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BURGESS v. CLAIROL

October 30, 1991

GEORGE BURGESS and CYNTHIA BURGESS, Plaintiff,
v.
CLAIROL, INC., a foreign corporation, Defendant. CLAIROL, INC., a foreign corporation, Third-party plaintiff, v. JERRY W. CARGILL, M.D., Third-party defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is defendant Clairol Incorporated's ("Clairol") motion to dismiss Count IV of the plaintiff's fourth amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the motion is granted.

 FACTS

 George Burgess brought a personal injury suit against Clairol alleging that at the time he used the product, the defendant knew or should have known that diabetics and individuals with poor circulation in their feet should not place their feet in water with temperatures exceeding 95 degrees; that its product could heat water to temperatures exceeding 105 degrees; and that other individuals had been injured by the product. George Burgess also alleged that defendant failed to place warnings on the product and failed to recall the product or issue any public announcement regarding the alleged dangers.

 On January 28, 1991, George Burgess died. Shortly thereafter, the complaint was amended in two respects. First, George Burgess's previous personal injury claim was changed to a cause of action pleaded under the Illinois Survival Act (Ill. Rev. Stat. ch. 110 1/2, para. 27-6 (1991)), naming Cynthia Burgess as Administrator of the Estate of George Burgess, as the plaintiff. Second, a cause of action alleging wrongful death was added, naming Cynthia Burgess individually as plaintiff. *fn1" Now before the court is the fourth amended complaint. However, this complaint does not allege the cause of George Burgess's death. Count IV seeks punitive damages from Clairol for acts that allegedly injured the decedent. The defendant seeks to dismiss Count IV on the grounds that punitive damages are not available under the Illinois Wrongful Death Act, (Ill. Rev. Stat. ch. 70, paras. 1, 2 (1989), and that the Illinois Survival Act (Ill. Rev. Stat. ch. 110 1/2, para. 27-6 (1989)), does not permit a claim for punitive damages to pass to the decedent's estate.

 Although Count IV of plaintiff's fourth amended complaint, titled "Wilful and Wanton Conduct," seeks punitive, or exemplary, damages, plaintiff's theory of recovery under this count is unclear. Consistent with causes of action brought under the Survival Act, plaintiff alleges injuries, and pain and suffering to the decedent, George Burgess. See Kwasny v. United States, 823 F.2d 194, 197 (7th Cir. 1987). Consistent with causes of action brought under the Wrongful Death Act, plaintiff alleges that she is George Burgess's next of kin. See Bass v. Wallenstein, 769 F.2d 1173, 1188 n. 15 (7th Cir. 1985). Realizing that neither statute ordinarily allows for punitive damages, the plaintiff, in her response to Clairol's motion to dismiss, alleges that punitive damages should be allowed due to "equitable factors."

 DISCUSSION

 On a motion to dismiss, the allegations of the complaint, as well as reasonable inferences to be drawn from them, are taken to be true. Doe v. St. Joseph's Hosp., 788 F.2d 411, 414 (7th Cir. 1986). If the plaintiff cannot prove any set of facts that would entitle her to relief, then dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper. See Papapetropoulous v. Milwaukee Transp. Serv., Inc., 795 F.2d 591, 594 (7th Cir. 1986); Thomas v. Cannon, 751 F. Supp. 765, 766-67 (N.D. Ill. 1990).

 Whether the plaintiff can recover punitive damages against Clairol is determined by Illinois law because this case comes to the court under diversity jurisdiction and Illinois has the most significant relationship to this case. See In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 611-16 (7th Cir. 1981), cert. denied sub nom. Lin v. American Airlines Inc., 454 U.S. 878, 102 S. Ct. 358, 70 L. Ed. 2d 187 (1981) ("Chicago Air Crash Disaster "); Restatement (Second) of Conflicts ยง 145, Comment e (1971).

 I. Failure to Properly Plead a Cause of Action for Wrongful Death.

 Plaintiff's response to defendant's motion to dismiss relies on Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 330 N.E.2d 509 (1975), for the proposition that certain equitable factors should allow for punitive damages in the present case. Since the equitable factors which plaintiff claims justify punitive damages in the present case were discussed by the Mattyasovszky court in the context of a common law cause of action for wrongful death, this court assumes that plaintiff is asserting the same theory of recovery in Count IV of the complaint. *fn2" Plaintiff's reasoning, however, has one major flaw. Nowhere in the pleadings does she allege that the injuries suffered by the decedent, George Burgess, caused his death. Thus, even if a common law cause of action for wrongful death were to be recognized in Illinois, plaintiff has failed to allege that the defendant's product caused the decedent's death. Plaintiff's failure to allege causation forces the court to ...


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