795 F.2d 1265
41 Fair Empl.Prac.Cas.  425,41 Empl. Prac. Dec. P 36,467Lywanna COOPER, Plaintiff-Appellee,v.CITY OF NORTH OLMSTED, et al., Defendants-Appellants.
No. 85-3213.
United States Court of Appeals,Sixth Circuit.
Argued May 5, 1986.Decided July 16, 1986.

Michael R. Gareau (argued), Director of Law, James M. Dubelko (argued), Asst. Director of Law, City of North Olmsted, North Olmsted, Ohio, for defendants-appellants.
Steven L. Howland (argued), Cleveland, Ohio, for plaintiff-appellee.
Susan Elizabeth Rees (argued), E.E.O.C., Washington, D.C., for amicus curiae.
Before KENNEDY and MILBURN, Circuit Judges, and JOINER, Senior District Judge.*
JOINER, Senior District Judge.
This is an appeal by the City of North Olmsted, et al.  ("the City" "or defendant") from the judgment of the district court in favor of plaintiff-appellee Lywanna Cooper ("Cooper" or "plaintiff") on her Title VII and Sec. 1981 claims.  The City raises two major issues before this court.  First, the City challenges the district court's conclusion that plaintiff was not collaterally estopped in this suit by a prior administrative decision denying her unemployment compensation, when the administrative decision was affirmed by a state court.  Second, the City argues that the district court incorrectly analyzed plaintiff's allegations of disparate treatment and retaliatory discharge.
Lywanna Cooper is the first female and first black to be hired as a bus driver by the North Olmsted Municipal Bus Line ("NOMBL").  Cooper began a one year period of probationary employment on July 1, 1979.  Six to eight weeks later, she complained of harassment by her fellow bus drivers.  This harassment included racist remarks made in Cooper's presence, offensive touching of her body, and crude bathroom graffiti about her.  In response to Cooper's complaints, NOMBL repainted the bathroom and posted a notice indicating that discrimination would not be tolerated.  No one was disciplined, however, and the harassment did not stop.
NOMBL maintained a "deficiency book" in which rules violations committed by bus drivers were recorded.  During 1979, six violations by Cooper were entered in the book.  On August 29, 1979, Cooper received a warning about parking her bus on Lorain Road with passengers on board.  On October 5, 1979, plaintiff was cited for wearing non-regulation shoes that were too bright in color.  On October 9, 1979, a "miss," or failure to arrive at work on time without first informing NOMBL, was recorded.  On October 15, 1979, Cooper was cited for failing to relieve another driver at the proper place.  On October 22, 1979, plaintiff was informed that she should not drive the bus with her foot propped over the emergency brake handle.  On October 29, 1979, Cooper again was cited for failing to relieve another driver at the correct place.
Cooper filed a complaint with the Ohio Civil Rights Commission ("OCRC") on February 15, 1980, claiming harassment by the other NOMBL drivers.  She alleged that the drivers' bathroom was again covered with graffiti about her, and that the other drivers were making bets about which of them could force her into an accident.  In March, 1980, Cooper, NOMBL, the OCRC, and the Equal Employment Opportunity Commission ("EEOC") entered into a negotiated settlement agreement.  The agreement required the repainting of the bathroom walls, the posting of a policy statement, and the disciplining of anyone caught engaging in discriminatory behavior.  Cooper reported some improvement in her work situation following the agreement.
On February 26, 1980, one day after NOMBL received notice of Cooper's OCRC complaint, Cooper was cited for a miss.  On March 14, 1980, a deficiency book entry indicates that plaintiff failed to pick up passengers at a certain point.  On April 9, 1980, and on May 7 and May 9, 1980, Cooper was cited for running early.  She was charged with a miss on both April 18 and May 28, 1980.  On June 12, 1980, Cooper was cited for failing to pick up children at a school stop, leaving them stranded for one half hour.  On June 19, 1980, Cooper was charged with leaving her bus unattended, running and open on a public street, arguably with children milling around.
NOMBL General Manager Ken Mues sent Cooper warning letters on June 2, and again on June 13, 1980.  These letters were Cooper's first indication that deficiency book entries were being made about her, and that her job performance was being seriously questioned.  On June 19, 1980, Mues learned of the charge that Cooper had left her bus unattended, with children milling around it.  He decided to discharge Cooper immediately, and did so.
After being discharged, Cooper pursued a number of avenues for relief.  First, on June 25, 1980, she filed charges of unlawful employment practices against the City with the OCRC.  After an investigation, the OCRC found no cause to credit Cooper's allegations, and dismissed the charges.  She did not request a reconsideration of this decision.  Cooper also filed charges with the EEOC, which concluded, on June 9, 1980, that there was no cause to believe that Cooper's allegations were true.  The EEOC issued Cooper a right to sue letter, enabling her to bring the present action.
Finally, on June 27, 1980, Cooper filed for unemployment benefits with the Ohio Bureau of Employment Services ("OBES").  She argued that she was entitled to benefits because her discharge was without just cause.  On July 25, 1980, the OBES denied Cooper benefits on the ground that NOMBL had cause to fire her.  Cooper appealed this decision to the OBES Board of Review, which also found against her.  On November 26, 1980, Cooper further appealed to the Cuyahoga County Court of Common Pleas.  The court affirmed the denial of benefits, finding that the administrative determination "was properly imposed, and was reasonable, lawful and supported by the manifest weight of the evidence."    Cooper v. Board of Review, No. 20482 (Cuyahoga Cnty.Ct.Cmmn.Pleas Dec. 30, 1982).  Cooper did not appeal from this decision.
On November 8, 1982, Cooper filed the present case in the United States District Court for the Northern District of Ohio.  She charged the City with violating Title VII of the Civil Rights Act of 1964, U.S.C. Sec. 2000e et seq.;    the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981;  and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, by discharging her because of her race and sex, and because she filed discrimination charges with the OCRC.  On September 2, 1983, the City moved for summary judgment, arguing that Cooper's claims were precluded by the prior ruling of the Cuyahoga County Court of Common Pleas.  The district court denied the motion, 576 F.Supp. 592.  The City then moved for summary judgment on the merits of Cooper's discrimination claims, and the court denied the motion.
After a bench trial, the district court entered judgment in favor of Cooper on her Title VII and Sec. 1981 claims, and dismissed her claim under Sec. 1983.  The City now appeals from the judgment of the district court.
I. PRECLUSIVE EFFECT OF THE PRIOR STATE COURT JUDGMENT
The City first argues that the district court erroneously found that the final decision of the Cuyahoga County Court of Common Pleas did not preclude the claims raised in this lawsuit.  This argument is based on the Full Faith and Credit Statute, which requires all United States courts to afford the same full faith and credit to state court judgments that would apply in the state's own courts.  28 U.S.C. Sec. 1738.  In the present case, the City contends that the courts of Ohio would hold that the decision of the Court of Common Pleas precludes a subsequent discrimination claim.  Therefore, the City argues, the district court should have reached the same conclusion.
The City's argument rests on the assumption that the courts of Ohio would apply the doctrine of collateral estoppel to the state court judgment, and hold that the judgment bars the present claims of discrimination.  The seminal Ohio case on collateral estoppel is Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943).  There the Ohio Supreme Court defined collateral estoppel as follows:
A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.
142 Ohio St. at 300, 52 N.E.2d 67 (syllabus p 3).  More recently, Justice Holmes, writing for the Ohio Supreme Court in Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 200-01, 443 N.E.2d 978 (1983), stated that:

1
The main legal thread which runs throughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral estoppel, is the necessity of a fair opportunity to fully litigate and to be "heard" in the due process sense.  Accordingly, an absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action.

2
(citations omitted).  Therefore, the City must prove that the issues of race and sex discrimination were actually and directly at issue in the prior state proceedings, and that they were essential to the judgment of the state court against Cooper.

