dissenting:
I disagree with the proposition that on a hot day, anything is foreseeable, for I think that that is the upshot of the majority opinion. Therefore, I respectfully dissent.
I view the dispositive issue in this case to be whether it was reasonably foreseeable that Arvo Lake would become overheated and die because an air conditioner failed to blow cold air.
Counts I and II of plaintiff’s complaint assert that: (1) defendants, Addison and Heat Controllers, were in the business of manufacturing, distributing, and placing air conditioner units into the stream of commerce; (2) defendants manufactured the air conditioner in question; (3) Lake purchased the air conditioner; (4) at the time of the purchase, the air conditioner had an express warranty which guaranteed that the unit’s sealed refrigerant system would be free from defect for five years; (5) Lake relied on the express warranty; (6) defendants breached the express warranty because there was a leak in the sealed refrigerant system; (7) Lake was attempting to cool his house with the unit at a time within the warranty period; (8) as a direct result of defendants’ breach, Lake’s residence reached 96 degrees, his body 108.4 degrees, and he suffered hyperthermia and acute circulatory failure causing death; and (9) because of this breach of warranty, plaintiff sustained economic loss including the value of the air conditioner and funeral expenses, and “other consequential damages.”
Count III was much the same, but alleged that defendants breached an implied warranty of merchantability, and also sought consequential damages.
While the Uniform Commercial Code allows for the recovery of consequential damages in a breach of warranty action (Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)), such damages may be recovered only in a “proper case.” (Ill. Rev. Stat. 1987, ch. 26, par. 2—714(3).) A “proper case” means a case where consequential damages are “reasonably foreseeable.” (McGrady v. Chrysler Motors Corp. (1977), 46 Ill. App. 3d 136, 360 N.E.2d 818.) “Foreseeability means that which is objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in original.) Winnett v. Winnett (1974), 57 Ill. 2d 7, 12-13, 310 N.E.2d 1, 5.
In my judgment the majority has strained to supply inferences to support plaintiff’s cause of action, an exercise that carries the majority into the dark and forbidding realm of “what might conceivably occur.” The majority speaks of: (1) plaintiff’s limitations; (2) the heat of a southern Hlinois summer; (3) the potential for crime in plaintiff’s neighborhood; and (4) the gradual loss of coolant in the air conditioner. For example, the majority notes that Lake was 71 years old and retired. From that, the majority assumes physical limitations that will make a cause of action lie. But we cannot, we should not, make those assumptions: not every 71-year-old man is so infirm that he cannot recognize that heat in his house is rising to dangerous levels. It is, therefore, wrong to supply such an inference. It is the duty of the plaintiff to plead special circumstances, if they exist. If none are pled, judges do best to presume that none exist. In supplying inferences, the majority has relieved plaintiff from pleading the necessary information, the special circumstances, necessary to establish foreseeability.
Section 2—715(2)(b) of the Code specifically provides that consequential damages include “injury to person or property proximately resulting from any breach of warranty.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)(b).) “Proximate result” means a result “ordinarily following from the negligence complained of, unbroken by any independent cause, which might have been reasonably foreseen.” (Black’s Law Dictionary 1391 (4th ed. 1957).) Although the definition of “proximate result” contains the word “negligence, that definition should not be viewed as engrafting general principles of negligence law on this provision of the Uniform Commercial Code. Our concern here is not negligence, but rather is with the meaning and effect of the term “proximately resulting” within the Uniform Commercial Code. In this regard, the definitions of the term, “a proper case,” and the term, “proximate result,” establish that “reasonable foreseeability” necessarily must be addressed when determining whether consequential damages are available in a breach of warranty action brought not for property damage but for personal injuries.
As a matter of law the manufacturer of an air conditioner, a rather benign machine, has no reason to reasonably foresee that an air conditioner’s failure to cool would kill a purchaser. This is but a lawyer’s way of stating the obvious. Air conditioner manufacturers reasonably would believe that if an air conditioner failed to blow cold air, the purchaser might flip the switch a time or two, or perhaps unplug it and plug it back in, maybe even curse it, or perhaps call a repairman; but, when all failed the purchaser could be expected to walk outside to the shade, or maybe even go to the lake, instead of remaining in a hot house until overcome and tilled by the escalating heat.
Had the complaint alleged special circumstances, the case might be different. Had the complaint, for example, alleged that leaking Freon caused plaintiff to pass out, rendering him powerless to do anything about his situation so that the rising heat overtook him and stole his life, then the foreseeability equation might look different.
Under the allegations of this complaint, however, there can be no “reasonable foreseeability,” and consequently, no “proximate result” within the meaning of the Uniform Commercial Code. Therefore, based on the pleadings, I believe that Lake’s death was not a proximate result of defendants’ breach of warranty, and I agree with the circuit court that this is not a “proper case” in which consequential damages can be sought.
