{ "id": 2484625, "name": "LISA APPLEBY, Plaintiff-Appellant, v. DONALD T. MILLER, JR., et al., Defendants-Appellees", "name_abbreviation": "Appleby v. Miller", "decision_date": "1990-05-03", "docket_number": "No. 2\u201489\u20140822", "first_page": "533", "last_page": "537", "citations": [ { "type": "official", "cite": "197 Ill. App. 3d 533" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "83 Ill. 2d 277", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472781 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0277-01" ] }, { "cite": "32 Ill. 2d 612", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839667 ], "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0612-01" ] }, { "cite": "132 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441155 ], "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0586-01" ] }, { "cite": "163 Ill. App. 3d 410", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547603 ], "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0410-01" ] }, { "cite": "168 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3512092 ], "year": 1987, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0558-01" ] }, { "cite": "143 Ill. App. 3d 222", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5666822 ], "year": 1985, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0222-01" ] }, { "cite": "138 Ill. App. 3d 1013", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499846 ], "weight": 4, "pin_cites": [ { "page": "1014" }, { "page": "1014-15" }, { "page": "1015" }, { "page": "1015" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/1013-01" ] } ], "analysis": { "cardinality": 552, "char_count": 8479, "ocr_confidence": 0.752, "pagerank": { "raw": 5.657524242833003e-08, "percentile": 0.35274720649736724 }, "sha256": "08bb6919670c2df8b0f7f93e57b112b9b54425d1c4b49d4892eafa24844145a1", "simhash": "1:bb2655265a291ed3", "word_count": 1364 }, "last_updated": "2023-07-14T17:08:36.740176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LISA APPLEBY, Plaintiff-Appellant, v. DONALD T. MILLER, JR., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nOn September 20, 1988, plaintiff, Lisa Appleby, brought suit against Dr. Donald T. Miller, a dentist, and other medical providers alleging that negligent treatment was rendered to her. Additionally, in count X of the complaint, plaintiff brought a products liability claim against defendant \u201cUnknown Seller of Medical Form\u201d alleging that the unknown seller sold a defective medical history intake form to Miller, her dentist, which was used by Miller on September 23, 1986, and thereafter in his treatment of her. Plaintiff alleged that the form was defective in that it failed to inquire as to whether plaintiff had a history of a heart murmur, cardiac valvular disease, or mitral valve prolapse; it failed to inquire as to whether it was recommended to plaintiff that she take prophylactic antibiotics; and it failed to provide notice or warning of its incomplete inquiry or listing of a potential patient\u2019s medical history, and/or the potential consequences thereof. The complaint alleged that Miller had relied upon the information compiled pursuant to the medical form and that such reliance was, or should have been, foreseeable by defendant unknown seller. It was alleged that as a direct and proximate result of the defective form, plaintiff has suffered bacterial endocarditis, coma, brain artery aneurysm, and hemiparesis. Attached to the complaint was the affidavit of plaintiff\u2019s attorney stating that the name of the seller of the medical form was unknown and could not be determined at that time.\nOn January 25, 1989, plaintiff filed a motion for leave to file her first amended complaint. Pursuant to the amended complaint, plaintiff substituted Colwell Systems, Inc., for defendant unknown seller. The substantive allegations of the pleadings remained virtually unchanged. The trial court granted plaintiff\u2019s motion on February 2, 1989, and the amended complaint was filed instanter.\nOn April 20, 1989, defendant Colwell filed a motion to dismiss plaintiff\u2019s amended complaint alleging, inter alia, that it failed to state a cause of action based upon strict products liability and that the action against Colwell was barred by the statute of limitations.\nOn June 15, 1989, after hearing oral arguments, the trial court granted defendant Colwell\u2019s motion to dismiss with prejudice. The court reasoned that the medical form \u201cis not a product which would invoke the public policy considerations advanced to support the imposition of strict liability.\u201d The trial court stated that \u201cthere are no facts pled which would show that the plaintiff was a consumer or user as contemplated by the products liability cases or that the form was the proximate cause of the plaintiff\u2019s injuries.\u201d The court further held that the action was beyond the statute of limitations and that section 2 \u2014 413 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 413) could not assist plaintiff in making the action timely. The decision of the trial court was incorporated into a written order entered July 17, 1989. Plaintiff timely appeals, raising the following issues: (1) whether plaintiff\u2019s amended complaint sufficiently stated a cause of action under a strict products liability theory so as to withstand a motion to dismiss; and (2) whether the trial court erred in finding that plaintiff\u2019s complaint failed to satisfy the statute of limitations and in denying her leave to file a second amended complaint. We affirm.