3
The record in this case reveals that the question of whether Cooper's discharge was the result of race or sex discrimination by the City was not actually or directly presented to or ruled upon by the OBES or the Common Pleas Court.  The prior state proceedings instead addressed Cooper's entitlement to unemployment benefits.  Ohio Rev.Code Sec. 4141.29(D)(2)(a) (Page 1980) provides that an individual is ineligible for benefits if he or she "has been discharged for just cause in connection with his [or her] work."    In the present case, Cooper was denied benefits by the OBES because it found that her employer had "just cause" to discharge her.  The determination of whether just cause exists focuses on the existence of fault on the part of the employee as a factor in the discharge.   See Sellers v. Board of Review, Ohio Bureau of Employment Serv., 1 Ohio App.3d 161, 164, 440 N.E.2d 550 (1981).  Here, the OBES concluded that Cooper's discharge was justified by her infractions of the rules of her employer.  On appeal, the Common Pleas Court held that the OBES determination was not "unlawful, unreasonable, or against the manifest weight of the evidence."    Ohio Rev.Code Sec. 4141.28(O).  The court rejected Cooper's arguments that her transgressions were insufficient to justify the discharge, and that the OBES hearing was unfair in that Cooper was unable to present her side of the case.  The record is devoid of any consideration of race or sex discrimination, and such claims were beyond the scope of the administrative and state court actions.1   Under these circumstances, the courts of Ohio would hold that Cooper's discrimination claims are not barred by the prior state proceedings.

4
The City's reliance on Kremer v. Chemical Constr. Corp., 456 U.S. 461,102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), is misplaced.  In that case, the question confronting the Supreme Court was whether to "give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment claim as meritless when the state court's decision would be res judicata in the State's own courts."    456 U.S. at 463, 102 S.Ct. at 1888.  The Court held that the prior state proceedings barred the plaintiff's Title VII charges of discrimination.  In Kremer, New York law clearly held that the judicially-affirmed determination of the New York State Division of Human Rights that plaintiff was not the victim of discrimination barred later suits based on the same grievance.  Id. at 467, 102 S.Ct. at 1890 (quoting New York law).  In this case, the prior state proceedings did not encompass the claims raised in the subsequent Title VII lawsuit, and the Ohio courts would not apply collateral estoppel.2

5
The City's reliance on Pullar v. UpJohn Health Care Serv., Inc., 21 Ohio App.3d 288, 488 N.E.2d 486 (1984), is also unavailing.  There the Cuyahoga County Court of Appeals held that a prior OBES decision that plaintiff had been terminated for just cause bars a later age discrimination action.  The discrimination suit was based on an Ohio statute that prohibits discharging individuals between the ages of 40 and 70 "without just cause."    21 Ohio App.3d at 290, 488 N.E.2d 486 (quoting Ohio Rev.Code Sec. 4101.17).    Pullar is distinguishable from the present case, as the subsequent discrimination suit raised the same issue of just cause to discharge as had been addressed in the OBES proceedings.  In this case, as previously stated, the prior OBES proceedings did not encompass the claims raised later in the discrimination action.  Moreover, a number of decisions from the other Ohio courts indicate that collateral estoppel does not apply in circumstances similar to those in the present case.  These courts have refused to give collateral estoppel effect to judicially-affirmed administrative decisions, holding that those decisions did not affect later proceedings addressing issues not directly raised in the first actions.  See, e.g., Ohio Dept. of Mental Health, Cambridge Mental Health Center v. Hunt, No. CA-766 (Ohio Ct.App. Aug. 2, 1985);  Pickaway County General Health Dist. v. Administrator, Ohio Bureau of Employment Serv., No. 84-CA-12 (Ohio Ct.App. July 1, 1985);  Reed v. Dodge, No. E-84-41 (Ohio Ct.App. March 15, 1985).

6
The foregoing analysis reveals that the courts of Ohio would not preclude Cooper from asserting her discrimination claims because of the prior judicially-affirmed OBES proceedings.  The district court's refusal to apply the doctrine of collateral estoppel is affirmed.

7
II. COOPER'S CLAIMS OF INTENTIONAL DISCRIMINATION

8
The City next challenges the district court's finding that plaintiff proved intentional discrimination, in violation of Title VII and Sec. 1981.3   The district court concluded that Cooper had established intentional discrimination under two theories:  disparate treatment and retaliatory discharge.  The City argues that the district court's conclusions on the issues are legally erroneous.

A. Disparate Treatment

9
Section 703(a)(1) of Title VII, 42 U.S.C. Sec. 2000e-2(a)(1), generally prohibits race or sex discrimination in any employment decision.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796, 93 S.Ct. 1817, 1821, 36 L.Ed.2d 668 (1973).  A Title VII plaintiff bears the burden of proving that it is more probable than not that she was discriminated against on a proscribed basis.  The district court correctly found that Cooper could establish a prima facie case of disparate treatment pursuant to McDonnell Douglas if she showed 1) that she was female and a member of a racial minority;  2) that she and a similarly situated white or male person received dissimilar treatment;  and 3) that sufficient evidence exists from which the court can find a causal connection between race or sex and the alleged acts of the defendants.

10
The City contends that Cooper failed to establish a prima facie case, as she did not prove that she was treated differently than similarly situated white and male employees.  It argues that the district court, in concluding that a prima facie case had been established, erroneously compared Cooper to employees who were not similarly situated.  Specifically, the City objects to the district court's comparing of Cooper's record to those of Lawrence Sindalar and Ken Moss.  The City points out that Sindalar was a permanent rather than a probationary employee during the relevant time period, and that Moss' probationary period occurred five years earlier under a different General Manager than that of Cooper.

11
A probationary period of employment permits a company to weed out or eliminate undesirable employees.   See, e.g., Farmer v. Colorado and Southern R.R. Co., 723 F.2d 766, 767 (10th Cir.1983).  The opportunity to dismiss more readily those new employees whose job performance is unsatisfactory is particularly important to NOMBL.  As a common carrier, NOMBL has the duty of exercising the highest standard of care for the safety of its passengers. See, e.g., Mitchell v. Marker, 62 F. 139, 142-43 (6th Cir.1894);  May Dept. Stores Co. v. McBride, 124 Ohio St. 264, 178 N.E. 12 (1931).  Probationary bus drivers therefore do not stand on equal footing with permanent drivers, and cannot be considered to be similarly situated.   See, e.g., McKenna v. Weinberger, 729 F.2d 783, 789 (D.C.Cir.1984).

12
The district court improperly compared the work records of Sindalar, a permanent employee who was not discharged, and Cooper, a probationary employee who was discharged.  This error requires a remanding of this case to the district court.  On remand, the district court shall make findings as to whether Cooper has established that she was treated differently than other NOMBL probationary employees.

13
The district court also compared Cooper to Ken Moss, who began his probationary year of employment in 1976 under General Manager Ernie Zoldesy, Ken Mues' predecessor.  The City contends that it presented ample evidence at trial that Zoldesy did not possess the managerial skills of Mues.  It concludes that any difference in the treatment received by Cooper and Moss can be explained by the change in managers.  The district court refused to consider the change in management, finding it "entirely appropriate" to compare the treatment received by Cooper and Moss.    Cooper v. City of North Olmsted, C82-3089, at 34 (N.D.Ohio Feb. 11, 1985).  Although a change in managers is not a defense to claims of race or sex discrimination, it can suggest a basis other than race or sex for the difference in treatment received by two employees.   See Tate v. Weyerhaeuser Co., 723 F.2d 598, 606 (8th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 160, 83 L.Ed.2d 97 (1984).  The district court therefore should have considered the management change in determining the probative value of the comparison between Cooper and Moss.  On remand, the district court shall consider this factor in its analysis of Cooper's disparate treatment claim.

14
The City next argues that the district court erroneously conducted the analysis of discrimination claims set forth in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).  According to Burdine, the plaintiff must first establish a prima facie case of intentional discrimination, which the defendant can rebut by producing a legitimate, nondiscriminatory reason for the discharge.  "The defendant need not persuade the court that it was actually motivated by the proffered reasons....  It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff."    450 U.S. at 254-55, 101 S.Ct. at 1094 (citation and footnote omitted).  If the defendant meets this burden of production, the plaintiff must then prove that defendant's asserted motive is pretextual.  The need to prove pretext merges with the plaintiff's ultimate burden of persuading the court that she was the victim of intentional discrimination, a burden that the plaintiff retains at all times.   Id. at 254-56, 101 S.Ct. at 1094-95.

