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LENOX, INC. v. TRIANGLE AUTO ALARM

May 9, 1990

LENOX, INCORPORATED, a New Jersey corporation, Plaintiff,
v.
TRIANGLE AUTO ALARM, a division of TRIANGLE STEREO, Inc., an Illinois corporation and TECHNE ELECTRONICS, Ltd., a California corporation, Defendants



The opinion of the court was delivered by: NORDBERG

John A. Nordberg, United States District Judge.

 MEMORANDUM OPINION and ORDER

 This action is before the Court on motion of Triangle Stereo, Inc. for summary judgment on Counts I-III of Lenox, Inc.'s complaint. For the reasons set forth below, the Court grants Triangle's motion.

 As a full-time jewelry salesman employed by Lenox, Inc., George DePasse regularly carried valuable jewelry samples owned by Lenox. The jewelry salespersons customarily undertook certain security measures to ensure against theft of the samples. Upon recommendation of the security chief of Lenox and at the suggestion of his colleagues, DePasse decided to have an "Ungo" auto alarm installed in his automobile to help protect the jewelry samples he occasionally stored in the trunk of his car. DePasse Dep., at 69-70, 198. After noticing Triangle's newspaper advertisement for the Ungo alarm system in October of 1986, DePasse went to Triangle to purchase the alarm system. Id. at 69. Sensitive to his company's security concerns, DePasse took care to avoid disclosing that he often kept valuable jewelry in the trunk of his car. Id. at 77-79. Triangle installed the Ungo system requested by DePasse. According to DePasse, the system appeared to function properly at all times, except for one repair to the wiring made approximately a month after purchase. Id. at 79-80. After the Ungo alarm system was installed by Triangle, DePasse took further measures to ensure the safety of his samples when stored in his trunk. DePasse bolted to the inside of his trunk a length of chain short enough to prevent a thief who had popped the trunk from removing the box of jewelry through the opening between the trunk lid and the bottom of the trunk.

 On March 4, 1987, while DePasse was making several sales calls inside a shopping center mall in Racine, Wisconsin, his car was stolen from the parking lot. DePasse reported to police that approximately $ 125,000 worth of jewelry samples were stored in the trunk of the stolen car. The police report described the condition of the vehicle found two days later amidst some bushes off the street. The officer who inspected the auto observed no signs of tampering on the door, trunk or ignition locks, but did report a "crinkle in the back of the trunk" as if someone had attempted to pry open the trunk or perhaps open it just enough to remove the jewelry samples.

 Lenox brings contract and tort claims against Triangle and the manufacturer of the alarm, Techne Electronics, Ltd. Triangle alone has moved for summary judgment. Of the three counts directed toward Triangle, Counts I and II allege breach of express and implied contractual warranties, respectively. Count III alleges that, but for the negligent installation of the auto alarm by Triangle, the automobile and jewelry samples would not have been stolen. Lenox prays for $ 125,000 in damages, representing the wholesale value of the stolen samples, plus costs and fees.

 LAW

 Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A party moving for summary judgment has the burden of informing the court of the basis for his motion by identifying items in the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To be well grounded in fact, as required by Fed. R Civ. P. 11, a summary judgment motion must contemplate the entire record. Goka v. Bobbitt, 862 F.2d 646, 650 (7th Cir. 1988). In other words, moving parties cannot discharge their burden by "identifying only those portions of the record which support their position . . . [when] there exists evidence to contrary of which [movants] are aware." Id. (emphasis in original).

 When the burden of persuasion at trial would be on the nonmoving party, as is true in this case, the movant may satisfy his burden of production in one of two ways. Celotex, 477 U.S. at 331 (Brennan, J., dissenting). The movant may submit affirmative evidence that negates an essential element of the claim, or he may demonstrate that the evidence adduced by the nonmoving party is insufficient to establish an essential element of the claim. Id.

 When the movant has successfully carried his burden of production, summary judgment is appropriate unless the opposing party sets forth specific facts that demonstrate the existence of a genuine issue of material fact for trial. Id. at 324. A nonmoving party cannot carry this burden by merely relying upon his pleadings. Id. Nor, contrary to Lenox's belief, can the nonmovant do so by pointing to the statement of contested issues of fact contained in a preliminary pretrial scheduling order. See Associates in Adolescent Psychiatry v. Home Life, 729 F. Supp. 1162, 1192 (N.D. Ill. 1989). Rather, a nonmoving party with the burden of persuasion on an issue must set forth evidence on each essential element of his claim sufficient to satisfy the requisite burden of proof. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (the standard for summary judgment "mirrors the standard for directed verdict" and focusing inquiry upon " ' whether there is any [evidence] upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'") (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L. Ed. 867 (1872)). When applying this standard, the court must examine all the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor. Bowyer v. United States Dep't of Air Force, 804 F.2d 428, 430 (7th Cir. 1986).

 Count I - Breach of Express Warranties

 In its complaint, Lenox claims that DePasse purchased the Ungo alarm system in reliance upon the advice of the Triangle salesman. Lenox alleges that the salesman recommended the Ungo system after DePasse had informed the salesman that he needed an alarm system to protect valuable jewelry samples he regularly carried in the trunk of his car. Count I asserts that Triangle's representations constituted an express warranty that the alarm system would protect the jewelry and that breach of the express warranty was the cause of the plaintiff's damages. But as detailed above, DePasse testified in his deposition that none of these allegations is true.

 "Generally speaking, in order to constitute an express warranty there must be either an express undertaking to warrant in so many words, or, if representations are relied upon to make out a warranty, they must be made in such manner and circumstances to authorize the buyer to understand that the seller intended to be bound by them as part of the contract of sale." 77 C.J.S. Sales ยง 308 (1952). Similarly, under the Uniform Commercial Code in Illinois, an express warranty is created by "any affirmation of fact or promise . . . which relates to the goods and becomes part of the basis of the bargain." Ill. Rev. Stat. ch. 26, para. 2-313 (1987). *fn1" Significantly, an express warranty requires that the seller make or accede to some representation regarding the performance or quality of the product. Defendant Triangle points to several items in the record that suggest no express warranty was made by the defendant. First, DePasse did not inform the alarm salesman that he was a jewelry salesman or that he regularly carried jewelry in the trunk of the vehicle. DePasse Dep., at 77-79. *fn2" Second, Triangle did not recommend the Ungo system to DePasse; on the contrary, ...


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