Motion 1 - product liability motion to reconsider

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Motion to Reconsider Bostrom Seating's Motion for Summary Judgment

Respectfully submitted, By: One of the Attorneys for Defendant/Third-Party Plaintiff, Bostrom, Seating Company, Tia C Glass, Cozen O'Connor, 222 S Riverside Plaza, Suite 1500, Chicago, IL 60606, Steven Klaczynski, Hinshaw & Culbertson LLP, 222 North LaSalle Street, Suite 300, Chicago, Illinois 60601-1081, (312) 704-3000, Firm I.D. No. 90384.

NOW COMES the Defendant/Third-Party Plaintiff, BOSTROM SEATING COMPANY (“Bostrom”), by and through its attorneys, COZEN O'CONNOR and HINSHAW & CULBERTSON LLP, and moves for summary judgment against plaintiffs, MAURICE BOLING, STEVEN BOLING and JIM KWAK. In support of this Motion, Bostrom states the following:

INTRODUCTION

Plaintiffs, long haul truck drivers for PENSKE TRUCKING (“Penske”), filed a one-count Amended Complaint at Law alleging strict products liability against Bostrom and FREIGHTLINER TRUCK COMPANY (“Freightliner”) based on manufacturing and design defects in the dampening mechanism employed in three (3) specific truck seats manufactured by Bostrom. Plaintiffs specifically claim that the defects caused injury to their backs (a copy of plaintiffs' First Amended Complaint at Law was attached to Bostrom Motion for Summary Judgment as Exhibit “A”). On November 18, 2005, Judge Chiola granted Bostrom's Motion for Summary Judgment in part and denied in part. Judge Chiola ruled that there was insufficient evidence of a manufacturing defect claim in the seat that allegedly caused Maurice Boling's injury. However, Judge Chiola found that there was sufficient evidence to proceed on a design defect claim. Judge Chiola found sufficient circumstantial evidence in the record to establish that the “defect” existed in the Maurice Boling's seat at the time it left Bostrom's control. Plaintiff claims that a defect existed in that:

1: the isolator assembly was designed to bottom out;

2. that the seat was designed to have the lever strike the latch bar.

However, there is no evidence that either of these defects existed in Maurice Boling's seat at the time it left Bostrom's control. Summary Judgment is required as the undisputed evidence clearly shows that plaintiffs cannot establish the required elements to sustain a strict products liability claim against Bostrom for a design defect. Namely, to prevail on a strict liability design defect case, the Plaintiff must prove that the product defect existed at the time it left Bostrom's control. Simply, there is no evidence as testified by Mr. Tudor. At his deposition Mr. Tudor testified that he was unaware of whether or not the “defects” he described would occur in each and every one of Bostrom's seats. He has no evidence that the isolator assembly would bottom out and he did not have any seat was designed to have the lever strike the latch bar. Even if the isolator assembly did “bottom out”, there is no evidence that this would produce sufficient force to cause injury to the driver. He further testified that the isolator assembly was designed for “comfort”.

In order to overcome summary judgment, enough evidence that some defect existed at the time the product left the manufacturer's control must be present in the pleadings, depositions, admissions and affidavits, if any, to create a genuine issue of material fact. Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.App.3d 313, 242 111. Dec. 738, 722 N.E.2d 227, 237 (2nd Dist. 1999).

Since product liability actions often involve specialized knowledge or expertise outside the layman's knowledge, expert testimony is particularly appropriate for determining whether a condition or defect was unreasonably dangerous. See Baltus v. Weaver Division of Kiddie & Company, Inc., 199 Ill.App.3d 821, 145 Ill. Dec. 810, 557 N.E.2d 580, 588 (1st Dist. 1990). Mere speculation, conjuncture or guess is insufficient to withstand summary judgment. Sorce, 722 N.E.2d at 237.

CONCLUSION

For the above stated reasons, this Court should find that there is no genuine issue as to any material fact and that under the undisputed evidence, Bostrom Seating Company is entitled to summary judgment as a matter of law as to the plaintiffs' claims against it. Accordingly, this Honorable Court should grant Bostrom's Motion for Summary Judgment.

WHEREFORE, Defendant, BOSTROM SEATING COMPANY, respectfully requests that this Honorable Court enter an order granting summary judgment against the plaintiffs as a matter of law.

Respectfully submitted,

By: One of the Attorneys for Defendant/Third-Party Plaintiff, BOSTROM

SEATING COMPANY

Tia C Glass

Cozen O'Connor

222 S Riverside Plaza

Suite 1500

Chicago, IL 60606

Steven Klaczynski

HINSHAW & CULBERTSON LLP

222 North LaSalle Street

Suite 300

Chicago, Illinois 60601-1081

(312) 704-3000

Firm I.D. No. 90384

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