{
  "id": 3128113,
  "name": "GREGORY MOHRDIECK, a Minor, by William A. Mohrdieck, his Father and Next Friend, Plaintiff, v. THE VILLAGE OF MORTON GROVE, Defendant and Third-Party Plaintiff-Appellant.-(ELGIN SWEEPER COMPANY et al., Third-Party Defendants-Appellees.)",
  "name_abbreviation": "Mohrdieck v. Village of Morton Grove",
  "decision_date": "1981-03-30",
  "docket_number": "No. 80-1090",
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  "last_updated": "2023-07-14T16:56:05.907180+00:00",
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    "judges": [],
    "parties": [
      "GREGORY MOHRDIECK, a Minor, by William A. Mohrdieck, his Father and Next Friend, Plaintiff, v. THE VILLAGE OF MORTON GROVE, Defendant and Third-Party Plaintiff-Appellant.\u2014(ELGIN SWEEPER COMPANY et al., Third-Party Defendants-Appellees.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nThe Village of Morton Grove, defendant and third-party plaintiff, appeals from the dismissal of its complaint against Elgin Sweeper Company, third-party defendant. On appeal, the Village argues that (1) there was no misuse by the Village which would support the trial court\u2019s dismissal of the indemnity action; (2) misuse by a third party did not constitute a defense for Elgin; (3) the action could not be dismissed on the ground that a component part manufactured by another actually inflicted the injury; and (4) a dismissal of the complaint against Elgin would require dismissal of the underlying action against the Village.\nWe affirm.\nGregory Mohrdieck was injured when struck by part of a metal bristle which allegedly dislodged from the brush of a street sweeper. Gregory and his brother found the bristle in the street in the Village of Morton Grove. His brother threw the bristle into a tree. Part of it broke off and was propelled into Gregory\u2019s eye. An action was filed against the Village alleging, inter alia, that the Village failed to keep its streets in a safe condition in that it allowed the metal bristles to remain upon the public highways despite actual notice that children were gaining possession of the bristles and endangering their safety and the safety of others.\nThe Village filed a third-party action for indemnity against Elgin Sweeper Company (Elgin), the manufacturer of the street sweeper purchased by the Village and A. Steiert and Sons, Inc., the manufacturer of the brushes. With respect to Elgin\u2019s conduct, the complaint generally alleged that Elgin negligently designed and manufactured the sweeper and that the sweeper and component parts were inherently dangerous. Elgin\u2019s motion to dismiss the complaint was granted.\nThe record on appeal contains no transcript of the arguments on Elgin\u2019s motion to dismiss. While the order appealed from does not state the grounds for dismissal, it does state that the court was \u201cadvised in the premises.\u201d We therefore can presume that the court had sufficient facts before it supporting the order and acted in conformity with the law. (Aetna Life Insurance Co. v. Strickland (1975), 33 Ill. App. 3d 52, 337 N.E.2d 285.) We find sufficient facts in the pleadings supporting the trial court\u2019s action.\nThis case is factually similar to Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1. In Winnett, a four-year-old child was injured when she placed her hand in a moving part of a forage wagon. In affirming the trial court\u2019s dismissal of the complaint against the manufacturer of the wagon, the supreme court held that the child\u2019s conduct was not reasonably foreseeable. The court also stated that the manufacturer has a duty to make a product safe for its intended use which did not include use by a four-year-old.\nIn reaching its decision the court enunciated the following limit of liability:\n\u201cIn our judgment the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used. Any other approach to the problem results in making the manufacturer and those in the chain of product distribution virtual insurers of the product, a position rejected by this court in Suvada.\u201d (57 Ill. 2d 7, 11, 310 N.E.2d 1, 4.)\nThe court defined foreseeability as \u201cthat which it is objectively reasonable to expect, not merely what might conceivably occur.\u201d (Emphasis in original.) 57 Ill. 2d 7, 12-13, 310 N.E.2d 1, 5.\nNormally, it is the function of the jury to resolve questions of foreseeability. (Winnett; Richelman v. Kewanee Machinery & Conveyer Co. (1978), 59 Ill. App. 3d 578, 375 N.E.2d 885.) But, where the facts alleged indicate that a party would never be entitled to recover, a complaint is properly dismissed. Winnett.\nHere, the incident did not occur within the intended or reasonably foreseeable use of the street sweeper. Furthermore, the conduct of the children and the occurrence itself was not objectively reasonable to expect. As a matter of law, Elgin cannot be held liable for Gregory Mohrdieck\u2019s injuries and the trial court properly dismissed the Village\u2019s third-party complaint against Elgin.\nThe Village further argues the granting of Elgin\u2019s motion to dismiss and the denial of the Village\u2019s motion to dismiss Mohrdieck\u2019s underlying negligence action are inconsistent judgments. However, plaintiff\u2019s complaint substantially differs from the Village\u2019s third-party complaint. Plaintiff\u2019s complaint alleged that the Village had actual notice of the bristles littering the streets and posing a danger to children. With actual notice alleged, the trial court could find that the children\u2019s conduct was foreseeable and that a cause of action was stated for the Village\u2019s failure to exercise due care to remedy an allegedly dangerous condition and protect the children from possible injury. (See Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) The third-party complaint contains no allegations of notice to Elgin and the injury, therefore, was not foreseeable to Elgin. Hence, the dismissal of the third-party complaint does not require dismissal of the underlying complaint.\nBecause of our decision, we need not address the other issues raised by the Village.\nThe judgment of the circuit court of Cook County is accordingly affirmed.\nJudgment affirmed.\nGOLDBERG, P. J., and CAMPBELL, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Jerome H. Torshen and Abigail K. Spreyer, both of Jerome H. Torshen, Ltd., and Garretson & Santora, both of Chicago, for appellant.",
      "Wildman, Harrold, Allen & Dixon, of Chicago, for appellees."
    ],
    "corrections": "",
    "head_matter": "GREGORY MOHRDIECK, a Minor, by William A. Mohrdieck, his Father and Next Friend, Plaintiff, v. THE VILLAGE OF MORTON GROVE, Defendant and Third-Party Plaintiff-Appellant.\u2014(ELGIN SWEEPER COMPANY et al., Third-Party Defendants-Appellees.)\nFirst District (1st Division)\nNo. 80-1090\nOpinion filed March 30, 1981.\nJerome H. Torshen and Abigail K. Spreyer, both of Jerome H. Torshen, Ltd., and Garretson & Santora, both of Chicago, for appellant.\nWildman, Harrold, Allen & Dixon, of Chicago, for appellees."
  },
  "file_name": "1021-01",
  "first_page_order": 1043,
  "last_page_order": 1045
}