{
  "id": 2959787,
  "name": "Roland Siemen, Plaintiff-Appellant, v. Verna R. Alden, Ex'r of the Estate of Lloyd G. Alden, Deceased, et al., Defendants.-(Edwin Korleski, d/b/a Rock River Sawmill, et al., Defendants-Appellees.)",
  "name_abbreviation": "Siemen v. Alden",
  "decision_date": "1975-12-23",
  "docket_number": "No. 74-103",
  "first_page": "961",
  "last_page": "966",
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      "cite": "34 Ill. App. 3d 961"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "105 Cal. Rptr. 890",
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      "year": 1967,
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      "category": "reporters:state",
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  "last_updated": "2023-07-14T14:50:26.295263+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Roland Siemen, Plaintiff-Appellant, v. Verna R. Alden, Ex'r of the Estate of Lloyd G. Alden, Deceased, et al., Defendants.\u2014(Edwin Korleski, d/b/a Rock River Sawmill, et al., Defendants-Appellees.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE THOMAS J. MORAN\ndehvered the opinion of the court:\nPlaintiff sued defendants to recover for injuries he sustained while operating an automated multi-rip saw. The three-count complaint sought recovery on theories of strict tort liability for sale of a defective product, breach of warranties, and negligence. Plaintiff proceeds on this appeal against defendant Korleski only. He appeals the order of the trial court granting defendant\u2019s motion for summary judgment on count one, alleging strict tort liability, and count two, alleging breach of warranties.\nPlaintiff had owned and operated a sawmiU since 1961. In 1968, he decided to purchase a multi-rip saw to increase his production of decking pallets. Upon the suggestion of a customer, plaintiff contacted Lloyd G. Alden, manufacturer of the saw in question. Alden informed plaintiff that a new saw could not be delivered in less than six months and suggested that plaintiff contact defendant Korleski, who owned two of the Alden saws. Plaintiff contacted defendant, who advised him that he indeed had two saws: the one he was currently using, and an older one purchased in 1962 which had not been used since 1965. Thereafter the parties met on two occasions at defendant\u2019s sawmill to discuss plaintiff\u2019s possible purchase of the older saw. At the first meeting, defendant demonstrated the new saw, which operated in the same manner as the one plaintiff was considering purchasing. Plaintiff\u2019s son accompanied him to the second meeting, at which time plaintiff was first shown the saw in question. It was sitting, partially dismantled, in a comer and was covered with boards and sawdust. Defendant informed plaintiff that it was in operating condition and that plaintiff would have to supply and install saw blades, motor, shiv, belts, pulleys, and a sawdust removal apparatus in order to use it. Thereafter, the parties agreed on a purchase price of $2900.\nPlaintiff\u2019s injury, which precipitated the instant suit, occurred in 1970 when a cant of wood. exploded while being fed through the saw in question.\nOn appeal, plaintiff contends that summary judgment in favor of defendant should be reversed because (1) defendant had a sufficient relationship to the saw which injured plaintiff to subject him to strict liability for sale of the defective product, and (2) under the Uniform Commercial Code, sections 2 \u2014 314 and 2 \u2014 315 (Iff. Rev. Stat. 1971, ch. 26, \u00a7\u00a7 2 \u2014 314, 2 \u2014 315, the defendant is liable for implied warranties.\nIn Suvada v. White Motor Co., 32 Ill.2d 612 (1965), the Illinois Supreme Court adopted the provisions of section 402A of the Restatement (Second) of Torts (1965), which states:\n\u201cSpecial Liability of Seller of Product for Physical Harm to User or Consumer\n(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if\n(a) the seller is engaged in the business of selling such a product, and\n(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.\n(2) The rule stated in Subsection (1) applies although\n(a) the seller has exercised all possible care in the preparation and sale of his product, and\n(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.\u201d\nThe plain language of the rule limits the application to a seller engaged in the business of selling the product which proved defective. This limitation is buttressed by the comment accompanying the rule in that the occasional seller is explicitly excluded. (Restatement (Second) of Torts, Comment f at 350. See 55 Ill. B.J. 906 (1967).) Plaintiff contends that because the sale of the saw occurred within the scope and conduct of defendant\u2019s business, and because defendant modified the machine to suit his own purposes, thereby creating the condition which led to plaintiff\u2019s injury, defendant had a relationship to the saw sufficient to subject him to strict liability. Plaintiff\u2019s argument fails to overcome the clear requirement of the rule that the seller be engaged in the business of selling the particular product. In the instant case, defendant asserted and plaintiff has not denied that defendant\u2019s only sale of a saw or sawmill equipment was to plaintiff. It is therefore apparent that the sale is an isolated transaction and does not come within the provisions of 402A. Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 640, 105 Cal. Rptr. 890, 895 (1972).\nPlaintiff claims that under sections 2 \u2014 314 and 2 \u2014 315 of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, \u00a7\u00a7 2 \u2014 314, 2 \u2014 315) a genuine issue of material fact exists as to defendant\u2019s liability arising from his saw-related knowledge and skill, and plaintiff\u2019s ultimate reliance upon this knowledge in purchasing the saw. Section 2 \u2014 314 states in pertinent part:\n\u201cUnless excluded or modified * * * a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.