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UNGARO v. ROSALCO

December 4, 1996

SUSAN UNGARO, as Special Administrator of the Estate of SHANE UNGARO, deceased, Plaintiff,
v.
ROSALCO, INC., an Indiana corporation, and FINGERHUT CORPORATION, a Minnesota corporation, Defendants.



The opinion of the court was delivered by: KOCORAS

 CHARLES P. KOCORAS, District Judge:

 This matter is before the court on defendant Fingerhut Corporation's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and 735 ILCS 5/2-621 of the Illinois Code of Civil Procedure. For the reasons discussed below, the defendant's motion is granted.

 BACKGROUND

 On approximately March 23, 1994, Ungaro bought a child's bed from a mailorder catalogue operated by Defendant Fingerhut. The bed that Ungaro ordered was designed to look like a race car. Fingerhut purchased the juvenile bed from the manufacturer, Rosalco, and then shipped the bed to Ungaro on April 18, 1994. The bed, measuring 81 inches in length, 42 inches in width and 16 inches in height, was shipped along with a mattress. The standard twin-sized mattress which was sold and intended to be used with the bed was too small for the bed frame. This left a gap between the bed frame and the mattress.

 Plaintiff Susan Ungaro purchased the bed for her son Shane, who was born on April 9, 1994. On November 18, 1995, Gladys Ungaro placed Shane in the bed for a nap with his head at the top of the bed. Upon returning to the room to wake Shane from his nap, Gladys Ungaro observed that Shane's neck was on top of one of the side bed frames. Due to the fact that Shane Ungaro was positioned with his neck upon the bed frame, he was unable to breath and died. The Cook County Medical Examiner's office determined that the cause of death was positional asphyxia.

 In May 1996, Plaintiff filed the two-count complaint. Defendant Fingerhut Corporation now moves to dismiss the complaint.

 LEGAL STANDARD

 The purpose of a motion to dismiss, pursuant to Federal Rule 12(b)(6), is to test the sufficiency of the complaint and not to decide the merits of the case. Defendants must meet a high standard in order to have a complaint dismissed for failure to state a claim upon which relief may be granted since, in ruling on a motion to dismiss, the court must construe the complainant's allegations in the light most favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiff's complaint must be taken as true. The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See also Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Doe on Behalf of Doe v. St. Joseph's Hospital, 788 F.2d 411, 414 (7th Cir. 1986). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. Dane County, 854 F.2d 179, 182. (7th Cir. 1988). We now turn to the motion before us with these principles in mind.

 DISCUSSION

 Plaintiff's complaint contains two counts. Count I is premised on a negligence theory of liability, while Count II is premised on a claim for strict liability, based on the fact that the product was defective and unreasonably dangerous. Fingerhut filed a motion to dismiss the complaint under an Illinois statute. Although the briefs do not consider the claims separately, we will do so, because of an arguable ambiguity in the scope of the statute.

 I. Strict Product Liability Claim


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