United States District Court, N.D. Illinois
CELINA WIEGEL, on behalf of all others similarly situated, Plaintiff,
STORK CRAFT MANUFACTURING, INC., a Canadian corporation, and WAL-MART STORES, Inc., a Delaware corporation, Defendants
For Celina Wiegel, Plaintiff: Ben Barnow, LEAD ATTORNEY, Blake Anthony Strautins, Barnow and Associates, P.C., Chicago, IL; Aron David Robinson, Law Office of Aron D. Robinson, Chicago, IL; Erich Paul Schork, Barnow and Assoc., PC, Chicago, IL; Sharon Harris, Barnow & Associates, P.C., Chicago, IL.
For Stork Craft Manufacturing, Inc., Defendant: Brian Patrick Kavanaugh, LEAD ATTORNEY, Charles William Douglas, Jr., James Andrew Langan, Talia M. Bucci, Kirkland & Ellis LLP, Chicago, IL.
For Wal-Mart Stores, Inc., Defendant: Gretchen N Miller, Jonathan Hale Claydon, LEAD ATTORNEYS, Paul Joseph Ferak, Greenberg Traurig, LLP., Chicago, IL; David Eric Sellinger, Greenberg Traurig, Llp, Florham Park, NJ.
MEMORANDUM OPINION AND ORDER
Elaine E. Bucklo, United States District Judge.
On November 25, 2009, two days after the United States Consumer Product Safety Commission (" CPSC" ) and defendant Stork Craft announced the recall of millions of Stork Craft's drop-side cribs,  plaintiff sued Stork Craft and Wal-Mart to recover for injuries she claims to have suffered as the owner of one of the recalled cribs. Plaintiff's original complaint asserted numerous claims that were later winnowed through amendments and motion practice. Now remaining are the claims plaintiff asserts in her Second Amended Complaint (to which I refer, for ease of reference, as her " complaint" ) under the Illinois Consumer Fraud and Deceptive Business Practices Act (the " ICFA" ), and on the equitable theory of unjust enrichment. Defendants have each moved for summary judgment of both of these claims. For the reasons that follow, their motions are granted.
Plaintiff owns a Stork Craft 2007 model Rochester Stages Crib, a drop-side crib
that can be converted to a toddler bed and then to a full-size child's bed as its user grows. The crib was purchased for plaintiff in February of 2008, after she selected it from Wal-Mart's online retail site, " walmart.com." Plaintiff began using the crib after her daughter was born in March of 2008, and she used it as a drop-side crib without incident until November of 2009.
On November 23, 2009, Stork Craft voluntarily recalled roughly 2.1 million of its drop-side cribs, including the model owned by plaintiff. The recall notice issued by the CPSC explained:
The cribs' drop-side plastic hardware can break, deform, or parts can become missing. In addition, the drop-side can be installed upside-down, which can result in broken or disengaged plastic parts. All of these problems can cause the drop-side to detach in one or more corners. When the drop-side detaches, it creates space between the drop-side and the crib mattress. The bodies of infants and toddlers can become entrapped in the space which can lead to suffocation. Complete detachment of drop-sides can lead to falls from the crib.
Infant Entrapment and Suffocation Prompts Stork Craft to Recall More than 2.1 Million Drop-Side Cribs, (" Recall Notice" ), Declaration of Sharon Harris, Exh. 1 [DN 227-1]. The Recall Notice stated that the CPSC, Health Canada, and Stork Craft " are aware of 110 incidents of drop-side detachment," including fifteen entrapments, of which four resulted in suffocation, as well as " fall injuries" including concussions, bumps, and bruises. Id. The Recall Notice directed owners of recalled cribs to contact Stork Craft for a free repair kit " that converts the drop-side on these cribs to a fixed side." Id. It further " urge[d] parents and caregivers to immediately stop using the recalled cribs," and, until repairing the cribs with the free kit, to " find an alternative, safe sleeping environment for their baby." Id.
This recall, while the first involving Stork Craft cribs, was not the first of its kind. In September of 2007, CPSC announced a recall of about one million drop-side cribs manufactured by Simplicity, Inc. The September 2007 recall similarly warned that the " drop-side can detach from the crib, which can create a dangerous gap and lead to the entrapment and suffocation of infants," and noted reports of two infant deaths, seven infant entrapments, and fifty five " incidents" involving the Simplicity crib. Harris Decl., Exh. 15 [DN 227-15]. The CPSC attributed the Simplicity drop-side failures to " both the hardware and crib design." Id.
Thereafter, the dangers associated with drop-side cribs received increasing public attention. In March of 2009, the Chicago Tribune published an article on the subject, prompting Stork Craft's president to observe, " [t]he public is now on notice that drop-sides are bad." Harris. Decl., Exh. 28 [DN 227-28].
When plaintiff discovered that her crib was subject to the November 2009 recall, she dutifully contacted Stork Craft for the repair kit, which her husband installed in December of 2009. Thereafter, plaintiff continued to use the repaired crib without incident as a fixed-side crib until June of 2010, when she converted it to a toddler bed. Plaintiff was not happy with the toddler bed configuration, however, and the crib was disassembled, packed up, and placed in storage shortly thereafter, where it remains to this day.
Plaintiff was fortunate: neither major tragedy nor minor accident befell her child while using the recalled crib in its pre-repair condition. Indeed, until plaintiff's husband installed the repair kit, the drop-side rail functioned as it was supposed to,
and none of the dangerous conditions reported in the Recall Notice--broken, deformed, or missing parts, or improper assembly--was present. Still, plaintiff claims that she suffered economic injury as the owner of the recalled crib and argues that she is entitled to damages to compensate her for the failure to receive what she bargained for, and for the diminution of her crib's resale value.
Plaintiff asserts two theories of liability. Her first is that she was injured by misleading and deceptive statements and omissions regarding the safety of her crib on Wal-Mart's website, which she claims violated the ICFA.  Plaintiff states that " she would not have purchased the crib had she known of the safety issues and that her crib would require a repair in order to use it." Pl's Opp. at 18 [DN 223]. Her second theory is that defendants were unjustly enriched by their unfair acts and practices.
Defendants assail these claims on every conceivable front. At the outset, they argue that plaintiff's claim under ICFA is doomed because she has suffered no actual damages. Furthermore, defendants insist, to the extent plaintiff purports to have incurred damages, these damages were not the result of any conduct attributable to them. Plaintiff's ICFA claim is further defective, they contend, for the additional reasons that she has not identified any misleading statement, has not come forward with evidence to support her theory that defendants concealed material facts about the safety of her crib, and cannot establish that the marketing or sale of her crib was unfair. Finally, defendants argue that plaintiff's unjust enrichment claim is premised on the same conduct as her ICFA claim and fails for the same reasons, as well as on its merits. 
Summary judgment is appropriate where " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a summary judgment motion is supported by evidence as provided in Rule 56(c), however, the nonmoving party may not rest on mere ...