Smoke Alarm Product Liability Complaint 2 - Part 2

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95. That at the time the smoke alarms, Model # SS-770-6CC, were designed and manufactured by Defendant USI ELECTRIC, INC. and at all times thereafter up to and including the time of the occurrence complained of, the smoke alarms, Model # SS-770-6CC, were not reasonably safe in design in one or more of the following respects (collectively the “Defects”):

a. The smoke alarm, Model # SS-770-6CC, in unable to detect smoke in a timely manner to allow occupants of a building adequate time to escape without injury or death;

b. The smoke alarm, Model # SS-770-6CC, is not adequate and is unable to timely detect smoke without being accompanied by another smoke alarm technology to allow occupants of a building adequate time to escape without injury or death.

96. That one or more of these Defects existed when the product left the Defendant's control, making the product unreasonably dangerous because it failed to perform in the manner reasonably expected in light of the product's nature and intended function and/or because the magnitude of the dangers outweighed the utility of the product.

97. That as a direct and proximate result of one or more of the foregoing Defects, and in consequence thereof, the smoke alarms, Model # SS-770-6CC, failed to detect the smoke in Plaintiff's house in a timely manner, so as to provide insufficient warning to allow: (a) Plaintiff's daughter, Dayana, adequate time to escape the smoke that had accumulated in her bedroom and (b) Plaintiff to timely contact the McHenry Township Fire Protection District, which would have allowed the Fire Protection District to respond timely, thereby causing the smoke and fire to continue growing, which resulted in the pain, suffering and ultimately, the death of Dayana.

98. That as a result of the foregoing Defects, Plaintiff has sustained the following damages:

a. extreme pain and suffering experienced by Dayana as a result of smoke inhalation and carbon monoxide poisoning prior to Dayana's death; and

b. extreme pain and suffering experienced by Dayana as a result of the burns to her body prior to Dayana's death.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Representative of the Estate of Dayana Garcia, deceased, in accordance with 755 ILCS 5/27-6, demands judgment in her favor and against Defendant USI ELECTRIC, INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

COUNT IV - SURVIVAL ACTION -
Strict Liability in Products Liability (Manufacturing Defect - Failure to Warn) Plaintiff v. USI ELECTRIC, INC., pursuant to 755 ILCS 5/27-6

99. Plaintiff realleges and incorporates herein paragraphs 1 through 63 above as if said paragraphs were stated herein in their entirety.

100. In Illinois, “all persons in the distributive chain are liable for injuries resulting from a defective product.” Hammond v. North American Asbestos Corp., 97 Ill. 2d 195 (1983). “Imposition of strict liability upon... manufacturers arises from their ‘integral role in the overall producing and marketing’ of a defective product.” Crowe v. Public Building Commission of Chicago, 74 Ill. 2d 10 (1978) (citing Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill. 2d 339, 344(1969) ).

101. That on July 21, 2011, and for a long time prior to that date, Defendant USI ELECTRIC, INC., a Texas corporation, was engaged in the business of designing, developing, manufacturing and marketing, for ultimate sale to members of the general public, smoke alarms, including smoke alarms used by Plaintiff, specifically Model # SS-770-6CC.

102. That on July 21, 2011, and for a long time prior to that date, Defendant HOME DEPOT U.S.A., INC., a Delaware corporation, was engaged in the business of selling to the general public, as a retail seller, smoke alarms designed, manufactured and produced by Defendant USI ELECTRIC, INC., a Texas corporation, including smoke alarms used by Plaintiff, specifically Model # SS-770-6CC.

103. That on July 21, 2011, and for a long time prior to that date, Defendant HOME DEPOT U.S.A., INC., a Delaware corporation, purchased that Model # SS-770-6CC smoke alarm from Defendant USI ELECTRIC, INC., a Texas corporation and subsequently sold said smoke alarms in its store #1969 located at 2461 N. Richmond Road, McHenry, Illinois, 60050.

104. That on July 21, 2011, and for a period prior to that date, the McHenry Township Fire Protection District purchased said Model # SS-770-6CC smoke alarms from Defendant HOME DEPOT U.S.A., INC.'s McHenry, Illinois store, #1969, as evidenced by the receipts of sale kept by the McHenry Township Fire Protection District.

105. That on or about summer or fall of 2011, Plaintiff did receive two (2) smoke alarms, Model # SS-770-6CC, from the McHenry Township Fire Protection District.

