Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 31, 1989

Althea B. Nazarenus and Oliver A. Nazarenus, Plaintiffs,
J.F. Daley International, Ltd. and Pike Brothers, Inc., Defendants

The opinion of the court was delivered by: JAMES B. ZAGEL, UNITED STATES DISTRICT JUDGE


James B. Zagel, United States District Judge

Althea and Oliver Nazarenus filed this diversity action against the defendants seeking $ 1,000,000 in damages for injuries arising out of Althea's slip and fall. Their complaint contains three counts: Althea's negligence and product liability claims (Counts I and II) and Oliver's cause of action for loss of consortium (Count III). Before the court is the motion of J. F. Daley International, Inc. ("Daley") to strike and dismiss the complaint. *fn1" For the reasons set forth below, Daley's motion is granted.

 Daley manufactures and sells floor products such as wax. Pike Brothers, Inc. ("Pike") distributes and sells cleaning supplies for manufacturers like Daley. In this case the plaintiffs allege that Daley manufactured floor wax, sold it to Pike, who in turn sold it to The Home Economist in Skokie, Illinois. The Home Economist (interestingly, not named as a defendant) applied the wax to its floor, and Althea, a customer, slipped and fell injuring herself.

 Count I, Althea's negligence claim, alleges that Daley and Pike "owed a duty of exercising ordinary care [to ensure] that the floor in said store was in a (sic) reasonably safe condition for passage by customers * * *." Para. 9. Althea contends that the defendants acted negligently in three ways: (1) by failing to provide "a good, safe and proper wax"; (2) by manufacturing, selling and distributing the wax; and (3) by failing to provide adequate instructions regarding the application of the wax. Para. 11. Althea's product liability action, contained in Count II, recites that Daley "omitted to include all necessary and essential ingredients and components into (sic) the wax * * * so that said wax was in a defective and unreasonably dangerous condition." Count II, para. 10. Finally, Count III, which is Oliver's claim for loss of consortium, states that as a result of Althea's injuries he has "suffered the loss of the services of his wife * * * and has been deprived of her affection, society, companionship, and consortium." Count III, para. 14. Daley contends that all of these claims are legally insufficient. We address each in turn.

 At several points in its motion and reply, Daley suggests that the plaintiffs have not adequately pleaded the existence of a duty of care, which of course is an essential element in a claim for negligence. See Daley's Motion to Strike and Dismiss, at 2 para. 6; Daley's Reply, at 7. We agree. The plaintiffs allege that Daley owed them a duty of care to ensure that the floor of The Home Economist "was in a reasonably safe condition for passage by customers * * *." Count I, para. 11. While The Home Economist may be under such a duty, Daley is not. It does not require much imagination to see that imposing such a duty on a manufacturer such as Daley would exact costs far outweighing any benefits to be derived: were we to recognize the duty urged by the plaintiffs, it would require Daley to follow its products through the stream of commerce to ensure that the ultimate purchasers of the products use them properly. *fn2" Not only would such a duty be financially prohibitive, it would present potentially insuperable logistical problems. *fn3" Accordingly, we believe that Count I fails to state a claim upon which relief can be granted, and must be dismissed.

 Nevertheless, because we think this flaw can be remedied through repleading, we pause to consider another shortcoming in Althea's negligence claim, namely, the lack of proper allegation of negligent conduct. The allegations that Daley failed to provide "a good, safe and proper wax", and to provide adequate instructions are mere conclusions which require some factual basis, presently absent, to withstand a motion to dismiss. In the same vein, the fact that Daley manufacturers, sells, and distributes floor wax does not constitute negligent conduct; if it did, it would pose a rather knotty problem for merchants. Should the plaintiffs decide to file an amended complaint, they would do well to recast their allegations in light of these remarks.

 Counts II and III require only brief comment. The linchpin of Count II, Althea's claim for product liability, is that Daley neglected to include "all necessary and essential ingredients" in the floor wax, thus causing it to be unreasonably dangerous. As with the allegations of negligent conduct in Count I, this wholly unsupported conclusion simply is not enough to justify forcing Daley to endure the costly ordeal of defending a lawsuit. Which ingredients of the floor wax are "essential"? We believe that Daley is entitled to know more of the facts than the plaintiffs have seen fit to provide. Finally, Oliver's claim for loss of consortium, set out in Count III, derives solely from Althea's claims; therefore, in light of the fact that we have dismissed her claims, Oliver's is extinguished as a matter of law.

 Before concluding, however, we think it appropriate to remind the plaintiffs and their attorneys of their obligation under Fed.R.Civ.P. 11 to make a reasonable inquiry into the factual basis of their claims before they file an amended complaint. *fn4" See Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063, 1064 (7th Cir. 1987).

 The claims against Pike also must be dismissed. Pike's liability apparently rests on its place in the chain of distribution: therefore, if Daley is not liable, then neither is Pike. Accordingly, since we have dismissed the claims against Daley, it necessarily follows that the claims against Pike must fall.

 The plaintiffs have 28 days from the date of this order in which to file an amended complaint. In the event they do not do so the dismissal shall be with prejudice.

 Date: May 20, 1988

 Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.

 IT IS ORDERED AND ADJUDGED, defendant, Daley's motion to dismiss is granted. Plaintiffs have 28 days (17 Jun 88) ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.