dissenting:
Defendant has obtained summary judgment by trick, moving for summary judgment on the basis that plaintiff did not have sufficient evidence to prove her case but filing that motion before any substantial discovery had been completed.
There are two ways a defendant who moves for summary judgment may meet its initial burden of production. See 4 R. Michael, Illinois Practice § 40.3, at 271-72 (1989) (Civil Procedure Before Trial). One way is similar to the way a plaintiff would establish his right to summary judgment: by affirmatively showing that some element of the case must be resolved in defendant’s favor. A defendant who uses that method is required to prove something it would not be required to prove at trial; at trial the burden wotild be on plaintiff to prove the element, not on defendant to disprove it. Carruthers is an example of this traditional method of proof. In Carruthers defendant presented affidavits that affirmatively established defendant was not in charge of the work. Carruthers, 57 Ill. 2d at 378, 313 N.E.2d at 458.
The second method was recognized in Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548, 2553-54 (1986). In that case, Celotex, the movant, could not prove its products were not the cause of plaintiff’s injuries. Celotex was nevertheless entitled to summary judgment because plaintiff, who had the burden of proof, likewise could not produce any evidence that a Celotex product was involved. Celotex held that a defendant satisfies its initial burden of production when it "pointfs] out” there is an absence of evidence to support the plaintiff’s position. Celotex, 477 U.S. at 325, 91 L. Ed. 2d at 275, 106 S. Ct. at 2554. The Illinois cases may require the defendant to do more than "point out” the absence of evidence. See 4 R. Michael, Illinois Practice § 40.3, at 272 (Civil Procedure Before Trial) ("may not be done by a mere recital in the defendant’s affidavit to this effect”). In Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416 N.E.2d 328, 331 (1981), for example, defendant was able to produce a deposition of the plaintiff in which plaintiff stated she did not know why she fell, and answers to interrogatories in which plaintiff stated there were no other known eyewitnesses. Defendant’s burden is certainly reduced with a Celotex-type motion. A Celotex-type motion presents the rare situation of a motion for summary judgment where the burden of proof is essentially on the nonmovant.
In either case, Celotex-type motion or traditional motion, once defendant has satisfied its initial burden of production, the burden shifts to plaintiff to present some factual basis that would arguably entitle her to a judgment under the applicable law. Kimbrough, 92 Ill. App. 3d at 819, 416 N.E.2d at 333 (Celotex-type motion). Because defendant’s initial burden is so high with a traditional motion for summary judgment, it is misleading to say there is generally a burden on plaintiff to present some factual basis in those cases. The plaintiff is not required to file counteraffidavits in response to a traditional motion. The only caveat is that, if defendant’s affidavits are uncontested, the material facts therein must be accepted as true. Carruthers, 57 Ill. 2d at 380, 313 N.E.2d at 460.
When defendant files a Celotex-type motion, it is essential that plaintiff be given adequate time to gather evidence. Celotex, 477 U.S. at 322, 91 L. Ed. 2d at 273, 106 S. Ct. at 2552 ("adequate time for discovery”); Webber v. Armstrong World Industries, Inc., 235 Ill. App. 3d 790, 795, 601 N.E.2d 286, 290 (1992) ("The discovery may establish that plaintiff does not have evidence of all the necessary elements of his case”); Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122, 126-27, 595 N.E.2d 177, 180 (1992) (objective of discovery to insure that judgments rest on the merits and not upon the skillful maneuvering of counsel).
"Where a motion for summary judgment is made by a party on the basis that the respondent, who has the burden of proof, cannot prove a prima facie case, it is critical that the respondent be given a reasonable opportunity to conduct discovery before summary judgment is rendered against him.” 4 R. Michael, Illinois Practice § 38.4, at 227 (1989) (Civil Procedure Before Trial).
See generally 4 R. Michael, Illinois Practice § 39.4, at 255 (1989) (Civil Procedure Before Trial); see also Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500 (1971) (summary judgment if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court at trial and the court would have directed a verdict on that evidence).
