dissenting:
I respectfully dissent. The majority fails to address the actual proximate-cause theory advanced by plaintiffs in this case. The majority appears to set forth how it would have alleged proximate cause and finds that theory sufficient.
Here, in the amended count I based on the Act, plaintiffs asserted the following:
“Defendant’s conduct as set forth above caused damage to the plaintiffs and class members in that absent said promotion and marketing activities a market would not have been developed for composite wood siding and thus the siding would not have been sold in the State of Illinois and therefore it would not have been installed on the residences of plaintiffs and the other members of the class.”
The trial court concluded the relationship between Boise Cascade’s initial advertising of its products to create a market and the siding damage experienced by plaintiffs almost 40 years later was anything but proximate. I agree.
Plaintiffs’ theory essentially eviscerates the proximate-cause requirement. Under plaintiffs’ theory, if false advertising effectively created a market for a product, then the advertising is the proximate cause of any injuries associated with the product at any point in time because the product should never have existed. Plaintiffs themselves acknowledge in their brief they need only prove Boise Cascade’s advertising created a market for the product. Such a theory results in infinite liability of the manufacturer for any injury associated with the product’s use. Here, Boise Cascade has not manufactured siding products for 17 years, yet faces a lawsuit relating to advertising that allegedly created a market for its siding products almost four decades earlier.
Further, while proximate cause is usually a matter for the jury (328 Ill. App. 3d at 628), it can only be established as a matter of law where a reasonable certainty exists that the defendant’s acts caused the plaintiffs injury (see Lee, 152 Ill. 2d at 455, 605 N.E.2d at 502). I fail to see how plaintiffs can establish Boise Cascade’s product would not have existed but for the deceptive materials without resorting to speculation and conjecture. Liability cannot be premised merely upon surmise or conjecture as to the cause of the injury. Lee, 152 Ill. 2d at 455, 605 N.E.2d at 503.
Accordingly, the causation theory set forth by plaintiffs is too remote to establish proximate causation.
Even under the majority’s proximate-cause theory, plaintiffs have not alleged proximate cause. While the focus of the Act is on the defendant’s conduct, the plaintiffs conduct is clearly relevant to the determination of proximate cause. In Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 372, 695 N.E.2d 853, 860 (1998), the plaintiff alleged the defendant violated the Act by billing him in an allegedly misleading manner. In his deposition, the plaintiff stated he did not read or pay the bills himself. Zekman, 182 Ill. 2d at 375, 695 N.E.2d at 861. The Supreme Court of Illinois held the defendant’s alleged violations of the Act were not the proximate cause of the plaintiffs injuries because he was not deceived by the defendant’s actions. Zekman, 182 Ill. 2d at 376, 695 N.E.2d at 862.
While in a case such as this plaintiffs themselves may not have needed to read the deceptive materials to establish proximate cause, someone who built or owned plaintiffs’ property must have read the materials. Plaintiffs do not even assert in their complaint that anyone who participated in the building of their homes or any previous owners of their homes read the deceptive materials. In fact, the complaint alleges no facts directly connecting the deceptive material with plaintiffs’ homes.
For example, consider the situation of plaintiff Connelly. In 1997, he purchased a 13-year-old house that had two previous owners. At the time of purchase, Connelly had never seen or heard any marketing statements for the siding, had never been told anything about the siding, and did not know who manufactured the siding. A few days after purchasing his home, he noticed that some of the siding was damaged (he did not discover the damage prior to the real estate closing because he chose not to employ a home inspector). A year later, he learned that his siding was manufactured by defendant Boise Cascade. He then joined in bringing a lawsuit against Boise Cascade, alleging that decades earlier, Boise Cascade advertised the product in a way inconsistent with how Connelly’s siding is now performing.
Like Zekman, plaintiffs have not shown proximate cause because they failed to allege they or anyone else connected to their homes read the allegedly deceptive materials.
Additionally, the majority in reversing the trial court’s grant of summary judgment notes “[a] purchaser who buys the home at a discount because of known problems with the siding has not been damaged.” 328 Ill. App. 3d at 630. Here, the deposition testimony shows plaintiffs Lisa Shannon, Timothy Shannon, West, and Arami all purchased homes they knew had siding damage at the time of purchase. Thus, the summary judgment as to those four plaintiffs should be affirmed on that basis alone.
For the reasons stated, I would affirm the trial court’s grant of summary judgment. Because I would affirm the judgment based on the failure to demonstrate proximate cause, I do not address the materiality element.