1 Plaintiffs also filed a negligence count against Mancari's, but it is not at issue in

this appeal. The s trict li ability count against DaimlerChr

ysler C orporation i s also not at issue here. SECOND DIV ISION March 31, 2008

No. 1-07-1642

JOSEPH P . MURPHY and PATRICI A MURPHY,

Plaintiffs-Appe llants,

v. MANCARI' S CHRYSLE R PLYMOU TH, INC., a Corporation, Defendant-Appellee (DaimlerC hrysler

Corporation , Defendant). ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit C ourt of Cook County

No. 06 L 9445

Honorable Jeffrey Lawr

ence, Judge Pre siding.

JUSTICE KARN EZIS delivered the opinion of the court: Plaintiffs Joseph and Patricia M urphy boug ht a Chrysler Sebri ng automobile from defendant Mancari' s Chrys ler Ply mouth, Inc. (Ma ncari's). In 2005, Joseph s ustained permanent spinal cord injur ies when t he Sebring r olled over

while he was dri ving i t. In 2006, pl ainti ffs filed a pers onal i njury actio n asser

ting stri ct pro duct l iabil ity claim s against Man cari's and D aimlerChrs yler Co rporation, themanufacturer of the vehicle. 1 Mancari'smoved to dis miss the str ict liabil ity count against it pursuant to sec

tion 2-6211-07-1642

2 Public Act

89-7 amended secti on 2-621 (735 ILC S 5/2-621) effective March 9, 1995. However, in Best v. Taylor Machine Works , 179 Ill. 2d 36 7, 689 N.E.2d 1057 (1997), our s upreme court, hel d the act unconsti tutional in i ts entirety . According ly, the version of section 2-621 tha t was in effect before the 1995 amendment isapplicable to this case. 2 of the Illinois Code ofCivil Procedure (735 ILCS 5/2-621 (W est 2006)), 2 asserting it was not the manuf acturer of the vehicle. The court grante d the motion to dismiss. It also granted plai ntiffs' requ est for leave to fil e an in terlo cutor y appe al pur

suant to Supre me Cour t Rule 308 ( 155 Ill. 2 d R. 3 08) a nd ce rtif ied t he f ollo wing que stio n fo r our r eview: "To state a claim for

strict l iability

in tort ag ainst a defendant other than a manufacture r who has filed an affida vit complying with 735 ILCS 5/2-621(a), must a plaintiff rel ying upon the 'actual knowledge of the defect' except ion contained in 735 I LCS 5/2-621(c )(2) all ege only that said defendant had ac tual knowledge of the physical characteristics of the product that plaintiff claims were unreasonably

dangerous, or , in the alternative, must plaintiff alleg e actual knowledg e of the physical character istics of the pr oduct and actual kn owledge that said char

acteristics made the product unreasonably dangerous?" (Emphasis in original .) We allowed plaintiffs' petit ion for interl ocutory appea l. In answer to the cour t's questi on, for the reasons th at follow, w e find that a plaint iff relying upon the "actual k nowledge of the defect" exception contained in section 2-621(c)(2) (735 ILCS 5 /2-621(c)(2) (W est 2006)) to avoid dismissal of its stric t liabili ty claim against a nonmanufact urer defendant must allege t hat the nonmanufacturer defendant had actual know ledge of the phy sical1-07-1642

3

characteris tics of the produc t that the plain tiff claims were unreasonably dangerous and that said char

acteristics made the product unreasonably dangerous. We remand to the circuit court for further pr oceedings i n light of thi s determination. Pursuant to sec

tion 2-621, als o known as t he "seller's exception," a nonmanufacturer defendant in a strict pr oduct liabil ity acti on may be dismi ssed from the action if it certifies the correct iden tity of the manufa cturer of the product which allegedly caused the injur

y. 735 ILCS 5/2-621 (West 2006); Saieva v. Budget Rent-A-Car of Rockford , 227 Ill. App. 3d 519, 525, 591 N. E.2d 507, 511 (1992) . Once the plai ntiff has sued the product man ufacturer and the m anufacturer has an swered or otherwise pleaded, the cour