Whether Lake’s injury was reasonably foreseeable is also the critical question concerning plaintiff’s negligence counts. To state a cause of action in negligence, the allegations of the complaint must establish the existence of a duty owed by the defendants to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Durr v. Stille (1985), 139 Ill. App. 3d 226, 487 N.E.2d 382.) The existence of a duty, the breach of which could have been a proximate cause of plaintiff’s claimed damages, first must be determined by the court as a matter of law. Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 462 N.E.2d 502.
In determining whether a duty exists, a court must apply a foreseeability test. That test makes defendant liable for any injury which is objectively reasonable to occur; however, it does not make defendant liable for anything which conceivably might occur. (Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 519 N.E.2d 10, appeal denied (1988), 119 Ill. 2d 576, 522 N.E.2d 1258.) Under these pleadings, Lake’s unfortunate death indeed is something which might conceivably occur. But, under the pleadings, it is not something objectively reasonable to occur. As a matter of law, under the circumstances pled, Addison and Heat Controllers had no duty to Lake; therefore, I believe that the circuit court was correct in dismissing counts V and VI of plaintiff’s second amended complaint.
The circuit court dismissed counts IX and X, which sought recovery upon strict products liability, on grounds that defendants owed no duty to Lake. Plaintiff complains that the dismissal was erroneous because strict liability in tort is based on the condition of the product, not the conduct of the defendant. Therefore, duty analysis has no place in strict liability theory. Plaintiff is correct. Stanfield v. Metalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 340 N.E.2d 276.
Nevertheless, under the facts pled, the failure to blow cold air does not make an air conditioner unreasonably dangerous.
To state a cause of action in a strict products liability situation, plaintiff must allege: (1) that defendant placed a defective product into the stream of commerce; (2) that the defect made the product unreasonably dangerous; (3) that defect existed at the time the product left the manufacturer’s control; and (4) that the defect was a proximate cause of the injury. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.
The majority correctly relies upon the “consumer expectation” test of strict products liability. Under that test, a defective condition of a product will only be considered unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 650, 477 N.E.2d 1293, citing Restatement (Second) of Torts §402A, comment i, at 352-53 (1965).) The majority, however, misinterprets the test.
The majority correctly points out that Arvo Lake did not expect to be killed by his air conditioner. For that matter, neither did the manufacturer. However, whether Arvo Lake expected to be killed by his air conditioner is not the test. Rather, the test is whether Arvo Lake would expect to be killed (and this is where the majority errs) by his air conditioner given its intended function, namely that it provide cool comfort, not that it keep him alive. Considering the type of injury Lake sustained and considering the air conditioner’s intended function, this air conditioner was not unreasonably dangerous.
A manufacturer is not under a duty in strict liability to design a product which is totally incapable of injuring those who use it. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) The duty of a manufacturer is to make a product reasonably fit for its intended use. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.) The Illinois Supreme Court has noted that the concept of an unreasonably dangerous condition or defect is elusive. In Dunham v. Vaughn & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, the court recounted a litany of authorities which attempted to define the scope of the concept. It concluded that each authority had a common premise: “those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.” (Emphasis added.) (Dunham, 42 Ill. 2d at 342, 247 N.E.2d at 403.) Though the language of the Restatement and the language from Dunham are different, and may appear to have different meanings, their meanings are, in fact, identical.
Another way of formulating this concept is to say that every time a product injures a consumer, that consumer is disappointed, i.e., the product has failed to live up to the consumer’s expectations, but that does not automatically impose liability upon the manufacturer. Though strict liability is focused on the product rather than the conduct of the consumer, elements of reasonableness are not factored out. Foreseeability factors reasonableness into the equation in this fashion: A consumer’s expectation must be reasonable; otherwise, consumer disappointment is unforeseeable.
The majority also ignores the phrase “as- to its characteristics” found in the Restatement’s comment i and fails to recognize that it means the same as “in light of their nature and intended function.” The manufacturer of the air conditioner did not intend for its product to be a life-support device. The question in this case is whether an air conditioner which fails to blow cold air is dangerous to an extent beyond that which would be contemplated by Lake, granting to him, as we must here, the ordinary knowledge common to the community as to the characteristics of hot air and a failed air conditioner. An ordinary consumer, in my estimation, would not expect to be killed by an air conditioner which is defective in that it leaked itself dry of Freon, failed to cool, and blew hot air. An air conditioner may indeed on occasion serve to prevent people from overheating and dying, but this purpose is incidental to their intended use. (See Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) Without pleading special circumstances which set forth an intended purpose other than what is ordinarily expected of the product, plaintiff has not pled a cause of action. Cf. Williams v. RCA Corp. (1978), 59 Ill. App. 3d 229, 376 N.E.2d 37; Hollenbeck v. Selectone Corp. (1985), 131 Ill. App. 3d 969, 476 N.E.2d 746.
Therefore, I respectfully dissent, and would affirm the circuit court.