                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                    Perez v. Sunbelt Rentals, Inc., 2012 IL App (2d) 110382




Appellate Court            GERONIMO PEREZ, Plaintiff and Counterdefendant-Appellant, v.
Caption                    SUNBELT RENTALS, INC., CJ LEBRECK, LLC, and OSHKOSH
                           TRUCK CORPORATION, Defendants (Mikols Construction, Inc., and
                           KBS Electric, Inc., Defendants and Third-Party Plaintiffs and
                           Counterplaintiffs and Counterdefendants; JLG Industries, Inc., Defendant
                           and Third-Party Plaintiff and Counterdefendant-Appellee; Daniel J. Loy,
                           Dan’s Painting and Decorating, Inc., and Victor Cardenas, Third-Party
                           Defendants).



District & No.             Second District
                           Docket Nos. 2-11-0382, 2-11-0486 cons.


Rule 23 Order filed        February 27, 2012
Rule 23 Order
withdrawn                  April 9, 2012
Opinion filed              April 9, 2012


Held                       In an action for the injuries plaintiff suffered when he fell from a scissor
(Note: This syllabus       lift alleged to be unreasonably dangerous because the guard gate could be
constitutes no part of     removed easily, the trial court erred in entering summary judgment for
the opinion of the court   defendant manufacturer on the ground that the removal of the gate was
but has been prepared      not reasonably foreseeable and was therefore an intervening cause that
by the Reporter of         protected defendant from liability, since a genuine issue of material fact
Decisions for the          existed as to whether the removal of the guard gate was reasonably
convenience of the         foreseeable, regardless of the fact that tools were required to remove the
reader.)
                           gate, especially when the removal only required the removal of a single
                           bolt and two pins.
Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-L-194; the
Review                     Hon. Patrick J. Leston, Judge, presiding.



Judgment                   Reversed and remanded.


Counsel on                 Thomas J. Fedick and Lyndsay A. Markley, both of Harman & Fedick,
Appeal                     Ltd., and Michael W. Rathsack, of Law Offices of Michael W. Rathsack,
                           both of Chicago, for appellant.

                           P. Scott Ritchie, of Clausen Miller, P.C., of Chicago, and Anthony J.
                           Colucci III and Marybeth Priore, both of Colucci & Gallaher, P.C., of
                           Buffalo, New York, for appellee JLG Industries, Inc.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices Bowman and Burke concurred in the judgment and opinion.




                                              OPINION

¶1         Plaintiff, Geronimo Perez, appeals from the trial court’s grant of summary judgment in
        favor of defendant, JLG Industries, Inc. (JLG). On appeal, plaintiff contends that the trial
        court erred in granting JLG’s motion for summary judgment, because a genuine issue of
        material fact exists regarding whether the removal of the guard gate of the scissor lift from
        which plaintiff fell was reasonably foreseeable. For the reasons that follow, we reverse and
        remand.

¶2                                         BACKGROUND
¶3          While working as a painter on a construction site, plaintiff fell off of a scissor lift and
        sustained serious injuries. The guard gate, designed to allow access to the lift but prevent the
        user from falling from the lift, had been removed prior to plaintiff’s use. Plaintiff brought
        suit against multiple defendants, including JLG, the manufacturer of the lift. Plaintiff sought
        recovery from JLG on strict-liability and negligence theories. Plaintiff alleged in his first
        amended complaint that the lift was unreasonably dangerous because the guard gate at the
        back of the lift could be easily removed, allowing a user of the lift to fall as plaintiff did.
¶4          JLG moved for summary judgment, arguing that, as a matter of law, the removal of the
        guard gate from the scissor lift was not reasonably foreseeable and, thus, acted as an

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     intervening cause insulating JLG from liability. After arguments by the parties, the trial court
     agreed with JLG and granted it summary judgment. This timely appeal followed.