106. That at the time the smoke alarms, Model # SS-770-6CC, were designed and manufactured by Defendant USI ELECTRIC, INC. and at all times thereafter up to and including the time of the occurrence complained of, Defendant USI ELECTRIC, INC. failed to provide the following warnings (collectively the “Failures to Warn”):

a. Failed to warn, or alternatively provided inadequate warnings as to the difference between ionization-type and photoelectric-type smoke alarms as it pertains to the ability of each type of device to provide adequate warning;

b. Failed to warn, or alternatively provided inadequate warnings as to the slow response, or often lack thereof, of the ionization-type smoke alarms;

c. Failed to warn, or alternatively provided inadequate warnings as to the need for the use of both ionization-type and photoelectric-type technology for protection against all types of smoke and fires;

d. Failed to warn, or alternatively provided inadequate warnings as to the availability of alternatives types of technology in smoke alarms readily available to consumers and users that provide occupants with earlier warning of the presence of smoke; and

e. Failed to warn of the Defects.

107. That each of the Failures to Warn constitutes a manufacturing defect with respect to the smoke alarm.

108. That, at all times relevant hereto and specifically prior to Plaintiff's receipt of the smoke alarms, Defendant has been aware of, and has knowledge of, each of the facts and assertions set forth within the Failures to Warn.

109. Defendant had a duty to warn given the unequal knowledge, actual or constructive, possessed by the Defendant at the time the Plaintiff acquired the smoke alarms.

110. That as a direct and proximate result of one or more of the foregoing Failures to Warn, and in consequence thereof, Plaintiff utilized the smoked alarms (instead of choosing a different model and type) and thereafter, the smoke alarms failed to detect the smoke in Plaintiff's house in a timely mamier.

111. That as a result of the foregoing Failures to Warn, Plaintiff has sustained the following damages:

a. extreme pain and suffering experienced by Dayana as a result of smoke inhalation and carbon monoxide poisoning prior to Dayana's death; and

b. extreme pain and suffering experienced by Dayana as a result of the burns to her body prior to Dayana's death.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Representative of the Estate of Dayana Garcia, deceased, in accordance with 755 ILCS 5/27-6, demands judgment in her favor and against Defendant USI ELECTRIC, INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

COUNT V - SURVIVAL ACTION -
Strict Liability in Products Liability (Manufacturing Defect - Design Defect) Plaintiff v. HOME DEPOT U.S.A., INC., pursuant to 755 ILCS 5/27-6

112. Plaintiff realleges and incorporates herein paragraphs 1 through 63 above as if said paragraphs were stated herein in their entirety.

113. Under Illinois case law, “all persons in the distributive chain are liable for injuries resulting from a defective product.” Hammond v. North American Asbestos Corp., 97 Ill. 2d 195 (1983). Moreover, “[a] seller who does not create a defect, but who puts the defective product into circulation, is still responsible in strict liability to an injured user.” Crowe v. Public Building Commission of Chicago, 74 Ill. 2d 10 (1978). As such, liability for injuries sustained from a defective product is imposed not just on manufacturers, but also to sellers of the defective product. Suvada v. White Motor Co., 32 Ill. 2d 612 (1965), overruled on other grounds by Dixon v. Chicago & north Western Transportation Co., 151 Ill. 2d 108 (1992).

114. That on July 21, 2011, and for a long time prior to that date, Defendant HOME DEPOT U.S.A., INC., a Delaware corporation, was engaged in the business of selling to the general public, as a retail seller, smoke alarms manufactured and produced by Defendants UNIVERSAL SECURITY INSTRUMENTS, INC., a Maryland corporation, and USI ELECTRIC, INC., a Texas corporation including smoke alarms used by Plaintiff, specifically Model # SS-770-6CC.

115. That on July 21, 2011, and for a long time prior to that date, Defendant HOME DEPOT U.S.A., INC., a Delaware corporation, purchased that Model # SS-770-6CC smoke alarm from Defendants UNIVERSAL SECURITY INSTRUMENTS, INC., a Maryland corporation, and USI ELECTRIC, INC., a Texas corporation and subsequently sold said smoke alarms in its store #1969 located at 2461 N. Richmond Road, McHenry, Illinois, 60050.

116. That on July 21, 2011, and for a period prior to that date, the McHenry Township Fire Protection District purchased said Model # SS-770-6CC smoke alarms from Defendant HOME DEPOT U.S.A., INC.'s McHenry, Illinois store, #1969, as evidenced by the receipts of sale kept by the McHenry Township Fire Protection District.

117. That on or about summer or fall of 2011, Plaintiff did receive two (2) smoke alarms, Model # SS-770-6CC, from the McHenry Township Fire Protection District, which had been purchased from Defendant HOME DEPOT, U.S.A., INC.

