{ "id": 2183348, "name": "LISA M. SHANNON et al., Plaintiffs-Appellants, v. BOISE CASCADE, Defendant-Appellee", "name_abbreviation": "Shannon v. Cascade", "decision_date": "2002-02-20", "docket_number": "No. 4\u201401\u20140143", "first_page": "621", "last_page": "633", "citations": [ { "type": "official", "cite": "328 Ill. App. 3d 621" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "613 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "815", "parenthetical": "misrepresentations lacking in Naiditch-, evidence merely established house was defective" } ], "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 258", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5385277 ], "year": 1993, "pin_cites": [ { "page": "270-71", "parenthetical": "misrepresentations lacking in Naiditch-, evidence merely established house was defective" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0258-01" ] }, { "cite": "512 N.E.2d 1027", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "1036" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 245", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650551 ], "year": 1987, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0245-01" ] }, { "cite": "532 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "839" } ], "opinion_index": 0 }, { "cite": "125 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555263 ], "year": 1988, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0498-01" ] }, { "cite": "726 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415427 ], "year": 2000, "pin_cites": [ { "page": "893-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0886-01" ] }, { "cite": "680 N.E.2d 407", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "415", "parenthetical": "possibility that colliding with a building will disrupt a gas line or create a fire hazard is not so inherently farfetched as to merit the label \"freakish\" or \"fantastic\"" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596906 ], "year": 1997, "pin_cites": [ { "page": "44", "parenthetical": "possibility that colliding with a building will disrupt a gas line or create a fire hazard is not so inherently farfetched as to merit the label \"freakish\" or \"fantastic\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0032-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1209" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "year": 1997, "pin_cites": [ { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "736 N.E.2d 1074", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1082", "parenthetical": "some evidence of sole proximate cause sufficient to support instruction" } ], "opinion_index": 0 }, { "cite": "192 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453262 ], "year": 2000, "pin_cites": [ { "page": "516", "parenthetical": "some evidence of sole proximate cause sufficient to support instruction" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0505-01" ] }, { "cite": "706 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "454-55", "parenthetical": "reversing ruling there was no reasonably certain evidence to support future lost earnings instruction; some evidence all that is required" } ], "opinion_index": 0 }, { "cite": "185 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121957 ], "year": 1998, "pin_cites": [ { "page": "405-06", "parenthetical": "reversing ruling there was no reasonably certain evidence to support future lost earnings instruction; some evidence all that is required" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0380-01" ] }, { "cite": "605 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "502-03" }, { "page": "502" }, { "page": "502", "parenthetical": "question of duty also a policy decision" }, { "page": "503" } ], "opinion_index": 0 }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "455" }, { "page": "455" }, { "page": "455" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0432-01" ] }, { "cite": "485 N.E.2d 855", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "863", "parenthetical": "misrepresentation was an attempt to induce the purchaser to buy the house for a value that did not reflect the existence of the defect" } ], "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498776 ], "year": 1985, "pin_cites": [ { "page": "180-81", "parenthetical": "misrepresentation was an attempt to induce the purchaser to buy the house for a value that did not reflect the existence of the defect" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0172-01" ] }, { "cite": "316 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1974, "pin_cites": [ { "page": "72" }, { "page": "70" }, { "page": "68-70" }, { "page": "72-74" }, { "page": "69-74" } ], "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 925", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5376678 ], "weight": 5, "year": 1974, "pin_cites": [ { "page": "954" }, { "page": "951" }, { "page": "949-51" }, { "page": "954-57" }, { "page": "950-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0925-01" ] }, { "cite": "762 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "11" }, { "page": "11" }, { "page": "12" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281414 