t must dismiss

the strict

liabilit y claim ag ainst the cer

tifying defendant(s). 735 I LCS 5/2-621(b) (West 2006); Kelle rma n v. C rowe , 119 Ill. 2d 11 1, 113-14, 518 N.E.2d 116, 117 (1987). When a defendant complies with the requirements

of section 2-621, its dismiss al from a stric t liabili ty action is mandatory

. Lamkin v. Towner

, 138 Ill. 2d 51 0, 532, 563 N.E.2d 449, 459 (1990). A plaintiff may move at any

time for reins tatement of a previ ously dis missed defendant if an act ion against the pr

oduct manufacturer w

ould be impossi ble or unavailing. 735 ILCS 5/2- 621(b) (West 2006); Kellerm an , 119 Ill. 2d at 114, 518 N.E.2d at

118. Sect ion 2-62 1(c ) pr

ovi des t hreeexcepti ons to themand ator y di smis sal of a complying defendant. 73 5 ILCS 5/2-621(c) (west 2006). A plaintiffcan forestall dismiss al of a d efen dant ifit shows one of the followin g:

"(1) That the defendant has exercis ed some signi ficant control over the1-07-1642

4

design or manu facture of the product, or has prov ided instruc tions or warnings to the manufacturer rel ative to thealleged defect in the product which caus ed the injury, death or damage; or (2) That the defe ndant had actual knowledge ofthe defect in the prod uct which caus ed the injury , death or damage; or (3) That the defendant c reated the defect in the product w hich caused the injury, death or damage." 735 ILCS 5/2 -621(c) (W est 2006). The certified qu estion concer ns the except ion stated in s ection 2-621(c )(2), purs uant to which a court may not dismiss a defenda nt otherwise eligible for dismissal from the suit if the plaintiff show

s that the defendant "had ac tual knowl edge of the defect in t he product which caused the injury, death or dama ge." 735 ILCS 5/2-621(c)(2) (W est 2006). Plaintiffs' complai nt alleged t hat the design of the Sebring proximatel y caused Joseph's inj uries and the ben efits of the desig n did not outweigh the ri sk of danger inherent in thedesign. In salient part , plaintiffs all eged the Sebri ng was i n an unreasonably

dangerous co ndition wh en it left Mancari's control because: (a) the windshiel d and roof of the convertible vehicle were designed with inade quate streng th and failed to diss ipate the energ y of a foreseeable rollover in a safe manner and ( b) the Sebring w

as not equipped with a suffici ent roll bar or other dev ices to prote ct Joseph from traumatic inj ury in a reasonably foreseeable roll over. They alleged M ancari's k new before the occurr

ence that the Sebr ing was not equipped w ith a sufficient r oll bar or1-07-1642

5

other devices to protect J oseph but did not w arn plaintiffs. Mancari's moved to dismiss pursuant to section 2-621(b) because DaimlerChrysler manufactured the Sebring. It attached an aff idavit by Mancari's general manager identifying DaimlerChrysler as the manuf acturer. The aff idavit also asserted Mancari's did not at any ti me regulate or direct Dai mlerChrysler in i ts design, testing or

inspection of the Sebring; di d not exerc ise any co ntrol over design or manufacturing of the Se bring; di d not then or now have any actual know ledge of the alleged defects referenced in the complaint; and di d not create any of the alleged defects. Plaintiffs responded by asser ting Mancari's should no t be dismissed because the exception s tated in secti on 2-621(c)( 2), for a defendant w ho had "actual know ledge of the defect," applied. 735 ILCS 5/2-621( c)(2) (West 2006). They asserted they

had adequately pled the exception by their assertion that " [b]efore the occurren ce, Mancari's knew, but did not warn plaintiffs that the vehicle was not equipped with a sufficient toll bar or other devices to protect Joseph f rom traumatic injuries in a reasonably foreseeable manner." Plaintiffs attached t he deposition of Ma ncari's g eneral manager to show M ancari's had actual know ledge of the defects of which plai ntiffs complained. Plaintiffs did not allege that Mancari'sknew that t he windshi eld and roof and/or lack of roll bar created an unreasonab ly dangerous condition. Instead, they argued it was their burden to show

Mancari's

had actual know ledge of the condi tions plainti ffs claimed made the Sebring def ective and not that Mancari's believed those con ditions were in1-07-1642