15
In the present case, the City offered Cooper's numerous infractions of NOMBL rules, as recorded in the deficiency book, as its legitimate, nondiscriminatory reason for discharging her.  Cooper then offered evidence that many of the deficiency book entries did not correspond to the facts of the situation, and that some of them were made in violation of company policy.  The district court examined the deficiency book entries, one by one, and found that Cooper's version of the recorded events was credible.  The court concluded that the vast majority of the deficiency book entries should not have been made, and that Cooper had therefore proved that the City's proffered reason for the discharge was a pretext.

16
The district court appears to have focused on whether or not the court believed Cooper's version of the facts surrounding the alleged infractions of NOMBL rules.  In so doing, the district court overlooked the crucial inquiry in this case, which is whether the City intentionally discriminated against Cooper.  The court should not put itself in a position of judging the correctness of the defendant's action in discharging the plaintiff.  Instead, the court should look at whether the actions and the intentions of the defendant were pretextual or amounted to intentional discrimination.  To determine the City's motivation in discharging Cooper, the district court must make specific factual findings on 1) whether the City relied on the deficiency book entries in discharging Cooper;  and 2) if the City did so rely, whether that reliance was reasonable under the totality of the circumstances in this case.  Therefore, this case must be remanded to the district court, with instructions to make these essential factual determinations.4

B. Retaliatory Discharge

17
Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a), forbids discrimination against employees for attempting to protest or correct allegedly discriminatory conditions of employment.   McDonnell Douglas, 411 U.S. at 796, 93 S.Ct. at 1821.  To support a claim of retaliatory discharge, a plaintiff must prove:  1) that she engaged in activity protected by Title VII;  2) that she was the subject of adverse employment action;  and 3) that there is a causal link between her protected activity and the adverse action of her employer.   Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.1984).  The City contends that Cooper failed to establish a prima facie case of retaliatory discharge, as she did not prove a causal link between her filing of OCRC charges and her discharge four months later.

18
The district court found that Cooper filed discrimination charges with the OCRC on February 15, 1980, and that the City received a copy of the charges on February 25, 1980.  The court stated that Cooper was then "immediately cited for myriad alleged violations of NOMBL rules," and that those citations culminated in Cooper's discharge.    Cooper v. City of North Olsted, No. C82-3089, at 35-36.  From this, the district court concluded that plaintiff established a prima facie case of retaliatory discharge.

19
The district court's factual findings do not support its conclusion that Cooper established a causal link between the OCRC complaint and her discharge.  The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference of retaliation.   See, e.g., Brown v. ASD Computing Center, 519 F.Supp. 1096, 1116-17 (S.D.Ohio 1981), aff'd sub nom.  Brown v. Mark, 709 F.2d 1499 (6th Cir.1983).  The district court appears to have relied on the fact that Cooper was cited for rules violations six times in the seven month period preceding her OCRC complaint, and nine times in the four months following the complaint.  The district court further noted that four of the pre-complaint citations were unjustified.5   The record in this case contains no evidence directly linking the nine citations at issue to Cooper's filing of the OCRC discrimination charges.  While a disparity in the amount of disciplinary action may certainly be sufficient in appropriate cases to support an inference of retaliation, this is not such a case.  Standing alone, the change in the number of deficiency book entries on which the City could reasonably rely, and Cooper's discharge four months later, do not establish a prima facie case of retaliatory discharge.  The district court's finding on this issue is clearly erroneous, and must be reversed.6

III. CONCLUSION

20
The judgment of the district court denying collateral estoppel effect to the prior judicially-affirmed OBES proceedings is affirmed.  The district court's finding of disparate treatment, in violation of 42 U.S.C. Secs. 1981, 2000e-2(a)(1), is vacated, and the case is remanded for further proceedings in conformance with this opinion.  The finding of retaliatory discharge, in violation of 42 U.S.C. Secs. 1981, 2000-3(a), is reversed.

*
 The Hon. Charles W. Joiner, Senior United States District Judge, Eastern District of Michigan, sitting by designation

1
 The district court found that Cooper raised the issues of race and sex discrimination during the OBES and Court of Common Pleas proceedings.   See Cooper v. City of North Olmsted, 576 F.Supp. 592, 595 (N.D.Ohio 1983).  The court then stated, however, that there was no indication that these allegations were ever investigated.  The court further stated that the OBES Board of Review and the Court of Common Pleas had not ruled on the allegations of discrimination.  576 F.Supp. at 595-96.  The record on appeal, as indicated above, contains no indication that any charges of race and sex discrimination were directly presented or considered in the state proceedings.  Therefore, the record, when considered as a whole, fails to establish that the issues of race and sex discrimination were actually and directly at issue in the prior proceedings, or that they were essential to the judgment of the state court

2
 The City argues that Kremer establishes a two-part inquiry for this case.  First, a court should decide whether or not the Ohio courts would give preclusive effect to the prior Court of Common Pleas decision, and would hold that it bars the present discrimination suit.  If the court finds that collateral estoppel would apply under Ohio law, it must then examine whether that application would offend due process.  Specifically, the court must determine whether the claimant had a full and fair opportunity to litigate the discrimination claim in the prior proceeding.  The City claims that the district court committed reversible error by omitting the first part of the analysis, and failing to consider Ohio law.  Instead, the court focused exclusively on the due process inquiry.  The district court concluded that Cooper did not have a full and fair opportunity to litigate her discrimination claims in the prior proceedings, as those proceedings did not determine whether discrimination played a role in Cooper's discharge.  This analysis, although faulty, is not reversible error.  By concluding that the prior state proceedings did not afford Cooper an opportunity to litigate her discrimination claims, the court determined that those claims were not actually or directly at issue in the state court and that they were not essential to the state court's judgment.  Thus, the determination required by Ohio law was made

3
 Liability under Sec. 1981 may be established by proving that a defendant engaged in purposeful or intentional discrimination.   See General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982);  Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189, 193 (6th Cir.1985).  In the present case, the district court found that plaintiff's proof of disparate treatment and retaliatory discharge established a violation of both Title VII and Sec. 1981.  As liability under both statutes rests on the same proof, Cooper's Sec. 1981 claim will not be separately discussed infra

4
 The City also claims that the district court erred in refusing to grant it summary judgment on plaintiff's claims of intentional discrimination, as no issues of material fact existed.  As the Ninth Circuit has stated, "[c]ourts are reluctant to dismiss by summary judgment Title VII discrimination suits where, as in antitrust actions, motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers."   Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980).  In the present case, conflicting evidence was presented about the reasons for plaintiff's discharge.  Summary judgment was therefore inappropriate, and the district court properly denied the motion

5
 As stated earlier, the district court should have focused on whether the City reasonably relied on the deficiency book entries, and not on whether the district court itself believed the citations.  The court will assume, in analyzing the retaliatory discharge claim, that the district court found or will find on remand that the City did not reasonably rely on four pre-complaint deficiency book entries and nine post-complaint deficiency book entries

6
 This decision makes it unnecessary to consider the City's claim that the district court erroneously denied its motion for summary judgment on Cooper's retaliatory discharge claim


