United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Nancy Singer believes that the fire that destroyed her suburban Chicago home in April 2013 was caused by a Sunbeam brand humidifier that she purchased more than three years earlier, in February 2010, from a Bed Bath and Beyond store in Wilmette, Illinois. In January 2015, Singer brought this suit in the Circuit Court of Cook County, Illinois, asserting multiple state law claims against Sunbeam and several Bed Bath and Beyond-related entities. Doc. 1-2. After two defendants removed the suit to federal court, Doc. 1, Singer moved to remand, arguing lack of diversity, Doc. 14. The court denied the motion, finding in an oral ruling that the non-diverse defendants had been fraudulently joined and dismissing them. Doc. 30.
Now before the court is the remaining defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss four of the amended complaint's six counts. Docs. 8, 44. The motion is granted in part and denied in part.
On a Rule 12(b)(6) motion to dismiss, the court must accept the amended complaint's well-pleaded factual allegations, with all reasonable inferences drawn in Singer's favor, but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Singer's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Singer as those materials permit. See Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 682 (7th Cir. 2014).
Sunbeam designed, manufactured, and distributed the humidifier that Singer purchased from Bed Bath and Beyond on February 6, 2010. Doc. 26 at p. 2, ¶ 3. On April 8, 2013, Singer's house caught fire; while being used in a reasonably foreseeable manner for its intended purpose, the humidifier ignited and caused the fire, leading to personal and pecuniary damage. Id. at p. 3, ¶¶ 7, 11. Singer claims the humidifier was defective and unreasonably dangerous in several respects, including that: it lacked an accessible emergency stop button and an automatic power shutdown feature that would activate when the humidifier overheated; it did not audibly warn of overheating; it had inadequate warnings and instructions for use; it could not withstand reasonably foreseeable use; the power switch was defective and unreasonably dangerous; and its internal components were defective and permitted arcing. Id. at p. 3, ¶ 9.
The complaint asserts claims for strict liability and negligence (Counts I and II), negligent infliction of mental distress (Count III), breach of express warranty (Count IV), breach of implied warranty (Count V), and res ipsa loquitur (Count VI). Defendants have moved to dismiss all but the strict liability and negligence claims. Doc. 8. The parties agree that Illinois law governs, so that is the law that the court will apply. See McFarland v. Gen. Am. Life Ins. Co., 149 F.3d 583, 586 (7th Cir. 1998).
I. Negligent Infliction of Emotional Distress (Count III)
Defendants argue that Singer has failed to adequately plead her negligent infliction of emotional distress claim. Doc. 8 at 2-3; Doc. 43 at 1-2. Illinois law imposes different standards for "direct" and "bystander" victims of negligent infliction of emotional distress. "[A] direct victim of alleged negligent infliction of emotional distress must satisfy the impact' rule. Under the impact rule, a direct victim may not recover... unless the emotional distress was accompanied by a contemporaneous physical injury to or impact on the plaintiff.'" Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 703 (7th Cir. 2009) (quoting Rickey v. Chicago Transit Auth., 457 N.E.2d 1, 2 (Ill. 1983)). Singer has not alleged any contemporaneous physical injury or impact, and she styles herself as a bystander, Doc. 26 at p. 6, ¶ 12 (referring to Singer being "in the zone of danger"); Doc. 20 at 1 ("Plaintiff was a bystander when she first saw the fire"), so she cannot pursue the direct victim theory.
By contrast to direct victims, "[b]ystanders must satisfy the zone-of-physical danger' test, which limits potential recovery to those individuals in a zone of physical danger and who, because of the defendant's negligence, had reasonable fear for their own safety which caused them emotional distress, and who could demonstrate physical injury or illness resulting from the emotional distress." Lewis, 561 F.3d at 703 (internal quotation marks omitted). The complaint does not plead that Singer sustained physical injury or illness as a result of the emotional trauma caused by Defendants' alleged negligence, and it also fails to plead that she felt "any contemporaneous fear for her safety, " so she cannot pursue the bystander theory either. See Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1023-24 (7th Cir. 1989) (holding that a negligent infliction of emotional distress plaintiff pursuing a bystander theory "must show some sign of physical injury or illness as a result of his emotional distress").
Because Singer has failed to plead a viable negligent infliction of emotional distress claim, the claim is dismissed, but the dismissal is without prejudice to Singer attempting the replead. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1024 (7th Cir. 2013) ("Under Rule 15(a), fee-paying plaintiffs enjoy leave to amend whenever justice so requires' and, as a matter of course, almost always get an opportunity to amend their complaints at least once."); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) ("As a general matter, Rule 15 ordinarily requires that leave to amend be granted at least once when there is a potentially curable problem with the complaint or other pleading.").
II. Breach of Express Warranty (Count IV) and Implied Warranty (Count V)
Defendants argue that Singer's warranty claims should be dismissed as untimely. Doc. 8 at 3. The parties agree that the statute of limitations is four years, but disagree about when it began running. Defendants argue that Singer's claim accrued, and the limitations period commenced, when Singer purchased the humidifier on February 6, 2010. Doc. 8 at 3-4; Doc. 43 ...