case. The Ehrlich court found four facts present in that lawsuit to be persuasive arguments in favor of extending Summers. An analysis of the same factors in this case reveals that they are not present in this lawsuit to the same degree as they were in Ehrlich.
Most importantly, it is not apparent that plaintiff could not identify the manufacturer of the lift-jack that rammed hers through the exercise of reasonable diligence. Plaintiff was at the scene of the accident. She worked there on a daily basis. The plaintiff in Ehrlich, by contrast, had been harmed by drugs taken by her mother decades ago. Id. at 265. Moreover, the marketing techniques employed by the defendants in that case made identification of the manufacturer of the pills difficult, if not impossible, even for the woman who originally took them. Id. The lift-jacks by contrast could have easily been identified by direct examination or through investigation with plaintiff's employer.
In the instant case, plaintiff could have identified the lift-jack that had struck hers by simply looking over or asking someone which one it was. To accept plaintiff's argument that she should not be held to such a minimal level of diligence goes too far. To follow this line of reasoning, plaintiffs should be allowed to proceed on a Summers theory against all the drivers in a jurisdiction for a hit and run car accident, or even for a car accident where they simply neglected to identify the driver of the car at the time of the accident. Obviously, such an extension of Summers would make it an exception swallowing the general rule that plaintiffs must prove the identity of an alleged tortfeasor.
Further, it is not clear that all of the defendants' lift-jacks in the present case are so similar as to bring this case within Ehrlich. Presumably, not all of these machines are identical. There may also be issues arising from subsequent modifications made to the lift-jacks after plaintiff's employer bought them.
For these reasons,
under the facts of this case as they have been pleaded, I decline to follow Ehrlich.5 Motions for summary judgment filed by defendants Stokvis Multiton Corporation, Equipment Corporation of America, Lift Parts Equipment Manufacturing Company and third-party defendant Anderson-Clayton and Company will therefore be granted. An appropriate order follows.
NOW, October 18, 1984, upon consideration of the motions for summary judgment filed by defendants Stokvis Multiton Corporation, Equipment Company of America, and Lift Parts Manufacturing Company and third-party defendant Anderson-Clayton and Company, the response thereto, the memoranda of law submitted by the parties, and for the reasons set forth in the accompanying memorandum, IT IS ORDERED that the motions for summary judgment filed by defendants Stokvis Multiton Corporation, Equipment Company of America, and Lift Parts Manufacturing Company, and third-party defendant Anderson-Clayton and Company are GRANTED. Judgment is entered in favor of those parties.
Before HUYETT, J.
AND NOW, this 18th day of October, 1984, in accordance with the order dated October 18, 1984,
IT IS ORDERED that Judgment be and the same is hereby entered in favor of defendants Stokvis Multiton Corporation, Equipment Company of America and Lift Parts Manufacturing Company and third-party defendant Anderson-Clay and Company and against the plaintiffs.