As for the second factor, the court cannot infer from the facts alleged that it was likely that Premium Link's failure to manufacture and deliver quality meal boxes to Burger King would result in injury to ABM. Continuing with the third and fourth factors, the court believes that the unforeseeable nature of the "injury" suffered by ABM essentially on account of Premium Link's breach of its contract makes it difficult for a party in Premium Link's position to guard against that injury. In addition to negotiating the central provisions of their contract -- in this case, perhaps the number of meal boxes, their design, their composition, and their date of delivery -- parties to agreements would have to investigate their counter-party's contracts with other persons, ascertain whether a breach of the central agreement would trigger losses under other agreements, and determine how to mitigate those risks. Were this court to impose such a duty on parties, the costs of merely transacting business would skyrocket.
The burden to Premium Link of bearing such responsibility would extend beyond whatever it would owe ABM. For example, beef producers who suffered losses as a result of Burger King's not selling more burgers to hungry kids would have a cause of action against Premium Link. Former or potential employees of Burger King who either were laid off or not hired on account of less-than-anticipated burger sales would probably join the battle too. The flaws in ABM's "for want of a nail" theory of negligence liability are patent.
The court thus must dismiss Count 1 for failure to state a claim under Illinois law upon which this court may grant relief. The court now turns to Count 2, ABM's claim for misrepresentation. As an initial matter, the court notes that while ABM labels Count 2 as a claim for "Misrepresentation" alone, ABM characterizes the count throughout its brief in opposition to Premium Link's motion as one for "negligent misrepresentation." Under Illinois law, a party alleging negligent misrepresentation must plead and prove (1) the defendant's duty to the plaintiff to communicate accurate information, (2) the defendant's false statement of material fact, (3) the defendant's negligence or careless in ascertaining the truth of the statement, (4) action by the plaintiff in reliance on the truth of the statement, and (5) damage to the plaintiff resulting from such reliance. See Board of Education v. A, C & S, Inc., 131 Ill. 2d 428, 454, 546 N.E.2d 580, 591, 137 Ill. Dec. 635 (1989). The Illinois tort of negligent misrepresentation provides one of means by which a party may recover so-called "economic losses" in the Illinois courts, see Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 88-89, 435 N.E.2d 443, 452, 61 Ill. Dec. 746 (1982), although it is uncertain whether Moorman's limitation on recovery of those losses applies in this case. See Harrison, 715 F. Supp. at 1432-34.
Taking the facts alleged in ABM's complaint as true, this court cannot hold that ABM has stated a claim for negligent misrepresentation under Illinois law. ABM has alleged that Premium Link supplied it false information, as Premium Link told ABM that it would cure the defects in its products but did not. ABM allegedly relied on this information to its detriment. The company fails to allege, however, that Premium Link owed it a duty to provide it accurate information. Such a duty arises under Illinois law only when the defendant runs the risk of physical harm on account of negligent misrepresentation or is in the business of furnishing information. See id. at 453-56. There is no allegation that anyone could have suffered physical harm on account of Premium Link's estimate of its performance, nor is there any allegation that Premium Link was in the business of furnishing such estimates. ABM itself alleges that Premium Link was in the business of "designing, manufacturing and delivering promotional products," Complaint at par. 8, which is not the sort of "information industry" whose businesses are typically exposed to liability for negligent misrepresentation. See cases cited in A. C & S, 131 Ill. 2d 428 at 453, 546 N.E.2d 580, 1989 Ill. LEXIS 146, 137 Ill. Dec. 635.
Even if Premium Link were in the business of providing professional estimates of its ability to meet contracts to promotional advisors, ABM has not alleged that Premium Link was negligent or careless in its prediction. There are no facts, for example, from which the court may infer that Premium Link habitually made promises that it could not keep. For this reason, Premium Link will have it its way on Count 2 of ABM's complaint. Since Count 3 is derivative of Counts 1-2, the court will dismiss Count 3 as well.
The court dismisses ABM and First National's complaint against Premium Link under Rule 12(b)(6).
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