Some decisions cite the language of section 2 — 1005 of the Code of Civil Procedure that a defendant may move for summary judgment "at any time” (735 ILCS 5/2—1005(b) (West 1994)) and refuse to consider the argument that a motion for summary judgment is premature unless there has been strict compliance with Supreme Court Rule 191(b) (145 Ill. 2d R. 191(b)). Rule 191(b) provides that in order to continue a motion for summary judgment an affidavit of the party is required, naming the persons whose affidavits cannot be procured, showing why the affidavits cannot be procured, stating what affiant believes the persons would testify to if sworn, and giving reasons for that belief.
A plaintiff should not be required to comply with Rule 191(b) when a defendant files a CeZof ex-type motion. See 4 R. Michael, Illinois Practice § 39.5, at 255 (1989) (Civil Procedure Before Trial). It is one thing to require plaintiff to comply with Rule 191(b) when defendant has affirmatively shown that defendant is entitled to judgment, but it is quite another to require such compliance when defendant, at an early stage, merely suggests that plaintiff is unable to prove his case. Plaintiff may not know what the witnesses will testify to before discovery is taken and accordingly be unable to comply with Rule 191(b) at that time. Rule 191(b) was adopted before Celotextype motions were widely used and was never intended to apply to them. See Gresham v. Kirby, 229 Ill. App. 3d 952, 954-55, 595 N.E.2d 201, 203 (1992); Benner v. Bell, 236 Ill. App. 3d 761, 768-69, 602 N.E.2d 896, 901 (1992).
The complaint in this case was filed in March 1995. Defendant’s motion for summary judgment was filed in March 1996, before the depositions of the occurrence witnesses had been taken. The scheduling order required that the depositions of the occurrence witnesses be taken by June 30, 1996, and that plaintiff’s expert be disclosed by July 30, 1996, and then deposed by August 30, 1996. Amazingly, defendant argued that the circuit court, in deciding the motion for summary judgment, should not consider statements that plaintiff had taken from the occurrence witnesses, because they were unsworn. The problem in this case was not the form of the statements, but the premature filing of the motion. The premature filing had additional effects. If plaintiff wanted to submit the affidavit of an expert, the timing of the motion required plaintiff to do so before she was required to decide on an expert and before the expert had an opportunity to read the depositions of the occurrence witnesses. I do not view plaintiff’s argument that summary judgment should be denied even in the absence of expert testimony as a concession that plaintiff would not seek expert testimony.
When a person walked through the automatic sliding doors in this case, the following things happened. The motion sensor (supplied by others), mounted above the doors, detected motion in the detection zone in front of the doors. The motion sensor relayed that information to the control (supplied by defendant). The control caused the sliding doors to open and held the doors open as long as the motion sensor detected motion. The doors contained a safety-beam system (supplied by defendant), which consisted of infrared light beams in the sliding doors at heights of 24 and 48 inches, which would detect anything in their paths, approximately the width of a pencil. "When the dual beams detected anything, they would relay that information to the control, which would not allow the doors to close. Dual safety beams are standard equipment on defendant’s sliding doors, but defendant provides an option, a threshold sonar scan system. Under this option the second beam is replaced with a threshold scan at a height of 30 inches, which apparently scans not just a pencil width, but a cylinder with a diameter of perhaps 15 inches between the sliding doors. There is no warning in defendant’s materials that its standard equipment, the dual safety beams, is inadequate when the doors are used by slow-moving persons using walkers or that the threshold sonar scan system should be used in that situation. The overhead motion sensor is apparently a sonar system.
Defendant argues it is entitled to summary judgment under the traditional test. Defendant argues that it has proved that no act or omission of defendant was the proximate cause of plaintiffs injuries. That is not correct. We do not know how this accident happened. It is possible that an act or omission of defendant was the cause of this accident. The control, manufactured by defendant, may have failed to respond properly to information supplied by the motion sensor that there was motion in the detection zone. The safety-beam system, manufactured by defendant, may have failed to alert the control that something had broken the path of the safety beams. The safety-beam system may be an improper design where people with walkers use the sliding doors, and defendant may have failed to warn that some other device was necessary. The settings for the motion sensor, control, and safety-beam system, recommended by defendant, may have been inadequate.