118. That at the time the smoke alarms, Model # SS-770-6CC, were sold by Defendant HOME DEPOT U.S.A., INC., and at all times thereafter up to and including the time of the occurrence complained of, the smoke alarms, Model # SS-770-6CC, were not reasonably safe in design in one or more of the following respects (collectively the “Defects”):

a. The smoke alarm, Model # SS-770-6CC, in unable to detect smoke in a timely manner to allow occupants of a building adequate time to escape without injury or death;

b. The smoke alarm, Model # SS-770-6CC, is not adequate and is unable to timely detect smoke without being accompanied by another smoke alarm technology to allow occupants of a building adequate time to escape without injury or death.

119. That one or more of the Defects existed when the product left the Defendant's control, making the product unreasonably dangerous because it failed to perform in the manner reasonably expected in light of the product's nature and intended function and/or because the magnitude of the dangers outweighed the utility of the product.

120. That as a direct and proximate result of one or more of the foregoing defects, and in consequence thereof, the smoke alarms, Model # SS-770-6CC, failed to detect the smoke in Plaintiff's house in a timely manner, so as to provide insufficient warning to allow: (a) Plaintiff's daughter, Dayana, adequate time to escape the smoke that had accumulated in her bedroom and (b) Plaintiff to timely contact the McHenry Township Fire Protection District, which would have allowed the Fire Protection District to respond timely, thereby causing the smoke and fire to continue growing, which resulted in the pain and suffering and ultimately, the death of Dayana.

121. That by virtue of Defendant HOME DEPOT, U.S.A., INC.'s participation in the distributive chain as a seller of the defective product, Defendant HOME DEPOT U.S.A., INC. is liable for the injuries sustained by Plaintiff and her family as a result of the defective smoke alarm Defendant HOME DEPOT, U.S.A., INC. sold and that was used by Plaintiff in her home.

122. That as a result of the foregoing, Plaintiff has sustained the following damages:

a. extreme pain and suffering experienced by Dayana as a result of smoke inhalation and carbon monoxide poisoning prior to Dayana's death; and

b. extreme pain and suffering experienced by Dayana as a result of the burns to her body prior to Dayana's death.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Representative of the Estate of Dayana Garcia, deceased, in accordance with 755 ILCS 5/27-6 demands judgment in her favor and against Defendant HOME DEPOT, U.S.A., INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

COUNT VI - SURVIVAL ACTION -
Strict Liability in Products Liability (Manufacturing Defect - Failure to Warn) Plaintiff v. HOME DEPOT. U.S.A., INC., pursuant to 755 ILCS 5/27-6

123. Plaintiff realleges and incorporates herein paragraphs 1 through 63 above as if said paragraphs were stated herein in their entirety.

124. Under Illinois case law, “all persons in the distributive chain are liable for injuries resulting from a defective product.” Hammond v. North American Asbestos Corp., 97 Ill. 2d 195 (1983). Moreover, “[a] seller who does not create a defect, but who puts the defective product into circulation, is still responsible in strict liability to an injured user.” Crowe v. Public Building Commission of Chicago, 74 Ill. 2d 10 (1978). As such, liability for injuries sustained from a defective product is imposed not just on manufacturers, but also to sellers of the defective product. Suvada v. White Motor Co., 32 Ill. 2d 612 (1965), overruled on other grounds by Dixon v. Chicago & north Western Transportation Co., 151 Ill. 2d 108 (1992).

125. That on July 21, 2011, and for a long time prior to that date, Defendant HOME DEPOT U.S.A., INC., a Delaware corporation, was engaged in the business of selling to the general public, as a retail seller, smoke alarms manufactured and produced by Defendant UNIVERSAL SECURITY INSTRUMENTS, INC., a Maryland corporation, including smoke alarms used by Plaintiff, specifically Model # SS-770-6CC.

126. That on July 21, 2011, and for a long time prior to that date, Defendant HOME DEPOT U.S.A., INC., a Delaware corporation, purchased that Model # SS-770-6CC smoke alarm from Defendant UNIVERSAL SECURITY INSTRUMENTS, INC., a Maryland corporation and subsequently sold said smoke alarms in its store #1969 located at 2461 N. Richmond Road, McHenry, Illinois, 60050.

127. That on July 21, 2011, and for a period prior to that date, the McHenry Township Fire Protection District purchased said Model # SS-770-6CC smoke alarms from Defendant HOME DEPOT U.S.A., INC.'s McHenry, Illinois store, #1969, as evidenced by the receipts of sale kept by the McHenry Township Fire Protection District.

