Maldonado v. Creative Woodworking

NO. 3--97--0334


IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

TERESA MALDONADO and MOISES ) Appeal from the Circuit Court
MALDONADO ) of the 12th Judicial Circuit,
) Will County, Illinois
Plaintiffs-Appellants, )
) No. 94--L--13817
v. )
)
CREATIVE WOODWORKING CONCEPTS, )
INC. ) Honorable
) William McMenamin
Defendant-Appellee. ) Judge, Presiding


MODIFIED UPON DENIAL OF REHEARING
Justice BRESLIN delivered the opinion of the court:


Plaintiffs Teresa and Moises Maldonado appeal the trial
court's dismissal of their complaint against defendant, Creative
Woodworking Concepts, Inc. (Creative), for injuries suffered by
Teresa while employed by the Empress River Boat Casino (Empress).
The trial court determined that the action was time-barred and
dismissed the action with prejudice. We reverse and remand.
FACTS
On October 12, 1992, while employed as a waitress on the
Empress, Teresa was injured by contact with an allegedly defective
door in a bar counter built and installed by Creative pursuant to
an agreement with the Des Plaines River Entertainment Corporation.
The Maldonados originally filed suit against several defendants on
October 7, 1994, but did not name Creative in the complaint. At
that time, they did not know the identity of the door's
manufacturer.
On June 5, 1995, defendant Atlantic Marine Corporation filed
for summary judgment claiming that Creative was responsible as it
was the supplier of the bar doors. Creative was named as a
respondent in discovery pursuant to section 2-402 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-402 (West 1996) on August 12,
1995). On May 20, 1996, the plaintiffs filed an amended complaint
and included Creative as a defendant. The count against Creative
alleged that: Teresa was injured by the bar door which was built by
Creative; Creative had a duty to safely design the door; the
absence of a hook or latch was a defect rendering the product
unreasonably dangerous when it was in an upright position and the
product was in such a condition when it left the defendant's
control; defendant should have provided padding to soften any
impact with a user; Teresa's injuries resulted from the failure to
include a latch or safety mechanism for the door; upon completion
of installation, an implied warranty of fitness for a particular
purpose was created and Creative had a duty to build the door so
that it was fit for the ordinary purpose for which it was used;
Creative breached the implied warranty of merchantability by
failing to provide a latch or hook to secure the door.
Creative moved to dismiss pursuant to section 2-619 of the
Code (735 ILCS 5/2-619 (West 1996)) claiming that the action was
barred by the two-year statute of limitations applying to personal
injuries, and because the plaintiffs failed to transform Creative
into a direct defendant rather than a respondent in discovery
within the statutory six month period established in section 2-402
(735 ILCS 5/2-402 (West 1996)). The court granted the motion. In
doing so, the court found that the action was filed beyond the time
permitted by the statute of limitations and the additional six
month period provided by section 2-402. The court also noted that
Teresa had actual notice of her injury. The plaintiffs' motion to
vacate was denied and this appeal followed.
SCOPE OF REVIEW
An involuntary dismissal on the pleadings is proper only if it
is clearly apparent that no set of facts can be proved which would
entitle the plaintiff to recover. Grassini v. Dupage Township, 279
Ill. App. 3d 614, 665 N.E.2d 860 (1996). When reviewing the motion
to dismiss, the court assumes that all well-pleaded facts in the
plaintiff's complaint are true; however, conclusions of law and
fact which are unsupported by factual allegations may be
disregarded. Wood v. Village of Grayslake, 229 Ill. App. 3d 343,
593 N.E.2d 132 (1992). On appeal, this court reviews the trial
court's decision de novo to determine whether a genuine issue of
material fact should have precluded the dismissal. Kedzie & 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732
(1993).
DISCUSSION
Plaintiffs contend that the court erred by dismissing their
complaint because it alleged a breach of warranty action under the
Uniform Commercial Code (UCC), and that the applicable statute of
limitations as provided in section 2-725(1) of the UCC (810 ILCS
5/2-725(1) (West 1996)) was four years and had not yet expired.
