dissenting:.
I respectfully disagree with the majority’s conclusion that the trial court improperly entered summary judgment in favor of defendant Palos Auto. In my view, it was required.
To defeat the motion for summary judgment, plaintiffs were obligated to present evidentiary facts establishing a reasonable certainty that the actions of Palos Auto caused the injury. See Bellerive v. Hilton Hotels Corp., 245 Ill. App. 3d 933, 936, 615 N.E.2d 858 (1993); Chmielewski v. Kahlfeldt, 237 Ill. App. 3d 129, 137, 606 N.E.2d 641 (1992). The plaintiffs in the instant case must fail in this endeavor due to the unavailability of the subject seat frame. In light of plaintiffs’ expert’s opinion, the allegation of negligence asserted here against Palos Auto necessarily required proof of the absence of a manufacturing defect in the seat frame. This proof could never have been presented by plaintiffs where the frame had been discarded prior to a thorough examination. It must be noted that the trial court had previously entered summary judgment in favor of GMC, the manufacturer of the seat frame, based upon plaintiffs’ inability to prove the existence of a manufacturing defect. Because plaintiffs would never be able to prove that the seat frame had been manufactured according to the design specifications, on which their expert’s opinion was premised, the trial court correctly entered summary judgment in favor of Palos Auto. See Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587, 272 N.E.2d 497 (1971).
As the majority acknowledges, this is not a product liability case, and such precedents have no bearing on the case at bar. However, even if the principles governing product liability actions were applicable here, the trial court’s ruling would still be correct.
Although a product liability claim may be proven by direct or circumstantial evidence (see McKenzie v. SK Hand Tool Corp., 272 Ill. App. 3d 1, 7, 650 N.E.2d 612 (1995); Varady v. Guardian Co., 153 Ill. App. 3d 1062, 1066-67, 506 N.E.2d 708 (1987); Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059-60, 473 N.E.2d 444 (1984)), it is clear that preservation of the allegedly defective product is of the utmost importance in both proving and defending against a strict liability action. Ralston, 129 Ill. App. 3d at 1057. The Illinois Supreme Court, while considering a claim for negligent spoliation of evidence, recently recognized that the loss of an allegedly defective product prior to testing would preclude the plaintiff from proving a products liability claim. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 196-97, 652 N.E.2d 267 (1995).
"When circumstantial evidence is relied upon in a product liability action, it must justify an inference of probability, as distinguished from mere possibility, because liability cannot be predicated on speculation, guess, or conjecture. McKenzie, 272 Ill. App. 3d at 7; Varady, 153 Ill. App. 3d at 1067. Summary judgment in favor of the defendant is appropriate where the plaintiff is unable to prove that the injuries were proximately caused by a defect that existed at the time the product left the manufacturer’s control. See Loy v. Firestone Tire & Rubber Co., 168 Ill. App. 3d 503, 505-07, 522 N.E.2d 848 (1988); Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 77-78, 216 N.E.2d 244 (1966)). Thus, even under product liability principles, the trial court’s actions were correct.
Moreover, the majority holds that the trial court erred in entering summary judgment because Hales was competent to testify as to his "second opinion” that a seat of the type involved here should always be replaced, rather than repaired. This issue was not raised or argued by appellants in their briefs. In my view, the majority exceeded its proper role as it is neither the function nor the obligation of this court to act as an advocate or search the record for error. Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d 42, 48-49, 463 N.E.2d 216 (1984). Accordingly, this contention should be deemed waived and should not serve as the basis for reversal of the trial court’s order.
For the foregoing reason, I would affirm the decision of the circuit court of Cook County.