Porter v. Cub Cadet LLC

2020 IL App (2d) 190823

166 N.E.3d 201

445 Ill.Dec. 172

Jeremy PORTER, Plaintiff-Appellant,

v.CUB CADET LLC, an Ohio Limited Liability Company; MTD Products, Inc., an Ohio Corporation; and DeKane Equipment Corporation, a Delaware Corporation, Defendants

(Cub Cadet LLC and MTD Products, Inc., Defendants-Appellees).

No. 2-19-0823

Appellate Court of Illinois, Second District.

Opinion filed August 14, 2020

Edmund J. Scanlan, of Chicago, for appellant.

Mark J. McClenathan, Christopher J. Drinkwine, and Craig L. Unrath, of Heyl, Royster, Voelker & Allen, of Rockford, for appellees.

JUSTICE BRIDGES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Jeremy Porter, appeals from an order of the circuit court of Kane County dismissing his second amended complaint against defendants, Cub Cadet LLC (Cub Cadet) and MTD Products, Inc. (MTD), and denying him leave to file a third amended complaint. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff filed his original complaint on June 18, 2018. In addition to Cub Cadet and MTD, plaintiff named DeKane Equipment Corporation (DeKane) as a defendant. Plaintiff alleged that he purchased a model 7284 utility tractor manufactured by Cub Cadet and MTD. He further alleged that he later had DeKane service the tractor to address a faulty hydraulic pump system. DeKane employees noted that the pump was cavitating and that pump pressure was low. Cavitation and low pressure "are signs of hydraulic fluid stoppage or hydraulic system failure." According to the complaint, Cub Cadet and MTD issued a service advisory to alert dealers and owners of the tractor that Cub Cadet and MTD had produced a reverse flow filter housing assembly and a new model oil filter to address hydraulic pump problems, including hydraulic fluid stoppage. Plaintiff was never informed of the service advisory. While plaintiff was operating the tractor, the engine shut down as a result of hydraulic pump failure, and the tractor rolled over, injuring plaintiff.

¶ 4 Defendants moved to dismiss the complaint. Before ruling on the motions, the trial court entered an agreed order granting plaintiff leave to file an amended complaint. The amended complaint consisted of two counts designated "Failure to Warn—Voluntary Undertaking" (count I)" and "Failure to Warn—Unequal Knowledge" (count II). Cub Cadet and MTD filed a joint motion to dismiss the amended complaint. DeKane filed a separate motion to dismiss. Regarding DeKane, the trial court dismissed both counts of the complaint with prejudice. Regarding Cub Cadet and MTD, the trial court dismissed count I without prejudice and count II with prejudice. The trial court granted plaintiff leave to file a second amended complaint "as to the theory of ‘Failure to Warn—Voluntary Undertaking.’ "

¶ 5 The second amended complaint contained allegations but no denominated counts. Plaintiff alleged that the tractor was "defectively designed" and that "the manufacturer knew, or should have known, about the defect at the time the [tractor] left its control." Plaintiff further alleged that the tractor "did not meet industry standards at the time of manufacture" and that Cub Cadet and MTD "deviated from the standard of care that other manufacturers in the industry followed." As he did in the original complaint, plaintiff alleged that he had the tractor serviced by DeKane. DeKane determined that the hydraulic pump pressure was low and the pump was cavitating, and that Cub Cadet and MTD designed a reverse flow filter housing assembly and a new model oil filter to address hydraulic pump problems. According to plaintiff, Cub Cadet and MTD "voluntarily undertook the issuance of a Service Advisory for all 6000 and 7000 Series Cub Cadet compact utility tractors, including Plaintiff's Model 7284." The service advisory was issued to alert authorized dealers and owners of the tractors "that Cub Cadet and MTD had determined that [the] tractors had been incorrectly designed and manufactured." Plaintiff alleged that he was never made aware of the service advisory.

¶ 6 Cub Cadet and MTD again moved to dismiss, arguing, inter alia , that portions of the second amended complaint "continue[d] to sound in products liability." Cub Cadet and MTD maintained that the second amended complaint contained only "unsupported, conclusory allegations that the purported defect existed at the time of manufacture." They further contended that plaintiff's voluntary-undertaking claim was flawed because, even if Cub Cadet and MTD negligently performed a voluntary undertaking to warn about the tractor's defect, they did not increase the risk to defendant. In response, plaintiff insisted that the complaint included "very specific factual allegations" that the tractor had a design defect. He also contended that he properly alleged that Cub Cadet and MTD's failure to warn of the defect increased the risk of harm. In their reply to plaintiff's response, Cub Cadet and MTD contended that plaintiff had not properly alleged that they knew or should have known of any defect when the tractor left their control.