584 N.E.2d 235 (1991)
222 Ill. App.3d 532
165 Ill.Dec. 56
Melvin SCHULTZ, Plaintiff-Appellant,
v.
HENNESSY INDUSTRIES, INC., a Foreign Corporation, and Vulcan Tools Company, an Illinois Corporation, Defendants-Appellees
Mueller Electric Company of Cleveland, a Foreign Corporation, Reynolds Machine & Tool Corporation, an Illinois Corporation, Alice Skoglund, Patty J. Cruz, Ford Motor Company, a Foreign Corporation, and Roy Collum, Defendants.
No. 1-90-3127.
Appellate Court of Illinois, First District, Sixth Division.
November 22, 1991.
*237 Donald A. Kurasch, Ltd., Chicago (Donald A. Kurasch, Jessica B. Tucker, of counsel), for plaintiff-appellant.
Querrey & Harrow, Ltd., Chicago (Eric Samore, Ellen Martin, of counsel), for defendant-appellee Vulcan Tools Co.
Jobin & Flynn, Chicago (Mark Quinniff, of counsel), for defendant-appellee Hennessy Industries, Inc.
Justice LaPORTA delivered the opinion of the court:
Plaintiff, Melvin Schultz, brought an action against several defendants, seeking recovery for personal injuries sustained while he attempted to use a remote starter switch to start an automobile which had been brought in for repairs to the automotive shop at which plaintiff was employed. Counts III and IV of plaintiff's ten-count complaint, as finally amended, included allegations of negligence and strict liability in tort against Vulcan Tools Company (Vulcan), the distributor of the remote starter switch. In Counts VI and VII plaintiff asserted negligence and strict liability in tort against Hennessy Industries, Inc. (Hennessy), the manufacturer of the remote starter switch. Count X alleged negligence by both Vulcan and Hennessy based upon the theory of res ipsa loquitur.
Upon motions filed by Vulcan and Hennessy, the trial court granted summary judgment in favor of the defendants on the negligence and strict liability claims. The court also dismissed with prejudice the count premised upon res ipsa loquitur. The court's order disposing of these claims included a statement that there was no just reason to delay enforcement or appeal of this ruling pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)). Plaintiff has appealed the ruling of the trial court. The other named defendants are not parties to this appeal.
The issues before this court are (1) whether the trial court erred in granting summary judgment in favor of defendants on the negligence and strict products liability claims, and (2) whether the trial court erred in dismissing with prejudice the count premised upon res ipsa loquitur.
The record indicates that on September 26, 1984, plaintiff was employed by Cottman Transmissions and was injured while using a remote starter switch to start an automobile which had been parked on the street adjacent to the automotive shop. Plaintiff was standing in front of the car upon which he was working when it started and began to move forward. The car caught plaintiff in his mid-section and propelled him into 47th Street where he was struck by a passing vehicle, resulting in the severance of his left leg.
Count III of plaintiff's complaint was directed against Vulcan, the distributor of the remote starter switch, and asserted that Vulcan was negligent because (a) it sold and distributed the remote starter switch when it knew or should have known that the switch was defective and could cause injury; (b) failed to inspect the switch to ascertain its condition before selling it to the plaintiff; (c) failed to test the switch to ascertain its condition before selling to its customers, including the plaintiff; and (d) failed to warn its customers and plaintiff of the dangerous condition of the switch.
Count IV was also directed against Vulcan and sought recovery under strict liability, asserting that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) at *238 the time the switch was sold by Vulcan to plaintiff, it was unreasonably dangerous for its intended use in that it was not designed in a manner that would prevent the switch from causing automobiles on which it was used to suddenly move forward; and (c) the defects and unreasonably dangerous condition were present at the time the switch left the control of Vulcan and said defects in design and unreasonably dangerous condition continued up to and including the time of the accident complained of.
Count VI was directed against Hennessy, the manufacturer of the remote starter switch, and alleged negligence in that Hennessy (a) manufactured, designed, fabricated, and sold the switch in a defective manner inadequate to prevent the switch from causing an automobile to move forward suddenly and without warning; (b) failed to inspect the switch for defects before distribution; (c) manufactured, designed, and fabricated the switch in a defective condition when it knew or should have known that the switch would be unsafe and unfit for its intended use; (d) failed to warn the plaintiff of the danger incident to the foreseeable use of the switch; and (e) failed to furnish adequate safety devices to insure that the switch would not cause automobiles on which it was being used to suddenly move forward.
Count VII was also directed against Hennessy and sought recovery under strict liability, asserting that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) at the time the switch was manufactured and sold by Hennessy, it was defective in design and was unreasonably dangerous for its intended use in that it was not designed in a manner that would prevent the switch from causing automobiles on which it was used to suddenly move forward; and (c) the defects and unreasonably dangerous condition were present at the time the switch left the control of Hennessy and said defects in design and unreasonably dangerous condition continued up to and including the time of the accident complained of.
Count X was directed against both Vulcan and Hennessy and asserted that these two defendants were guilty of negligence based upon the theory of res ipsa loquitur. Count X alleged that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) the switch suddenly and without plaintiff's knowledge or any voluntary act on his part started the automobile's engine, causing the automobile to suddenly move forward; and (c) the accident was the type which would not have occurred in the ordinary course of events and in the absence of negligence.
Plaintiff testified at his discovery deposition that at the time of the accident, he was 26 years old, was employed by Cottman Transmissions, and had completed schooling through grade 10, but had no formal training in automobile mechanics. He had worked for various transmission shops where he used remote starter switches in removing and replacing transmissions, but he did not recall whether he had used remote starter switches to start vehicles. Although it was a rare occurrence for plaintiff to work on a transmission which had been stuck in the "drive" position, he had done so more than once.
Plaintiff testified further that less than 12 months before the accident, he purchased the subject remote starter switch from a Vulcan dealer who came to his place of employment. When the Vulcan dealer delivered the switch to him, it was "wrapped up like in a ball" and was not accompanied by any instructions, warnings, or packaging.
Prior to the occurrence, plaintiff had been cleaning his tools, but he had not cleaned the starter switch. Plaintiff was told by Kathleen Bartunik, the manager trainee at Cottman Transmissions, to bring into the shop a Ford Torino which had been parked on the street in front of the shop, but Bartunik did not give plaintiff any information as to the nature of the problem with the automobile.
When he went out to move the car, plaintiff noticed that the indicator on the column *239 shift of the car was pointed to the "drive" position and that the keys were in the ignition. Plaintiff then asked Bartunik for assistance, and she got into the driver's seat of the car. After she was behind the wheel, plaintiff connected the remote starter switch by attaching both leads to the solenoid. He then told Bartunik to turn the ignition, and he depressed the starter switch button, causing the engine to start. Thereafter, plaintiff disconnected the starter switch by removing the alligator clips from the solenoid. He then closed the hood and told Bartunik to drive the car around the block and into the shop, but Bartunik refused. She then directed plaintiff to pull the car around to the shop.
Plaintiff stated that he had depressed the emergency brake pedal before Bartunik got into the driver's seat. He also indicated that he did not consult any books, brochures, or owner's manual prior to connecting the remote starter switch to the car's engine.
Plaintiff testified further that when Bartunik told him to drive the car into the shop, he reached into the car through the driver's window and turned the ignition off, which caused the engine to stop running. After Bartunik went back into the office, plaintiff attempted to restart the vehicle alone because he could not get anyone to help him. Plaintiff opened the front window on the passenger side and made sure that the emergency brake pedal was depressed and pulled the key partially out of the ignition. Plaintiff then placed the remote starter switch inside the car between the dashboard and the windshield, and he fed the leads through the front passenger window to the engine. He opened up the hood of the car and connected the leads to the solenoid in the engine. Plaintiff indicated that the button on the remote starter switch was facing the seat and the rear of the vehicle when he placed it on the dashboard.
Plaintiff stated that he then walked around to the front of the car and began to close the hood when he heard the engine start. Plaintiff testified that he never closed the hood, and it never came into contact with the switch cable. Plaintiff then let go of the hood and leaned over to try to disconnect the leads from the solenoid when the vehicle began to move forward, catching him in his mid-section. Plaintiff hoisted himself up over the engine so that his feet were off the ground. As the car moved forward, plaintiff removed the air cleaner and put his hands over the carburetor, causing the engine to stall and the car to stop. After he lowered himself to the ground in front of the car, he was struck by a passing vehicle which severed his left leg.
Plaintiff testified that he had used the subject remote starter switch at least a couple of times before the date of the accident and that he had owned other remote starter switches before he purchased the subject switch.
Plaintiff retained Gordon Cnare as an expert witness in this litigation. At his discovery deposition, Cnare testified that he purchased four different starter switches to compare them to the switch that was in use when the accident occurred. All four of the competing switches came with warnings and operating instructions. Cnare did not examine or test another switch manufactured by Hennessy because Vulcan did not have any switches in stock at the time of Cnare's inquiries and because he learned in June 1987 that Hennessy no longer manufactured remote starter switches. Of the five switches examined by Cnare, the four he purchased plus the one involved in the accident, the one used by plaintiff had the longest leads, allowing the user to place it on a dashboard.
