Porter v. Cub Cadet LLC , 2020 IL App (2d) 190823 ( 2021 )

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Porter v. Cub Cadet LLC, 2020 IL App (2d) 190823Appellate Court JEREMY PORTER, Plaintiff-Appellant, v. CUB CADET LLC, an
Caption 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).
District & No. Second District
No. 2-19-0823
Filed August 14, 2020
Decision Under Appeal from the Circuit Court of Kane County, No. 18-L-333; the
Review Hon. Susan Clancy Boles, Judge, presiding.
Judgment Affirmed.
Counsel on Edmund J. Scanlan, of Chicago, for appellant.
Appeal
Mark J. McClenathan, Christopher J. Drinkwine, and Craig L. Unrath,
of Heyl, Royster, Voelker & Allen, of Rockford, for appellees.
Panel JUSTICE BRIDGES delivered the judgment of the court, with
opinion.
Justices Jorgensen and Brennan concurred in the judgment and
opinion.
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
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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. 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. 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. “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
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dismissal order under section 2-615 is subject to de novo review. Cochran, 2017 IL 121200,
¶ 11.
¶ 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. 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 (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 not bar plaintiff from raising a defective-design claim,
we nonetheless agree with defendants that the second amended complaint failed to state a cause
of action based on negligent design.
¶ 13 Defendants correctly argue that a plaintiff “cannot simply write the words ‘knew or should
have known’ in a complaint and survive a § 2-615 motion to dismiss.” See Simpkins v. CSX
Transportation, Inc., 2012 IL 110662, ¶¶ 26-27; Dennis v. Pace Suburban Bus Service, 2014
IL App (1st) 132397, ¶ 25; Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927,
935 (1997). Plaintiff also alleged in his second amended complaint that defendants “deviated
from the standard of care that other manufacturers in the industry followed.” However, that
allegation, which simply tracks the language of Blue verbatim (Blue, 215 Ill. 2d at 96), is no
less conclusory.
¶ 14 In his reply brief, plaintiff also argues that the second amended complaint stated a claim
that Cub Cadet and MTD had a duty to warn “on the basis of unequal knowledge.” Plaintiff
did not raise the argument in his opening brief, however. Arguments raised for the first time in
a reply brief are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); In re Marriage of Petrik,
2012 IL App (2d) 110495, ¶ 40.
¶ 15 The trial court properly dismissed the second amended complaint’s defective-design claim.
The question that remains is whether the trial court should have permitted plaintiff to amend
the complaint further. The answer hinges on whether plaintiff’s proposed third amended
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complaint would have cured the defect in the defective-design claim (see Allen v. Cam Girls,
LLC, 2017 IL App (1st) 163340, ¶ 48), i.e., whether the proposed complaint alleged facts rather
than conclusions.
¶ 16 Facts and conclusions exist along a continuum, and it can be difficult to determine how to
characterize a particular allegation. 3 Richard A. Michael, Illinois Practice, Civil Procedure
Before Trial § 23.4 (2d ed. 2011); 5 Charles Alan Wright, Arthur R. Miller & A. Benjamin
Spencer, Federal Practice and Procedure § 1218 (Supp. 2020). Our supreme court has observed
as follows:
“[T]he line between ‘ultimate’ facts and ‘conclusions of law’ is not easily drawn.
[Citation.] The same allegation may in one context be deemed to be one of ultimate
fact, while in another, *** where from a pragmatic viewpoint some of these words do
not give sufficient information to an opponent of the character of evidence to be
introduced or of the issues to be tried, they are held to be legal conclusions. What is
law, what are facts, and what is evidence, for pleading purposes, can be determined
only by a careful consideration of the practical task of administering a particular
litigation. [Citation.]” (Internal quotation marks omitted.) Van Dekerkhov v. City of
Herrin, 51 Ill. 2d 374, 376 (1972).
Consonant with this pragmatic approach,
“[w]here the allegations are so general that the court does not fully understand why the
plaintiff believes himself entitled to recover from the particular defendant, and, from
the nature of the case, it is reasonable to believe that the additional facts that would
make the claim comprehensible are not solely in the possession of the defendant,
conclusions are being pleaded.” 3 Richard A. Michael, Illinois Practice, Civil
Procedure Before Trial § 23.4 (2d ed. 2011).
