{ "id": 511350, "name": "PROMPT AIR, INC., Plaintiff-Appellant, v. FIREWALL FORWARD, INC., Defendant-Appellee (Kelpak Industries, Inc., Defendant)", "name_abbreviation": "Prompt Air, Inc. v. Firewall Forward, Inc.", "decision_date": "1999-01-28", "docket_number": "No. 1\u201498\u20141925", "first_page": "126", "last_page": "131", "citations": [ { "type": "official", "cite": "303 Ill. App. 3d 126" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "420 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3115518 ], "year": 1981, "pin_cites": [ { "page": "422-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0420-01" ] }, { "cite": "266 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "47 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905150 ], "year": 1970, "pin_cites": [ { "page": "450-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0443-01" ] }, { "cite": "230 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 Ill. App. 2d 88", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2548976 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0088-01" ] }, { "cite": "386 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3238560 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0001-01" ] }, { "cite": "379 N.E.2d 281", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "72 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443949 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/72/0141-01" ] }, { "cite": "383 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "74 Ill. 2d 10", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993847 ], "year": 1978, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0010-01" ] }, { "cite": "365 N.E.2d 923", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5641562 ], "year": 1977, "pin_cites": [ { "page": "381-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0376-01" ] }, { "cite": "454 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "97 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515452 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "206" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0195-01" ] }, { "cite": "321 N.E.2d 744", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 913", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5309210 ], "year": 1974, "pin_cites": [ { "page": "915-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0913-01" ] }, { "cite": "210 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "32 Ill. 2d 612", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839667 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-2d/32/0612-01" ] }, { "cite": "559 N.E.2d 494", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 853", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2595114 ], "year": 1990, "pin_cites": [ { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0853-01" ] }, { "cite": "592 N.E.2d 297", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5792986 ], "year": 1992, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0779-01" ] }, { "cite": "678 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520918 ], "year": 1997, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0035-01" ] }, { "cite": "629 N.E.2d 690", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "258 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2884004 ], "year": 1994, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0032-01" ] }, { "cite": "416 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 351", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5536859 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "354" }, { "page": "354" }, { "page": "352-53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0351-01" ] } ], "analysis": { "cardinality": 668, "char_count": 12579, "ocr_confidence": 0.772, "pagerank": { "raw": 5.7048251512771796e-08, "percentile": 0.35829366885868635 }, "sha256": "1784859bfd7bc49bae18dc8de50f65fc75982978ea135e4a378b962f58fe6d24", "simhash": "1:a38219d9b3d6e277", "word_count": 2026 }, "last_updated": "2023-07-14T16:41:17.679955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PROMPT AIR, INC., Plaintiff-Appellant, v. FIREWALL FORWARD, INC., Defendant-Appellee (Kelpak Industries, Inc., Defendant)." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe 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\u2019s 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.\nThe 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\u2019s engine. In that same month, the defendant delivered the engine\u2019s 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\u2019s 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 \u201cthe turbocharger was defective, unsafe, and not reasonably safe for its intended use in that it contained automotive parts rather than airplane parts.\u201d\nKelpak filed a special appearance and was dismissed from this action in response to its motion contesting the court\u2019s power to exercise in personam jurisdiction over it. The plaintiff has not contested Kelpak\u2019s dismissal, and Kelpak is not a party to this appeal.\nThe defendant moved for involuntary dismissal of the plaintiffs claim against it, contending that, as a mere installer of the turbocharger, it is not subject to strict tort liability for the plaintiffs damages. The motion was brought pursuant to section 2\u2014619 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014619 (West 1996)) and was supported by reference to the factual allegations in the plaintiffs complaint and the affidavit of the defendant\u2019s president. The plaintiff responded to the motion but filed no counter affidavits. The circuit court, relying on the holding in Hinojosa v. Automatic Elevator Co., 92 Ill. App. 3d 351, 416 N.E.2d 45 (1980), found that the plaintiff had no \u201ccognizable cause of action as pleaded\u201d and granted the defendant\u2019s motion. The plaintiff has appealed. For the reasons that follow, we reverse the order dismissing plaintiffs strict tort liability claim against the defendant and remand the cause to the circuit court for further proceedings.\nAs we held in Mayfield v. Acme Barrel Co., 258 Ill. App. 3d 32, 34, 629 N.E.2d 690 (1994):\n\u201cSection 2 \u2014 619 affords a defendant an expeditious means to obtain a summary disposition of an action based upon an affirmative bar to the plaintiff\u2019s 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.\u201d\nSince the resolution of a section 2\u2014619 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).\nSection 2\u2014619(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 \u201caffirmative matter\u201d avoiding the legal effect of or defeating the claim. 735 ILCS 5/2\u2014619(a)(9) (West 1996). However, in the context of section 2\u2014619(a)(9), \u201caffirmative matter\u201d 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).