128. That on or about summer or fall of 2011, Plaintiff did receive two (2) smoke alarms, Model # SS-770-6CC, from the McHenry Township Fire Protection District, which had been purchased from Defendant HOME DEPOT, U.S.A., INC.

129. That at the time the smoke alarms, Model # SS-770-6CC, were designed and manufactured by Defendant UNIVERSAL SECURITY INSTRUMENTS, INC. and sold by Defendant HOME DEPOT U.S.A., INC., and at all times thereafter up to and including the time of the occurrence complained of, Defendant HOME DEPOT U.S.A., INC. failed to provide the following warnings (collectively the “Failures to Warn”):

a. Failed to warn, or alternatively provided inadequate warnings as to the difference between ionization-type and photoelectric-type smoke alarms as it pertains to the ability of each type of device to provide adequate warning;

b. Failed to warn, or alternatively provided inadequate warnings as to the slow response, or often lack thereof, of the ionization-type smoke alarms;

c. Failed to warn, or alternatively provided inadequate warnings as to the need for the use of both ionization-type and photoelectric-type technology for protection against all types of smoke and fires;

d. Failed to warn, or alternatively provided inadequate warnings as to the availability of alternatives types of technology in smoke alarms readily available to consumers and users that provide occupants with earlier warning of the presence of smoke; and

e. Failed to warn of the Defects.

130. That each of the Failures to Warn constitutes a manufacturing defect with respect to the smoke alarm.

131. That Defendant has been aware of, and has knowledge of, each of the facts and assertions set forth within the Failures to Warn.

132. Defendant had a duty to warn given the unequal knowledge, actual or constructive, possessed by the Defendant at the time the Plaintiff acquired the smoke alarms.

133. That one or more of these Failures to Warn existed when the product left Defendants' control, making the product unreasonably dangerous because it failed to perform in the manner reasonably expected in light of the product's nature and intended function and/or because the magnitude of the dangers outweighed the utility of the product.

134. That as a direct and proximate result of one or more of the foregoing Failures to Warn, and in consequence thereof, Plaintiff utilized the smoked alarms (instead of choosing a different model and type) and thereafter, the smoke alarms failed to detect the smoke in Plaintiff's house in a timely manner.

135. That by virtue of Defendant HOME DEPOT, U.S.A., INC.'s participation in the distributive chain as a seller of the defective product, Defendant HOME DEPOT U.S.A., INC. is liable for the injuries sustained by Plaintiff and her family as a result of the defective smoke alarm Defendant HOME DEPOT, U.S.A., INC. sold and that was used by Plaintiff in her home.

136. That as a result of the foregoing, Plaintiff has sustained the following damages:

a. extreme pain and suffering experienced by Dayana as a result of smoke inhalation and carbon monoxide poisoning prior to Dayana's death; and

b. extreme pain and suffering experienced by Dayana as a result of the burns to her body prior to Dayana's death.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Representative of the Estate of Dayana Garcia, deceased, in accordance with 755 ILCS 5/27-6 demands judgment in her favor and against Defendant HOME DEPOT, U.S.A., INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

COUNT VII - WRONGFUL DEATH
(Plaintiff v. UNIVERSAL SECURITY INSTRUMENTS. INC.)

137. Plaintiff realleges and incorporates herein paragraphs 1 through 63 above as if said paragraphs were stated herein in their entirety.

138. Plaintiff realleges and incorporates herein paragraphs 64 through 73 above as if said paragraphs were stated herein in their entirety.

139. Plaintiff realleges and incorporates herein paragraph 75 through 86 above as if said paragraphs were stated herein in their entirety.

140. That on November 1, 2013, Lissett E. Batlle was appointed Special Administrator of the Estate of Dayana Garcia by Order of the McHenry County Circuit Court.

141. That on March 8, 2013, Dayana died as a result of smoke inhalation sustained in a fire that destroyed her residence at 4510 Parkway Avenue, McHenry, Illinois.

142. That said fire was a result of the wrongful acts of Defendant Universal Security Instruments, Inc. and including without limitation the “Defects” and the “Failures to Warn” as set forth in Counts I and II of this Complaint.

143. That at the time of death, Dayana was survived by her mother, Lissett E. Batlle, father, Rene Rodriguez, and brothers Christopher Rodriguez and Kevin Morales (the “beneficiaries”).

