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FIFTH DIVISION
November 24, 2004

No. 1-03-0105

 

Plaintiff, Jack Carollo, appeals from (1) an order granting summary judgment in favor ofdefendants, Al Warren Oil Company, Inc. (Warren), and Altom Transport, Inc. (Altom) (referredto collectively as defendants), and (2) the trial court's decision that found defendants severallyliable, as opposed to jointly liable, for plaintiff's noneconomic damages. Defendants have cross-appealed from the trial court's denial of their motion for judgment notwithstanding the verdict. We affirm.

BACKGROUND

On May 13, 1998, plaintiff was seriously injured in an explosion at work. At the time,plaintiff was working for Premier Fuel & Cartage, Inc. (Premier)⁽¹⁾, providing fueling services atMcCormick Place. Plaintiff routinely drove a tanker truck, referred to as A-2, from which hewould fuel small vehicles in various locations in the Chicagoland area and then return to Premierfor refueling. Premier had purchased A-2, as well as A-3, an even larger tanker truck, fromdefendants in 1993 and 1994, at the time Premier began its fuel business. Altom is a 48-statetrucking company that provides cartage for chemicals and petroleum products. Warren is a bi-state wholesaler and retailer of motor fuels, heating oils, and chemicals.

A-2's tank had four separate compartments, each holding 500 gallons of either diesel fuelor gasoline. The Chicago fire department (CFD) had originally owned A-2's tank, which it usedas a mobile fuel station to fill up CFD equipment. Altom purchased the tank from the CFD andused it for over eight years before selling it to Premier. There was no owners' manual with thisused equipment when Altom purchased it. The tank, as purchased by Altom, had bottom loadingcapabilities; on the right side of the tank toward the bottom, a series of valves allowed "bottom-loading" transfer of fuel into A-2, making it unnecessary to refuel the truck from the top.

When Altom purchased the tank from the CFD, the tank did not have a static reel, whichis a grounding device. The tank also did not have a fill pipe. A fill pipe can be either part of thetank or the fuel hose. For example, the fuel hose could have a long nozzle that could reach nearthe bottom of the tank to reduce splashing and static build up when the fuel hose is inserted insidethe tank during fueling.

Dennis Epley, an Altom employee, testified that he and other Altom employees assembledA-2 for resale to Premier. A-2's assembly took approximately 200 hours. A-2 was assembledfrom an old, twice pre-owned, used tank, mounted on a chassis. The employees removed the tankfrom its older chassis and affixed it to a new chassis; this installation took around eight hours. The remainder of the time was spent painting the tank, replacing the rotted-out piping, reinstallingthe valves, and conducting tests required by the Environmental Protection Agency and theDepartment of Transportation. A-3 was assembled in the same manner as A-2.

On the day of the accident, plaintiff was refueling A-2 from A-3, as he had beeninstructed. Plaintiff parked A-2 next to A-3, took the diesel hose attached to A-3, climbed on topof A-2, and opened the hatch to compartment number two, one of four compartments in the tankon A-2. Compartment number two held diesel fuel. Plaintiff switched the valve on the hose fromdiesel fuel to gasoline and waited for the diesel fuel remaining in the hose to clear out into thediesel compartment. Plaintiff planned to refuel A-2's gasoline compartments after the streaks ofdiesel fuel, which is a yellow-green color, dissipated. He watched for the gasoline, which is clear,to start coming out of the hose. As the fuel became clearer, with just a few yellow-green streaksremaining, a ball of fire knocked plaintiff off A-2 to the ground. After the explosion, plaintiffnoticed that his hair and shirt were on fire. He tore off his shirt. The last thing plaintiffremembered was running to the dispatcher to wait for an ambulance.

As a result of the explosion, plaintiff suffered serious injuries and required extensivemedical treatment. He was initially taken to Cook County hospital, where he was on a respiratorfor approximately three weeks. Thereafter, he was treated at Loyola Hospital for five days. Many of plaintiff's burns were third-degree, while the burns on his face were first-degree andthose on his hands were second-degree. Plaintiff received skin grafts that were ultimatelysuccessful, although there were rejections from time to time. Plaintiff's skin lost elasticity and hismuscles were weakened. As a result, plaintiff sustained a painful torn muscle. He also sufferedfrom a complication that caused hearing loss. In addition to his physical injuries, plaintiff sufferedfrom post-traumatic syndrome and depression that required medication and therapy.

