ such as to serve as the basis for a products liability action against the retailer or manufacturer of such window frames and window screens.” (Emphasis in original.) (Lamkin, 138 Ill. 2d at 529-31, 563 N.E.2d at 457-58.)

The supreme court then reversed our decision and remanded the case for further proceedings consistent with its opinion. Lamkin, 138 Ill. 2d at 533, 563 N.E.2d at 459.

After a careful reading of our supreme court’s opinion in Lamkin, it is evident that there was no need for the supreme court to remand for further proceedings as to the landlord, the renovator/ builder, or the retailer. The opinion clearly indicates that as to the landlord and the renovator/builder summary judgment was proper. As to the retailer, the supreme court found it should have been dismissed as a party pursuant to section 2 — 621 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(c)(1) through (c)(3)). The supreme court did, however, leave open the question of liability as to the manufacturer on the products liability claim.

On remand, plaintiffs agreed that the supreme court’s decision necessitated that summary judgment be entered in favor of the landlord and the renovator/builder and that the retailer be dismissed from the action, but plaintiffs argued that unresolved factual issues as to the manufacturer still exist, thereby making summary judgment as to the manufacturer out of the question. Plaintiffs identified the unresolved factual issues as:

“(a). Factual issues involving design and testing which were answered ‘unknown’ or ‘to be furnished’ in Gallatin’s answers to interrogatories ***.

(b) . Factual matters concerning the advancement of technology in the window-screen industry resulting in the ready availability of stronger window screens than in prior years.

(c) . All of the matters which may be developed through discovery and the use of experts, none of which had been resolved at the time this court ruled on summary judgments.”

After reviewing the record, it is apparent that the manufacturer did give only cursory answers to plaintiffs’ interrogatories. For example, the manufacturer answered “unknown” or “to be furnished” to several questions. Most telling is the fact the manufacturer was not even aware what screens and windows were involved in the accidents in question.

After remand by our supreme court, in response to the manufacturer’s motion for summary judgment, plaintiffs submitted an affidavit, signed by Robert D. Larson, attorney at law, stating in pertinent part:

“The engineering and design of windows and screens has changed, developed, and improved in the last 20 years so that new forms of windows and screens are now being used which did not exist at the time the cases [relied upon by the manufacturer] were decided ***.”

The affidavit states that one such screen is sold by Alarm Screen of St. Louis and is made of a material so strong it is child resistant. Nevertheless, the trial court, after reviewing the supreme court’s decision, entered summary judgment in favor of the manufacturer and against plaintiffs.

The trial court’s orders of January 30, 1991, indicate that it felt obligated to enter summary judgment because of its interpretation of the supreme court decision. The orders entered by the trial court read as follows:

“The Court, having reviewed the decision of the Illinois Supreme Court pertaining to this matter, captioned Lamkin v. Stan Towner, et al, Docket Numbers 69498, 69499, 69506, 69519 consolidated — Agenda 25 — May, 1990, *** does hereby enter summary judgment in favor of Gallatin Aluminum Products Company, Inc. and against plaintiffs *** with respect to all causes of action set out in plaintiffs’ Complaint.

The Court further finds there is no just reason to delay enforcement or appeal of this Order.”

We note that these orders recite review of the supreme court’s opinion but do not refer to review of any affidavit, discovery, or argument by any party, although such was submitted to the court after remand. It is clear on this record that the trial court granted summary judgment based on its understanding of our supreme court’s opinion, not on the record before it.

No further discovery was conducted by the parties prior to summary judgment, but we believe it should have been. Plaintiffs should have been allowed the opportunity to fully present the factual basis of their case. The supreme court decision found that no evidence had been presented up to that point to support a finding on a motion for summary judgment “that the window screens failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner” (emphasis omitted) (Lamkin, 138 Ill. 2d at 529, 563 N.E.2d at 457) or “that the window screen’s design proximately caused [plaintiffs’] injuries” (emphasis omitted) (Lamkin, 138 Ill. 2d at 530, 563 N.E.2d at 458). We conclude the supreme court’s remand was to allow plaintiffs the opportunity to present such evidence.

The manufacturer maintains that plaintiffs should have requested a continuance to obtain affidavits or additional discovery in opposition to the motion for summary judgment. While that would have been prudent, we do not believe that plaintiffs’ failure to request a continuance waived the issue. Our interpretation of the supreme court’s decision is different from that of the trial court. We believe the supreme court decision requires plaintiffs be given the opportunity to present a factual basis for a products liability action against the manufacturer. Accordingly, the trial court should have given plaintiffs the opportunity to conduct further discovery, and the trial court’s entry of summary judgment was premature and constituted error. Plaintiffs’ affidavit from attorney Robert D. Larson is an attempt by plaintiffs to provide evidence of how the window screen’s design could have been altered to create a safer screen and that such an alternative screen design is feasible. (See, e.g., Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 218, 412 N.E.2d 959, 963.) The supreme court’s opinion mandates that plaintiffs be given further opportunity to support their claim that a child-proof window screen exists. At this time the manufacturer’s right to a judgment is not clear and free from doubt.

For the foregoing reasons, the orders of the circuit court of Madison County granting summary judgment are reversed, and the causes are remanded for further proceedings not inconsistent with this opinion.

No. 5 — 91—0132, Reversed and remanded.

No. 5 — 91—0133, Reversed and remanded.

RARICK, J., concurs.