\nBased upon the well-pled allegations in the plaintiff\u2019s complaint and reasonable inferences drawn therefrom, we assume for the purposes of our review that the defendant overhauled the plane\u2019s engine and reassembled it using a defective turbocharger. From the uncontradicted affidavit submitted in support of the defendant\u2019s 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\u2019s president admits both that the turbocharger is a component part of the engine and that it was the defendant that sent the turbocharger to Kelpak to be overhauled. That affidavit goes on to state:\n\u201cFirewall 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\u2019s overhaul of the turbocharger.\u201d\nThe 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.\nIn 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 \u201c[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer.\u201d Restatement (Second) of Torts \u00a7 402A (1965). Read literally, section 402A refers only to the strict liability of one who \u201csells\u201d a product. However, since the adoption of strict liability in Suvada, the courts of this state have refused to be confined to a narrow definition of the term \u201cseller\u201d in determining those who are subject to strict tort liability. See Bainter v. Lamoine LP Gas Co., 24 Ill. App. 3d 913, 915-16, 321 N.E.2d 744 (1974). The doctrine has been expanded to include \u201call persons in the distributive chain\u201d of a defective product. Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 206, 454 N.E.2d 210 (1983). This expansive application is grounded in the very public policy reasons underlying the adoption of strict tort liability, and the determination of whether a particular transaction falls within its ambit can be made only by reference to those same policy justifications. Lowrie v. City of Evanston, 50 Ill. App. 3d 376, 381-83, 365 N.E.2d 923 (1977).\nWhen an entity is within the original chain of distribution and reaps a profit by placing a product in the stream of commerce, imposition of strict tort liability is justified as a means of shifting the burden of loss from the injured user for two primary reasons. First, at the point in time when the product passes through its hands, such an entity is capable of preventing the product from proceeding through the stream of commerce. Crowe v. Public Building Comm\u2019n, 74 Ill. 2d 10, 15, 383 N.E.2d 951 (1978). Second, its position in the marketing process enables it to exert pressure on the manufacturer to enhance the product\u2019s safety. Hammond, 97 Ill. 2d at 206.\nIn urging reversal of the trial court\u2019s order of dismissal in this case, the plaintiff relies heavily upon the decisions in Court v. Grzelinski, 72 Ill. 2d 141, 379 N.E.2d 281 (1978), Brannon v. Southern Illinois Hospital Corp., 69 Ill. App. 3d 1, 386 N.E.2d 1126 (1978), and Woodrick v. Smith Gas Service, Inc., 87 Ill. App. 2d 88, 230 N.E.2d 508 (1967). In each of these cases, a defendant-installer was held liable on a strict liability theory. However, as the defendant correctly observes, each of these cases is factually dissimilar from the instant action as the defendant-installers created the unreasonably dangerous condition in the subject products by improper installation.\nThe defendant bases its argument for affirmance on the holding in Hinojasa, which stands for the proposition that the installer of a defective product who neither supplies the product nor creates the defect by improper installation is not subject to strict tort liability. The Hinojasa court rested its decision on an analysis of the policy justifications underlying strict tort liability, and its conclusion that a mere installer reaps no profit from placing the product in the stream of commerce and lacks the ability to exert pressure upon the product\u2019s manufacturer to enhance safety. Hinojasa, 92 Ill. App. 3d at 354. We have no quarrel with the general proposition of law articulated in Hinojasa or the court\u2019s supporting reasoning. However, we take issue with the defendant\u2019s contention that Hinojasa \u201cis factually on \u2018all fours\u2019 with the instant matter.\u201d\nIn Hinojasa the manufacturer of the defective product engaged the defendant to install it, and the defendant was required to follow the manufacturer\u2019s plans and specifications. See Hinojasa, 92 Ill. App. 3d at 352-53. Had Porsche or some agent of Porsche engaged Kelpak to overhaul the turbocharger and independently hired the defendant to install it, we would have no difficulty in applying Hinojasa and finding that, as a mere installer, the defendant is not subject to strict tort liability. In this case, however, it was the defendant that engaged the services of Kelpak. Further, from the affidavit of the defendant\u2019s own president, it can be reasonably inferred that the defendant paid Kelpak for overhauling the turbocharger and passed along the cost of that service as part of the \u201cflat rate\u201d it charged Porsche for overhauling the plane\u2019s engine.\nOne who sells, supplies, or distributes a defective product in the regular course of business incident to the rendition of a service may be held strictly liable in tort. Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443, 450-52, 266 N.E.2d 897 (1970); Niffenegger v. Lakeland Construction Co., 95 Ill. App. 3d 420, 422-24, 420 N.E.2d 262 (1981). The critical question is not whether the defendant\u2019s principal function was to render a service. Rather, the question is whether the defendant played an integral role in the distribution of a defective product. The defendant\u2019s characterization of itself as a mere installer of the defective turbocharger is belied by the allegations contained in the plaintiffs complaint and the admissions contained in the affidavit filed by the defendant\u2019s president. The record in this case supports the inference that the defendant procured and paid for the reconditioning of the turbocharger by Kelpak and, thereafter, installed the defective turbocharger when it reassembled the plane\u2019s engine. Unlike the installer in Hinojasa, this defendant participated in placing a defective product in the stream of commerce, derived an economic benefit therefrom and was in a position to exert pressure to ensure the product\u2019s safety.\nIn view of the foregoing, we are of a belief that the policy considerations underlying the doctrine of strict tort liability justify its application to one who, in the course of rendering a service, procures and installs a defective component part. Consequently, we find that the trial court erred in dismissing the plaintiffs strict liability claim against the defendant.\nReversed and remanded.\nSOUTH, EJ., and WOLFSON, J., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Richard E. Steck, of Rosemont, for appellant.", "Gregory J. Abbott, of Chicago, for appellee." ], "corrections": "", "head_matter": "PROMPT AIR, INC., Plaintiff-Appellant, v. FIREWALL FORWARD, INC., Defendant-Appellee (Kelpak Industries, Inc., Defendant).\nFirst District (4th Division)\nNo. 1\u201498\u20141925\nOpinion filed January 28, 1999.\nRichard E. Steck, of Rosemont, for appellant.\nGregory J. Abbott, of Chicago, for appellee." }, "file_name": "0126-01", "first_page_order": 144, "last_page_order": 149 }