specially concurring:
I concur in the result reached by the majority, but the reasons for my conclusion require me to write separately.
In my opinion the reason for the possible confusion on the trial court’s part is to be found in the treatment of this case in the original appeal. The trial court, the appellate court, and the supreme court all treated the motion by the manufacturer as a section 2 — 1005 motion for summary judgment when in fact it was a section 2 — 615 motion to dismiss for failure to state a cause of action, and in my opinion this treatment has had unfortunate results.
I acknowledge at the outset that the motion involved was clearly captioned a motion for summary judgment and that it may have been accompanied by a deposition transcript.
‘ ‘Motion For Summary Judgment * * *
1. That there are no genuine issues of material fact for resolutions by a jury.
2. That the discovery deposition of Robin R. Pace incontrovertibly establishes that a minor plaintiff fell from a second story window which had been opened and which opening was covered by a window screen.
3. That under Illinois law it is well established that a window screen is not required or intended to keep persons from falling out of the window in which is it placed. Crawford v. Orner & Shayne [Inc. (1947)], 331 Ill. App. 568, 73 N.E.2d 615, Gasquoine v. Bornstein [(1956)], 10 Ill. App. [2]d 423, 135 N.E.2d 121.
4. That the foregoing rule of law clearly establishes that a window and window screen cannot be defective or unreasonably dangerous because it does not prevent a person from falling through the window as this is not its intended purpose as a matter of law.
WHEREFORE, defendant prays that summary judgment be rendered for it and against plaintiffs.”
It is equally clear, however, that the motion is not based upon the “no genuine issue as to any material fact standard” of section 2 — 1005 (735 ILCS 5/2 — 1005 (West 1992)). Instead, the motion is premised upon a lack of duty, which is properly the subject of a section 2 — 615 motion to dismiss (735 ILCS 5/2 — 615 (West 1992)). Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215, recently reviewed dispositive pretrial motions and summarized its analysis as follows:
“(1) a defendant’s section 2 — 615 motion admits the truth of the facts alleged in support of the claim but denies the legal sufficiency of those facts;
(2) a defendant’s section 2 — 1005 motion admits the legal sufficiency of the claim but denies the truth of the facts alleged; and
(3) a section 2 — 619 motion admits both the truth of the facts alleged in support of the claim and the legal sufficiency of the claim, but it raises affirmative matters which it asserts defeat the claim, and as to those affirmative matters, there is no admission of either truth or sufficiency.
See Professor Michael’s excellent discussion of this issue in 4 Illinois Practice §41.2, at 296-98.” (Emphasis omitted.) Barber-Colman Co., 236 Ill. App. 3d at 1075, 603 N.E.2d at 1223.
The supreme court criticized a loose use of motions in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 405-06, 312 N.E.2d 605, 609:
“Decision of this case has been made unnecessarily difficult because the trial and appellate courts and the parties have not drawn a sufficiently sharp distinction between the proper inquiry on a motion to dismiss and a motion for summary judgment. Indeed, the motions filed by the savings and loan associations seem predicated on the assumption that there exists a hybrid procedure whereby a defendant may challenge the legal sufficiency of a complaint and, at the same time, answer it, file affidavits stating facts which would be admissible at trial, and demand judgment on the merits. *** To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court. If this sort of procedure were sanctioned, it would be left to the reviewing courts to sort matters out and to remand with directions to allow leave to amend the complaint, to require plaintiff to file counteraffidavits, or to provide other appropriate instructions. We therefore expressly disapprove the procedure followed in the trial court. The defendants in this case should have first challenged the legal sufficiency of the complaint. When, and only when, a legally sufficient cause of action had been stated should the court have entertained the motions for summary judgment and considered the affidavits filed in support thereof.”