¶ 17 In his proposed third amended complaint, plaintiff alleged that (1) the Joint Industrial
Counsel (JIC) “issued standards for stationary hydraulic and pneumatic equipment resulting in
the release of ISO 4413 and 4414 that manufacturers in the industry followed,” (2) the JIC
standards were incorporated into the standards of a successor organization, (3) “[s]ince the
1980s, all manufacturers have utilized [those] standards in designing and manufacturing lawn
tractors, and plaintiff’s tractor was manufactured after the 1980s,” and (4) defendants
“designed and manufactured other tractors and vehicles at the time of the manufacture of
plaintiff’s tractor that did not have the hydraulic system failure that was present in plaintiff’s
*** tractor.” Plaintiff did not state specific requirements of the applicable standards or
precisely how plaintiff’s tractor’s design deviated from those standards. That defendants
manufactured other tractors without the alleged design flaw proves nothing about whether
plaintiff’s tractor’s design deviated from industry standards. 1
1
Plaintiff contends that a complaint is not required to allege facts with specificity if pertinent
information is within the defendant’s knowledge and control and is unknown to the plaintiff. See, e.g.,
Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 66 (1994). However, plaintiff obviously cannot claim that
industry standards are in the control of one particular manufacturer. The proposed third amended
complaint acknowledges that the JIC issued the applicable standards. Plaintiff does not claim that he
lacks access to those standards. Presumably, plaintiff also has access to the allegedly defective
hydraulic pump. Given his access to the standards and the pump, plaintiff should be able to explain in
more detail how the pump fails to meet those standards.
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¶ 18 Walker v. Shell Chemical, Inc., 101 Ill. App. 3d 880 (1981), supports our conclusion. In
that case, the plaintiffs, a husband and wife, brought a product liability action seeking recovery
under a strict-liability theory for personal injuries and loss of consortium. The husband was
injured in a fall at a construction site when a guardrail gave way. The plaintiff alleged,
inter alia, that the guardrail was designed with inadequate welding and materials, was not
fabricated to withstand foreseeable use, was “distributed with insufficient warning it would
break,” and was not inspected prior to installation. Id. at 881. Notwithstanding those
allegations, Walker upheld the dismissal, reasoning that there was “a paucity of factual
allegations in the amended complaint.” Id. at 883. The court explained that:
“Despite careful study of the entire amended complaint and all counts thereof, we are
unable to ascertain how this incident occurred. We do not know what plaintiff was
doing when the guardrail failed; where the guardrail was located; what was the cause
or reason for its failure and how plaintiff actually used the guardrail at the time of the
occurrence.” Id.
Here, although the proposed third amended complaint explains how plaintiff’s accident
happened, it sheds little light on the key question of whether Cub Cadet and MTD exercised
reasonable care in designing plaintiff’s tractor. We therefore conclude that the proposed third
amended complaint did not cure the defect in plaintiff’s second amended complaint.
¶ 19 We next consider whether the trial court properly dismissed plaintiff’s claim for recovery
based on the voluntary-undertaking doctrine. 2 Plaintiff argues that, by issuing service
advisories, Cub Cadet and MTD voluntarily undertook to warn him of the risk of harm from
the tractor’s operation. The voluntary-undertaking doctrine is described in section 323 of the
Restatement (Second) of Torts (Restatement (Second) of Torts § 323 (1965)). See, e.g., Bell v.
Hutsell, 2011 IL 110724, ¶¶ 12-13. Section 323 provides as follows:
“One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s person or
things, is subject to liability to the other for physical harm resulting from his failure to
exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.”
Restatement (Second) of Torts § 323 (1965).
¶ 20 Even assuming there was a voluntary undertaking here and that Cub Cadet and MTD failed
to exercise reasonable care, plaintiff fails to explain how the failure increased the risk of harm.
He would have suffered the same harm had Cub Cadet and MTD not undertaken to issue
service advisories in the first place. Plaintiff does not allege that he relied on the alleged
voluntary undertaking. Accordingly, the trial court properly dismissed plaintiff’s voluntary-
undertaking claim.
¶ 21 In his reply brief, plaintiff cites Phillips v. Chicago Housing Authority, 89 Ill. 2d 122(1982), as authority that Cub Cadet and MTD can be held liable based on a voluntary
undertaking even if their negligence did not increase the risk of harm. The argument is
2
Though plaintiff’s proposed third amended complaint contained a voluntary-undertaking count,
plaintiff does not argue that the trial court erred in denying him leave to file that portion of the third
amended complaint.
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unpersuasive. Phillips was part of a line of cases relying on section 323 of the Restatement
(First) of Torts (Restatement (First) of Torts § 323 (1934)), which imposed an “increased risk”
requirement only when the defendant discontinued services rendered gratuitously. The
“increased risk” requirement did not apply where the defendant rendering services failed to
exercise due care. Phillips, 89 Ill. 2d at 128-29. As noted, Illinois now follows the approach of
section 323 as set forth in the Restatement (Second) of Torts (Restatement (Second) of Torts
§ 323 (1965)). See Bell, 2011 IL 110724, ¶ 12. Phillips is inconsistent with more recent
precedent from our supreme court. See id. ¶ 28 (holding that it would be “illogical, and
unsound policy, to hold that defendants could be liable [for failure to act in accordance with
their stated intention to prevent underage drinking] because defendants’ failure to act on their
stated intention did not in any way affect the events as they would have unfolded had the intent
to act not been verbalized”). Accordingly, Phillips is not controlling.
¶ 22 III. CONCLUSION
¶ 23 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 24 Affirmed.
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