The defendants assert, to the contrary, that the complaint was
ambiguous and that the court could properly dismiss the action
based on the two-year period of limitations for personal injuries
(735 ILCS 5/13-202 (West 1996)) because the complaint could be read
to allege actions for negligence or product liability. Creative
asserts that the plaintiffs improperly lumped numerous separate
causes of action in one count.
In support of its argument, Creative cites Knox College v.
Celotex Corp., 88 Ill. 2d 407, 430 N.E.2d 976 (1981). In Knox, the
court held that the trial court did not abuse its discretion by
dismissing an ambiguous count that alleged different causes of
actions, which in turn had different statutes of limitations. The
court stated that the trial court could attempt to avoid confusion
by requiring unambiguous pleadings. Thus, the court determined
that the trial court's order to separate the counts, and subsequent
dismissal following the plaintiff's refusal to comply, was not an
abuse of discretion.
Knox is distinguishable from the present action. In this
case, neither the court nor the defendants made an issue of the
complaint's confusion. Rather, Creative moved to dismiss what it
argued was a count stating a cause of action for negligence or
product liability. In each case, Creative contended that dismissal
was appropriate because the relevant statute of limitations had
expired and the plaintiffs failed to file suit within the extra six
month period permitted by the respondent in discovery statute (735
ILCS 5/2-402 (West 1996)).
A review of the count against Creative, which alleges that the
door should have had a hook on it in order to be fit for its
ordinary purpose, demonstrates that the plaintiffs stated the basic
elements of a cause of action for breach of the implied warranty of
merchantability under section 2-314(2)(c) of the UCC (810 ILCS 5/2-
314(2)(c) (West 1996)). However, Teresa was not a party to the
contract with Creative, and in order for her to benefit from the
warranty she must fall within the scope of section 2-318 of the UCC
(810 ILCS 5/2-318 (West 1996)), which dictates when a non-party may
claim to be a third-party beneficiary of an agreement's warranties.
In relevant part, section 2-318 states:
"A seller's warranty whether express or implied
extends to any natural person who is in the family
or household of his buyer or who is a guest in his
home if it is reasonable to expect that such person
may use, consume or be affected by the goods and
who is injured in person by breach of warranty."
810 ILCS 5/2-318 (West 1996).
Although section 2-318 does not by its plain language extend
coverage to Teresa in this instance, our courts have recognized
that a warranty may also "extend[] to any employee of a purchaser
who is injured in the use of the goods, as long as the safety of
that employee in the use of the goods was either explicitly or
implicitly part of the basis of the bargain when the employer
purchased the goods." Whitaker v. Lian Feng Machine Co., 156 Ill.
App. 3d 316, 321, 509 N.E.2d 591, 595 (1987); see also Wheeler v.
Sunbelt Tool Co., Inc., 181 Ill. App. 3d 1088, 537 N.E.2d 1332
(1989).
Creative argues that Whitaker and Wheeler are inapplicable in
the instant matter because Teresa was employed by the Empress River
Boat Casino Corporation. Creative points out that the contract for
sale was between itself and the Des Plaines River Entertainment
Corporation, accordingly Creative had no relationship with Teresa
that could give rise to liability under section 2-318. However,
records from the Illinois Secretary of State's Office, which are
public records that this court may take judicial notice of (see
Lubershane v. Village of Glencoe, 63 Ill. App. 3d 874, 380 N.E.2d 890 (1978)), indicate that the Des Plaines River Entertainment
Corporation is merely a corporate name previously used by Empress.
Thus, there is a relationship, and we find that Teresa's safety as
an employee was implicit in the contract. Therefore, we hold that
she falls within the coverage of Creative's implied warranty of
merchantability.