¶5                                            ANALYSIS
¶6       On appeal, plaintiff contends that the trial court erred in granting JLG’s motion for
     summary judgment on his strict-liability count, because a genuine issue of material fact exists
     regarding whether the removal of the guard gate was reasonably foreseeable. We agree.
¶7       Summary judgment is appropriate where the pleadings, depositions, admissions, and
     affidavits on file, when viewed in the light most favorable to the nonmoving party, show that
     there is no genuine issue of material fact and that the moving party is entitled to judgment
     as a matter of law. 735 ILCS 5/2-1005(c) (West 2008). We review de novo a grant of
     summary judgment. Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 524 (2004). We may
     affirm a grant of summary judgment on any basis appearing in the record, regardless of
     whether the trial court relied upon that ground. Northern Illinois Emergency Physicians v.
     Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005).
¶8       “To recover against a manufacturer under strict liability, a plaintiff must prove that his
     injury resulted from an unreasonably dangerous condition of the product and that the
     condition existed at the time the product left the manufacturer’s control.” Augenstine v. Dico
     Co., 135 Ill. App. 3d 273, 275 (1985). A design defect can cause the product to be
     unreasonably dangerous. DeArmond v. Hoover Ball & Bearing, Uniloy Division, 86 Ill. App.
     3d 1066, 1070 (1980). “It is the rule that where other causes combine to produce injury, the
     causal connection between the defective product and the injury will be broken only if the acts
     or omissions of others were improbable or unforeseeable.” Doran v. Pullman Standard Car
     Manufacturing Co., 45 Ill. App. 3d 981, 987 (1977). In other words, a manufacturer of a
     product is not liable for injuries resulting from unforeseeable alterations to its product. Foster
     v. Devilbiss Co., 174 Ill. App. 3d 359, 363 (1988). “Foreseeability means that which it is
     objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in
     original.) Winnett v. Winnett, 57 Ill. 2d 7, 12-13 (1974). “If a product is capable of easily
     being modified by its operator, and if the operator has a known incentive to effect the
     modification, then it is objectively reasonable for a manufacturer to anticipate the
     modification. [Citations.] Conversely, if the alteration of the product requires special
     expertise, or otherwise is not accomplished easily, then it is not objectively reasonable for
     a defendant to foresee the modification.” Davis v. Pak-Mor Manufacturing Co., 284 Ill. App.
     3d 214, 220 (1996). Although questions of foreseeability are typically for the jury to resolve,
     they may be decided as a matter of law where the facts establish that the plaintiff would
     never be entitled to recovery. DeArmond, 86 Ill. App. 3d at 1071.
¶9       Plaintiff contends that, because the guard gate was easily removed and hindered the use
     of the lift, the trial court erred in concluding that, as a matter of law, the removal of the guard
     gate was not reasonably foreseeable. We agree. The evidence presented by JLG in support
     of the motion for summary judgment established that the top of the lift was surrounded on
     three sides by a guard railing. The guard gate was at the back of the lift and consisted of an
     upside down U-shaped piece of metal. The legs of the guard gate slid into two channels


