Posted on March 28, 2010 by Mark T. McAndrew

Liability on Trade Associations

 On April 22, 2008, Jose Padilla’s three-year old son choked to death after he became entangled in the metal-beaded chain cord of some mini-blinds in his home. The plaintiff, Padilla, sued the manufacturer and two trade associations; the Window Covering Manufacturers Association (WCMA) and the Window Covering Safety Council (WCSC).

The plaintiff’s complaint cited section 324A of the Restatement (Second) of Torts and alleged that liability extended to WMCA and WCSC because the trade associations voluntarily undertook a duty to warn about the dangers of strangulation after providing retrofit kits and instructions to eliminate the choking hazard.

The two trade associations argued Illinois courts have declined to impose liability on trade associations under the theory of voluntary undertaking. They further argued that courts have found no duty where trade associations are not involved in the manufacturing process or do not exercise a degree of control over association members. (For example, courts have found no duty when trade associations issue advisory, non-mandatory guidelines for their members. Bailey v. Edward Hines Lumber Co., 719 N.E.2d 178, 308 Ill. App. 3d 58 (1999). )

A federal district judge denied the defendants’ motion to dismiss, concluding that the associations MAY be liable. First there was no indication that the trade associations issued merely “non-mandatory” guidelines. Second, the facts in the case were not like the cases cited by the defendant. In those cases the issue was “control over association members,” who manufacture. Here, the issue was whether the association itself failed to safely manufacture the retrofit kits and whether the association warned about their risks. Thus, those cases did not preclude the defendants’ liability.


The Court pointed out that going forward the defendants are free to raise more issues after discovery. The defendants can try to prove that their undertaking was narrower in scope and did not have a broad effect on consumers. Also, they can show that Illinois does not recognize a common law duty to provide post sale warnings or to recall products after they have been sold.  

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Posted on January 12, 2010 by Mark T. McAndrew

Section 363 Restatement of Torts

A couple of years ago in Illinois, a married couple was riding together on their motorcycle along a stretch of road that bordered densely wooded property owned by the defendant. Adjacent to this property were a number of rotted trees. Unfortunately a large tree on the defendant’s property fell onto the roadway and struck the motorcycle, killing the wife and seriously injuring the husband who was driving.

The plaintiff filed suit with negligence, wrongful death and survival counts in the complaint. The defendant filed a motion to dismiss, citing Section 363 of the Restatement (Second) of Torts, which states that a possessor of land is not liable for injuries caused to others by a natural condition of the land.

However, Section 363 also states that a possessor of land in an urban area is subject to liability to people using a public highway for injuries resulting from the failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near a highway.

The plaintiff argued that the defendant had a duty to maintain the trees bordering the highway and there should be not be different rules for urban versus rural areas without considering all the facts. The trial court granted the motion to dismiss.

On appeal the plaintiff argued that the defendant had actual notice of the defective trees and the courts should not use such strict adherence to the rule of section 363. The appeals court reversed. In doing so it looked at multiple decisions from other jurisdictions. It found that the parties should be allowed to proceed with discovery to obtain more information regarding various factors such as the size and type of the road, the traffic patterns of the road, the condition of the tree and the burden of inspecting and removing the danger.

So, if you have a client that owns forest land that abuts a main roadway it would be in their interest to inspect their property especially where the road is a regularly traveled stretch of road.

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