144. That by reason of Dayana's death, each of the beneficiaries has sustained the following pecuniary damages:

a. past and future substantial grief, sorrow and mental suffering as a result of losing Dayana;

b. permanent loss of companionship of Dayana;

c. future lost income that Dayana would have contributed to the family; and

d. future lost valuable services Dayana would have contributed to the family.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Administrator of the Estate of Dayana Garcia, deceased, demands judgment in her favor and against Defendant UNIVERSAL SECURITY INSTRUMENTS, INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

COUNT VIII - WRONGFUL DEATH
(Plaintiff v. USI ELECTRIC. INC.)

145. Plaintiff realleges and incorporates herein paragraphs 1 through 63 above as if said paragraphs were stated herein in their entirety.

146. Plaintiff realleges and incorporates herein paragraphs 88 through 97 as if said said paragraphs were stated herein in their entirety.

147. Plaintiff realleges and incorporates herein paragraphs 99 through 110 as if said paragraphs were stated herein in their entirety.

148. That on November 1, 2013, Lissett E. Batlle was appointed Special Administrator of the Estate of Dayana Garcia by Order of the McHenry County Circuit Court.

149. That on March 8, 2013, Dayana died as a result of smoke inhalation sustained in a fire that destroyed her residence at 4510 Parkway Avenue, McHenry, Illinois.

150. That said fire was a result of the wrongful acts of Defendant USI Electric, Inc. and including without limitation the “Defects” and the “Failures to Warn”, as set forth in Counts III and IV of this Complaint.

151. That at the time of death, Dayana was survived by her mother, Lissett E. Batlle, father, Rene Rodriguez, and brothers Christopher Rodriguez and Kevin Morales (the “beneficiaries”).

152. That by reason of Dayana's death, each of the beneficiaries has sustained the following pecuniary damages:

a. past and future substantial grief, sorrow and mental suffering as a result of losing Dayana;

b. permanent loss of companionship of Dayana;

c. future lost income that Dayana would have contributed to the family; and

d. future lost valuable services Dayana would have contributed to the family.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Administrator of the Estate of Dayana Garcia, deceased, demands judgment in her favor and against Defendant USI ELECTRIC, INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

COUNT IX - WRONGFUL DEATH
(Plaintiff v. HOME DEPOT U.S.A., INC.)

153. Plaintiff realleges and incorporates herein paragraphs 1 through 63 above as if said paragraphs were stated herein in their entirety.

154. Plaintiff realleges and incorporates herein paragraphs 112 through 121 above as if said paragraphs were stated herein in their entirety.

155. Plaintiff realleges and incorporates herein paragraphs 123 through 135 above as if said paragraphs were stated herein in their entirety.

156. That on November 1, 2013, Lissett E. Batlle was appointed Special Administrator of the Estate of Dayana Garcia by Order of the McHenry County Circuit Court.

157. That on March 8, 2013, Dayana died as a result of smoke inhalation sustained in a fire that destroyed her residence at 4510 Parkway Avenue, McHenry, Illinois.

158. That said fire was a result of the wrongful acts of Defendant Home Depot, U.S.A., Inc. and including without limitation the “Defects” and the “Failures to Warn” as set forth in Counts V and VI of this Complaint.

159. That at the time of death, Dayana was survived by her mother, Lissett E. Batlle, father, Rene Rodriguez, and brothers Christopher Rodriguez and Kevin Morales (the “beneficiaries”).

160. That by reason of Dayana's death, each of the beneficiaries has sustained the following pecuniary damages:

a. past and future substantial grief, sorrow and mental suffering as a result of losing Dayana;

b. permanent loss of companionship of Dayana;

c. future lost income that Dayana would have contributed to the family; and

d. future lost valuable services Dayana would have contributed to the family.

WHEREFORE, Plaintiff LISSETT E. BATLLE, as Special Administrator of the Estate of Dayana Garcia, deceased, demands judgment in her favor and against Defendant HOME DEPOT, U.S.A., INC. in excess of $75,000, plus costs and fees and any other such relief this Court deems just and reasonable.

Dated: 11/8/13

LISSETT E. BATLLE, as Special Administrator and Special Representative of the Estate of DAYANA GARCIA, deceased

By: <<signature>>

Attorney for Plaintiff

This pleading is prepared by the undersigned and executed in accordance with Supreme Court Rule 137.

<<signature>>

Andrew E. Kolb, Esq.

Vanek, Larson & Kolb, LLC

200 W. Main Street

St. Charles, Illinois 60174

Phone (630) 513-9800

Fax (630) 513-9802

akolb@vlklawfirm.com

ARDC - 6270096

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