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Willyard v. Wal-Mart Stores

February 8, 2010

LISA WILLYARD, INDIVIDUALLY, AND TONY WILLYARD, MINOR CHILD, BY AND THROUGH HIS NEXT FRIEND LISA WILLYARD, PLAINTIFFS,
v.
WAL-MART STORES, INC., DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
DYNACRAFT BSC, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. Introduction

Before the Court is defendant/third-party plaintiff Wal-Mart Stores, Inc. ("Wal-Mart") Motion to Dismiss Count II and III (Doc. 15) of Plaintiffs' Complaint. Plaintiffs have filed an opposing Response (Doc. 20) and Defendant has Replied thereto (Doc. 23).*fn1 Plaintiffs filed suit against Defendant for injuries allegedly sustained by Tony Willyard when he fell while riding a Next-Dynacraft bicycle the "bicycle"), which was purchased at Defendant's store located in Cahokia, Illinois. Plaintiffs' Complaint pleads four separate counts against Defendant: Count I alleges a claim for common law negligence, Count II alleges a strict product liability claim, Count III alleges a claim of negligent supervision, and Count IV is a claim for medical expenses. Defendant has also filed a Third Party Complaint against Dynacraft, BSC, Inc. ("Dynacraft"), for indemnity purposes, alleging Dynacraft was the manufacturer of the bicycle at issue in this suit.

Defendant seeks a dismissal of Count II, claiming that pursuant to section 2-621 of the Illinois Code of Civil Procedure, as Defendant has certified that it was not the manufacturer of the bicycle.*fn2 Further, Defendant seeks a dismissal of Count III, claiming Plaintiffs have failed to properly plead a claim of negligent supervision. For the reasons discussed herein, the Court finds Counts II and III should be dismissed.

II. Discussion

A. Count II - Products Liability

Defendant asserts that section 2-621requires its dismissal as a non-manufacturer from Plaintiffs' strict products liability claim, and thus, dismissal of Count II of Plaintiffs' Complaint. 735 ILL.COMP.STAT. 5/2-621.*fn3

Section 2-621 is commonly referred to as the "seller's exception," in that Illinois statutory law provides that a nonmanufacturer defendant in a strict product liability action may be dismissed from the cause of action if it certifies the correct identity of the manufacturer of the product which allegedly caused the plaintiff's injury. See Murphy v. Mancari's Chrysler Plymouth, Inc., 887 N.E.2d 569, 573 (Ill. App. 2008). Attached as Exhibit A to Defendant's Motion to Dismiss is a Certification of Manufacturer, identifying third party defendant Dynacraft as the manufacturer of the bicycle.Thus, Defendant seeks dismissal of Count II, (because Wal-Mart is the only party named as a defendant in this suit, as Plaintiffs have failed to amend their Complaint to bring the product liability claim against Dynacraft). Further, Defendant argues that Plaintiffs only allege Defendant is liable under a product liability theory because for its improper assembly of the bicycle, which mirrors Plaintiffs' negligence claim in Count I (for which Defendant does not currently seek a dismissal).

When a defendant complies with section 2-621, its dismissal is mandatory, given that a plaintiff may at any time move to reinstate the product liability claim against the dismissed nonmanufacturer defendant "if the action against the product manufacturer would be impossible or unavailing." Id. (citing 735 ILL. COMP.STAT. 5/2-621(b)) (case citations omitted).There are three exceptions to this general rule, as stated in the statute, if the plaintiff shows:

(1) That the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage; or

(2) That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or

(3) That the defendant created the defect in the product which caused the injury, death or damage."

735 ILL.COMP.STAT. 5/2-621(c).

Here, Plaintiffs argue that Defendant should not be dismissed from Count II as a nonmanufacturer under this provision, as they have alleged the third exception: that Defendant "created the defect in the product which caused the injury" by improperly assembling the bicycle (Doc. 20, pp. 3-4, citing ΒΆΒΆ 8-9, Counts I and II). Aside from questioning the validity of the Certification itself, as well as whether Dynacraft actually manufacturers any bicycles, Plaintiffs cite to the Illinois ...


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