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       attached to the permanent guard railing. When the scissor lift left JLG’s control, the guard
       gate was affixed to the guard railing with a bolt and a Nyloc nut. The Nyloc nut was a nylon
       insert lock nut that contained a nylon collar insert. The collar insert was slightly smaller in
       diameter than the bolt, thus allowing the collar to “deform[ ] elastically over the threads of
       the bolt.” This locked the bolt in two ways: it increased the friction between the nut and the
       bolt and it applied a compressive force against the bolt. The guard gate was also held in place
       by two locking pins. According to JLG’s evidence, removal of the guard gate required that
       the nut and bolt be removed with a wrench and a screwdriver, the locking pins pulled out of
       position, and the gate itself pulled out of its channels.
¶ 10        Plaintiff contends that there is a genuine issue of material fact as to whether tools were
       needed to remove the guard gate, because Victor Cardenas, plaintiff’s coworker, testified in
       his deposition that when he first used the scissor lift it appeared that the guard gate could be
       removed without the use of tools by simply lifting it out of its channels. While tools might
       not have been needed to remove the guard gate when Cardenas used the lift, because the nut
       and bolt might have been removed by that point, the relevant question is whether, when it
       left JLG’s control, the lift was unreasonably dangerous. Augenstine, 135 Ill. App. 3d at 275
       (“To recover against a manufacturer under strict liability, a plaintiff must prove that his
       injury resulted from an unreasonably dangerous condition of the product and that the
       condition existed at the time the product left the manufacturer’s control.” (Emphasis
       added.)). Plaintiff presented no evidence countering JLG’s evidence that, when the lift left
       JLG’s control, it required the use of a screwdriver and a wrench to remove the nut and bolt
       and thus the guard gate. Nor did plaintiff present evidence that the guard gate was not affixed
       as alleged by JLG. In fact, in his response to JLG’s motion for summary judgment, plaintiff
       acknowledged that the guard gate was originally affixed to the lift by a nut and bolt and two
       locking pins.
¶ 11        In any case, whether tools were needed to remove the guard gate does not necessarily
       answer the question of whether, as a matter of law, the removal of the guard gate was
       foreseeable. In Davis, 284 Ill. App. 3d at 216, the plaintiff’s husband was run over and killed
       by a garbage truck after the wiring of the safety switch had been altered to allow garbage to
       be packed while the truck was in gear. The plaintiff sued, among others, the manufacturer
       of the packing device and the company that sold the packing device to the husband’s
       employer and that installed the packing device onto the truck. Davis, 284 Ill. App. 3d at 216.
       The First District reversed the trial court’s grant of summary judgment, concluding that a
       genuine issue of material fact existed as to whether the manufacturer and the seller of the
       packing device could have reasonably foreseen the alteration to the safety switch’s wiring.
       Davis, 284 Ill. App. 3d at 221. In doing so, the First District noted that the evidence
       presented did not indicate that the rewiring of the switch was a complex procedure or that
       the average garbage truck operator would not have the necessary knowledge to make the
       alteration. Davis, 284 Ill. App. 3d at 221. In fact, the court noted that the evidence presented
       implied that the rewiring could be done quickly with only pliers and a screwdriver. Davis,
       284 Ill. App. 3d at 221.
¶ 12        We find Davis persuasive and believe that it belies JLG’s contention that an alteration
       of a product is, as matter of law, unforeseeable when it requires the use of tools. As discussed

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       above, the Davis court concluded that a genuine issue of material fact existed as to the
       foreseeability of the modification despite the fact that the use of pliers and a screwdriver was
       required. While the use of tools might be a factor in determining whether a modification is
       accomplished easily, we do not believe that it is the determining factor, especially where the
       tools themselves are common tools such as pliers, wrenches, or screwdrivers. Rather, we
       believe, as the Davis court did, that where there is no evidence that special expertise is
       needed to make the modification or that the modification is especially complex or time-
       consuming, a genuine issue of material fact exists as to the foreseeability of the modification,
       and the question is best presented to a jury.
¶ 13       JLG relies heavily on DeArmond for the proposition that, where tools are needed to make
       the modification, the modification is, as a matter of law, unforeseeable. In DeArmond, 86 Ill.
       App. 3d at 1071, however, the removal of the safety doors required the removal of eight
       quarter-inch bolts and a rod. In contrast, the removal of the guard gate from the scissor lift
       required only the removal of a nut and bolt and two pins. While the DeArmond court
       concluded that the removal of eight bolts and a rod could never be foreseeable, we cannot
       say the same about the removal of a single bolt and two pins.
¶ 14       Accordingly, we conclude that a genuine issue of material fact remains regarding whether
       the removal of the guard gate was reasonably foreseeable. Therefore, we reverse the
       judgment of the trial court and remand the matter.

¶ 15                                     CONCLUSION
¶ 16      For the reasons stated, the judgment of the circuit court of Du Page County is reversed
       and the matter remanded.

¶ 17      Reversed and remanded.




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