At this juncture, it is appropriate to mention the plaintiffs'
contention that the contract was entered in Florida and provided
that Florida law should govern the transaction. Plaintiffs thus
maintain that Florida law should be applied in this case. We note
that Florida courts would recognize Teresa as a beneficiary of an
implied warranty. See Favors v. Firestone Tire & Rubber Co., 309 So. 2d 69 (Fla. App. Ct. 1975). Because the remaining issues
concern procedural questions, we need not further address the
effect of applying Florida law. Cox v. Kaufman, 212 Ill. App. 3d
1056, 571 N.E.2d 1011 (1991).
As the saying goes, the plaintiffs are not out of the woods
yet. Even though they filed the present case within the four-year
time frame of section 2-725(1) of the UCC (810 ILCS 5/2-725(1)
(West 1996)), the applicable statute of limitations in this case
(see Berry v. G.D. Searle & Co., 56 Ill. 2d 548, 309 N.E.2d 550
(1974)), they failed to allege that they notified Creative of the
defect as required by section 2-607(3)(a) of the UCC (810 ILCS 5/2-
607(3)(a) (West 1996)).
Section 2-607(3)(a) imposes a duty upon every buyer who has
accepted goods to give notice of an alleged breach of an implied
warranty to his seller within a reasonable time after he discovers,
or should have discovered, the breach lest his claim be barred from
any remedy. 810 ILCS 5/2-607(3)(a) (West 1996); Wagmeister v. A.H.
Robins Co., 64 Ill. App. 3d 964, 382 N.E.2d 23 (1978). The notice
requirement serves to provide a seller an opportunity to cure a
defect and minimize damages (J. White & R. Summers, Uniform
Commercial Code  11-10 at 481 (3d ed. 1988)), protect his ability
to investigate a breach and gather evidence, and to encourage
negotiation and settlement (Perona v. Volkswagen of America, Inc.,
292 Ill. App. 3d 59, 684 N.E.2d 859 (1997)). In the context of an
action involving personal injury, it also informs the seller of a
need to make changes in its product to avoid future injuries. 4
Anderson, Anderson on the Uniform Commercial Code  2-607:6 at 224
(3d ed. 1985).
In every action for breach of warranty, notice is an essential
element (Branden v. Gerbie, 62 Ill. App. 3d 138, 379 N.E.2d 7
(1978)), and the failure to allege sufficient notice may be a fatal
defect in a complaint alleging breach of warranty (Connick v.
Suzuki Motor Co., 174 Ill. 2d 482, 675 N.E.2d 584 (1996)). Despite
the fact that a plaintiff filed suit within the period described by
section 2-725(1), he must also provide adequate notice under
section 2-607. Wagmeister, 64 Ill. App. 3d at 967, 382 N.E.2d at
25.
Plaintiffs insist that section 2-607(3)(a) does not apply to
non-buyers such as Teresa. We disagree. Section 2-607(3)(a)
applies to all the various beneficiaries of an implied or express
warranty in addition to the purchaser of the goods. See 810 ILCS
Ann. 5/2-607, Note 5, (West Supp. 1997); Ratkovich v. Smithkline,
711 F. Supp. 436 (N.D. Ill. 1989); see also J. White & R. Summers,
Uniform Commercial Code  11-10 at 483-84 (3d ed. 1988).
Turning to the prerequisites for adequate notice, section 2-
607(a)(3) generally requires that the plaintiff contact the seller
directly and inform the seller of the problems incurred with a
particular product that he purchased. Connick, 174 Ill. 2d at 494,
675 N.E.2d at 590. If the problem relates to an injury, the
plaintiff must notify the seller that an injury has occurred. 810
ILCS Ann. 5/2-607, Note 5, (West Supp. 1997). In doing so, the
plaintiff is held to a standard of good faith. 810 ILCS Ann. 5/2-
607, Note 5, (West Supp. 1997). When delay in notification does
not result in prejudice to the defendant, it is not generally
viewed as unreasonable. See Goldstein v. G.D. Searle & Co., 62 Ill.