\u201d\nSection 2 \u2014 104(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, \u00a72 \u2014 104(1)) defines a merchant as:\n\u201ca person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.\u201d\nDefendant argues in his reply brief that plaintiff falls within the terms of section 2 \u2014 104(1) and is therefore a merchant for purposes of section 2 \u2014 314 by virtue of his \u201cholding himself out as having knowledge or skill.\u201d This test, however, is not the standard for determining who is a merchant within the meaning of section 2 \u2014 314. The Committee Notes to section 2 \u2014 104 (S.H.A. 1971, ch. 26, \u00a7 2 \u2014 104, Committee Notes, f 2, page 97) and to section 2 \u2014 314 (S.H.A. 1971, ch. 26, \u00a72 \u2014 314, Committee Comments, ft 3, page 232) make it clear that the definition of merchant within 2 \u2014 314 is a narrow one and that the warranty of merchantability is applicable only to a person who, in a professional status, sells the particular kind of goods giving rise to the warranty.\n\u201cA person making an isolated sale of goods is not a merchant\u2019 within the meaning of the full scope of this section [2 \u2014 314] and, thus, no warranty of merchantability would apply.\u201d S.H.A. 1971, ch. 26, \u00a7 2 \u2014 314, Committee Comments, ft 3, page 232.\nThe record is clear that defendant is engaged in the sawmill business. The sale in the instant case was an isolated transaction and therefore did not come within the terms of section 2 \u2014 314. Balido v. Improved Machinery, 29 Cal.App.3d 633, 640, 105 Cal. Rptr. 890, 895 (1972).\nPlaintiff also claims that section 2 \u2014 315 of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, \u00a72 \u2014 315) is applicable to the transaction in the instant case. The provision reads:\n\u201cWhere the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller\u2019s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.\u201d\nThis section imposes two requirements: first, that the seller know of the particular purpose for which the goods are required, and second, that the buyer rely on selleris skill or judgment in selecting the product. Here, the first requirement is met in that it is undisputed that defendant knew plaintiff\u2019s purpose for buying the saw: the making of pallets. As to the second requirement, plaintiff asserts that the following facts create a genuine issue of material fact as to plaintiff\u2019s reliance on seller\u2019s expertise: plaintiff neither owned nor had experience with a multi-rip saw whereas defendant had been operating one for about six years; Alden referred other customers to defendant for demonstrations of the saw; and defendant explained safety requirements for operating the saw and made recommendations on operating procedures. Impliedly, according to plaintiff, defendant had expertise due to his experience with the saw, and Alden considered defendant to have that expertise by its referral of other customers to defendant for demonstrations.\nDefendant, on the other hand, asserts that there was no genuine issue of material fact indicating that plaintiff relied on defendant\u2019s skill or judgment in purchasing the saw, and supports this assertion with the following facts: plaintiff made his original inquiry to purchase an Alden-brand saw upon the advice and suggestion of a customer; after learning of the six-month delivery delay, plaintiff contacted defendant regarding the used Alden saw rather than investigating the purchase of a different brand; plaintiff\u2019s statement in his deposition, \u201cin my search for a gang-rip saw I was directed to Ed Korleski,\u201d indicates that he had decided to purchase such a saw prior to any contact with defendant; and plaintiff brought his son to view the saw to see \u201cwhether he thought [the saw] was what [they] needed,\u201d suggesting that plaintiff relied on his son\u2019s judgment, not the defendant\u2019s.\nIt is not the facts that are in dispute, but the conclusion or inference to be drawn from them, i.e., do plaintiff\u2019s facts raise a question of his reliance on defendant\u2019s judgment in selecting the saw sufficient to submit the issue to the jury for determination. We find plaintiff\u2019s facts insufficient to raise a question of material fact as to his reliance upon defendant\u2019s skill and knowledge; no facts indicated that plaintiff relied on defendant\u2019s expertise in making his decision to purchase the saw. Rather, the uncontroverted facts establish that plaintiff had decided to purchase an Alden saw prior to his initial contact with defendant. We hold therefore that the trial court properly granted defendant\u2019s motion for summary judgment.\nJudgment affirmed.\nRECHENMACHER, P. J., and DIXON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE THOMAS J. MORAN"
      }
    ],
    "attorneys": [
      "Edward J. Wendrow, R. Lawrence Storms, and Stephen C. Bruner, all of Winston & Strawn, of Chicago, and Francis E. Hickey, of Miller & Hickey, of Rockford, for appellant.",
      "Edward R. Telling, of Williams, McCarthy, Kinley, Rudy & Picha, of Rockford, for appellees."
    ],
    "corrections": "",
    "head_matter": "Roland Siemen, Plaintiff-Appellant, v. Verna R. Alden, Ex'r of the Estate of Lloyd G. Alden, Deceased, et al., Defendants.\u2014(Edwin Korleski, d/b/a Rock River Sawmill, et al., Defendants-Appellees.)\n(No. 74-103;\nSecond District (2nd Division)\nDecember 23, 1975.\nEdward J. Wendrow, R. Lawrence Storms, and Stephen C. Bruner, all of Winston & Strawn, of Chicago, and Francis E. Hickey, of Miller & Hickey, of Rockford, for appellant.\nEdward R. Telling, of Williams, McCarthy, Kinley, Rudy & Picha, of Rockford, for appellees."
  },
  "file_name": "0961-01",
  "first_page_order": 987,
  "last_page_order": 992
}