dissenting:
I respectfully dissent from the opinion of the court.
As noted by the majority, this case is here on appeal from the eircuit court’s granting of summary judgment. Summary judgment should be granted where there are no genuine issues of material fact and where the pleadings, depositions and other evidence before the court in the motion for summary judgment show that at trial a verdict would have to be directed. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Pedersen v. Joliet Park District (1985), 136 Ill. App. 3d 172, 175, 483 N.E.2d 21.) In Illinois, no strict liability in tort will lie unless a plaintiff identifies the supplier of the product and establishes a causal relationship between the injury and the product. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401, 402-03, 256 N.E.2d 6, cert, denied (1970), 398 U.S. 959, 26 L. Ed. 2d 544, 90 S. Ct. 2173.) If a plaintiff fails to establish this element of proximate cause, he has not sustained his burden of making a prima facie case. Here, the plaintiff has admitted both that he does not know who supplied the allegedly defective bolt contained in the ultra-light aircraft kit he purchased, and that he cannot present at trial any evidence as to this question other than Susan Boman’s deposition testimony that “probably” 90% of Weedhopper’s AN4-33 bolts were purchased from Lawrence Engineering and 10% of these bolts were purchased from Hughes Aviation. I would hold that this is insufficient evidence to prove plaintiff’s case, and that a directed verdict for defendant would be required at trial. Accordingly, the trial court properly granted the defendant’s motion for summary judgment.
Liability is not based on a balancing of probabilities, but on a finding of fact. While the majority contends that the measure of what is considered sufficient evidence to draw a reasonable inference resolves itself into a question of probability, a review of case law involving nonidentifiable defendant suppliers or manufacturers reveals that a theoretical probability alone cannot be the basis for a reasonable inference. There must be some evidence in addition to the abstraction which will enable a jury to choose between the competing probabilities.
In Neubauer v. Coca Cola Bottling Co. (1968), 96 Ill. App. 2d 18, 238 N.E.2d 437, we held that evidence that defendant was the exclusive distributor in the relevant geographic area, along with other evidence, was sufficient to show that the cola in question was sold by the defendant. Neubauer distinguished Welch v. Coca-Cola Bottlers’ Association (Tex. Civ. App. 1964), 380 S.W.2d 26, in which the court held that plaintiff had not conclusively identified the defendant as the distributor of the cola in question. The Welch court said that since no evidence was presented that defendant was the only concern distributing bottled Coca-Cola in that area, the evidence presented was only a surmise against defendant which properly had been withheld from the jury. Here, where plaintiff concedes that there existed two suppliers of the product in question, the bare nine to one probability is insufficient to justify an inference that Lawrence supplied the bolt in plaintiff’s aircraft kit.
Other jurisdictions dealing with the issue of a nonidentifiable defendant have also demanded an evidentiary basis beyond a mere statistical probability. In Garcia v. Joseph Vince Co. (1978), 84 Cal. App. 3d 868, 148 Cal. Rptr. 843, the plaintiff was injured when an opponent’s sabre broke through his fencing mask during competition. He sued the alleged manufacturer of the sabre and the manufacturer-supplier of the mask in strict products liability. Plaintiff’s opponent and the school had purchased blades from both defendants. The blade was inspected following the accident, but it became mixed with other blades and was not produced at trial. When judgment of nonsuit was granted in favor of both defendants, plaintiff appealed.
The appellate court found that plaintiff’s evidence was insufficient to permit a jury to determine the liability of either defendant. It affirmed, holding that the jury would only have had a chain of conjecture without contradictory or conflicting evidence to be resolved in the case.
In Wetzel v. Eaton Corp. (D. Minn. 1973), 62 F.R.D. 22, the plaintiff was injured when a tractor he was riding overturned. He sued the manufacturer of the tractor and two suppliers of tractor parts, based on strict tort liability, claiming a part of the steering mechanism was defective. One supplier did not answer and was held in default. The part had been discarded or destroyed and was not available for inspection. Further, no business records or other documentation tied the remaining supplier to the manufacture or sale of the part and the manufacturer said only that it or the supplier “could have” supplied the part in question. The court granted the supplier’s motion for summary judgment, finding no direct or circumstantial evidence giving rise to a reasonable inference that the supplier sold the part. As in Garcia, the court stated that liability could only have been predicated on impermissible conjecture or speculation.
Wetzel was cited with approval in Mason v. Spiegel, Inc. (D. Minn. 1985), 610 F. Supp. 401. There, plaintiff was burned when her woven tennis dress caught fire from a burning match. She sued Spiegel, Inc., as the seller of the dress, alleging strict liability in tort for selling an unreasonably flammable product. When Spiegel brought a third-party complaint against three alleged manufacturers of the dress, these third-party defendants each claimed that they were entitled to summary judgment against Spiegel because it could not identify which of the three manufacturers sold the tennis dress.