¶ 7 The trial court granted the motion to dismiss, and plaintiff moved to reconsider or, alternatively, for leave to file a third amended complaint. The proposed third amended complaint, unlike its immediate predecessor, brought two discrete counts. Count I alleged "product design-negligence," and count II alleged "voluntary undertaking." The trial court denied plaintiff's motion, and this appeal followed.

¶ 8 II. ANALYSIS

¶ 9 We first consider whether the second amended complaint stated a cause of action for defective design. We initially note that the trial court found that claim wanting because plaintiff "fail[ed] to adequately plead a factual basis for his conclusory allegations regarding industry standards." Plaintiff observes that defendants did not raise this defect in their motion to dismiss; they first raised it in their reply to plaintiff's response to the motion to dismiss. However, plaintiff cites no authority supporting the premise that defendant's failure to raise the issue earlier warrants reversing the complaint dismissal. Arguments without citation of authority are forfeited. JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C. , 2014 IL App (1st) 121111, ¶ 58, 380 Ill.Dec. 854, 9 N.E.3d 104. Accordingly, we will review the dismissal order on the merits.

¶ 10 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint. Cochran v. Securitas Security Services USA, Inc. , 2017 IL 121200, ¶ 11, 419 Ill.Dec. 374, 93 N.E.3d 493. For purposes of the motion, all well-pleaded facts and any reasonable inferences arising from those facts must be taken as true. Id. "The essential question is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted." Id. A motion to dismiss for failure to state a cause of action should be granted only if "it is clearly apparent from the pleadings that no set of facts can be proven that would entitle the plaintiff to recover." Id. Illinois is a fact-pleading jurisdiction. Daniel v. Chicago Transit Authority , 2020 IL App (1st) 190479, ¶ 31, ––– Ill.Dec. ––––, ––– N.E.3d ––––. "Well-pled facts are specific allegations of fact that bring a complaint within a recognized cause of action; mere conclusory allegations unsupported by specific facts will not suffice." (Internal quotation marks omitted.) Id. (allegation that defendant "was aware" that bus passenger was in a helpless condition was not a well-pleaded fact to establish that defendant had notice of the passenger's condition). A dismissal order under section 2-615 is subject to de novo review. Cochran , 2017 IL 121200, ¶ 11, 419 Ill.Dec. 374, 93 N.E.3d 493.

¶ 11 With these principles in mind, we consider whether the trial court properly dismissed plaintiff's defective-design claim. A defective-design claim is based on negligence, and "[a]s in any negligence action, a plaintiff must establish the existence of a duty, a breach of that duty, an injury that was proximately caused by that breach, and damages."

Jablonski v. Ford Motor Co. , 2011 IL 110096, ¶ 82, 353 Ill.Dec. 327, 955 N.E.2d 1138. As the Jablonski court observed:

"A manufacturer has a nondelegable duty to design a reasonably safe product. [Citation.] Thus, the key question in a negligent-design case is whether the manufacturer exercised reasonable care in designing the product. [Citation.] In determining whether the manufacturer's conduct was reasonable, the question is whether in the exercise of ordinary care the manufacturer should have foreseen that the design would be hazardous to someone. [Citation.] To show that the harm was foreseeable, the plaintiff must show that the manufacturer knew or should have known of the risk posed by the product design at the time of manufacture of the product. [Citations.]" (Internal quotation marks omitted.) Id. ¶ 83.

A plaintiff may also establish a breach of duty by proving that "the defendant deviated from the standard of care that other manufacturers in the industry followed at the time the product was designed." Blue v. Environmental Engineering, Inc. , 215 Ill. 2d 78, 96, 293 Ill.Dec. 630, 828 N.E.2d 1128 (2005).

¶ 12 Plaintiff maintains that he sufficiently alleged that defendants knew or should have known of the risk posed by the design of the tractor. Defendants first contend that the dismissal of plaintiff's negligent-design claim was proper because, when the trial court dismissed plaintiff's first amended complaint, it granted plaintiff leave only to file an amended complaint raising his failure-to-warn/voluntary-undertaking claim. Defendants alternatively argue that the trial court correctly concluded that the second amended complaint failed to state a cause of action based on a design defect. We need not address the first contention. Assuming for the sake of argument that the dismissal order did...