Walker v. Macy's Merch. Grp., Inc.

• Decision Date: 19 December 2017
• Docket Number: No. 14 C 2513,14 C 2513
• Citation: 288 F.Supp.3d 840
• Parties: Norma WALKER, Plaintiff, v. MACY'S MERCHANDISING GROUP, INC., Wal–Mart Stores, Inc., and Charles Komar & Sons, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

288 F.Supp.3d 840

Norma WALKER, Plaintiff,

v.MACY'S MERCHANDISING GROUP, INC., Wal–Mart Stores, Inc., and Charles Komar & Sons, Inc., Defendants.

No. 14 C 2513

United States District Court, N.D. Illinois, Eastern Division.

December 19, 2017

Timothy R. Tyler, Jesse R. Tyler, Tyler Law Offices, Chicago, IL, David A. Brose, Robert L. Langdon, Langdon, Emison & Ross, Lexington, MO, for Plaintiff

Meghan McKenna Sciortino, Angela Marie Kotsalieff, John William Bell, Lisa Marie Roccanova, Johnson & Bell, Ltd., Chicago, IL, for Defendants

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo, United States District Court

Norma Walker ("Plaintiff") brings this action against Wal–Mart Stores, Inc. ("Walmart"), Charles Komar & Sons, Inc. ("Komar"), and Macy's Merchandising Group, Inc. ("Macy's") (collectively "Defendants"), alleging strict liability, negligence, and breach of warranty claims related to injuries she suffered when her clothing caught fire. (R. 69, Fourth Am. Compl.) Before the Court are Defendants' motions for summary judgment as to all remaining counts against them.¹ (R. 146, Macy's Mot. for Summ. J.; R. 150 Walmart Mot. for Summ. J.; R. 153, Komar Mot. for Summ. J.) For the reasons stated below, the Court grants Walmart's and Komar's motions, but grants in part and denies in part Macy's motion.

RELEVANT FACTS

The following facts are undisputed unless otherwise stated. The litigation stems from a Style & Co. Sport brand jacket (the "Jacket") and a Secret Treasures brand pajama top and bottom (the "Sleepwear") that caught fire and injured Plaintiff. (R. 69, Fourth Am. Compl. ¶¶ 21–26.)

Plaintiff is an Illinois resident. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint Statement of Undisputed Material Facts [hereinafter "SOUMF"] ¶ 1.) Macy's is a New York corporation that sells, among other things, clothing, including the Jacket, which Plaintiff believes she purchased from Macy's.² (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 3, 11, 18.) Walmart is a multinational retailer that conducts business in Illinois and sold Plaintiff the Sleepwear. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 2, 9.) Komar is a New York corporation that manufactured the Sleepwear. (Id. ¶¶ 3, 9.)

Sometime in or before May 2008, Plaintiff's daughter purchased two sets of the same Secret Treasures brand sleepwear in different colors, which included the Sleepwear at issue in this case, and gave them to Plaintiff. (Id. ¶¶ 8, 12, 16–18.) The Sleepwear was made out of a blended fabric consisting of polyester and cotton. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s Statement of Additional Material Facts [hereinafter "SAMF"] ¶ 1.) From the date of purchase until January 14, 2014, Plaintiff wore the Sleepwear frequently without incident. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 23.)

Plaintiff believes that she purchased the Jacket at Macy's around Christmas in either 2012 or 2013, and she regularly wore the Jacket around the house when she was cold. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 11, 15.) The Jacket was made of an 80% cotton and 20% polyester-blend fabric. (Id. ¶ 23.) Neither the Sleepwear nor the Jacket had any labels or warnings on them related to flammability. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 50; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 46.)

On January 14, 2014, Plaintiff was cooking breakfast while wearing the Jacket and Sleepwear, and leaned over a lit gas stove to reach for a box of cereal. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 14, 25.) Plaintiff smelled something burning, looked down, and saw fire coming up from the bottom of the Jacket. (Id. ¶ 19.) The Sleepwear did not come into direct contact with the stove, but was later ignited by flames from the Jacket. (Id. ¶¶ 17, 25–27; R. 162, Pl.'s Mem. Opp'n to Walmart at 13.)

Plaintiff first tried to unzip the Jacket, but was unable to, so she went to her sink, grabbed a hose from the sink, and sprayed water at the flames, which eventually extinguished them. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 21–22.) Plaintiff suffered extensive, third-degree burns

to approximately 40% of her body. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 4.) The Sleepwear and Jacket did not have any labels, warnings, or other information on them concerning their flammability although some women's robes and nightgowns have used fire safety warnings since the 1990s. (Id. ¶¶ 50, 52; R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 46, 48.)

