dissenting:
The plaintiff should be permitted to proceed to trial on her strict products liability count. Dominick’s was part of the stream of commerce flowing from the cart’s manufacturer to the plaintiff. The cart was intended for use by customers of grocery supermarkets. It reached the plaintiff through Dominick’s. Therefore, the stream of commerce did not stop, as the majority views it, with the parties who distributed the cart to Dominick’s, but continued until the cart reached the customers who were intended to use it and for whose use Dominick’s supplied it. The approach of the majority is that Dominick’s is the consumer or user of the carts. On the other hand, I regard Dominick’s as the supplier of the carts to its customers and, therefore, as a conduit in the marketing chain which brought the carts to their ultimate users, Dominick’s customers.
Although, as the majority points out, Dominick’s neither sells nor rents shopping carts, it does supply them for its customers. It would be virtually impossible for a customer to make substantial purchases at Dominick’s supermarts without the use of a cart. The customer may be regarded as paying for this use because the cart is a cost of doing business which no doubt is reflected in the charge Dominick’s makes for its merchandise. The cart not only provides a convenience for Dominick’s customers, but also increases Dominick’s sales and profits. As the majority states, one of the reasons for imposing strict liability is to ensure that losses are borne by those who reap the profit of marketing an allegedly defective product. By supplying the carts, Dominick’s fits within this rationale.
The majority cites Ryan v. Robeson’s, Inc. (1969), 113 Ill. App. 2d 416, 251 N.E.2d 545, for the proposition that public policy does not require a shopkeeper to adhere to a higher standard than reasonable care in keeping his premises safe. I do not read the opinion in that way. After reviewing the evidence introduced at trial, the court did not apply products liability rules because it did not find “one jot of proof that the door handle was imperfect.” The court said: “The element of defect — the cardinal root from which all other tests of strict liability derive — is totally absent.” Moreover, that case involved a glass-paneled door leading into the store premises. I believe that in the case of a door, fixture, shelf or other stationary part of the premises, the shopkeeper is the ultimate user rather than a supplier to his customers. And, unlike a shopping cart, such fixtures and appliances are not provided for a customer’s exclusive use and control while shopping.
Neither is Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, 329 N.E.2d 785, relevant to this appeal. The Peterson complaint was dismissed prior to trial because the used-car dealer was outside the original producing and marketing chain when he sold a defective used car. Dominick’s, as I view its role, was in the original chain of distribution which brought the cart to the plaintiff.
It is important to bear in mind that the issue before us in this case is not whether the plaintiff could recover under a strict products liability theory, but only whether her complaint stated a proper cause of action on that count. For the plaintiff to prevail under strict products liability, she would have to establish that the defect which caused the cart to collapse existed at the time the cart left the control of the manufacturer or that Dominick’s caused the defect in question and that the condition of the cart when it was supplied to her was unreasonably dangerous. These, however, are matters of proof which are not raised by this appeal because there has been no trial.
I believe the order dismissing the count alleging strict products liability should be reversed so that the plaintiff can have a trial on that theory.