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Carollo v. Al Warren Oil Co.11/24/2004
1998). The court also further noted as follows:
"The Oxford English Dictionary defines 'manufacture' as follows: '1. * * * To work up (material) into form suitable for use. * * * 2. To make or fabricate from material; to produce by labour (now esp. on a large scale).' [Citation.] The American Heritage Dictionary, defines 'manufacture' as '1. a. To make or process (a raw material) into a finished product, esp. by means of a large-scale industrial operation. b. To make or process (a product) * * * 2. To create, produce or turn out in a mechanical manner * * * 3. * * * To make or process goods, esp. in large quantities and by means of industrial machines.' [Citation.]." Schawk, 326 Ill. App 3d at 755-56, 761 N.E.2d at 195.
Plaintiff asserts that the evidence that was introduced at trial conclusively established that defendants manufactured, built or otherwise constructed A-2 and A-3. We find pertinent to the circumstances of the instant case an argument put forth by the plaintiff in Hinojasa. The Hinojasa plaintiff cited Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182 (1965), for the general proposition that the assembler of parts may be liable in tort for a defective product. Defendants here are assemblers of parts subject to liability in tort for a defective product assembled. Suvada, 32 Ill. 2d at 617, 210 N.E.2d at 185. By assembling the parts, a task that took 200 hours, it could be concluded, as a matter of law, that defendants are manufacturers. Defendants manufactured A-2 and A-3 and section 402(A) applies to manufacturers. At the very least, at the summary judgment stage, a genuine issue of material fact existed as to whether defendants were manufacturers. The trial court erred in granting summary judgment to defendants on plaintiff's strict liability count.
In view of our conclusion, we need not address plaintiff's additional argument, raised on appeal, that section 2-621(a) of the Code of Civil Procedure (735 ILCS 5/2-621(a)(West 2000)) precludes summary judgment in defendants' favor. Section 2-621 governs all product liability actions and provides the methods by which a nonmanufacturing defendant may be dismissed. Plaintiff argued in his brief that he is entitled to a new trial on the merits on his strict liability count. During oral argument, plaintiff clarified that he was not seeking a new trial on all issues. Although plaintiff contended that, had the jury also been instructed on strict liability, the apportionment of fault may have been different, a second trial on strict liability only could not remedy that situation and could only result in double recovery. Here, the case went to the jury under a negligence theory and the jury was instructed on the duties owed by defendants. Because the jury decided that defendants breached their duties, and further found that the breach was a proximate cause of plaintiff's injuries and awarded plaintiff damages, we reject plaintiff's argument that a new trial is in order on the strict liability theory. A plaintiff is entitled to one recovery only for his injuries, regardless of the number of theories advanced. Dial v. City of O'Fallon, 81 Ill. 2d 548, 558, 411 N.E.2d 217, 222 (1980).
II. Whether the Trial Court Correctly Allocated Fault under Section 2-1117 of the Code of Civil Procedure
Plaintiff argues that, in the apportionment of fault under section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994), Altom and Warren should have been found jointly liable to Carollo, rather than severally liable. We disagree.
At the time of plaintiff's injury , section 2-1117 provided, in relevant part, as follows:
" n actions on account of bodily injury or death
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