                                                                          SECOND DIVISION
                                                                             March 31, 2008




No. 1-07-1642


JOSEPH P. MURPHY and PATRICIA MURPHY,                         )   Appeal from the
                                                              )   Circuit Court of
                      Plaintiffs-Appellants,                  )   Cook County
                                                              )
v.                                                            )
                                                              )
MANCARI'S CHRYSLER PLYMOUTH, INC., a                          )   No. 06 L 9445
Corporation,                                                  )
                                                              )
                      Defendant-Appellee                      )
                                                              )
(DaimlerChrysler Corporation,                                 )   Honorable
                                                              )   Jeffrey Lawrence,
                      Defendant).                             )   Judge Presiding.




       JUSTICE KARNEZIS delivered the opinion of the court:

       Plaintiffs Joseph and Patricia Murphy bought a Chrysler Sebring automobile from

defendant Mancari's Chrysler Plymouth, Inc. (Mancari's). In 2005, Joseph sustained

permanent spinal cord injuries when the Sebring rolled over while he was driving it. In

2006, plaintiffs filed a personal injury action asserting strict product liability claims

against Mancari's and DaimlerChrsyler Corporation, the manufacturer of the vehicle.1

Mancari's moved to dismiss the strict liability count against it pursuant to section 2-621



       1
         Plaintiffs also filed a negligence count against Mancari's, but it is not at issue in
this appeal. The strict liability count against DaimlerChrysler Corporation is also not at
issue here.
1-07-1642


of the Illinois Code of Civil Procedure (735 ILCS 5/2-621 (West 2006)),2 asserting it was

not the manufacturer of the vehicle. The court granted the motion to dismiss. It also

granted plaintiffs' request for leave to file an interlocutory appeal pursuant to Supreme

Court Rule 308 (155 Ill. 2d R. 308) and certified the following question for our review:

       "To state a claim for strict liability in tort against a defendant other than a

       manufacturer who has filed an affidavit complying with 735 ILCS 5/2-621(a),

       must a plaintiff relying upon the 'actual knowledge of the defect' exception

       contained in 735 ILCS 5/2-621(c)(2) 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 allege actual

       knowledge of the physical characteristics of the product and actual knowledge

       that said characteristics made the product unreasonably dangerous?"

       (Emphasis in original.)

We allowed plaintiffs' petition for interlocutory appeal. In answer to the court's question,

for the reasons that follow, we find that a plaintiff relying upon the "actual knowledge of

the defect" exception contained in section 2-621(c)(2) (735 ILCS 5/2-621(c)(2) (West

2006)) to avoid dismissal of its strict liability claim against a nonmanufacturer defendant

must allege that the nonmanufacturer defendant had actual knowledge of the physical


       2
         Public Act 89-7 amended section 2-621 (735 ILCS 5/2-621) effective March 9,
1995. However, in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057
(1997), our supreme court, held the act unconstitutional in its entirety. Accordingly, the
version of section 2-621 that was in effect before the 1995 amendment is applicable to
this case.

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1-07-1642


characteristics of the product that the plaintiff claims were unreasonably dangerous and

that said characteristics made the product unreasonably dangerous. We remand to the

circuit court for further proceedings in light of this determination.

       Pursuant to section 2-621, also known as the "seller's exception," a

nonmanufacturer defendant in a strict product liability action may be dismissed from the

action if it certifies the correct identity of the manufacturer of the product which allegedly

caused the injury. 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 plaintiff has

sued the product manufacturer and the manufacturer has answered or otherwise

pleaded, the court must dismiss the strict liability claim against the certifying

defendant(s). 735 ILCS 5/2-621(b) (West 2006); Kellerman v. Crowe, 119 Ill. 2d 111,

113-14, 518 N.E.2d 116, 117 (1987). When a defendant complies with the

requirements of section 2-621, its dismissal from a strict liability action is mandatory.

Lamkin v. Towner, 138 Ill. 2d 510, 532, 563 N.E.2d 449, 459 (1990). A plaintiff may

move at any time for reinstatement of a previously dismissed defendant if an action

against the product manufacturer would be impossible or unavailing. 735 ILCS 5/2-

621(b) (West 2006); Kellerman, 119 Ill. 2d at 114, 518 N.E.2d at 118.