The majority recognizes that when ruling on a motion for summary judgment the court must view all evidence in the light most favorable to the nonmovant. 289 Ill. App. 3d at 413. The majority violates that rule here. The majority states that defendant did everything it could have done in this case and that it offered an option (the threshold sonar scan system) that would have prevented the accident in this case. 289 Ill. App. 3d at 417. I see nothing in defendant’s affidavits that would support those conclusions. The majority states (289 Ill. App. 3d at 416) that "there was nothing defective in the design of the product manufactured by the defendant.” In the absence of expert testimony, I do not understand how that statement can be made. The majority states (289 Ill. App. 3d at 419) there is "uncontradicted evidence defendant had nothing to do with the selection, installation, and maintenance of the door system.” Defendant’s service and installation manuals certainly seem to make recommendations how its doors should be selected, installed, and maintained. The installer is a defendant in this case, and none of the installer’s personnel had been deposed at the time of the motion, although the installer had answered plaintiff’s (not defendant’s) interrogatories.
The majority states (289 Ill. App. 3d at 418) that the facts contained in Moerbe’s affidavits establish defendant’s right to summary judgment as a matter of law. Moerbe is defendant’s vice-president of sales and marketing. The only clear fact in Moerbe’s affidavit was that defendant did not supply the motion detectors used on the Pulmocare project. Moerbe stated that defendant was not aware that components (apparently motion detectors) from BEA Corporation (BEA) and C&K Systems, Inc. (C&K), would be added to its automatic door, but defendant had to know that motion detectors would be supplied by someone. It appears that defendant sometimes supplied BEA and C&K motion detectors itself. Moerbe stated that defendant was not involved in deciding what the adjustments should be for closing speed, closing force, and time delay. In the very next sentence, however, Moerbe admits that defendant makes recommendations as to these settings. A review of defendant’s service manual and installation instructions indicates that defendant provides very specific directions regarding ,the installation of its doors and that installers have little, if any, discretion in the final result. Moerbe stated that defendant was "never advised of the traffic that frequented Pulmocare,” and that may be true, but certainly defendant was aware that persons with walkers sometimes used its automatic doors. Defendant’s manual contained an illustration of such a use.
The general rule is that the occurrence of an injury, in and of itself, is insufficient to show the existence of a product defect. However, a prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that, in the absence of abnormal use or reasonable secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. American Family Insurance Co. v. Village Pontiac-GMC, Inc., 223 Ill. App. 3d 624, 628-29, 585 N.E.2d 1115, 1119 (1992). Automatic sliding doors are not reasonably expected to close on people using them. It is true that the manufacturer of a component part need not anticipate every possible use of his product. The manufacturer of a ventilation system that can be used to discharge stale air need not anticipate problems that might occur when the system is used to discharge poisonous gases. See Sparacino, 227 Ill. App. 3d 990, 592 N.E.2d 431. It is difficult, however, to characterize defendant in this case as the unknowing manufacturer of a component part. Defendant has not shown any abnormal use of these doors, or secondary causes, such as improper settings made by the installer.
The majority indicates that the complaint alleged only design defects, not manufacturing defects or a failure to warn. 289 Ill. App. 3d at 413, 414. The amended complaint clearly alleges manufacturing defects. Count II of the original complaint says that defendant designed and/or manufactured the door with components that did not have adequate service life and failed to supply adequate instructions. We should not be overly technical with the pleadings. A summary judgment is not a substitute for a motion to dismiss. See Janes v. First Federal Savings & Loan Ass’n, 57 Ill. 2d 398, 405-06, 312 N.E.2d 605, 609 (1974).