dissenting:
Upon consideration of plaintiff’s petition for rehearing, I withdraw my concurrence in the majority opinion and respectfully dissent.
In my opinion, the record before us fails to support the granting of summary judgment for defendant. Plaintiff in his complaint alleged, among other things, that defendant’s product was unreasonably dangerous because it was placed in the stream of commerce without having an electric eye safety device. Defendant, in its motion for summary judgment, completely avoided this particular allegation and instead merely presented evidence that a proximate cause of plaintiff’s injury was improper adjustment of a pullback safety device. Despite defendant’s failure to present any evidence that the absence of an electric eye safety device was not a concurrent proximate cause of his injury, the trial court granted summary judgment for defendant. In affirming the lower court, the majority focuses on plaintiff’s failure to file any counteraffidavits, holding that “plaintiff had the affirmative duty to show that defendant’s failure to include an electronic eye safety device on its press was the proximate cause of plaintiff’s injuries.”
I respectfully submit that the above holding conflicts with existing Illinois case law, in particular our recent decision in Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 464 N.E.2d 634. In Harris, as in the case before us, plaintiff filed a strict liability action alleging several factual bases for finding that defendant’s product was unreasonably dangerous. The defendant moved for summary judgment and, in support thereof, produced deposition testimony which was directed at only one of the alternative bases for recovery alleged in the complaint. Plaintiff filed no evidentiary documents in opposition, and summary judgment was entered in favor of defendant. Despite plaintiff’s failure to produce any evidence in opposition to the motion for summary judgment, this court reversed the trial court’s granting of summary judgment for defendant. We held that since the defendant presented evidence as to only one of the complaint’s alternative bases for recovery, it was improper to enter summary judgment for defendant on the alternative grounds which were not attacked, reasoning as follows:
“If the party moving for summary judgment supplies evidentiary facts which, if uncontradicted, would entitle him to judgment, the opposing party cannot rely on his pleadings alone to raise issues of material fact. (In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 770, 458 N.E.2d 1065.) Nonetheless, even though the party opposing the motion fails to file counteraffidavits, the movant should not be awarded summary judgment unless the affidavits establish the right to a judgment as a matter of law. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47.) Thus, the consequence of failing to file counteraffidavits is that the statements in the affidavits supporting the motion stand as admitted. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 541, 458 N.E.2d 575.) It therefore follows that the statements in the affidavits relied upon as justifying summary judgment must avoid the theories of recovery set forth by the complaint.” (Emphasis added.) (124 Ill. App. 3d 449, 454.)
We further noted that prior appellate court decisions should not be “mischaracterize[d] *** as placing the burden upon the opponent of a summary judgment motion to ‘come forward with facts, proof, supporting all of the allegations of the complaint.’ ” 124 Ill. App. 3d 449, 455-56.
In the instant case, the lack of an electric eye safety device was only one of the alternative grounds for recovery alleged in the complaint. Thus, under the above precedent, to obtain summary judgment the defendant had the burden of producing documentary evidence which would establish that lack of an electric eye safety device was not a concurrent proximate cause of plaintiff’s injuries. Since defendant failed to set forth such evidence, it was improper to grant summary judgment in its favor. Contrary to the majority’s holding in this case, plaintiff had no duty to present evidence to support unattacked theories. 124 Ill. App. 3d 449, 455-56.
I further disagree with the majority’s discussion of Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232. The majority found that it was proper to apply Rios to the present case because “plaintiff here has failed to set forth any evidence which would show a causal connection between his injuries and the condition of the press at the time it left defendant’s control.” This finding, however, fails to consider all of the evidence in the record before us. Deposition testimony submitted by defendant in support of its motion for summary judgment reveals that following plaintiff’s injury his employer installed an electric eye safety device on the punch press involved in the occurrence and that this device prevents the punch press from operating when the operator’s hands are in the zone of danger. It is held that evidence of post-accident modifications or repairs is admissible in strict liability cases, and such evidence of a possible alternative design can be used to establish that there was an unreasonably dangerous design defect in a product. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 163, 369 N.E.2d 1284.) It was improper not to consider the foregoing evidence merely because it was introduced by defendant rather than plaintiff. “In determining whether there exists a genuine issue of material fact, the court considers the entire record and construes the evidence strictly against the moving party and liberally in favor of the opponent.” Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 453, 464 N.E.2d 634.
Taking the evidence in the present case and construing it in the light most favorable to plaintiff, I believe there exists a genuine issue of fact as to whether the lack of an electric eye safety device was a proximate cause of plaintiff’s injuries and, therefore, summary judgment in defendant’s favor was inappropriate.