6

fact defective or unreaso nably dangerous. Mancari's responded that the se ction 2-621(c)(2) exception did not apply because havi ng "actual kn owledge of a defect" presupposes t hat a defect exi sted and the defendant knew of the alleged defect and the deposition showed Man cari's had n o actu al k now ledg e tha t thewi ndsh iel d des ign or l ack of ro ll b ar were defec ts a s pl aint iffs claimed. The cour

t granted M ancari's moti on to dismiss, but asks us to decide whe ther a pl aint iff as ser

ting the s ecti on 2- 621( c)( 2) e xce ptio n to a ver t di smis sal of a nonmanufacturer defendant must "allege only that said defendant had actual knowledge of the physical characteristics of the product that plaintiff claims were unreasonably

dangerous, or , in the alternative, must plaintiff alleg e actual know ledge of the physical character istics of the pr oduct and actual knowledge that said characteris tics made the pr oduct unreasonabl y dangero us?" (Emphasis in origi nal.) In a product li ability action based on s trict li ability, the inabili ty of a defendant to know of or pr

event the ri sk is not a de fense because fault isnot an issue. Townsend v. Sears, Roebuck

& Co. , 227 Ill. 2d 14 7, 156, 879 N.E.2d 893, 899 (2007). Under common law, al l entities i n the distri butive chai n of an allegedl y defective product, including manufacturers, sel lers, w holesalers, distributor s and lessors

of the product, are strict ly liabl e in product l iability actions for in

juries res ulting from that product. Kelle rma n v. C

rowe , 119 Ill. 2d 11 1, 113, 518 N.E.2d 116, 117 (1987); Root v. JH Industries, Inc. , 277 Ill. App. 3d 502, 506 , 660 N.E.2d 195, 197 (19 95). Strict liability is imposed upon any party " 'who sells any product in a defe ctive condition unreasonably1-07-1642

7

dangerous to the user or consume r or to his property.' ” Lamkin v. Towner , 138 Ill. 2d 510, 528, 563 N.E.2d 449, 457 (1990), q uoting Restatement (Second) of Torts §402A (1965). This liability is predicated on a finding that the product is unreasonably dangerous, r

egardless of fault. Miller v. Dvornik , 149 Ill. App. 3d 883, 889, 501 N. E.2d 160, 164 (1986). A seller w ho puts a defective product, i.e. , an unreasonably dangerous product, into the strea m of commerce run s the risk of being held strictly liable for inj uries caused by the produc t, regardl ess of whether the seller actually knew of the defect, contribu ted to the defect or failed to discov er the defect. Sims v. Teepak, Inc. , 143 Ill. App. 3d 865, 867 , 493 N.E.2d 721, 723-2 4 (1986). The focus in a strict product liability action is on the product, on the determination ofwhether a product is unreasonably

dangerous, on the question of "whether the pr oduct in its present state, without installation of optiona l safety devices, is dangerous because it fails to pe rform in the manner reasonabl y to be ex pected in lig ht of its nature an d intended function." Miller , 149 Ill. App. 3d at 888, 501 N.E .2d at 163-64. In contrast, t he focus in secti on 2-621(c) i s on the nonmanufacturer members of the distribut ive chain that put the produc t into the str

eam of commerce, on their actions with regard to and knowledge of the defect (73 5 ILCS 5/2-621(c)(2), (c)(3) (west 2006)) or alleged defect (735 ILCS 5/2 -621(c)(1) (West 2006)), not on the produc t. Section 2- 621 pro vide s a mean s whe reby a nonman ufactur

er defen dant ca n ext ricate itse lf from a prod uct lia bil ity

lit iga tion , co mmon l aw s tri ct l iabi lit y no twi thstandi ng, unl ess the p lai ntif f can show tha t the defendant "exer cised some si gnificant cont rol over the design or1-07-1642

