The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Louisville Ladder's ("Defendant") Motion to Dismiss Counts I, II, III, and V of Plaintiff's Complaint. For the following reasons, Defendant's motion is denied in part, and granted in part.
The following relevant facts are taken from the pleadings and read in the light most favorable to the Plaintiff, with any conflicting pleadings resolved in his favor.
In March 2005, Plaintiff was standing on a scaffold manufactured by Defendant when the scaffold's wheel broke, causing Plaintiff to fall and sustain injuries. Plaintiff alleges that when Defendant originally sold the scaffold to a dealer in 1997, a threaded stud was defective, and that this defect caused the 2005 accident.
Plaintiff's complaint consists of five counts. Count IV alleges negligence, while Counts I, II, III, and V all sound in strict liability, with each presenting a different theory of recovery under that cause of action. Count I claims a manufacturing defect, Count II claims a design defect, Count III claims failure to warn of a defect, and Count V relies on the doctrine of res ipsa loquitur. Defendant seeks dismissal of Counts I, II, III, and V on the grounds that they are duplicative in that they each sound in the same cause of action. Defendant additionally seeks dismissal of Count V on several other grounds.
A Rule 12(b)(6) motion is designed only to "test the sufficiency of the complaint, not to decide its merits." Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Dismissal is proper only when the complaint lacks either a cognizable legal theory or fails to allege sufficient facts under a cognizable theory. Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). The Court must take the facts alleged by the plaintiffs as true and must construe all allegations in the complaint in the light most favorable to the plaintiffs. Colfax Corp. v. Illinois State Toll Highway Authority, 79 F.3d 631, 632 (7th Cir. 1996).
A. Defendant's Argument that Counts I, II, III, and V are Improperly Duplicative
Defendant contends that a plaintiff cannot allege the same cause of action in multiple counts. The Federal Rules of Civil Procedure directly address this point, providing that "[a] party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses." FED. R. CIV. P. 8(e)(2)(emphasis added). The Court thus must reject Defendant's argument. It is entirely consistent with the rules of pleading for a plaintiff to use four separate counts to plead four distinct theories of proof (i.e., statements of a claim) of the same cause of action.
B. Defendant's Additional Attacks on Count V
Defendant makes three additional attacks on Count V. First, it contends that res ipsa loquitur cannot be pled as a separate count because it is a principle of evidence, not a cause of action. Second, Defendant contends that res ipsa loquitur does not apply to a strict liability claim. Finally, Defendant argues that even if Count V is theoretically proper, Plaintiff has not pled facts establishing the applicability of res ipsa loquitur.
The Court rejects Defendant's first argument. Although it is true that res ipsa loquitur is not a cause of action, it is a judicially approved means of proving a cause of action. See Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th Cir. 1994). There is nothing generally improper about pleading one's intent to rely on a specific method of establishing the elements of a cause of action, and numerous Illinois cases and federal cases applying Illinois law have implicitly or explicitly approved the pleading of res ipsa. See, e.g., Smith v. Illinois Cent. R.R. Co., 223 Ill.2d 441 (2006); Delvecchio v. General Motors Corp., 255 Ill.App.3d 189, 195 (5th Dist. 1993); and Harms v. Laboratory Corp. of America, 155 F.Supp.2d 891 (N.D. Ill. 2001). Defendant's only authority indicating otherwise, Schur v. L.A. Weight Loss Ctrs., Inc., 2006 U.S. Dist. LEXIS 49176 (S.D. Ill. 2006), is unpersuasive because it contains no analysis or citations. The Court is also disinclined to give greater weight to an unpublished federal district court opinion than to the myriad Illinois decisions permitting the pleading of res ipsa.
The Court also rejects Defendant's second argument. Defendant argues that Illinois law does not provide for pleading res ipsa under the strict liability cause of action. But numerous cases have held that res ipsa's circumstantial-evidence-based method of proving liability applies in both the negligence and strict liability contexts. See, e.g., St. Paul Fire and Marine Ins. Co. v. Michelin Tire Corp., 12 Ill.App.3d 165, 178 (1st Dist. 1973) ("The underlying principle [of res ipsa loquitur] that circumstantial evidence may create inferences of fact which are not otherwise subject to direct proof is entirely consonant with a strict liability theory."); Welge, 17 F.3d at 211 ("The doctrine [of res ipsa loquitur] merely instantiates the broader principle, which is as applicable to a products case as to any other tort case, that an accident can itself be evidence of liability."). Indeed, in one case, an Illinois appeals court specifically held that it was error for the trial court to dismiss a strict liability res ipsa count because ...