In examining the subject switch, Cnare disassembled it to look at its components. He was of the opinion that the switch was manufactured from components which were not originally intended to be used in a remote starter switch. Cnare requested from Hennessy engineering drawings for this switch, but was told that such drawings did not exist. Hennessy subsequently provided Cnare with assembly drawings for the subject switch. Upon examination of the switch and the assembly drawings, Cnare concluded that the switch was made *240 up of numerous component parts and that many of these components could easily be purchased in a store. Cnare indicated that the design and manufacture of the subject switch raised the possibility that a foreign object or substance, such as moist dirt, dampness, or a nail, could enter the switch and short out the circuit.
Cnare testified, however, that his examination of the switch revealed no physical evidence to suggest that the circuit had been shorted out at the time of the accident. He stated that when he disassembled the switch he did not observe any foreign object or any moisture in the switch. Cnare stated further that there were no visible markings or residue indicating that some foreign object or substance, such as water, dirt, or a nail, had previously been inside the switch. Cnare could not testify that the circuit had been shorted out and stated that such an opinion would be based upon speculation.
Cnare also testified that given the number of component parts in the switch and the fact that one of the components had metal tabs which were bent over, this might indicate that the parts could loosen and that the tolerances could change. Yet, Cnare was unable to determine if any parts had loosened without engineering drawings reflecting the tightness requirements. Cnare stated, however, that there was no evidence that loose parts caused the subject car to start. Cnare stated that there was no indication that the alligator clips attached to the solenoid had crossed to cause a short circuit.
Cnare was unable to give an opinion as to whether inadequate warnings or instructions were a proximate cause of the plaintiff's accident, but stated that other instructions or warnings might have possibly prevented the accident.
Cnare could find no indication that the subject remote starter switch malfunctioned in any way. He stated that it is not possible to start a car with a remote starter switch if the ignition is in the "off" position and that the car would not start even if a foreign object shorted out the circuit in the switch. Cnare testified that he had no opinion as to why the car started under the circumstances described by the plaintiff.
On March 22, 1990, plaintiff sent Vulcan and Hennessy notices of deposition for the "person with the most knowledge of the occurrence." Plaintiff also sent 201(k) letters demanding responses to his outstanding discovery requests. Vulcan's attorney responded to these requests by informing the plaintiff that the ownership of the corporation had been sold or transferred at least three times since June 1984 and that the corporation had filed for bankruptcy protection under Chapter 11 in 1987. Vulcan's counsel indicated that they had been unable to locate a representative capable of providing the necessary responses and a verification thereof.
On June 1, 1990, Vulcan filed a motion for summary judgment, asserting that the plaintiff's claims were premised upon guesswork and speculation and that they had no duty to warn the plaintiff because he was injured in a "freak" accident which was not foreseeable. On June 6, 1990, Hennessy joined in and adopted the motion for summary judgment filed by Vulcan.
Vulcan's motion for summary judgment was set for hearing on June 22, 1990. On June 18, 1990, plaintiff filed motions to compel and for sanctions due to the defendants' failure to comply with written and oral discovery requests. On June 19, 1990, plaintiff filed a motion to strike the defendants' motions for summary judgment. On June 19, 1990, plaintiff also filed a response in opposition to defendants' motions for summary judgment. Plaintiff's response was accompanied by an affidavit under Supreme Court Rule 191(b) (134 Ill.2d R. 191(b)) executed by plaintiff's attorney which averred that defendants had failed to comply with outstanding discovery requests and that plaintiff believed "that much of the relevant information concerning the manufacture and distribution of the remote starter switch [was] known only to persons either currently or previously employed with the defendants." This affidavit did not set forth the nature of the information sought or what it would show.
*241 On June 22, 1990, the trial court denied plaintiff's motion to strike, his motion for sanctions, and his request for further discovery under Supreme Court Rule 191(b). The transcript of this hearing is not, however, included in the record on appeal. On that date, Vulcan and Hennessy served plaintiff with their responses to the outstanding written discovery previously requested by plaintiff.
On July 6, 1990, plaintiff filed a second amended complaint which was identical to the first amended complaint, except that it added Count X premised upon res ipsa loquitur. In July 1990 both Vulcan and Hennessy brought motions to dismiss Count X of the second amended complaint, asserting that (a) there were no facts showing that the accident would not ordinarily have occurred in the absence of negligence by the defendants and (b) there were no allegations that the remote starter switch was in the exclusive control of either defendant.
On July 18, 1990, plaintiff filed an additional response in opposition to the motions for summary judgment, asserting that questions of fact existed as to whether (a) the subject switch was unreasonably dangerous in its design; (b) defendants' failure to warn made the switch unreasonably dangerous; and (c) the accident in which he was injured was foreseeable to defendants.
Plaintiff's response to the motions for summary judgment included the affidavit of Lee Rose, a licensed professional mechanical engineer, who averred that the car may have started as a result of "the possibility that the two electrical clips connected to the remote starter switch may have touched one another during the closing of the hood by [the plaintiff]." This affidavit did not, however, specify the evidentiary facts upon which he relied in drawing his conclusions. In addition, this affidavit contradicted the plaintiff's deposition testimony that he never closed the hood after connecting the remote starter switch.
On September 20, 1990, the trial court granted summary judgment in favor of defendants as to Counts III, IV, VI, and VII. The court also dismissed with prejudice Count X. Plaintiff has appealed these rulings.
We initially consider whether the trial court erred in granting summary judgment in favor of defendants on the negligence and strict products liability claims.
In order to prevail on a claim of common law negligence, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Lindenmier v. City of Rockford (1987), 156 Ill.App.3d 76, 85, 108 Ill.Dec. 624, 630, 508 N.E.2d 1201, 1207.) The concept of proximate cause is the same in both cases of negligence and strict liability in tort, and liability cannot be predicated upon speculation, surmise, or conjecture as to the cause of the injuries. (Lindenmier, 156 Ill. App.3d at 85, 108 Ill.Dec. at 630, 508 N.E.2d at 1207.) Proximate cause can only be established when there is a reasonable certainty that the defendant's acts caused the injury. Lindenmier, 156 Ill.App.3d at 85, 108 Ill.Dec. at 630, 508 N.E.2d at 1207.
To recover in strict liability in tort, a plaintiff must prove that his injuries resulted from an unreasonably dangerous or defective condition of the product and that the condition existed at the time the product left the manufacturer's control. (Woodill v. Parke Davis & Co. (1980), 79 Ill.2d 26, 31, 37 Ill.Dec. 304, 306, 402 N.E.2d 194, 196; West v. Deere & Co. (1990), 201 Ill.App.3d 891, 897, 147 Ill.Dec. 338, 342, 559 N.E.2d 511, 515.) The fact that an injury has occurred, in and of itself, is insufficient to show the existence of a product defect. (West, 201 Ill.App.3d at 897, 147 Ill.Dec. at 342, 559 N.E.2d at 515.) The plaintiff must prove that his injuries derived from a distinct defect in the product which subjected those exposed to the product to an unreasonable risk of harm. (Hunt v. Blasius (1978), 74 Ill.2d 203, 211, 23 Ill.Dec. 574, 578, 384 N.E.2d 368, 372; West, 201 Ill.App.3d at 897, 147 Ill.Dec. at 342-43, 559 N.E.2d at 515-16.) Thus, the plaintiff must establish that the injury proximately resulted from the defective condition of the product. Suvada v. White *242 Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182.
A failure to warn of a product's dangerous propensities can make a product unreasonably dangerous and may serve as the basis for holding a manufacturer or seller strictly liable in tort. (Woodill, 79 Ill.2d at 29, 37 Ill.Dec. at 306, 402 N.E.2d at 196; Mason v. Caterpillar Tractor Co. (1985), 139 Ill.App.3d 511, 518, 94 Ill.Dec. 166, 171, 487 N.E.2d 1043, 1048.) A duty to warn is imposed only where the injury suffered by the plaintiff was foreseeable by the defendant. (Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 466, 343 N.E.2d 465, 471; Mason, 139 Ill.App.3d at 518, 94 Ill.Dec. at 171, 487 N.E.2d at 1048.) Foreseeability is established by a determination of what it is "objectively reasonable" to expect, not merely what might conceivably occur. (Genaust, 62 Ill.2d at 466, 343 N.E.2d at 471.) Thus, an injury is foreseeable if it is "objectively reasonable" to expect the user of the product to be injured in the manner in which the plaintiff was injured. Mason, 139 Ill.App.3d at 518, 94 Ill.Dec. at 171, 487 N.E.2d at 1048.
A plaintiff predicating a products liability action upon a failure to warn must plead and prove that the manufacturer or seller of the product knew or should have known of the danger that caused his injury. (Woodill, 79 Ill.2d at 37, Ill.Dec. at 309, 402 N.E.2d at 199; Kempes v. Dunlop Tire & Rubber Corp. (1989), 192 Ill.App.3d 209, 218, 139 Ill.Dec. 259, 264, 548 N.E.2d 644, 649.) The determination of whether a duty to warn exists is a question of law and not of fact. Genaust, 62 Ill.2d at 466, 343 N.E.2d at 471; Mason, 139 Ill.App.3d at 518, 94 Ill.Dec. at 171, 487 N.E.2d at 1048.
In the case at bar, plaintiff presented no evidence to establish that the defendants acted negligently in the design, manufacture, or distribution of the remote starter switch or that a defective condition made the switch unreasonably dangerous and proximately caused his injuries. Moreover, plaintiff did not present any evidence which established that the injuries sustained by him were foreseeable by the defendants. In addition, plaintiff failed to present any evidence that the defendants knew or should have known that the remote starter switch could cause a car to start suddenly and unexpectedly even though the switch button had not been depressed and the ignition of the vehicle was in the "off" position but failed to warn of that danger.
