For this reason we do not find the October 22, 1987, dismissal to have constituted error. β’ 3, 4 Furthermore, although it is true that all entities in the distributive chain of an allegedly defective product are subject to liability in a strict liability in tort action ( Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 454 N.E.2d 210; Sims v. Teepak, Inc. (1986), 143 Ill. App.3d 865, 493 N.E.2d 721), this does not necessarily give a plaintiff the right to elect whom he/she will sue. The purpose of section 2-621 of the Code is to provide a "sellers exception" whereby any nonmanufacturing defendant, who has not been shown to have created or contributed to the alleged defect, may defer liability to the ultimate wrongdoer, the manufacturer.
The Illinois Appellate Court has held, however, that the seller's exception does not toll the plaintiff's statute of limitations with regard to a claim against the unnamed manufacturer. Sims v. Teepak, 143 Ill. App. 3d 865, 872, 493 N.E.2d 721, 726 (1986). In Sims, the plaintiff sued his employer for injuries sustained while operating a machine at work.
β’ 2 All persons in the distributive chain, including suppliers, distributors, wholesalers and retailers, are liable for injuries resulting from a defective product in a product liability action. ( Kellerman, 119 Ill.2d at 116; Sims v. Teepak, Inc. (1986), 143 Ill. App.3d 865, 868.) Under the provisions of section 2-621, nonmanufacturers may be dismissed from a product liability action upon certifying the correct identity of the manufacturer of the product which allegedly caused the personal injury. "Once the product manufacturer has been sued and has answered or otherwise pleaded, the trial court is to dismiss the certifying [defendant unless the certifying defendant] * * * shares some responsibility for the creation of the defect in the product or had actual knowledge of its existence." ( Kellerman, 119 Ill.2d at 113-14; Ill. Rev. Stat. 1987, ch. 110, par. 2-621(c).)
See Saieva v. Budget Rent-A-Car, 591 N.E.2d 507, 511 (Ill. App. Ct. 1992) ("[T]he purpose of section 2-621 is to allow a nonmanufacturing defendant, who has not been shown to have created or contributed to the alleged defect, to defer liability upstream to the ultimate wrongdoer, the manufacturer.") (emphasis added); Sims v. Teepak, Inc., 493 N.E.2d 721, 724 (Ill. App. Ct. 1986) ("The main thrust of the statute . . . remains that of a "seller's exception"; the seller may still be sued in the first instance, but may identify
Sellers may also be held strictly liable for injuries caused by unreasonably dangerous products that they put into the stream of commerce, regardless of whether they actually knew of the defect, contributed to the defect or failed to discover the defect. Simsv. Teepak, Inc. , 493 N.E.2d 721, 723-24 (Ill. App. Ct. 1986). To prevail in an action for strict liability, Sumner must prove (1) an injury resulted from a condition of the product; (2) the condition was unreasonably dangerous; and (3) the condition existed at the time the product left the manufacturer's control.
Section 2-621 of the Illinois Code of Civil Procedure is a "seller's exception" that allows nonmanufacturing defendants to escape liability for injuries caused by a defective product. Sims v. Teepak, Inc., 143 Ill. App. 3d 865, 868 (4th Dist. 1986). Under 735 ILCS 5/2-621(a), a nonmanufacturing defendant shall "upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer." After the plaintiff has filed a complaint against the manufacturer, and the manufacturer has or is required to answer or otherwise plead, "the court shall order a dismissal of a product liability action . . . against the certifying defendant or defendants, provided the certifying defendant or defendants are not within the categories set forth in subsection (c) of this Section.
Accordingly, in a products liability action, all persons in the chain of distribution of a defective product, including suppliers, distributors, wholesalers, and retailers, are liable for injuries resulting from the product. See Hammond v. North Am. Asbestos Corp., 454 N.E.2d 210, 216 (Ill. 1983); Thomas v. Kaiser Agric. Chems., 407 N.E.2d 32, 36 (Ill. 1980); Logan v. West Coast Cycle Supply Co., 553 N.E.2d 1139, 1142 (Ill.App.Ct. 1990); Sims v. Teepak, Inc., 493 N.E.2d 721, 723 (Ill.App.Ct. 1986). The major limitation on the strict products liability doctrine in Illinois of which the Court is aware is, of course, 735 ILCS 5/2-621, the so-called "seller's exception" to products liability under Illinois law. Yount v. Shashek, 472 F. Supp. 2d 1055, 1065 (S.D. Ill. 2006); Cherry v. Siemans Med. Sys., Inc., 565 N.E.2d 215, 218 (Ill.App.Ct. 1990).
The Illinois legislature has decided, through Section 2-621, to alter the tort common law and strict liability law in particular. See Sims v. Teepak, 143 Ill. App.3d 865, 97 Ill.Dec. 914, 917, 493 N.E.2d 721, 724 (4th Dist. 1986). Under the common law, all other elements of strict liability being proven, a retailer or distributor who distributes defective goods is just as liable to the plaintiff as a manufacturer.
An employee simply cannot recover from an employer in both a workers' compensation proceeding and a common law action. Collier, 41 Ill.Dec. at 782, 408 N.E.2d at 204; Rhodes v. Industrial Comm'n of Illinois, 92 Ill.2d 467, 66 Ill.Dec. 83, 442 N.E.2d 509 (1982); see also Sims v. Teepak, Inc., 143 Ill. App.3d 865, 97 Ill.Dec. 914, 493 N.E.2d 721 (4th Dist. 1986). But this bar applies only to employees; independent contractors are not eligible to receive workers' compensation benefits, hence are not barred from pursuing common law remedies against their contractor.
Brobbey v. Enterprise Leasing Co. of Chicago , 404 Ill. App. 3d 420, 428-29, 343 Ill.Dec. 856, 935 N.E.2d 1084 (2010) ; Murphy v. Mancari's Chrysler Plymouth, Inc. , 381 Ill. App. 3d 768, 775, 320 Ill.Dec. 425, 887 N.E.2d 569 (2008) ; Logan v. West Coast Cycle Supply Co. , 197 Ill. App. 3d 185, 193, 143 Ill.Dec. 153, 553 N.E.2d 1139 (1990) ; Cherry , 206 Ill. App. 3d at 1060-61, 151 Ill.Dec. 944, 565 N.E.2d 215 ; Sims v. Teepak, Inc. , 143 Ill. App. 3d 865, 868, 97 Ill.Dec. 914, 493 N.E.2d 721 (1986). ΒΆ 76 A review of the legislative history of section 2-621 reveals that the legislature intended to provide stronger protections for nonmanufacturer defendants in cases of strict product liability.