Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc.

400 N.E.2d 1072, 81 Ill. App. 3d 90, 36 Ill. Dec. 492, 1980 Ill. App. LEXIS 2335
CourtAppellate Court of Illinois
DecidedFebruary 11, 1980
Docket79-221
StatusPublished
Cited by14 cases

This text of 400 N.E.2d 1072 (Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc., 400 N.E.2d 1072, 81 Ill. App. 3d 90, 36 Ill. Dec. 492, 1980 Ill. App. LEXIS 2335 (Ill. Ct. App. 1980).

Opinions

Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is a personal injury action on behalf of Julie Schierer, brought by Rosalie Schierer, her mother and next friend, against Sears;Roebuck and Co. (Sears) on a theory of strict liability in tort. Plaintiff-appellant’s parents purchased a gas range from Sears in 1969. The range has four burners on top. The knobs which operate the burners are located across the front of the stove and on top of the stove on a small ledge. They are single motion knobs, i.e., to turn on the burners all one need do is turn the knob. On the evening of May 15,1970, Julie Schierer was three years old and was wearing a floor-length nightgown. She had pulled a chair up and climbed on the stove to put a spoon on a rack on the wall above the stove. Her father, James Schierer, was in the bathroom next to the kitchen when he heard Julie scream. He went immediately to the kitchen and saw Julie on top of the stove, her nightgown engulfed in flames from the bottom up. The action was originally filed on November 14,1973, against several defendants. On July 16, 1976, defendant-appellee Sears was added as á party to the action. Sears filed a motion for summary judgment which was allowed on October 13, 1977. Plaintiff-appellant filed a motion to vacate the summary judgment and filed an affidavit in support thereof. The trial court refused to consider the affidavit and denied the motion to vacate. On appeal, appellant raises three issues: (1) whether the trial court erred in granting the summary judgment; (2) whether the trial court erred in refusing to consider the affidavit filed by the appellant in support of her motion to vacate the summary judgment; and (3) whether the trial court erred in denying the plaintiff’s motion to vacate. We affirm.

The first issue we deal with is whether the trial court erred in granting summary judgment for Sears. The principles regarding a reviewing court’s review of a trial court’s disposition of summary judgment motions are well settled. A motion for summary judgment should be granted only where there is no genuine issue of material fact. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Whether or not such an issue exists is to be determined by the court from the pleadings, depositions, affidavits and exhibits in each case. (Hernandez v. Trimarc Corp. (1976), 38. App. 3d 1004, 350 N.E.2d 202.) In interpreting the pleadings, the movant’s motion for summary judgment and its supporting documents must be strictly construed, while the respondent’s counteraffidavits and supporting documents must be liberally construed. (Littrell v. Coats Co. (1978), 62 Ill. App. 3d 516, 379 N.E.2d 292.) The purpose of a summary judgment motion is not to litigate issues of fact, and although different inferences may be drawn from undisputed facts, the motion should be granted only where reasonable men could not draw divergent inferences from the undisputed facts (Century Display Manufacturing Corp. v. D. R. Wager Construction Co. (1977), 46 Ill. App. 3d 643, 360 N.E.2d 1346).

In the instant case the facts are undisputed. The Schierers bought a gas range from Sears, Julie climbed on top of the stove, and when her father came into the kitchen in response to Julie’s screams, he saw her nightgown in flames from the bottom up. The trial court granted summary judgment for Sears, holding that, on these facts, defendant was not strictly hable in tort as a matter of law. Appellant claims that reasonable men could draw inferences from which defendant might be held strictly liable. We disagree.

In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, the supreme court held that for defendants to be strictly liable, “[t]he plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” In other words, the plaintiffs must prove three things: (1) the condition of the product was unreasonably dangerous, (2) the condition existed when it left the seller’s control, and (3) the condition was a proximate cause of the injury. Appellant must show that all these things existed to impose strict liability, and to so prove must at least show facts from which these prerequisites may be inferred. There is no doubt that the alleged unreasonably dangerous condition of the stove existed when it left Sears’ control. There are also facts in evidence from which it is possible to infer that the condition of the stove proximately caused Julie’s injuries. However, we believe that appellant failed to provide any facts or evidence to show that the condition of the stove was unreasonably dangerous.

An unreasonably dangerous condition is one which is unsafe with respect to a use intended or reasonably foreseeable by the manufacturer. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.) In the instant case, appellant failed to present any evidence that the range is unsafe for its intended or foreseeable use. The record before the trial court contained nothing more than the bare allegation that the gas range was unreasonably dangerous because it was a single motion knob and did not contain a latching type valve. In response to interrogatories by Sears, appellant stated that no expert witness existed who was of the opinion that the gas range in question was in an unreasonably dangerous condition. Appellant was also unable to give any manufacturers of gas ranges who use a latching-type valve instead of a single-motion knob. Appellant never complained to Sears about the condition of the stove prior to the accident, and the stove is still in use to the present day. Appellant states that the stove was once turned on inadvertently. However, one such incident is hardly adequate to find a stove “unreasonably dangerous.” It is clear from this portion of the record that there is no evidence that the stove was unreasonably dangerous.

Appellant argues that it was a jury question as to whether or not it was foreseeable that a three-year-old would climb on top of the stove and, because of that, it was a jury question as to whether or not the stove was in an unreasonably dangerous condition. We disagree.

In Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1, the court held that “[fjoreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in original.) (57 Ill. 2d 7, 12-13, 310 N.E.2d 1, 5.) In Winnett a four-year-old girl was visiting her grandfather’s farm, placed her hand on a conveyor belt on a forage wagon and was injured.

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Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc.
400 N.E.2d 1072 (Appellate Court of Illinois, 1980)

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Bluebook (online)
400 N.E.2d 1072, 81 Ill. App. 3d 90, 36 Ill. Dec. 492, 1980 Ill. App. LEXIS 2335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schierer-v-ameritex-division-united-merchants-manufacturers-inc-illappct-1980.