defendant who neither contributed to, nor had knowledge of, an alleged defect may defer liability to the manufacturer. Indeck Power Equipment Co. v. Jefferson Smurfit Corp., 881 F. Supp. at 341-42.
Plaintiff's complaint does not contain any such allegation of "actual knowledge." Plaintiff states only that Defendant Fingerhut should have known that the bed was defective because of the design. In support of her assertion, Plaintiff merely states that because of the size of the mattress relative to the size of the bed, Defendant Fingerhut had actual notice of potential harm. This assertion is insufficient under the law. Contrary to Plaintiff's assertions, Illinois law requires that a defendant distributor has actual knowledge of a defect in order to be held liable. See Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d 185, 191, 553 N.E.2d 1139, 1143, 143 Ill. Dec. 153 (2nd Dist. 1990) (stating that in order to preclude the dismissal of a defendant, it is the plaintiff who must show that the defendant had actual knowledge of the defect).
Because the Plaintiff has failed to allege that the defendant distributor had actual knowledge of the defect, her claim does not fall within this exception. See Lamkin v. Towner, 138 Ill. 2d 510, 563 N.E.2d 449, 459, 150 Ill. Dec. 562 (Ill. 1990) (ruling that an affidavit stating that the distributor had no actual knowledge of the defect in the product is sufficient to effectuate the dismissal of a non-manufacture under the Distributor Statute). Therefore, the strict liability claim against Fingerhut must be granted.
II. Plaintiff's Negligence Claim
We examine the negligence claim separately. While the parties do not discuss the negligence claim at length in their briefs, we pause to note that it is not entirely clear whether the Distributor Statute also applies to negligence actions arising out of conduct by product distributors. The statute applies to "any product liability action based on any theory or doctrine." The phrase "any product liability action" implies that the statute only covers actions for strict liability. However, the phrase "based on any theory or doctrine" seems more explicit in its scope -- that is, it extends to all actions arising out allegedly defective products, whatever the theory, and including those predicated on a negligence theory of liability. Moreover, when the Illinois legislature last revised the statute in 1995, it used the current language -- referring to "any product liability action based on any theory or doctrine" -- to replace "any product liability action based in whole or in part on the doctrine of strict liability in tort." See Historical and Statutory Notes to 735 ILCS 5/2-621 (noting amendment of the statute by P.A. 89-7). This amendment clearly indicates the intent of the legislature to extend the coverage of the statute beyond strict liability actions. Therefore, the statute applies to Count I of the complaint, alleging negligence.
Since the statute applies to the negligence count, we apply the same analysis. Under the statute, a non-manufacturer defendant is not liable unless it falls within one of the exceptions. Fingerhut does not presently fall within any of these exceptions, because the manufacturer still exists and is able to satisfy judgment, and because Fingerhut is not alleged to have had actual knowledge of the defective nature of the product. Therefore, the negligence claim against Fingerhut must also be dismissed under the statute.
For the reasons set forth above, the defendant's motion to dismiss the complaint against Defendant Fingerhut is granted.
Charles P. Kocoras
United States District Judge
Dated: December 4, 1996
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