\nIn determining the legal sufficiency of a complaint on a motion to dismiss, the trial court is required to accept all well-pleaded facts as true. (Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 1014.) However, in ruling on a motion to dismiss, the trial court must disregard mere conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Prudential Insurance Co. v. McCurry (1986), 143 Ill. App. 3d 222, 225; Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 1014-15.) A cause of action is properly dismissed on the pleadings only where it clearly appears that no set of facts can be proved which will entitle the plaintiff to relief. Hubbard, 138 Ill. App. 3d at 1015.\nTo state a cause of action in strict products liability, a complaint must allege that: (1) plaintiff\u2019s injury resulted from a condition of the product; (2) the condition of the product was unreasonably dangerous; and (3) the condition existed when it left the seller\u2019s control. (Loos v. American Energy Savers, Inc. (1988), 168 Ill. App. 3d 558, 562; Phillips v. United States Waco Corp. (1987), 163 Ill. App. 3d 410, 417.) Thus, in a strict products liability action, a \u201cproduct\u201d must be at issue.\nIn determining wThat is a product, the courts have looked to the social policy justifications underlying the adoption of strict liability rather than a dictionary definition of the term \u201cproduct.\u201d (Trent v. Brasch Manufacturing Co. (1985), 132 Ill. App. 3d 586, 589.) The policy justifications to be considered include the public interest in human life and health, the manufacturer\u2019s invitations and solicitations to use the product, its representations that the product is safe and suitable for intended use, and the justice of imposing the loss on the one creating the risk and reaping the profit. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 619.\nGiven these considerations, we find that the medical form in question was a service provided to the dentist rather than a product subject to strict liability. Defendant\u2019s form merely supplied the dentist with a short list of general questions to be answered by the patient. Specifically, the form asked, under the subtitle \u201cHealth Questions,\u201d the following yes/no questions:\n\u201cDo you feel you are now in good health?\u201d\n\u201cAre you presently under a doctor\u2019s care?\u201d\n\u201cHave you ever been told you had high blood pressure?\u201d\n\u201cHave you had heart trouble, rheumatic fever, diabetes, or hepatitis?\u201d\n\u201cHave you ever had trouble with bleeding from injuries, or after surgery or extractions?\u201d\n\u201cAre you allergic to, or have you had an unusual reaction to, any drug or local anesthetic?\u201d\nIn addition, the form asked what pills or medication the patient was presently taking, the name and address of her physician, and the date of her last dental visit.\nGiven the generality of the questions and the brevity of the form, we find that it would be unreasonable to expect that the form was intended to be a comprehensive inquiry as to a patient\u2019s medical history, and there was no evidence presented that defendant represented it as such. Rather, the apparent function of the form was to provide dentists with a list of broad questions to be answered by patients and then supplemented by the dentist as deemed appropriate. It thus appears that the gravamen of plaintiff\u2019s complaint is not the form itself; rather, it is the dentist\u2019s alleged negligent conduct in his use or reliance on the form. Such errors of professional judgment are held to the standard of reasonable skill under the concept of negligence, and strict liability simply does not come into play. Dubin v. Michael Reese Hospital & Medical Center (1980), 83 Ill. 2d 277, 281.\nBecause we have determined that the form in question is not a product, plaintiff\u2019s complaint sounding in strict liability is legally deficient and was, therefore, properly dismissed. (Hubbard, 138 Ill. App. 3d at 1015.) Given our finding, we need not address the other issues raised on appeal.\nFor the aforementioned reasons, the judgment of the trial court is affirmed.\nAffirmed.\nREINHARD and DUNN, JJ., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "Kenneth C. Chessick, M.D., S.C.', of Schaumburg (John W. Fisk, of counsel), for appellant.", "Kenneth W. Traum, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., and Thomas & Hinshaw, Culbertson, both of Rockford, and Johnson, Cusack & Bell, Ltd., and Dean M. Athans, of Taslitz, Smith & Hemmesch, both of Chicago, for appellees Donald T. Miller, Jr., Steven J. Disanti, H. Shils, Alan Cheung, Marabella Alhambra, Rajakankumar Naik, and Kishwaukee Community Hospital.", "Heyl, Royster, Voelker & Allen, of Springfield, and Douglas J. Pomatto, of Heyl, Royster, Voelker & Allen, of Rockford (Karen L. Kendall, of counsel), for appellee Colwell Systems, Inc." ], "corrections": "", "head_matter": "LISA APPLEBY, Plaintiff-Appellant, v. DONALD T. MILLER, JR., et al., Defendants-Appellees.\nSecond District\nNo. 2\u201489\u20140822\nOpinion filed May 3, 1990.\nRehearing denied June 1, 1990.\nKenneth C. Chessick, M.D., S.C.', of Schaumburg (John W. Fisk, of counsel), for appellant.\nKenneth W. Traum, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., and Thomas & Hinshaw, Culbertson, both of Rockford, and Johnson, Cusack & Bell, Ltd., and Dean M. Athans, of Taslitz, Smith & Hemmesch, both of Chicago, for appellees Donald T. Miller, Jr., Steven J. Disanti, H. Shils, Alan Cheung, Marabella Alhambra, Rajakankumar Naik, and Kishwaukee Community Hospital.\nHeyl, Royster, Voelker & Allen, of Springfield, and Douglas J. Pomatto, of Heyl, Royster, Voelker & Allen, of Rockford (Karen L. Kendall, of counsel), for appellee Colwell Systems, Inc." }, "file_name": "0533-01", "first_page_order": 555, "last_page_order": 559 }