The original confusion and the improper use of section 2 — 1005 is clearly shown by the defendant’s “Motion for Trial Court Statement Pursuant to Illinois Supreme Court Rule 308(a)”:
“5. That, in denying said motion, the Court essentially found that the allegations of Counts IX and X allege a legal, common-law duty on the part of the defendant-manufacturer, the violation of which can serve as the basis for a cause of action under the theory of. strict liability in tort against the manufacturer.
6. That the question of law involved is whether, under the allegations of Counts IX and X of the Complaint, a manufacturer is under any common-law duty to manufacture screens for aluminum windows sufficiently strong to support the weight of a small child leaning against such window screen and prevent that child from falling out of that window, where it is alleged that:
‘... [T]he windows and screens manufactured by the defendant, Gallatin Aluminum Products Company, Inc., were unreasonably dangerous and defective in that:
(a) The screens readily popped out from the frames:
(b) The screens were not securely fastened within tracks on the windows;
(c) There were no secure latches, locks, or other devices to affix the window screens to the frame.’
and that:
‘As a direct and proximate result of unreasonably dangerous and defective conditions described above, the screen gave way and the plaintiff, Dustin Troy Pace, was caused to fall from the second story onto a paved area.’
the violation of which duty can serve as the basis for a cause of action for strict liability and tort against the manufacturer.” (Emphasis added.)
Obviously the defendant, while proceeding under a summary judgment format, was actually attacking the legal sufficiency of the complaint on the duty issue and was not attacking the factual underpinnings of the case under section 2 — 1005.
The fact that the defendant was really attacking the legal sufficiency of the complaint is made even more clear by the question prepared by defendant and certified by the trial court for appeal under Supreme Court Rule 308.
“D. As to defendant, GALLATIN ALUMINUM PRODUCTS,
Whether, as a matter of law, under the allegations of Counts IX and X of the Amended Complaint, a window frame and window screen can be defective or unreasonably dangerous because they were not sufficiently strong to support the weight of a child leaning against the window screen so as to serve as the basis for a cause of action for products liability against the manufacturer of such window frames and window screens, where it is alleged that:
‘At that time and place, the windows and screens manufactured by the defendant, Gallatin Aluminum Products, were unreasonably dangerous and defective in that:
(a) The screens readily popped out from the frames;
(b) The screens were not securely fastened within tracks on the windows;
(c) There were no secure latches, locks, or other devices to fix the window screens to the frames.
‘As a direct and proximate result of one or more of the foregoing unreasonably dangerous and defective conditions, the screens would easily fall from the window frames.
On or about September 1, 1982, while the plaintiff, Dustin Troy Pace, was in an upstairs bedroom, he leaned or fell
against one of the screens manufactured by the defendant, Gallatin Aluminum Products.
As a direct and proximate result of the unreasonably dangerous and defective conditions described above, the screen gave way and the plaintiff, Dustin Troy Pace, was caused to fall from the second story onto a paved area.’ ” (Emphasis added.)
Clearly, the certified question deals with the issue of legal sufficiency as opposed to one of factual insufficiency.
Unfortunately, in the original appeal, both this court (Lamkin v. Towner (1989), 190 Ill. App. 3d 631, 546 N.E.2d 1020) and the supreme court (Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449) treated this case as if it had been resolved on a summary judgment basis.
The language of the supreme court on the count against the manufacturer is significant.
“Likewise, there has been no evidence presented in the form of affidavits, depositions, testimony or other evidentiary materials to support a finding on a motion for summary judgment that the window screens’ design proximately caused appellees’ injuries. Appellees allege in their complaints that:
‘(a) The screens readily popped out from the frames;
(b) The screens were not securely fastened within tracks on the windows;
(c) There are no secure latches, locks or other devices to fix the window screens to the frames.’