Although two of the third-party defendants had examined boxes of documents pertaining to sales to Spiegel and had found no evidence concerning the style or similar style of dress in question, one of the third-party defendants had no documents to prove that it did not manufacture the tennis dress for Spiegel. Nonetheless, the court held that as a matter of law, Spiegel had failed to support a sufficient cause of action against even that manufacturer. Analogizing to Wetzel, the court stated that Spiegel’s evidence of testimony from former employees that the garment “would have been purchased” from one of the three manufacturers merely established facts giving rise to inconsistent inferences. Since one of three companies could have made the dress, liability could only be based on speculation, and the motions for summary judgment were granted.
The Mason court’s conclusion that any finding of liability would be mere conjecture refused to differentiate the third-party defendant who could produce no evidence that it had not supplied the dress, from the two manufacturers whose evidence more probably demonstrated that they had not supplied the dress. This indicates that when a theoretical probability alone is alleged to be sufficient evidence to draw a reasonable inference, the mathematical quantum of the probability is irrelevant. The point is illustrated most clearly in Guenther v. Armstrong Rubber Co. (3d Cir. 1969), 406 F.2d 1315. There, a mechanic for Sears Roebuck & Company sued defendant for products liability negligence when a tire he was preparing to mount on a car burst. The district court had directed a verdict for defendant when the plaintiff testified that the tire which burst was a 15-inch blackwall tire, while the tire which defendant admitted making, which the employer’s service manager stated caused the accident and which was in court, was a 13-inch whitewall tire. The circuit court of appeals specifically rejected plaintiff-appellant’s argument that his claim should have been allowed to go to the jury because the evidence proved that defendant made 75% to 80% of the tires the particular Sears Roebuck store had for sale.
The circuit court noted that the district court, in holding that plaintiff’s evidence of identification failed, had relied on Kamosky v. Owens-Illinois Glass Co. (M.D. Pa. 1950), 89 F. Supp. 561, affirmed, (3d Cir. 1950), 185 F.2d 674. In Kamosky, the district court directed a verdict for a defendant bottle manufacturer who was sued when plaintiff was injured by an exploding bottle. Plaintiff’s evidence identifying defendant as the producer of the bottle was that defendant provided virtually all of the new bottles used by the particular brewery which filled bottles for the distributor who actually sold the exploding bottle to plaintiff. Of the bottles which the brewery filled, between 10% and 15% were new bottles. The Kamosky court held that this evidence was insufficient to find the defendant supplied the bottle involved in the accident.
The Guenther circuit court found that, notwithstanding the contrast between the 10% to 15% likelihood of liability in Kamosky and the 75% to 80% likelihood of liability in the case before it, the probability hypothesis could not support a jury verdict. Although the court reversed the judgment on other grounds, it found that there was no justification for allowing the mere probability of identification to go to the jury, since any verdict would “at best be a guess.” Guenther v. Armstrong Rubber Co. (3d Cir. 1969), 406 F.2d 1315, 1318.
Thus, according to traditional concepts of causality, it is apparent that any holding that a defendant is liable for injury caused by a product must be predicated upon evidence greater than a naked theoretical probability that that defendant is in some way responsible for the product. Imposing liability only on the defendant whose wrongful acts actually caused the plaintiff’s harm comports with some of our society’s deepest beliefs in moral responsibility and just compensation. It is not enough to say that there are 51 chances of liability out of 100. Nor is it enough, or better, to say that there are 90 chances of liability out of 100.
The majority states that affirming summary judgment for defendant Lawrence in this case would “require the granting of summary judgment whenever a defendant raises the mere possibility of misidentification.” (141 Ill. App. 3d at 222.) However, our focus must be on applying the law to the facts of this particular case. I believe that a theoretical probability alone cannot be the basis for a reasonable inference that a producer, manufacturer, seller, or any person in a similar situation, is liable for injury caused by a particular product. The facts in the record before us reflect that (1) the theoretical statistic of nine to one odds that defendant supplied the bolt in question is one deponent’s approximation; (2) the other firm alleged to have supplied 10% of the bolts cannot be joined in the lawsuit; (3) no evidence exists that defendant Lawrence was the exclusive supplier of AN4-33 bolts to Weedhopper during the relevant period; (4) no evidence exists that the particular bin from which Weedhopper employees assembled plaintiff’s kit contained 90% Lawrence-supplied bolts, and (5) no records exist showing the percentage of Lawrence-supplied bolts contained in plaintiff’s particular kit.
Indeed, if we are to indulge in generalizations, to hold otherwise subjects any supplier selling more than 50% of a certain product to potential liability for any blind accident. Individualized connection of the defendant to the alleged harm is necessary under the standards of products liability law. The establishment of the identity of the tortfeasor is not one of the onerous evidentiary burdens inherent in negligence actions that have been eliminated in strict products liability proceedings. (McCreery v. Eli Lilly & Co. (1978), 87 Cal. App. 3d 77, 150 Cal. Rptr. 730.) The rule in Illinois is that plaintiff must identify the supplier and establish the causal relation between the injury and the product. Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401, 256 N.E.2d 6, cert, denied (1970), 398 U.S. 959, 26 L. Ed. 2d 544, 90 S. Ct. 2173.
I would affirm.