Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 94--L--13817 Honorable William McMenamin Judge, Presiding
The opinion of the court was delivered by: Justice Breslin
Plaintiffs Teresa and Moises Maldonado appeal the trial court's dismissal of their complaint against defendant, Creative Woodworking Concepts, Inc. (Creative), for injuries suffered by Teresa while employed by the Empress River Boat Casino (Empress). The trial court determined that the action was time-barred and dismissed the action with prejudice. We reverse and remand.
On October 12, 1992, while employed as a waitress on the Empress, Teresa was injured by contact with an allegedly defective door in a bar counter built and installed by Creative pursuant to an agreement with the Des Plaines River Entertainment Corporation. The Maldonados originally filed suit against several defendants on October 7, 1994, but did not name Creative in the complaint. At that time, they did not know the identity of the door's manufacturer.
On June 5, 1995, defendant Atlantic Marine Corporation filed for summary judgment claiming that Creative was responsible as it was the supplier of the bar doors. Creative was named as a Respondent in Discovery pursuant to 735 ILCS 5/2-402 (West 1996) on August 12, 1995. On May 20, 1996, the plaintiffs filed an amended complaint and included Creative as a defendant. The count against Creative alleged that: Teresa was injured by the bar door which was built by Creative; Creative had a duty to safely design the door; the absence of a hook or latch was a defect rendering the product unreasonably dangerous when it was in an upright position and the product was in such a condition when it left the defendant's control; defendant should have provided padding to soften any impact with a user; Teresa's injuries resulted from the failure to include a latch or safety mechanism for the door; upon completion of installation, an implied warranty of fitness for a particular purpose was created and Creative had a duty to build the door so that it was fit for the ordinary purpose for which it was used; Creative breached the implied warranty of merchantability by failing to provide a latch or hook to secure the door.
Creative moved to dismiss pursuant to 735 ILCS 5/2-619 (West 1996) claiming that the action was barred by the two-year statute of limitations applying to personal injuries, and because the plaintiffs failed to transform Creative into a direct defendant rather than a Respondent in Discovery within the statutory six month period established in 735 ILCS 5/2-402 (West 1996). The court granted the motion. In doing so, the court found that the action was filed beyond the time permitted by the statute of limitations and the additional six month period provided by section 2-402. The court also noted that Teresa had actual notice of her injury. The plaintiffs' motion to vacate was denied and this appeal followed.
An involuntary dismissal on the pleadings is proper only if it is clearly apparent that no set of facts can be proved which would entitle the plaintiff to recover. Grassini v. Dupage Township, 279 Ill. App. 3d 614, 665 N.E.2d 860 (1996). When reviewing the motion to dismiss, the court assumes that all well-pleaded facts in the plaintiff's complaint are true; however, Conclusions of law and fact which are unsupported by factual allegations may be disregarded. Wood v. Village of Grayslake, 229 Ill. App. 3d 343, 593 N.E.2d 132 (1992). On appeal, this court reviews the trial court's decision de novo to determine whether a genuine issue of material fact should have precluded the dismissal. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732 (1993).
Plaintiffs contend that the court erred by dismissing their complaint because it alleged a breach of warranty action under the Uniform Commercial Code (UCC), and that the applicable statute of limitations as provided in section 2-725(1) of the UCC, (810 ILCS 5/2- 725(1) (West 1996)), was four years and had not yet expired. The defendants assert, to the contrary, that the complaint was ambiguous and that the court could properly dismiss the action based on the two-year period of limitations for personal injuries, (735 ILCS 5/13-202 (West 1996)), because the complaint could be read to allege actions for negligence or product liability. Creative asserts that the plaintiffs improperly lumped numerous separate causes of action in one count.
In support of its argument, Creative cites Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E.2d 976 (1981). In Knox, the court held that the trial court did not abuse its discretion by dismissing an ambiguous count that alleged different causes of actions, which in turn had different statutes of limitations. The court stated that the trial court could attempt to avoid confusion by requiring unambiguous pleadings. Thus, the court determined that the trial court's order to separate the counts, and subsequent dismissal following the plaintiff's refusal to comply, was not an abuse of discretion.
Knox is distinguishable from the present action. In this case, neither the court nor the defendants made an issue of the complaint's confusion. Rather, Creative moved to dismiss what it argued was a count stating a cause of action for negligence or product liability. In each case, Creative contended that dismissal was appropriate because the relevant statute of limitations had expired and the plaintiffs failed to file suit within the extra six month period permitted by the Respondent in Discovery statute, (735 ILCS 5/2-402 (West 1996)).
A review of the count against Creative, which alleges that the door should have had a hook on it in order to be fit for its ordinary purpose, demonstrates that the plaintiffs stated the basic elements of a cause of action for breach of the implied warranty of merchantability under 810 ILCS 5/2-314(2)(c) (West 1996). However, Teresa was not a party to the contract with Creative, and in order for her to benefit from the warranty she must fall within the scope of 810 ILCS 5/2-318 (West 1996), which dictates when a non-party may claim to be a third- party beneficiary of an agreement's warranties. In relevant part, section 2-318 states:
"A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is ...