On April 28, 1999, plaintiff filed a two-count complaint against defendants. Count Isounded in strict products liability. Count II was based on negligence. On July 9, 2001, the trialcourt granted defendants' motion for summary judgment on count I. On January 25, 2002,plaintiff filed a first amended complaint. Count I, based on strict liability, was repleaded forpurposes of preserving the issue for appeal. Count II sounded in negligence. Count III was basedon res ipsa loquitur. On April 9, 2002, the trial court granted defendants' motion for summaryjudgment on count III and that decision is not at issue in this appeal. On August 30, 2002,defendants filed a motion for judgment on the pleadings as to count II of plaintiff's amendedcomplaint, which was denied.⁽²⁾

On September 26, 2002, a jury trial commenced on plaintiff's negligence claim. OnOctober 2, 2002, after a several-day trial, the jury found in favor of plaintiff. The jury determinedthat plaintiff had sustained damages in the amount of $1,057,600 and allocated the percentage offault as follows: plaintiff - 15%, Warren - 15%, Altom - 18%, and Premier - 52%. Aftertaking into account plaintiff's percentage of fault (15%), the jury awarded plaintiff recoverabledamages in the amount of $899,050.

The trial court deferred entry of the judgment, directing the parties to brief the impact ofsection 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 2000)) upon theamount of damages for which each defendant was responsible. The trial court, relying on the caseof Lilly v. Marcal Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 682 N.E.2d 481 (1997),concluded that the employer, Premier, should not be considered in the allocation of fault undersection 2-1117 and redistributed Premier's 52% of fault, pro rata, among plaintiff, Warren andAltom.

The Illinois Supreme Court subsequently decided Unzicker v. Kraft Food IngredientsCorp., 203 Ill. 2d 64, 783 N.E.2d 1024 (2002), which overruled Lilly. Defendants filed aposttrial motion requesting judgment notwithstanding the verdict or, alternatively, entry ofjudgment in accordance with Unzicker. On December 30, 2002, the trial court denied defendants'request for judgment notwithstanding the verdict, but entered judgment pursuant to Unzicker. Asa result, each defendant was only severally liable for its proportionate share of plaintiff'snonmedical damages, and jointly and severally liable for his medical expenses. On January 2,2003, plaintiff filed this appeal. Defendants filed a cross-appeal on January 7, 2003.

PLAINTIFF'S APPEAL

I. Whether the Trial Court Correctly Granted Summary Judgment to Defendants on Plaintiff's
Strict Liability Claim

Plaintiff first contends that the trial court erred when it granted defendants' motion forsummary judgment on the strict liability count (count I).⁽³⁾ Plaintiff asserts that summary judgmentshould not have been entered because a genuine issue of material fact existed as to whetherdefendants designed, manufactured, distributed or sold trucks.

We first note the following well-established principles regarding summary judgment. Atrial court may render summary judgment if the record shows that there is no genuine issue as toany material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS5/2-1005(c) (West 2002). A reviewing court conducts de novo review in an appeal from a trialcourt's grant of summary judgment. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107,113, 649 N.E.2d 1323, 1326 (1995). An order granting summary judgment should be reversed ifthe evidence shows that a genuine issue of material fact exists or if the judgment was incorrect asa matter of law. Clausen v. Carroll, 291 Ill. App. 3d 530, 536, 684 N.E.2d 167, 171 (1997). Tosurvive a motion for summary judgment, the nonmoving party must present a factual basis thatwould arguably entitle him to a judgment, but plaintiffs are not required to prove their case at thesummary judgment stage. Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority,172 Ill. 2d 243, 256, 665 N.E.2d 1246, 1254 (1996). Summary judgment is a drastic means ofdisposing of litigation, and it must be clear that the moving party is truly entitled to such aremedy. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill.2d 1, 7, 688 N.E.2d 106, 108-09(1997). When considering a summary judgment motion, a court must construe the evidencestrictly against the movant and liberally in favor of the nonmoving party. Guerino v. Depot PlacePartnership, 273 Ill. App. 3d 27, 30, 652 N.E.2d 410, 413 (1995). A motion for summaryjudgment should be granted only if the movant's right to judgment is clear and free from doubt.Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204,1209 (1992). With these principles in mind, we conclude that the trial court erroneously grantedsummary judgment to defendants on plaintiff's strict liability count.

In his strict liability count, plaintiff alleged both design defects and manufacturing defects. Plaintiff also contended that defendants designed, manufactured, distributed and sold the A-2 andA-3 tanker trucks in an unreasonably dangerous condition. Plaintiff further argues on appeal thatdefendants are subject to strict liability as installers. Defendants assert that they were "mereconsumers and resellers of a second hand product."

Section 402A of the Restatement (Second) of Torts provides as follows:

"(1) One who sells any product in a defective condition unreasonablydangerous to the user or consumer or to his property is subject to liability forphysical harm thereby caused to the ultimate user or consumer, or to his property,if

(a) the seller is engaged in the business of selling such a product,and

(b) it is expected to and does reach the user or consumer withoutsubstantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation andsale of his product, and

(b) the user or consumer has not bought the product from orentered into any contractual relation with the seller." Restatement (Second)of Torts