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CHICAGO HEIGHTS VENTURE v. DYNAMIT NOBEL OF AMER.

November 21, 1983

CHICAGO HEIGHTS VENTURE, A LIMITED PARTNERSHIP; TMG CORPORATION, GENERAL PARTNER; GERALD D. GILLMAN, GENERAL PARTNER; BERNARD KLEBANOW; AMY S. COHEN; RICHARD J. SCHEUER; DONALD E. PEISER; LEON MEYERS; CLAUDE N. ROSENBERG, JR.; LOUISE J. ROSENBERG; AND MARTIN BERNSTEIN, AND DAVID SCHULMAN, LIMITED PARTNERS, PLAINTIFFS,
v.
DYNAMIT NOBEL OF AMERICA, INC. AND BROWN & KERR, INC., DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER

Plaintiffs, Chicago Heights Venture, TMG Corp., Gerald Gillman, Bernard Klebanow, Amy S. Cohen, Richard J. Scheuer, Donald E. Peiser, Leon Meyers, Claude N. Rosenberg, Jr., Louise J. Rosenberg, Martin Bernstein and David Schulman, sued Dynamit Nobel of America, Inc. ("Dynamit") and Brown & Kerr, Inc. ("Brown & Kerr") to recover for damages sustained by their buildings as a result of an allegedly defective roof supplied to Brown & Kerr by Dynamit. Presently before the Court is Dynamit's motion to dismiss.*fn1 For reasons set forth below, Dynamit's motion is granted in part and denied in part.*fn2

Plaintiffs own an apartment complex in Chicago Heights, Illinois. During 1974 and 1975, Dynamit supplied Trocal, a roofing material, to Brown & Kerr; Brown & Kerr installed the Trocal to the roof of plaintiffs' apartment complex. In 1978 and 1979, the Trocal tore away from the roof of the apartments, permitting water leakage into the building. Plaintiffs' amended complaint asserts a variety of causes of action: Count I sounds in strict products liability, Count II claims that defendants were negligent, Count III seeks punitive damages, Count IV asserts an express warranty, Count V asserts an implied warranty of merchantability, Count VI sounds in common law fraud, while Counts VII and VIII sue for breach of contract and breach of an implied warranty of fitness for a particular purpose.

In deciding a motion to dismiss, the complaint and any inferences which may be drawn therefrom are to be viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The facts presented in the complaint must be taken as true. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). The complaint should be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Count I

In an effort to support dismissal of Count I, Dynamit argues that the Trocal roof is not a "product" for purposes of the doctrine of products liability. Plaintiffs responded that the reusable nature of the Trocal roof, as well as policy considerations, support treating the roof as a product. In determining whether a particular item is a product, the various policy reasons underlying strict products liability must be considered, rather than simply examining the dictionary definition of the term "product." Lowrie v. City of Evanston, 50 Ill. App.3d 376, 383, 8 Ill.Dec. 537, 542, 365 N.E.2d 923, 928 (1st Dist. 1977). Many of the policy considerations embodied by strict liability focus upon the protection of consumers, with their unequal bargaining power and lack of access to information, from accidental injuries.*fn3 In examining these policy considerations, the Lowrie court concluded that a multilevel open air parking garage was not a product. Id. And, the court in Immergluck v. Ridgeview House, Inc., 53 Ill. App.3d 472, 11 Ill.Dec. 252, 368 N.E.2d 803 (1st Dist. 1977), reached the identical conclusion with respect to a sheltered care medical facility, noting that the Illinois Supreme Court has not defined a product for purposes of strict liability. See also, Heller v. Cadral Corp., 84 Ill. App.3d 677, 40 Ill.Dec. 387, 406 N.E.2d 88 (1st Dist. 1980) (a condominium unit is not a product). More recently, the Appellate Court of Illinois concluded that a fabricated guardrail, insofar as it was a component and indivisible part of the entire building structure, was not a product. Walker v. Shell Chemical, Inc., 101 Ill. App.3d 880, 883, 57 Ill.Dec. 263, 266, 428 N.E.2d 943, 946 (1st Dist. 1981).

In the instant case, Illinois law requires the conclusion that the Trocal roof is an integral part of the building structure and not a product for purposes of products liability. The roof is "a component and indivisible part of the entire building structure" under the rule expressed in Walker. Policy considerations embodied by strict liability, moreover, do not support defining the Trocal roof as a product; plaintiffs are a commercial enterprise, in the business of managing apartments. Additionally, the existence of other judicial remedies such as breach of warranty further supports our conclusion that roofing material is not a product within the ambit of the products liability doctrine. See Lowrie v. City of Evanston, 50 Ill. App.3d 376, 384, 8 Ill.Dec. 537, 543, 365 N.E.2d 923, 929 (1st Dist. 1977). Accordingly, Count I of the amended complaint is dismissed.

Count II

Count II sounds in negligence and seeks $300,000 in damages to their property and business when the Trocal roof tore away from the roof of the apartments. Dynamit cites a recent Illinois Supreme Court case for the proposition that actions in strict liability or negligence for economic loss will not lie. Moorman Mfg. Co. v. National Tank Co., 91 Ill.2d 69$61 Ill.Dec. 746, 435 N.E.2d 443 (1982). The Court reaffirmed this holding in Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982). Moorman defined economic loss as

  `damages for inadequate value, costs of repair
  and replacement of the defective product, or
  consequent loss of profits — without any claim of
  personal injury or damage to other property * * *'
  (Note, Economic Loss in Products Liability
  Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966) as
  well as `the diminution in the value of the product
  because it is inferior in quality and does not work
  for the general purposes for which it was
  manufactured and sold.' (Comment, Manufacturers'
  Liability to Remote Purchases for "Economic Loss"
  Damages — Tort or Contract?, 114 U.Pa.L.Rev.
  539, 541 (1966).

91 Ill.2d 69, 82, 61 Ill.Dec. 746, 752, 435 N.E.2d 443, 449. Thus, in Redarowicz, the Court affirmed the dismissal of counts based upon a negligence theory seeking recovery for cost of a defectively constructed chimney, wall and patio and observed that recovery in negligence is premised upon a showing of harm beyond disappointed expectations. 92 Ill.2d 171, 177, 65 Ill.Dec. 411, 414, 441 N.E.2d 324, 327. It is important to emphasize, however, that physical injury to property remains actionable in tort. Moorman, 91 Ill.2d 69, 81, 61 Ill.Dec. 746, 753, 435 N.E.2d 443, 450.

Plaintiffs assert that Count II does not involve economic loss, but rather claim that it seeks recovery for property damage, and that dismissal at this stage of the litigation would be premature. We do not agree. Plaintiffs' amended complaint avers that portions of the Trocal roof tore away from its underlying surface, allowing water to leak and thus damaging the building. Some pieces of the Trocal roof also blew off during a windstorm. In deeming damages to a chimney wall and patio economic loss, the Court in Redarowicz stated that:

  [t]his is not a case where defective construction
  created a hazard that resulted in a member of the
  plaintiff's family being struck by a falling
  brick from the chimney. The adjoining wall has
  not collapsed on and destroyed the plaintiff's
  living room furniture.

92 Ill.2d 171, 178, 65 Ill.Dec. 411, 414, 441 N.E.2d 324, 327. Such damages, in contrast to those alleged, would sound in tort. In the instant case, plaintiffs' damages did not result from "a sudden or dangerous occurrence," but rather, occurred "due to deterioration, internal breakdown, or nonaccidental cause." Moorman, 91 Ill.2d 69, 86, 61 Ill.Dec. 746, 753, 435 ...


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