App. 3d 344, 378 N.E.2d 1083 (1978) (citing Pritchard v. Liggett &
Myers Tobacco Co., 295 F.2d 292 (3d Cir. 1961)).
There are two exceptions to the rule. Direct notice is
unnecessary when (1) the seller has actual notice of the defect in
a product, or (2) the seller is found to have been reasonably
notified by the plaintiff's complaint alleging a breach of
warranty. Connick, 174 Ill. 2d at 492, 675 N.E.2d at 589. Only the
consumer plaintiff who has suffered a personal injury may satisfy
the notice provisions of section 2-607(3)(a) by filing a complaint
alleging the seller's breach of warranty. Connick, 174 Ill. 2d at
492, 675 N.E.2d at 590. Whether sufficient notice has been
provided is generally a question of fact to be determined based
upon the particular circumstances of each case. Berry, 56 Ill. 2d
at 556, 309 N.E.2d at 555; Malawy v. Richards Manufacturing Co.,
150 Ill. App. 3d 549, 501 N.E.2d 376 (1986); Wagmeister, 64 Ill.
App. 3d at 966, 382 N.E.2d at 25. When no inference can be drawn
from the evidence other than that the notification was
unreasonable, the question can be decided by the court as a matter
of law. Goldstein, 62 Ill. App. 3d at 350, 378 N.E.2d at 1088.
Plaintiffs argue that sufficient notice was given in this case
because they named Creative as a Respondent in Discovery as soon as
they learned that Creative was the seller. Additionally, they
point out that they filed suit against Creative one year later.
As to plaintiffs first contention, the document naming
Creative as a respondent in discovery did just that and nothing
more. It did not notify Creative of the problem with the bar door.
Thus, it did not amount to actual notice.
But since this is a claim arising from a personal injury, the
plaintiffs could provide notice by their complaint. The complaint
itself is clear in that it describes the transaction and informs
Creative of the defect. Although the complaint was not filed until
three years and seven months after the injury, we are cognizant of
the difficulties the plaintiffs encountered in identifying Creative
as the seller. There is no explanation as to why the plaintiffs
waited nearly one year to file suit against Creative once it had
been identified by Atlantic Marine, but waiting over 11 months was
not necessarily unreasonable. It is not evident from the record
that, once Creative was identified, the timeliness of the notice
resulted in prejudice, nor is it evident that the delay was in bad
faith. When asked at oral argument how Creative was prejudiced by
the delay, counsel could provide no specific answer other than to
say plaintiffs could have easily identified Creative on an earlier
date and that the law will not protect those who sleep on their
rights. However, whether Whether the plaintiffs slept on their
rights in this circumstance, resulting in an unreasonable delay in
notification, is a question properly left to the trier of fact.
Accordingly, we hold that the dismissal was improper because a
genuine issue of material fact remained as to whether reasonable
notice was given, and we remand this cause to the circuit court for
further proceedings.
For the foregoing reasons, the judgment of the circuit court
of Will County is reversed and remanded.
Reversed and remanded.
HOMER, J., concur.
HOLDRIDGE, J., dissent.
JUSTICE HOLDRIDGE, dissenting:

I respectfully dissent. I would hold that the trial court
properly dismissed the Maldonado's complaint against Creative
Woodworking Concepts, Inc. The Maldonado's complaint did not set
forth separate counts for negligence, product liability and breach
of implied warranty, each of which have a specific statute of
limitations. When different limitation periods apply to different
causes of action in a complaint, and the statute of limitations
could be determinative, each cause of action must be plainly set
out in the pleading in separate counts. Knox College v. Celotex
Corp., 88 Ill. 2d 407 (1981). The trial court properly construed
the ambiguous complaint as stating a cause of action in negligence
or product liability, both of which are governed by a two-year
statute of limitations. I see no error in so holding, and I would
affirm the trial court on that basis.
For the foregoing reasons, I would affirm the ruling of the
trial court and I dissent on that basis.