       Section 2-621(c) provides three exceptions to the mandatory dismissal of a

complying defendant. 735 ILCS 5/2-621(c) (west 2006). A plaintiff can forestall

dismissal of a defendant if it shows one of the following:

              "(1) That the defendant has exercised some significant control over the


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1-07-1642


         design or manufacture of the product, or has provided instructions or warnings to

         the manufacturer relative to the alleged defect in the product which caused the

         injury, death or damage; or

               (2) That the defendant had actual knowledge of the defect in the product

               which caused the injury, death or damage; or

               (3) That the defendant created the defect in the product which caused the

         injury, death or damage." 735 ILCS 5/2-621(c) (West 2006).

The certified question concerns the exception stated in section 2-621(c)(2), pursuant to

which a court may not dismiss a defendant otherwise eligible for dismissal from the suit

if the plaintiff shows that the defendant "had actual knowledge of the defect in the

product which caused the injury, death or damage." 735 ILCS 5/2-621(c)(2) (West

2006).

         Plaintiffs' complaint alleged that the design of the Sebring proximately caused

Joseph's injuries and the benefits of the design did not outweigh the risk of danger

inherent in the design. In salient part, plaintiffs alleged the Sebring was in an

unreasonably dangerous condition when it left Mancari's control because: (a) the

windshield and roof of the convertible vehicle were designed with inadequate strength

and failed to dissipate the energy of a foreseeable rollover in a safe manner and (b) the

Sebring was not equipped with a sufficient roll bar or other devices to protect Joseph

from traumatic injury in a reasonably foreseeable rollover. They alleged Mancari's knew

before the occurrence that the Sebring was not equipped with a sufficient roll bar or

                                              4
1-07-1642


other devices to protect Joseph but did not warn plaintiffs.

       Mancari's moved to dismiss pursuant to section 2-621(b) because

DaimlerChrysler manufactured the Sebring. It attached an affidavit by Mancari's

general manager identifying DaimlerChrysler as the manufacturer. The affidavit also

asserted Mancari's did not at any time regulate or direct DaimlerChrysler in its design,

testing or inspection of the Sebring; did not exercise any control over design or

manufacturing of the Sebring; did not then or now have any actual knowledge of the

alleged defects referenced in the complaint; and did not create any of the alleged

defects.

       Plaintiffs responded by asserting Mancari's should not be dismissed because the

exception stated in section 2-621(c)(2), for a defendant who had "actual knowledge 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 occurrence, 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 from traumatic injuries in a reasonably

foreseeable manner." Plaintiffs attached the deposition of Mancari's general manager

to show Mancari's had actual knowledge of the defects of which plaintiffs complained.

Plaintiffs did not allege that Mancari's knew that the windshield and roof and/or lack of

roll bar created an unreasonably dangerous condition. Instead, they argued it was their

burden to show Mancari's had actual knowledge of the conditions plaintiffs claimed

made the Sebring defective and not that Mancari's believed those conditions were in


                                             5
1-07-1642


fact defective or unreasonably dangerous.

       Mancari's responded that the section 2-621(c)(2) exception did not apply

because having "actual knowledge of a defect" presupposes that a defect existed and

the defendant knew of the alleged defect and the deposition showed Mancari's had no

actual knowledge that the windshield design or lack of roll bar were defects as plaintiffs

claimed. The court granted Mancari's motion to dismiss, but asks us to decide whether

a plaintiff asserting the section 2-621(c)(2) exception to avert dismissal 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 allege actual knowledge of

the physical characteristics of the product and actual knowledge that said

characteristics made the product unreasonably dangerous?" (Emphasis in original.)

       In a product liability action based on strict liability, the inability of a defendant to

know of or prevent the risk is not a defense because fault is not an issue. Townsend v.

Sears, Roebuck & Co., 227 Ill. 2d 147, 156, 879 N.E.2d 893, 899 (2007). Under

common law, all entities in the distributive chain of an allegedly defective product,

including manufacturers, sellers, wholesalers, distributors and lessors of the product,

are strictly liable in product liability actions for injuries resulting from that product.

