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).
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 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
[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.