8

manufacture of the product or had actual k nowledge of, or created, th e defect." Logan v. West Coast Cy

cle Supply Co. , 197 Ill. App. 3d 185, 191, 553 N. E.2d 1139, 1143 (1990). Section 2-621( c) introduces elements usual ly at is sue in negli gence actions . The focus in a product

liabilit y action bas ed on neglig ence is on the conduct of the defendant and not, as in strict li ability, on the product. Blue v. Envir onmental Engineering, Inc. , 215 Ill. 2d 78, 95, 828 N.E.2 d 1128, 1141 (2005 ). In a negligence action, fault is

an issue, becau se the inabili ty of a defendant to know of or prevent the risk coul d preclude a neg ligence findi ng. Townsend , 227 Ill. 2d at 156, 879 N.E.2d at 899. An important aspect of stric t liabili ty is that

proof of neglig ence is unnecess ary. Heyen v. Sanbor

n Manufacturi

ng Co. , 223 Ill. App. 3d 307, 315, 584 N. E.2d 841, 846 (1991). Becaus e the section 2- 621(c) exceptions to di smissal of a cer tifying

nonma nufa cturer de fend ant fo cus on whe ther the defen dant di d anythin g wrong, section 2-621( c) is in derogation of the common law of strict liabil ity in w hich fault has no place. "[S]tatutes in der

ogation of the common l aw are to b e strictl y constru ed in favor of persons sought

to be subjected to their opera tion." Barthel v. Illinois Central Gulf R.R. Co. , 74 Ill. 2d 213 , 220, 384 N.E.2d 3 23, 327 (1978). But "courts w ill read not hing into such stat utes by intendment or implication" ( Barthel , 74 Ill. 2d at 220, 384 N.E.2d at 327), and we will n ot extend suc h statutes "any further than w hat the languag e of the statute absolutel y requi res by i ts expres s terms or by clear impli cation" ( In r

e. W. W. , 971-07-1642

9

Ill. 2d 53, 57, 454 N.E.2d 207 (19 83)). "[I]n or der to effect the least

- rather t han the most - change in the common law ," courts li mit statutes i n derogation of the common law to thei r expres s language

. Adams v. N orthern Ill

inois Gas Co. , 211 Ill. 2d 32 , 69, 809 N.E.2d 1248, 12 72 (2004). Statutes must be construed to ascertain and give effect to the legis lature's i ntent. Moore v. Gr een , 219 Ill. 2d 47 0, 479, 848 N.E.2d 1015, 1020-21 (2006). Statutory l anguage, the b est evidence of legislat ive intent , must be afforded its plain, ordinary, popularly understood mea ning, and, unless such language is ambiguous, a statute must be appli ed as wri tten without resorting to other aids of construction. Moore , 219 Ill. 2d at 479, 848 N.E.2d a t 1020-21; People v. Fort , 373 Ill. App. 3d 882, 885, 869 N .E.2d 950, 953 (2007) . Here, the i ssue centers on the leg isl atur e'suse of thewor

d "de fect " in sect ion 2-62 1(c )(2 )'spro vi sio n tha t if a defendant is shown to have "had actual knowledge of the def ect in the product which caused the injur

y, death or damage," the cour t may not dis miss that defendant. 7 35 ILCS 5/2-621(c )(2) (w

est 2006). We must determine w hether the leg islature i ntended "defect" to m ean just the physical characteristics/design of th e product or whether it intend ed "de fect" to mean the unre asonab ly dangerou s physical c haracte ristics/d esign of the product. W hen determining the plain an d ordinary meaning of words, a court may look to t he dictionary if, as here, a w

ord or phraseis undefined in t he statute. Fort , 373 Ill. App. 3d at 885, 869 N.E.2d at 953. The word "defect" i s defined as "[w ]ant or absence of something necess ary for1-07-1642

10

completeness or perfection; deficie ncy"; an "[i ]mperfection, w hether material or immaterial; a blemish; a f ault" and is synonymous with "inadequacy." W ebster's Second New International D ictionary 686 (1954). U se of "defect" necessari ly impli es that some thin g is ina dequ ate, impe rfe ct. No thin g in se ctio n 2-6 21 su ggest s tha t we shou ld n ot g iv e thewor d its or dina ry defi niti on. I n oth er w

ords , to ave rt d ismi ssal of a defendant otherwi se eligi ble for dismiss al, the plaint iff must show the d efendant had actual knowledge of the imperf ection/blemish/f ault/deficiency in the product which caused the injury. In a strict liability action, a "defect" is a product in an unreasonably dangerous condi tion. Accor dingly , the obvious