Plaintiff's expert witness, Gordon Cnare, testified that he believed the design and manufacture of the subject switch raised the possibility that a foreign object or substance could enter the switch and short out the circuit. Yet, Cnare stated that his examination of the switch revealed no physical evidence to suggest that the circuit had been shorted out at the time of the accident, and he did not observe any foreign object or moisture in the switch, or any visible markings or residue indicating that some foreign object or substance had previously been inside the switch. Cnare could not testify that the circuit had been shorted out and stated that such an opinion would be based upon speculation.
In addition, Cnare testified that there was no evidence that any of the component parts of the switch had become loose or that loose parts caused the subject car to start. Cnare also stated that there was no indication that the alligator clips attached to the solenoid had crossed to cause a short circuit.
Cnare was unable to give an opinion as to whether inadequate warnings or instructions were a proximate cause of the plaintiff's accident. Although he stated that other instructions or warnings might have possibly prevented the accident, Cnare acknowledged that this conclusion was based upon speculation.
Cnare could find no indication that the subject remote starter switch malfunctioned in any way and stated further that it is impossible to start a car with a remote starter switch if the ignition is in the "off" position and that the car would not start even if a foreign object shorted out the circuit in the switch. Cnare testified that he had no opinion as to why the car started under the circumstances described by the plaintiff.
The affidavit of Lee Rose averred that the car may have started as a result of *243 "the possibility that the two electrical clips connected to the remote starter switch may have touched one another during the closing of the hood by [the plaintiff]." This affidavit contradicted the plaintiff's deposition testimony that he never closed the hood after connecting the remote starter switch. In addition, Rose's affidavit did not specify the evidentiary facts upon which he relied in drawing his conclusions.
Affidavits in support of or in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim is based; and shall not consist of conclusions but of facts admissible in evidence. (134 Ill.2d R. 191.) Because Rose's affidavit contradicted plaintiff's deposition testimony that he never closed the hood after connecting the remote starter switch, it was based upon speculation. In addition the affidavit did not specify the evidentiary facts upon which Rose relied in drawing his conclusions. Consequently, it was insufficient to defeat the defendants' motion for summary judgment.
It is evident that all of the expert testimony presented by plaintiff as to the cause of the accident and the dangerous condition of the remote starter switch was based purely on speculation and conjecture. Expert testimony based on speculation, guess, or conjecture is insufficient to avoid summary judgment. Mason, 139 Ill.App.3d at 518, 94 Ill.Dec. at 171, 487 N.E.2d at 1048.
We find that there is nothing in the record from which it can be inferred that any of the alleged breaches of duty by defendants in manufacturing or distributing the remote starter switch proximately caused the plaintiff's injuries. The mere possibility that the design of the switch might have permitted a short circuit by a foreign object or substance or that a warning might have prevented the injury to the plaintiff is insufficient to establish a causal relationship between defendants' alleged negligence and plaintiff's injuries. See Waite v. Chicago Transit Authority (1987), 157 Ill.App.3d 616, 620, 110 Ill.Dec. 145, 148, 510 N.E.2d 1176, 1179.
A motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Ill.Rev.Stat. 1987, ch. 110, par. 2-1005; Kolakowski v. Voris (1980), 83 Ill.2d 388, 398, 47 Ill.Dec. 392, 397, 415 N.E.2d 397, 402.) Considering the entire record in a light most favorable to the plaintiff, we hold that the plaintiff failed to establish a prima facie case on his claims for negligence and strict liability. Consequently, the trial court properly granted summary judgment in favor of the defendants on plaintiff's claims under negligence and strict liability.
In opposing the defendants' motions for summary judgment, plaintiff requested additional discovery under Supreme Court Rule 191(b) (134 Ill.2d R. 191(b)). Yet, the affidavit filed in support of this request did not comply with the requirements of that rule. The affidavit did not set forth what plaintiff's attorney believed the prospective witnesses would testify to if sworn or his reasons for this belief. Rather, the affidavit merely stated that plaintiff believed that much of the relevant information concerning the manufacture and distribution of the remote starter switch was known only to persons either currently or previously employed with the defendants. Plaintiff's counsel did not include in his affidavit the nature of the "relevant information" or how it related to the instant litigation. Consequently, the trial court properly denied plaintiff's request for further discovery under Supreme Court Rule 191(b).
We next address plaintiff's claim that the trial court erred in dismissing with prejudice the count premised upon res ipsa loquitur.
The doctrine of res ipsa loquitur permits a trier of fact to infer negligence based upon circumstantial evidence when the direct evidence concerning the cause of the injury is primarily within the knowledge and control of the defendants. (Bernardi v. Chicago Steel Container Corp. (1989), 187 Ill.App.3d 1010, 1021, 135 *244 Ill.Dec. 436, 444, 543 N.E.2d 1004, 1012; Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App.3d 856, 862, 38 Ill.Dec. 239, 243, 403 N.E.2d 470, 474.) When the doctrine is invoked, the plaintiff bears the burden of proving (1) that the occurrence is one that ordinarily does not occur in the absence of negligence, and (2) that the defendant had exclusive control over the instrumentality that caused the injury. Dyback v. Weber (1986), 114 Ill.2d 232, 242, 102 Ill.Dec. 386, 390, 500 N.E.2d 8, 12.
When these elements are shown, the occurrence itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. (Dyback, 114 Ill.2d at 242, 102 Ill.Dec. at 390, 500 N.E.2d at 12; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449, 207 N.E.2d 305, 307.) Although the plaintiff need not conclusively prove these elements in order to invoke the doctrine, he must present evidence reasonably showing the existence of elements which allow the inference that the occurrence is one that ordinarily does not occur without negligence. (Dyback, 114 Ill.2d at 242, 102 Ill. Dec. at 390, 500 N.E.2d at 12; Bernardi, 187 Ill.App.3d at 1022, 135 Ill.Dec. at 444, 543 N.E.2d at 1012.) Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law which must be decided by the trial court. Imig v. Beck (1986), 115 Ill.2d 18, 27, 104 Ill.Dec. 767, 772, 503 N.E.2d 324, 329.
The evidence before the trial court in the case at bar established that the plaintiff had owned the remote starter switch for a period of several months and had used it on more than one occasion prior to the date of the accident. Thus, the plaintiff, and not the defendants, had exclusive control over the switch at the time of the accident. Because plaintiff has not established that defendants exercised exclusive control over the instrumentality that may have caused his injuries, the doctrine of res ipsa loquitur is not applicable in the instant case. Rinck, 82 Ill.App.3d at 862, 38 Ill.Dec. at 243, 403 N.E.2d at 474.
Moreover, the doctrine is inapplicable where, as here, the facts as alleged do not necessarily infer negligence on the part of the defendants. (Rinck, 82 Ill.App.3d at 862, 38 Ill.Dec. at 243, 403 N.E.2d at 474.) Where there are several possible causes for the accident, apart from any negligence by defendants, the doctrine of res ipsa loquitur cannot be invoked to impose liability upon the defendants. Rinck, 82 Ill.App.3d at 862, 38 Ill.Dec. at 243, 403 N.E.2d at 474.
Plaintiff has argued that the doctrine of res ipsa loquitur should apply in the instant case despite the fact that plaintiff exercised exclusive control over the remote starter switch at the time of the accident. Plaintiff correctly asserts that the fact that the defendants did not have control of the instrumentality which caused plaintiff's injuries is not sufficient to defeat a recovery under the doctrine of res ipsa loquitur as long as the intervening possession is not of such a nature as to destroy the inference of negligence. Wuench v. Ford Motor Co. (1982), 104 Ill.App.3d 317, 319, 60 Ill.Dec. 70, 71, 432 N.E.2d 969, 970; Kruger v. Newkirk (1976), 40 Ill.App.3d 581, 585, 352 N.E.2d 436, 439-40.
We note, however, that the evidence established that the plaintiff had owned the remote starter switch for a period of several months and had used it on more than one occasion prior to the date of the accident. It is certainly possible that while plaintiff owned and used the switch, it was used or damaged in some manner which could have contributed to its alleged failure to function properly. Because the intervening possession of the remote starter switch by the plaintiff presents plausible explanations for the accident other than the negligence of the defendants, we hold that the inference of negligence through res ipsa loquitur is inappropriate here. See Wuench, 104 Ill.App.3d at 319-20, 60 Ill. Dec. at 72, 432 N.E.2d at 971; Nunez v. Horwitz (1990), 205 Ill.App.3d 976, 982, 150 Ill.Dec. 819, 823, 563 N.E.2d 946, 950.
In determining the legal sufficiency of a complaint on a motion to dismiss, the court must accept as true all well pleaded facts and then determine whether *245 the allegations of the complaint, when interpreted in a light most favorable to plaintiff, are sufficient to state a cause of action against the defendants. (Rinck, 82 Ill. App.3d at 863, 38 Ill.Dec. at 243, 403 N.E.2d at 474.) A cause of action is properly dismissed on the pleadings where it clearly appears that no set of facts can be proved which will entitle the plaintiff to relief. (Rinck, 82 Ill.App.3d at 863, 38 Ill.Dec. at 243, 403 N.E.2d at 474.) Considering the allegations in Count X of the second amended complaint in the light most favorable to the plaintiff, it appears that plaintiff has failed to adequately state a cause of action for negligence based upon the doctrine of res ipsa loquitur. Consequently, the trial court acted properly in dismissing Count X with prejudice.
For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.
AFFIRMED.
RAKOWSKI, P.J., and EGAN, J., concur.