Kellerman v. Crowe, 119 Ill. 2d 111, 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 (1995). Strict liability is

imposed upon any party " 'who sells any product in a defective condition unreasonably


                                                6
1-07-1642


dangerous to the user or consumer or to his property.' ” Lamkin v. Towner, 138 Ill. 2d

510, 528, 563 N.E.2d 449, 457 (1990), quoting Restatement (Second) of Torts §402A

(1965). This liability is predicated on a finding that the product is unreasonably

dangerous, regardless of fault. Miller v. Dvornik, 149 Ill. App. 3d 883, 889, 501 N.E.2d

160, 164 (1986). A seller who puts a defective product, i.e., an unreasonably

dangerous product, into the stream of commerce runs the risk of being held strictly

liable for injuries caused by the product, regardless of whether the seller actually knew

of the defect, contributed to the defect or failed to discover the defect. Sims v. Teepak,

Inc., 143 Ill. App. 3d 865, 867, 493 N.E.2d 721, 723-24 (1986). The focus in a strict

product liability action is on the product, on the determination of whether a product is

unreasonably dangerous, on the question of "whether the product in its present state,

without installation of optional safety devices, is dangerous because it fails to perform in

the manner reasonably to be expected in light of its nature and intended function."

Miller, 149 Ill. App. 3d at 888, 501 N.E.2d at 163-64.

       In contrast, the focus in section 2-621(c) is on the nonmanufacturer members of

the distributive chain that put the product into the stream of commerce, on their actions

with regard to and knowledge of the defect (735 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 product. Section 2-

621 provides a means whereby a nonmanufacturer defendant can extricate itself from a

product liability litigation, common law strict liability notwithstanding, unless the plaintiff

can show that the defendant "exercised some significant control over the design or


                                               7
1-07-1642


manufacture of the product or had actual knowledge of, or created, the defect." Logan

v. West Coast Cycle Supply Co., 197 Ill. App. 3d 185, 191, 553 N.E.2d 1139, 1143

(1990).

       Section 2-621(c) introduces elements usually at issue in negligence actions. The

focus in a product liability action based on negligence is on the conduct of the

defendant and not, as in strict liability, on the product. Blue v. Environmental

Engineering, Inc., 215 Ill. 2d 78, 95, 828 N.E.2d 1128, 1141 (2005). In a negligence

action, fault is an issue, because the inability of a defendant to know of or prevent the

risk could preclude a negligence finding. Townsend, 227 Ill. 2d at 156, 879 N.E.2d at

899. An important aspect of strict liability is that proof of negligence is unnecessary.

Heyen v. Sanborn Manufacturing Co., 223 Ill. App. 3d 307, 315, 584 N.E.2d 841, 846

(1991). Because the section 2-621(c) exceptions to dismissal of a certifying

nonmanufacturer defendant focus on whether the defendant did anything wrong,

section 2-621(c) is in derogation of the common law of strict liability in which fault has

no place.

       "[S]tatutes in derogation of the common law are to be strictly construed in favor

of persons sought to be subjected to their operation." Barthel v. Illinois Central Gulf

R.R. Co., 74 Ill. 2d 213, 220, 384 N.E.2d 323, 327 (1978). But "courts will read nothing

into such statutes by intendment or implication" (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at

327), and we will not extend such statutes "any further than what the language of the

statute absolutely requires by its express terms or by clear implication" (In re. W.W., 97


                                             8
1-07-1642


Ill. 2d 53, 57, 454 N.E.2d 207 (1983)). "[I]n order to effect the least - rather than the

most - change in the common law," courts limit statutes in derogation of the common

law to their express language. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 69,

809 N.E.2d 1248, 1272 (2004). Statutes must be construed to ascertain and give effect

to the legislature's intent. Moore v. Green, 219 Ill. 2d 470, 479, 848 N.E.2d 1015,

1020-21 (2006).

       Statutory language, the best evidence of legislative intent, must be afforded its

plain, ordinary, popularly understood meaning, and, unless such language is

ambiguous, a statute must be applied as written without resorting to other aids of

construction. Moore, 219 Ill. 2d at 479, 848 N.E.2d at 1020-21; People v. Fort, 373 Ill.