interpretati on of section 2-621( c)(2) requiresa plaintiff to show that a presumpti vely d ismissed defendant had actual knowledge of the unreaso nably dan gerous na ture ofthe physic al chara cteristic s/design of the product , not jus t actua l knowledge that th e physical charact eristics/ design existed, i n order to avoid dismissal of that defendant. The purpose of section 2-621 is to al low a defendant w hose sole li ability results from its role a s a member in the c hain of distrib ution of an alleg edly defective product, who has not be en shown to ha ve created or contributed to the alleg ed defect or had knowledg e of the defect, to get out of a product li ability action at an early stag e in order to avoid ex pensive li tigation and to defer liabil ity upstr eam to the manufacturer, the ultimate wr

ongdoer. Kellerm an , 119 Ill. 2d at 113, 518 N.E.2d at

117; Cherry v. Siemans Medical Systems, Inc. , 206 Ill. App. 3d 1055, 1060-61, 565 N.E.2d 215, 218 (1990). When it enacted secti on 2-621, the leg islature w as presumptively aware of the1-07-1642

11

strict pr oduct liabil ity doctrine and its underlying public polic y in favor

of disregar

ding fau lt in a sses sing li abil ity. Se e gen eral ly Callahan v. E dgewater Care & Rehabilitation Center, Inc. , 374 Ill. App. 3d 630, 634, 872 N. E.2d 551, 554 (2007) . Yet, by providi ng an exemption from s trict li ability for a nonmanufacturer defendant who has done nothing w rong wi th regard to putting an al legedly defective pr

oduct into the s tream of commerce, it i ntroduced the fault e lement into a strict liabil ity analy sis. Neverthe less, exte nding sec tion 2-6 21 no f urther t han what its langua ge absolutely requires by its express terms and clear implication, the legislature's introduction of the f ault element into a strict liability action, through use of the term "defect" among other t hings, does not show an i ntention to eli minate stric t liabili ty for nonmanuf acturer defendan ts. Rather, it limits the application of com mon law strict liab ility t o tho se de fen dan ts who may ac tual ly be a t fa ult f or inj urie s sust aine d by a defective/unrea sonable danger ous product and s hould, therefore, bethe ones to pay for those injur ies: (1) manufact urers and (2) nonmanufacturer defendants w ho may have actively contr ibuted in some w ay to the in

jury, w hether throug h control, fail ure to warn, dis regard of know n dangers or wilful and wanton misconduct. If a plaint iff cannot show that a nonmanufacturer defendant did anything wrong with reg ard to putting the allegedly dangerous pr

oduct into the s tream of commerce, sec tion 2-621 prov ides the means whereby that defend ant can avoid the litigation expense of de fending a strict liability action in w hich, if it w

as not at fault in any way , it woul d ultimately have its damage awar

d indemnified by the actual w rongdoer, th e manufacturer, any way.1-07-1642

12

We remand to the circuit cour t for further proceedings in l ight of our answer to the certified q uestion. Certified q uestion answered; remanded. HOFFMAN, P.J., and HALL, J., concur.1-07-1642

13 REPORTER OF DECISIONS - ILLINOIS APPELL ATE COURT

(Front Sheet to be Attached to Eac h case)

JOSEPH P . MURPHY and PATRICI A MURPHY,

Plaintiffs-Appe llants,

v. MANCARI' S CHRYSLE R PLYMOU TH, INC., a C orporation,

Defendant-Appellee (DaimlerChrysler Corporation, Defendant).

No. 1-07-1642 Appellate Court of Illinois First Di strict, Second Divi sion March 31, 2008

JUSTICE KARN EZIS delivered the opinion of the court. HOFFMAN, P.J., and HALL, J., concur.

Appe al fr om th e Circ uit Co urt o f Coo k Cou nty. The Hon orable J eff rey Lawrence , Judge Pr esiding.

For APPELLANT: Pfa ff & Gill, Ltd., ofChicago (Bruce R. Pfaff, of counsel) For APPELLEE: Swanson, Martin & Bell, LLP, of Chicago (Brian W . Bell, Mario M. Iveljic and Catherine Basque W eiler, of counsel)