101 F.Supp.2d 296 (2000)
Julian Lancelot BURY, Petitioner,
v.
Janet RENO, Attorney General, et al., Respondents.
No. CIV. A. 99-2906.
United States District Court, E.D. Pennsylvania.
June 9, 2000.
*297 Steven A. Morley, Philadelphia, PA, for Petitioner.
Jomes G. Sheehan, U.S.Attorney's Office, Philadelphia, PA, for Respondents.

MEMORANDUM
LOWELL A. REED, Jr., Senior District Judge.
Julian Lancelot Bury, a permanent resident currently subject to an order of deportation, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in which he seeks a review of the determination of respondents U.S. Attorney General Janet Reno, et al., that he is ineligible for discretionary relief under a statutory exception that allows the Attorney General to waive deportation. For the following reasons, I conclude that petitioner is eligible for discretionary relief from deportation.

Background
This case can be traced to 1995, when petitioner Bury, who has been a lawful permanent resident of the United States since 1983, was convicted of aggravated assault and sentenced to two to five years in prison. He served less than five years. Petitioner's conviction came to the attention of the Immigration and Naturalization Service ("INS"), and on April 16, 1996, the INS issued an order to show cause why he should not be deported pursuant to § 241(a)(2)(A)(iii) of the Immigration and Naturalization Act ("INA"), codified as 8 U.S.C. § 1251(a)(2)(A)(iii), under which aliens committing aggravated felonies were deportable.[1] On June 26, 1996, the INS filed the order to show cause with the immigration court, and a deportation hearing was held. On April 24, 1998, the immigration judge ruled that plaintiff should be deported.
Petitioner now argues, as he did at his deportation hearing and on appeal to the Board of Immigration Appeals, that he is eligible for discretionary relief from deportation from the Attorney General under § 212(c) of the INA, codified as 8 U.S.C. § 1182(c), and that the immigration judge erred in refusing to consider the merits of his request for discretionary relief from deportation under § 212(c). Respondents contend that petitioner is ineligible for such relief due to the changes in immigration law wrought by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.No. 104-132, 110 Stat. 1214 ("AEDPA").
Prior to the AEDPA, § 212(c) of the INA granted the Attorney General the discretion to waive deportation for permanent resident aliens residing in the United States for seven consecutive years, unless the alien had been convicted of an aggravated felony and served at least 5 years imprisonment for that crime. The AEDPA expanded the crimes and circumstances precluding the Attorney General's exercise of discretion under § 212(c) to include, among others, the crime of which petitioner was convicted.[2] Thus, under the law prior to the AEDPA, petitioner would be eligible for discretionary relief from deportation under § 212(c), but under the *298 AEDPA, petitioner would be ineligible for such relief.