Plaintiff's expert conducted flammability testing on the Sleepwear under a test prescribed by 16 C.F.R. § 1610, which included five tests on the Sleepwear pajama top and five tests on the Sleepwear pajama bottom. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 42–43.) Neither the Sleepwear bottom nor top ignited during any of these tests, which involved applying a flame to each garment for one second. (Id. ¶¶ 41–44.) The expert also conducted flammability testing under 16 C.F.R. §§ 1615–16, a regulation covering flammability standards for children's sleepwear. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 30, 34.) The Sleepwear, however, ignited and failed these tests. (Id. )

Though the exact Jacket that Plaintiff was wearing during the incident was never located, Plaintiff's expert conducted flammability testing pursuant to the standards in 16 C.F.R. § 1610 on the same fabric from which the Jacket was made. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 22, 36–37, 39.) Pursuant to that testing, the fabric ignited and burned for fifteen seconds. (Id. ¶ 40.) Plaintiff's expert also tested the fabric in accordance with 16 C.F.R. §§ 1615–16, and the fabric failed that test. (R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 29, 32.)

There have been no other reported incidents involving alleged burn injuries suffered by people claiming to have been wearing the same style jacket as the Jacket or any other Macy's clothing comprised of the same fabric as the Jacket. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶ 49.) With respect to the Sleepwear, neither Walmart nor Komar were aware of any complaints regarding the flammability of the Sleepwear, and both have conducted flammability testing on the Sleepwear. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 32–37.)

The parties do not dispute that most adults understand that their clothing will ignite and burn if exposed to an open flame. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 56; see also R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 53–54.) Clothing made of nylon or polyester often does not ignite and will self-extinguish or burn so slowly that it causes less injury from burns. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 46; see also R. 172, Macy's Resp. to Pl.'s SAMF ¶ 42.) Making the Sleepwear or Jacket out of polyester or nylon fabric would cost roughly the same as using cotton fabric. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 43; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 39.)

PROCEDURAL HISTORY

Plaintiff filed this action in the Circuit Court of Cook County, Illinois, on February 28, 2014, and Walmart later removed the action to this Court on the basis of diversity jurisdiction. (R. 1, Notice of Removal; R.1–1, State Court Compl.) On January 11, 2016, Plaintiff filed her fourth amended complaint, which is the operative pleading setting forth her claims. (See R. 69, Fourth Am. Compl.)

In the fourth amended complaint, Plaintiff asserts the following causes of action against Macy's, Walmart, Komar, and Rex Garments, Ltd. ("Rex"): strict products liability for defective manufacturing (Counts I, VII) and design (Counts II, VIII); strict products liability for inadequate warnings (Counts III, IX); breach of express and implied warranties (Counts IV, V, X, and XI); and negligence (Counts VI and XII). (Id. ¶¶ 27–130.) On July 13, 2016, the Court dismissed the strict liability claims against Walmart (Counts VII, VIII, and IX) pursuant to 735 ILL. COMP. STAT. 5/2–621, an Illinois statute that requires dismissal of strict products liability claims against a non-manufacturer if that party certifies that it is not the manufacturer of the product and names the manufacturer.³ (R. 121, Min. Entry.) On October 12, 2016, the Court dismissed Rex from the lawsuit based on a lack of personal jurisdiction. (R. 129, Order.)

The remaining parties—Macy's, Walmart, and Komar—now move for summary judgment. (R. 146, Macy's Mot. for Summ. J.; R. 150, Walmart Mot. for Summ. J.; R. 153, Komar Mot. for Summ. J.) Komar and Walmart represent that on May 28, 2017, they advised Plaintiff of the basis of their motions for summary judgment, and Plaintiff agreed to withdraw her claims against them for defective manufacturing and breach of express warranty. (R. 150, Walmart Mot. for Summ. J. at 1; R. 153, Komar Mot. for Summ. J. at 1.) Walmart and Komar, therefore, move for summary judgment on the only counts that appear to be pending against them: the breach of implied warranty and negligence claims against both Walmart and Komar, and the strict products liability claims for defective design and inadequate warnings against Komar. (R. 150, Walmart Mot. for Summ. J. at 1; R. 153, Komar Mot. for Summ. J. at 1.)

Walmart argues that the Court should grant summary judgment against Plaintiff's breach of implied warranty claims because the Sleepwear was not unreasonably dangerous or unfit for its ordinary purpose of "wearing while sleeping or lounging at home." (R. 152, Walmart Mem. at 2, 3–5.) Walmart also contends that the Court should grant summary judgment on Plaintiff's negligence claims because Walmart had no duty to sell fireproof or 100% polyester or nylon adult sleepwear, and because the Sleepwear did not proximately cause Plaintiff's injuries. (Id. at 2, 6–8.) Walmart argues that it was the Jacket, not the Sleepwear, that first caught fire and caused Plaintiff's injuries. (Id. at 6–8.) Walmart claims that it satisfied...