Wallace v. Sports Authority and TSA Stores Inc. et al

Filing 15

ORDER signed by the Honorable Charles P. Kocoras on 8/25/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL WALLACE,

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Plaintiff,
vs.
SPORTS AUTHORITY and
TSA STORES INC., and
UNNAMED EMPLOYEE,
Defendant.

11 C 4603

ORDER
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on Defendant TSA Stores, Inc’s., doing
business as Sports Authority (“TSA”), motion to dismiss Plaintiff Michael Wallace’s
(“Wallace”) complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons set forth below, the motion is granted.
According to the allegations of the complaint which we accept as true for
purposes of this motion, Warth v. Seldin, 422 U.S. 490, 501 (1975), on March 4, 2011,
Wallace walked into a retail establishment owned and maintained by TSA. He was
assisted by a Sports Authority employee (the “TSA employee”) in the usage and
demonstration of a fitness resistance band. The employee attached both sides of the
band to the left and right of a grip handle specifically designed for use with the band.

When Wallace attempted to stretch the fitness cable, the cable detached from the
handle and struck Wallace on the left side of his head and face. The impact caused a cut
on his conjunctiva and eye and a severe contusion on the left eye socket. Wallace was
diagnosed with severe blurred vision and constant headaches. Wallace alleges that the
TSA employee negligently assembled the resistance band which was not suitable for
demonstration.
Wallace brought suit against TSA alleging that TSA knew or should have known
that the resistance band was not properly assembled and not fit for use, and that TSA
should have inspected and tested the product prior to allowing a customer to use it. TSA
now moves to dismiss the products liability count.
To survive a Rule 12(b)(6) motion, a complaint must overcome “two
easy-to-clear hurdles:” (1) “the complaint must describe the claim in sufficient detail
to give the defendant fair notice of what the claim is and the grounds on which it rests;”
and (2) “its allegations must plausibly suggest that the plaintiff has the right to relief,
raising that possibility above a speculative level.” Tamayo v. Blagojevich, 526 F.3d
1074, 1084 (7th Cir. 2008) (internal quotation marks omitted). Where the well-pleaded
facts “do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not shown—that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted). The

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court must “take the complaint’s well-pleaded factual allegations as true and draw all
reasonable inferences in [plaintiff’s] favor.” Abcarian v. McDonald, 617 F.3d 931, 933
(7th Cir. 2010).
TSA seeks dismissal of Wallace’s strict product liability count. In Illinois, a strict
liability tort action may be premised either upon a defective condition inherent in the
product which makes it unreasonably dangerous, or the defendant’s failure to warn of
a product’s dangerous characteristics. Kurrack v. Am. Dist. Tel. Co., 625 N.E.2d 675,
679 (Ill. App. Ct. 1993). If the claim is premised upon a defective product, a plaintiff
must plead that “his injuries stemmed from the unreasonably dangerous or defective
condition of the product and that the condition existed at the time the product left the
manufacturer’s control.” Id. at 679-80. If the action is premised upon a failure to warn,
a plaintiff must plead that “the defendant seller knew or should have known of the
dangers posed by its product and that the dangerous aspect of the product caused the
injury.” Id. Plaintiff Wallace’s complaint does not set forth allegations that would
establish a strict product liability claim against TSA. Wallace does not allege that his
injuries were caused by the unreasonably dangerous or defective condition of the
resistance band. Nor does he allege that TSA knew and failed to warn him of any
physical characteristics that made the product unreasonably dangerous. Wallace only
alleges that the TSA employee negligently assembled the product. Whether the
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employee correctly followed the instructions during the assembly process is a question
of negligence, not of product liability. Willyard v. Wal-Mart Stores, Inc., No. 09 C 295,
2010 WL 487080 (S.D. Ill. Feb. 8, 2010). Wallace’s allegations are therefore
insufficient to give TSA fair and adequate notice of a strict product liability claim.
In addition, Wallace may not supplement the allegations of his complaint through
a brief filed in response to a motion to dismiss. If Wallace wishes to assert a product
liability claim, he must amend the complaint. Accordingly, the motion to dismiss
Wallace’s product liability count is granted.

Charles P. Kocoras
United States District Judge
Dated: August 25, 2011

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