App. 3d 882, 885, 869 N.E.2d 950, 953 (2007). Here, the issue centers on the

legislature's use of the word "defect" in section 2-621(c)(2)'s provision that if a

defendant is shown to have "had actual knowledge of the defect in the product which

caused the injury, death or damage," the court may not dismiss that defendant. 735

ILCS 5/2-621(c)(2) (west 2006). We must determine whether the legislature intended

"defect" to mean just the physical characteristics/design of the product or whether it

intended "defect" to mean the unreasonably dangerous physical characteristics/design

of the product. When determining the plain and ordinary meaning of words, a court

may look to the dictionary if, as here, a word or phrase is undefined in the statute. Fort,

373 Ill. App. 3d at 885, 869 N.E.2d at 953.

       The word "defect" is defined as "[w]ant or absence of something necessary for


                                              9
1-07-1642


completeness or perfection; deficiency"; an "[i]mperfection, whether material or

immaterial; a blemish; a fault" and is synonymous with "inadequacy." Webster's

Second New International Dictionary 686 (1954). Use of "defect" necessarily implies

that something is inadequate, imperfect. Nothing in section 2-621 suggests that we

should not give the word its ordinary definition. In other words, to avert dismissal of a

defendant otherwise eligible for dismissal, the plaintiff must show the defendant had

actual knowledge of the imperfection/blemish/fault/deficiency in the product which

caused the injury. In a strict liability action, a "defect" is a product in an unreasonably

dangerous condition. Accordingly, the obvious interpretation of section 2-621(c)(2)

requires a plaintiff to show that a presumptively dismissed defendant had actual

knowledge of the unreasonably dangerous nature of the physical characteristics/design

of the product, not just actual knowledge that the physical characteristics/design

existed, in order to avoid dismissal of that defendant.

       The purpose of section 2-621 is to allow a defendant whose sole liability results

from its role as a member in the chain of distribution of an allegedly defective product,

who has not been shown to have created or contributed to the alleged defect or had

knowledge of the defect, to get out of a product liability action at an early stage in order

to avoid expensive litigation and to defer liability upstream to the manufacturer, the

ultimate wrongdoer. Kellerman, 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 section 2-621, the legislature was presumptively aware of the


                                             10
1-07-1642


strict product liability doctrine and its underlying public policy in favor of disregarding

fault in assessing liability. See generally Callahan v. Edgewater Care & Rehabilitation

Center, Inc., 374 Ill. App. 3d 630, 634, 872 N.E.2d 551, 554 (2007). Yet, by providing

an exemption from strict liability for a nonmanufacturer defendant who has done

nothing wrong with regard to putting an allegedly defective product into the stream of

commerce, it introduced the fault element into a strict liability analysis.

       Nevertheless, extending section 2-621 no further than what its language

absolutely requires by its express terms and clear implication, the legislature's

introduction of the fault element into a strict liability action, through use of the term

"defect" among other things, does not show an intention to eliminate strict liability for

nonmanufacturer defendants. Rather, it limits the application of common law strict

liability to those defendants who may actually be at fault for injuries sustained by a

defective/unreasonable dangerous product and should, therefore, be the ones to pay

for those injuries: (1) manufacturers and (2) nonmanufacturer defendants who may

have actively contributed in some way to the injury, whether through control, failure to

warn, disregard of known dangers or wilful and wanton misconduct. If a plaintiff cannot

show that a nonmanufacturer defendant did anything wrong with regard to putting the

allegedly dangerous product into the stream of commerce, section 2-621 provides the

means whereby that defendant can avoid the litigation expense of defending a strict

liability action in which, if it was not at fault in any way, it would ultimately have its

damage award indemnified by the actual wrongdoer, the manufacturer, anyway.


                                               11
1-07-1642


       We remand to the circuit court for further proceedings in light of our answer to

the certified question.

       Certified question answered; remanded.

       HOFFMAN, P.J., and HALL, J., concur.




                                           12
1-07-1642


            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                   (Front Sheet to be Attached to Each case)


JOSEPH P. MURPHY and PATRICIA MURPHY,

                    Plaintiffs-Appellants,

v.

MANCARI'S CHRYSLER PLYMOUTH, INC., a Corporation,

                    Defendant-Appellee

(DaimlerChrysler Corporation, Defendant).


                                     No. 1-07-1642

                               Appellate Court of Illinois
                             First District, Second Division

                                    March 31, 2008


                JUSTICE KARNEZIS delivered the opinion of the court.

                        HOFFMAN, P.J., and HALL, J., concur.


                    Appeal from the Circuit Court of Cook County.

                  The Honorable Jeffrey Lawrence, Judge Presiding.


For APPELLANT: Pfaff & Gill, Ltd., of Chicago (Bruce R. Pfaff, of counsel)

For APPELLEE: Swanson, Martin & Bell, LLP, of Chicago (Brian W. Bell, Mario M.
Iveljic and Catherine Basque Weiler, of counsel)




                                             13
