Lukwinski v. Stone Container Corp., No. 1-98-4583

1st District, March 8, 2000

THIRD DIVISION

JUSTICE CERDA, delivered the opinion of the court;

In this case, plaintiff, John Lukwinski, appeals the order of the circuit court dismissing with prejudice counts III and IV of his sixth amended complaint which alleged claims against defendant, Stone Container Corporation (Stone), for breach of the implied warranties of fitness and merchantability under sections 2-314 and 2-315 of the Uniform Commercial Code - Sales (UCC) (810 ILCS 5/2-314, 2-315 (West 1998))⁽¹⁾. In dismissing these counts, the court concluded plaintiff could not maintain his warranty claims under section 2-318 of the UCC (810 ILCS 5/2-318 (West 1998)). We have jurisdiction of plaintiff's appeal pursuant to Supreme Court Rules 301, 303 and 304(a) (155 Ill. 2d R. 301, 303, 304(a)), and for the following reasons, we affirm.

BACKGROUND

The following factual statement is derived from the well-pleaded facts contained in plaintiff's sixth amended complaint, which for purposes of review must be accepted as true (In re Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265, 268 (1997)), as well as other record materials properly before us.

Plaintiff is employed as a truck driver with FAB Express ("FAB"), a delivery carrier company. Stone is a manufacturer and seller of corrugated containers, otherwise known as cardboard boxes. Stone manufactures its boxes at a plant located in North Chicago, Illinois, and pursuant to a motor carrier agreement, contracts FAB to deliver the boxes to its customers. As part of the delivery process, Stone organizes its boxes in bundles with the use of pressurized straps made by defendant ITW Signode. Stone then loads the bundles on pallets and into FAB's delivery trucks.

On October 17, 1995, plaintiff, during the course of his employment with FAB and pursuant to FAB's carrier contract with Stone, transported boxes from Stone's North Chicago facility to Stone's customer, Coca-Cola, in Niles, Illinois. Notably, plaintiff was not a party to the sales contract between Stone and Coca-Cola. Plaintiff was simply engaged to deliver Stone's goods to Coca-Cola.

Prior to leaving Stone's facility, plaintiff was allegedly directed by Stone's dispatcher to comply with all requests of Coca-Cola, and to participate, as necessary, in the unloading and stocking of the boxes at Coca-Cola's facility. Once at Coca-Cola, plaintiff was allegedly asked by the dock forklift operator to assist in the unloading of the boxes from the truck, and was specifically requested to adjust one of the bundles that had shifted during transport. As plaintiff attempted to reposition this bundle, the pressurized strapping that secured the boxes suddenly broke or separated, causing plaintiff to fall and sustain injuries.

Plaintiff thereafter filed the instant action against Stone, and various other defendants who are not parties to this appeal. In his sixth amended complaint, plaintiff alleges claims against Stone for negligence, strict liability, breach of implied warranty of fitness for a particular purpose (count III), and breach of implied warranty of merchantability (count IV). Plaintiff's claim for breach of the implied warranty of fitness alleges that the delivery agreement between Stone and FAB implicitly provided that the boxes would be fit for a particular purpose, namely delivery. According to the complaint, Stone had reason to know the purpose for which FAB and himself had the boxes, in particular their transport and deliverance to Coca-Cola. When FAB agreed to receive and deliver the goods, Stone purportedly knew that FAB and plaintiff relied on it to provide suitable packaging for the transport and delivery of the boxes, and further that the packaged bundles would be safe for FAB's employees, including plaintiff, during their unloading at Coca-Cola.

In his claim for breach of the implied warranty of merchantability, plaintiff alleges that Stone is a merchant with respect to the manufacturing and selling of boxes. Plaintiff further alleges the delivery agreement between Stone and FAB implicitly provided that the boxes prepared for delivery would be merchantable. The boxes, however, were purportedly not of merchantable quality in that they were unfit for ordinary purposes of which they are used, "which foreseeably included the use of, transporting, aligning and handling *** [the boxes] while in the possession of FAB[.]" Additionally, the boxes would not pass without objection in "the trade," which presumably would be the corrugated container manufacturing industry.

As to both counts, plaintiff alleges Stone breached its implied warranties of fitness and merchantability to him by: (1) utilizing oversized pallets for transportation of the boxes, thereby resulting in lateral instability; (2) failing to positively attach the bundles of boxes to the pallets; (3) stacking the bundles two or more high without securing them to their respective pallets; (4) failing to properly apply heat sealing to the straps used to secure the bundles; (5) using an inadequate number and size of strapping for the boxes being delivered; (6) failing to use reinforced or crimped metal strapping for the bundles; and (7) causing nicks or abrasions to the bundles' strapping, thereby significantly degrading their strength. According to plaintiff, his injuries were a direct and proximate result of Stone's foregoing breaching conduct.