Analysis
There is no effective date in § 440(d) of the AEDPA, which amends the list of crimes that remove the Attorney General's discretion under § 212(c) to grant relief from deportation. There has been some controversy over whether § 440(d) operates retroactively and applies to cases that were pending at the time AEDPA was enacted.[3] That controversy was resolved in this circuit by the Court of Appeals for the Third Circuit, which concluded that "Congress did indeed express an intent that AEDPA's amendment to INA § 212(c) should not apply to cases pending on the date of enactment." Sandoval v. Reno, 166 F.3d 225, 242 (3d Cir.1999); accord Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir.1998) ("A careful reading of the text of AEDPA, confirmed by the an examination of its legislative history, demonstrates that Congress did not intend AEDPA § 440(d) to apply retroactively to pending applications of § 212(c) relief ..."), cert. denied, 526 U.S. 1004, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999); Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998) ("Accordingly, since [petitioner's] deportation proceeding was pending on the date of the statute's enactment, we hold that § 440(d) does not apply to him."), cert. denied sub nom. Reno v. Navas, 526 U.S. 1004, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999).
The court of appeals in Sandoval did not elaborate on what it meant by the words "cases pending." Respondents argue that a case is pending only when an order to show cause is filed with the immigration court, and because the order to show cause in this case was not filed until June 26, 1996, more than two months after the AEDPA was enacted, petitioner's proceedings are governed by the AEDPA amendments. Petitioner contends that the issuance of the order to show cause on April 16, 1996 (not the filing of the order on June 26, 1996), constructively triggered the commencement of deportation proceedings against him, and thus his case was pending prior to the enactment of the AEDPA on April 24, 1996. The question here, then, is whether a deportation proceeding against an individual is pending upon the issuance of an order to show cause by the INS or the filing of an order to show cause with the Immigration Court.[4]
Respondents' brief provides a thorough and informative history of the initiation of deportation proceedings in the immigration context, as well as a litany of administrative regulations and cases suggesting that deportation proceedings officially commence with the filing of the order to show cause with the immigration judge.[5] However, the regulations do not address the judicial questions of pendency and retroactivity *299 now before this Court,[6] and the cases are not on point.[7]
Since the parties filed their briefs in this case, an abundance of case law has sprung forth on this issue, almost all of it favoring the petitioner's position. Within this district, at least two judges have held that a case is pending for the purpose of the retroactivity of AEDPA § 440(d) when the INS issues and serves an order to show cause. See Sciglitano v. Holmes, 2000 WL 675696, *3 (E.D.Pa.2000) ("I conclude that once the INS issued and served the Order to Show Cause, Petitioner's case was constructively pending."); Canela v. United States Department of Justice, 64 F.Supp.2d 456, 458 (E.D.Pa.1999) ("The court finds that Mr. Canela's case was pending as of the date he received the OSC [order to show cause], which was prior to AEDPA's enactment."). At least two circuit courts of appeals and a number of district courts also have so held. See Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.1999) ("[W]e think that when an order to show cause is served on the alien, the deportation process has effectively begun and expectations properly form, even if there is no actual reliance."); Alanis-Bustamante v. Reno, 201 F.3d 1303, 1309-10 (11th Cir.2000) (issuance of order to show cause plus warrant of detainer sufficient to trigger pendency and save petitioner's eligibility for discretionary relief from § 440(d) of the AEDPA); McKenzie v. Reno, No. 97-11285, 1998 U.S. Dist. LEXIS 22059, at *6 n. 2 (D.Mass. Dec. 10, 1998) ("No later than when the OSC has been issued and served on the alien, the deportation proceeding or `case' is `pending' ..."); Mercado-Amador v. Reno, 47 F.Supp .2d 1219, 1224 (D.Or.1999) ("From a due process standpoint, Mercado was subject to the deportation power of the INS as of the time the show cause order issued."). Each of these cases rejected the contention that a case "pending" under the retroactivity analysis only as of the time the order to show cause is filed, and I am unpersuaded that the filing of the order to show cause with the immigration court is the salient event for the purpose of determining the retroactivity of § 440(d) of the AEDPA.
It makes good sense for the issuance of the order to show cause, rather than its filing, to be the meaningful event for the purpose of determining whether a proceeding was subject to a newly enacted law. First, reliance and the reasonable expectations of individual litigants are of paramount concern in assessing the retroactivity of a statute. See Wallace, 194 F.3d at 286 (citing Martin v. Hadix, 527 U.S. 343, 358, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999); Lindh v. Murphy, 521 U.S. 320, 327-38, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). In a deportation proceeding, once the order to show cause is issued, "the deportation process has effectively begun and expectations properly form, even if there is no actual reliance." Id. at 287. When an alien receives an order to show cause, she looks to the law as it exists at that time; the mere filing of that order with the immigration court is a fairly inconsequential event from the standpoint of an alien's expectations and reliance. Therefore, the issuance of the order to show cause is the appropriate event on which pendency should turn, and the law *300 as it stood upon the issuance of the order to show cause should apply.
Second, because both the issuance and the filing of the order to show cause are administrative tasks within the control of the INS, the pendency question should be construed in favor of the potential deportee and against the INS.
As of the time the order to show cause was issued, the INS ha[s] the power to arrest [an alien]; commencement of the case in immigration court [is] subject only to the vagaries of administrative scheduling. From a due process standpoint [a petitioner is] subject to the deportation power of the INS as of the time the show cause order issued; fairness requires that the INS, having placed [petitioner] under its authority, should also live with the results of that decision.
Canela, 64 F.Supp.2d at 458 (quoting Wallace v. Reno, 24 F.Supp.2d 104, 113 (D.Mass.1998), aff'd, 194 F.3d 279 (1st Cir. 1999)). In the instant case, the order to show cause was issued more than a week before the AEDPA was enacted, but was not filed with the immigration court for more than two months. The INS chose to set the wheels of petitioner's deportation in motion prior to the enactment of the AEDPA, and applying the AEDPA to petitioner would relieve the INS of the consequences of its choice and permit petitioner to be prejudiced by the INS's administrative inefficiencies or, worse still, purposeful delay. This, the Court will not do.
I agree with the numerous courts that have held that a case in which the order to show cause issued prior to the enactment of the AEDPA was "pending," for the purpose of retroactivity, prior to the AEDPA. Therefore, the crimes added by AEDPA § 440(d) to those precluding eligibility for discretionary relief under § 212(c) do not apply to cases in which an order to show cause issued before April 24, 1996. The order to show cause in the instant case issued on April 16, 1996, eight days before the AEDPA was enacted. Therefore, I conclude that § 440(d) of the AEDPA does not apply to petitioner, and that petitioner is eligible for discretionary relief under § 212(c).[8]

Conclusion
For the foregoing reasons, I conclude that petitioner should have been afforded a hearing on the merits of his request for discretionary relief under § 212(c) of the INA. Because he was not, the case must be returned to the immigration judge for such a hearing.
An appropriate Order follows.

ORDER
AND NOW, this 9th day of June, 2000, upon consideration of the petition for a writ of habeas corpus and complaint for declaratory and injunctive relief of Julian Lancelot Bury (Document No. 1) and the response thereto, and having concluded that petitioner's case was pending prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 and that petitioner is therefore eligible for discretionary relief from deportation, it is hereby ORDERED that the petition of Julian Lancelot Bury is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Immigration Judge for consideration of the merits of petitioner's claim for discretionary relief pursuant to § 212(c) of the Immigration and Naturalization Act, codified at 8 U.S.C. § 1082(c), prior to its amendment by § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 and repeal by § 304(b) of the Illegal Immigration *301 Reform and Immigrant Responsibility Act of 1996.
IT IS FURTHER ORDERED that respondents are enjoined from deporting petitioner, if at all, until after the administrative and judicial appellate processes with respect to respondents' ruling is exhausted.
NOTES
[1]  The past tense is used here because § 241 of the INA, codified at 8 U.S.C. § 1251, was overhauled by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
[2]  The AEDPA included among those convictions for which discretionary relief was not available aggravated felony convictions, regardless of the amount of time served. See Mattis v. Reno, 2000 WL 554957, *3 (1st Cir.2000) (characterizing AEDPA § 440(d) as removing availability of § 212(c) relief for aggravated felons). Petitioner was convicted of aggravated assault, an aggravated felony.
[3]  The Attorney General started the controversy with her decision in Matter of Soriano, Interim Decision 3289 (A.G. Feb. 21, 1997). In that decision, the Attorney General ruled that the AEDPA's § 440(d) applied retroactively to all cases pending at the time of AEDPA's enactment.
[4]  I note that at least one court has taken the view that the pendency of a case is triggered not by the issuance or filing of an order to show cause, by a petitioner's application for relief under § 212(c). See Almonte v. Reno, 27 F.Supp.2d. 106, 109 (D.Mass.1998). I could find no other cases adopting this approach and disagree with it.
[5]  Respondents also argue that their determination that the AEDPA applies to petitioner's case is entitled to the deference due to administrative agencies' interpretations of their governing statutes under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, the Court of Appeals for the Third Circuit doubted in Sandoval that Chevron deference was appropriate to a determination of the effective date of a statute. See Sandoval, 166 F.3d at 239-40. For similar reasons, I doubt that Chevron deference is appropriate where the question is whether a case was "pending" prior to that effective date.
[6]  See Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.1999) ("In this case we are not concerned with the INS's internal time tables, starting points, due dates, and the like but with the judicial question of retroactivity. This question turns on considerations unrelated to the purpose of INS regulations  primarily (in the absence of statutory guidance) with the evil Congress sought to prevent and the realities of reasonable reliance or settled expectations on the part of litigants.").
[7]  Moreover, at least one of the cases relied upon respondents suggests that the issuance of the order to show cause is the event that triggers the pendency of a deportation case for retroactivity purposes. See Ceballos de Leon v. Reno, 58 F.Supp.2d 463, 474 (D.N.J. 1999) (referring to date of issuance of order to show cause in concluding that deportation proceedings had commenced after the enactment of the AEDPA).
[8]  Because I conclude that § 440(d) of the AEDPA does not apply to cases in which an order to show cause issued prior to the enactment of the AEDPA, I need not reach petitioner's equal protection argument, nor do I address petitioner's contention that the AEDPA's amendments do not apply to petitioners who were convicted of crimes prior to the enactment of the AEDPA.