Appellees fail to provide evidence of how the window screens’ design could have been altered to create a safer screen, such as the one described by appellees, or any evidence of the form and feasibility of the alternative screen design. (See, e.g., Palmer, 82 Ill. 2d at 218[, 412 N.E.2d at 963].) In light of appellees’ failure to provide any evidence to support their allegations, we cannot conclude that, as a matter of law, the window screens are ‘defective or unreasonably dangerous’ such as to serve as the basis for a products liability action against the retailer or manufacturer of such window frames and window screens.” (Emphasis added and omitted.) (Lamkin, 138 Ill. 2d at 530-31, 563 N.E.2d at 458.)
Two problems are presented by viewing this pleading attack as if it were a summary judgment motion, and both are manifested in the last sentence of the quote:
“In light of appellees’ failure to provide any evidence ***, we cannot conclude that, as a matter of law, the window screens are ‘defective or unreasonably dangerous ***’.” (Emphasis added.) (Lamkin, 138 Ill. 2d at 530-31, 563 N.E.2d at 458.)
First, it was not the plaintiffs that were seeking a finding under section 2 — 1005 that the screens were unreasonably dangerous; it was the defendant that was seeking a finding that they were not. Actually, the defendant was not truly seeking such a finding on & factual basis. Instead, the defendant was seeking a ruling in its favor on a legal basis.
Second, the references to evidence, or the lack of it, are meaningful in a summary judgment context, but they are generally inappropriate in determining the existence of a duty. In deciding whether a duty exists in ruling on a section 2 — 615 motion, the court would not normally be concerned with evidence; the allegations of the complaint would be taken as true for the purpose of deciding the motion. This discussion on the type .of motion involved and the basis of the supreme court’s ruling is important because of the different treatment afforded different defendants in the supreme court’s decision.
The supreme court dismissed the count against the renovator/ builder on a legal basis. After discussing the factors involved in determining duty (foreseeability, likelihood of injury, magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant), the court stated:
“It would seem, therefore, that our review of the instant cases is halted at this point by necessity; remand of the causes to the trial court would appear to be required to hear evidence as to both the potential for the creation of a screen described by appellees as well as evidence of the added costs and time requirements on a renovator/builder. There is, however, one additional variable in the duty issue which we conclude answers the question without necessitating remand of the instant cases to the trial court for resolution of this issue. This variable is the consequences that would result if this court were to recognize a duty to install child-proof window screens.
* * *
While we decline in this instance to impose the duty requested by the appellees, we acknowledge that the concept of a duty in this area of the law is a ‘very involved, complex and indeed nebulous’ concept.” Lamkin, 138 Ill. 2d at 524-25, 563 N.E.2d at 455-56.
The conclusion of no duty as to the renovator/builder appears to me to be different than the basis of the supreme court’s ruling as to the manufacturer. The supreme court decided the duty question against the renovator/builder on the basis of the “overwhelming economic and social consequences” the imposition of such a duty would impose on that class of defendants. Immediately before reaching that conclusion, however, the court had stated:
“It would seem, therefore, that our review of the instant cases is halted at this point by necessity; remand *** would appear to be required to hear evidence as to both the potential for the creation of a screen described by appellees as well as evidence of the added costs and time requirements on a renovator/ builder.” (Emphasis added.) Lamkin, 138 Ill. 2d at 524, 563 N.E.2d at 455.
What would a remand mean under such circumstances? That the supreme court was unable to determine the duty question to its satisfaction based only upon the record before it and that it would have remanded for the presentation of evidence if it had not decided to relieve the renovator/builder of any possible liability for a different reason, the “overwhelming economic and social consequences.”
The fact that the supreme court did not relieve the manufacturer of liability on the same basis leads me to conclude that the supreme court wanted the trial court to examine evidence as to “both the potential for the creation of a screen *** as well as added cost *** requirements.” Therefore, the apparent failure of the trial court to review even the limited evidence presented on the issue requires reversal.
I would reverse and remand with instructions to the trial court to enter an order expediting discovery on the issues of concern to the supreme court. This case has been on file since at least 1985, and both the plaintiffs and the defendant are entitled to a reasonably prompt resolution of this issue.