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LAPORTE v. R.D. WERNER CO.

March 24, 1983

KENNETH LAPORTE, PLAINTIFF,
v.
R.D. WERNER COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Kenneth LaPorte ("LaPorte") originally filed a three-count Complaint against R.D. Werner Company, Inc. ("Werner") for personal injuries sustained while using a Werner-manufactured step ladder:

    1. Count I, which sounded in negligence, has
  previously been found time-barred by this Court.
    2. Count II is based on strict liability
  principles.
    3. Count III asserts breach of implied warranty
  under the Uniform Commercial Code ("UCC").

Werner has now moved for summary judgment as to surviving Counts II and III on statute of limitations grounds. For the reasons stated in this memorandum opinion and order, Werner's motion is granted.

Factual Background*fn1

Sometime in 1980 Howard and Lillian Huberty hired LaPorte to construct an additional room for their Cary, Illinois home. They also provided LaPorte with their ladder, which had been manufactured by Werner in June 1967 and purchased by the Hubertys more than four years before this action was filed. On or before June 18, 1980*fn2 the ladder apparently buckled while LaPorte was climbing it, causing him to fall and injure his arm.

Procedural Posture

On July 8, 1982 LaPorte brought this lawsuit. On July 28 Werner filed its Answer, which made no mention of any affirmative defense. Werner then moved for summary judgment, contending the Complaint was barred by the two-year limitations period prescribed for "personal injury" actions under Ill.Rev.Stat. ch. 110, § 13-202 ("Section 13-202"). When the motion was initially tendered, LaPorte's counsel conceded Count I was so foreclosed but argued Counts II and III were not. In light of LaPorte's admission, this Court granted Werner's motion as to Count I but reserved judgment on the others until the parties briefed the issues.

Werner's memoranda altered its position somewhat. While continuing to rely on Section 13-202 as to Count II, Werner now acknowledges UCC § 2-725 ("Section 2-725," enacted in Illinois as Ill.Rev.Stat. ch. 26, § 2-725) controls Count III. Werner argues Section 2-725's four-year period expired before this action was filed because the claim "accrued" at the time of the breach of warranty, not the time of injury.

LaPorte advances three reasons to resist summary judgment:

    1. Werner has not filed an appropriate summary
  judgment motion on Counts II and III. Its motion
  was directed solely to Count I, for the statute
  of limitations on which the motion relied
  exclusively — Section 13-202 — applies only to
  Count I.
    2. Under Fed.R.Civ.P. ("Rule") 8(c) Werner
  waived its limitations defenses by failing to
  ...

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