Stone responded to plaintiff's amended complaint, in part, by filing a combined motion to dismiss the implied warranty claims under sections 2-615(a) and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(a), 2-619(a)(9), 2-619.1 (West 1998)). In relevant part, Stone asserted plaintiff is not a third-party beneficiary of the implied warranties it extended to its customer, Coca-Cola, and thus could not sustain his warranty claims. As such, Stone argued plaintiff's amended complaint fails to state a cause of action.

The circuit court agreed and dismissed count's three and four of plaintiff's amended complaint under section 2-615 of the Code. Upon Stone's request, the court entered a finding of no just reason to delay the enforcement or appeal of its ruling pursuant to Supreme Court 304(a) (155 Ill. 2d R. 304(a)), and plaintiff's timely appealed followed.

ANALYSIS

Although not addressed by either party, we find the amended complaint insufficient to invoke Article 2 and its implied warranty provisions. A section 2-615 motion to dismiss attacks the legal sufficiency of the plaintiff's claim and presents the question of whether the complaint states a cause of action upon which relief can be granted. Grund v. Donegan, 298 Ill. App. 3d 1034, 1037, 700 N.E.2d 157, 159 (1998). All pleadings are to be construed in a light most favorable to the nonmoving party (In re Chicago Flood Litigation, 176 Ill. 2d at 184, 680 N.E.2d at 268), and all well-pleaded facts together with all reasonable inferences drawn therefrom are admitted as true. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634, 662 N.E.2d 1377, 1382 (1996). Conclusions of law and conclusions of fact not supported by allegations of specific fact, however, are not admitted. Lawson, 278 Ill. App. 3d at 634, 662 N.E.2d at 1382. Since the question presented by a section 2-615 motion is one of law, this court's review is conducted de novo. Lawson, 278 Ill. App. 3d at 634, 662 N.E.2d at 1382.

The allegations contained in counts III and IV of plaintiff's amended pleading concern solely the transport agreement between Stone and FAB, and assert that Stone extended certain implied warranties to FAB and plaintiff regarding the packaging of the boxes that were delivered to Coca-Cola. These counts further allege that due to Stone's purported breach of these implied warranties, plaintiff sustained injuries.

The law is well settled that Article 2 is limited in application to "transactions in goods." 810 ILCS 5/2-102 (West 1998); Garcia v. Edgewater Hospital, 244 Ill. App. 3d 894, 899, 613 N.E.2d 1243, 1247 (1993). Section 2-314 of the UCC provides that in every sale of goods conducted by a seller, who is a merchant with respect to the goods of that kind, a warranty that the goods are merchantable is implied, unless excluded or modified. 810 ILCS 5/2-314 (West 1998). Moreover, under section 2-315, when the seller, whether a merchant or not, at the time of contracting has reason to know that the buyer needs the goods for a particular purpose and that the buyer is relying on the seller's skill and judgment in selecting or furnishing the goods, an implied warranty that the goods are fit for such a purpose arises, unless excluded or modified. 810 ILCS 2-315 (West 1998).

As the plain language of the above provisions clearly indicates, the implied warranties under the UCC apply only in cases involving the sale of goods. Hence, where the transaction at issue does not involve a sale of goods, the implied warranty provisions of Article 2 are not implicated and are thus inapplicable. "Goods" are defined in relevant part by the UCC to mean "all things *** which are moveable at the time of identification to the contract for sale[.]" 810 ILCS 5/2-105(1) (West 1998). A "sale" is defined as "the passing of title from the seller to the buyer for a price." 810 ILCS 5/2-106(1) (West 1998).

The contract between Stone and FAB here is entirely one for the rendition of services. Namely, pursuant to the agreement, Stone contracted FAB to deliver its boxes to its various customers. The contract does not involve the sale of Stone's goods to FAB. Because contracts for the rendition of services are not transactions in goods so as to be covered by the warranty provisions of the UCC (Boddie v. Litton Unit Handling Systems, 118 Ill. App. 3d 520, 531, 455 N.E.2d 142, 150 (1983); Pitler v. Michael Reese Hospital, 92 Ill. App. 3d 739, 742, 415 N.E.2d 1255, 1257 (1980); I.L.P., Sales,