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "654" }, { "page": "654" }, { "page": "655" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0642-01" ] }, { "cite": "675 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "593" }, { "page": "593" }, { "page": "595" } ], "opinion_index": 0 }, { "cite": "174 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223623 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "501" }, { "page": "501" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0482-01" ] }, { "cite": "757 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "491" }, { "page": "491" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259023 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "292" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0278-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1209" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "695 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "860" }, { "page": "861" }, { "page": "862" } ], "opinion_index": 1 }, { "cite": "182 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864532 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "372" }, { "page": "375" }, { "page": "376" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/182/0359-01" ] }, { "cite": "605 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "502" }, { "page": "503" } ], "opinion_index": 1 }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/152/0432-01" ] } ], "analysis": { "cardinality": 1127, "char_count": 27289, "ocr_confidence": 0.773, "pagerank": { "raw": 6.986333042656521e-08, "percentile": 0.4225122777428337 }, "sha256": "f90d673aca13b23e5bf3ca5f6a264a8c54bae64539c54aa0b7d23be2588a7636", "simhash": "1:9b7dfc3caee5c5cf", "word_count": 4429 }, "last_updated": "2023-07-14T17:11:21.532369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LISA M. SHANNON et al., Plaintiffs-Appellants, v. BOISE CASCADE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nThis action is brought under the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1983, ch. 121V2, pars. 261 through 272 (now see 815 ILCS 505/1 through 12 (West 2000))). The complaint seeks a determination that the action be maintained as a class action. 735 ILCS 5/2 \u2014 802(a) (West 2000). The circuit court entered summary judgment in favor of defendant, Boise Cascade. We reverse and remand.\nI. BACKGROUND\nPlaintiffs, Lisa M. Shannon, Timothy J. Shannon, Brian K. Con-nelly, Susan West, Shapour Arami, Bruce Fischer, and James Torongo, own homes in Du Page County, which were built in 1983 or 1984. Plaintiffs Fischer and Torongo are the original owners of their homes, purchasing them in 1984. Most of the other plaintiffs purchased their homes in 1997, one in 1991. Boise Cascade manufactured an exterior composite wood siding product that was installed on the homes when they were built. Boise Cascade began manufacturing its composite siding about 1960 but has not manufactured, sold, or marketed the siding since 1984.\nPlaintiffs\u2019 second-amended complaint, with amended count I, alleges a violation of section 2 of the Act (Ill. Rev. Stat. 1983, ch. 121V2, par. 262 (now see 815 ILCS 505/2 (West 2000))). The complaint alleges that Boise Cascade\u2019s composite siding was subject to rotting, buckling, warping, wick moisture, and general failure. The complaint alleges that Boise Cascade deceptively advertised the composite siding, falsely representing that the siding was \u201cof inherent good quality,\u201d \u201cdurable,\u201d \u201clow maintenance,\u201d and \u201clooked and performed comparably to natural wood siding.\u201d The complaint also alleges that Boise Cascade fraudulently and deceptively failed to disclose that its siding \u201cperformed poorly in the field,\u201d with a \u201chigh rate of failure,\u201d was sensitive to moisture, and required \u201chighly particularized maintenance.\u201d\nThe circuit court entered summary judgment for Boise Cascade, noting that while further discovery may be necessary to determine whether Boise Cascade\u2019s marketing activity was false, misleading, or otherwise deceptive, the court could address the factual premise of the motion that \u201cseven of the eight plaintiffs neither saw, heard, or otherwise were aware of the defendant\u2019s advertising,\u201d which was strictly a legal issue. Although plaintiff Fischer bought his home new, he did not know that his siding was manufactured by Boise Cascade. Plaintiff Torongo knew that the siding had been manufactured by Boise Cascade, but there was no evidence he was aware of any representations by Boise Cascade. The court held that Torongo and Fischer could not rely on the representations of the builder-seller of their homes, as there was no evidence the builder-seller was an agent of Boise Cascade. The circuit court did refuse to enter summary judgment against plaintiff Jack B. Babel, who bought his home new in 1984, knew the siding was manufactured by Boise Cascade, and had read some of Boise Cascade\u2019s publications prior to making his purchase. The circuit court rejected Boise Cascade\u2019s argument that its representations were only nonactionable \u201cpuffing.\u201d\nThe circuit court made a finding under Supreme Court Rule 304(a) that there is no just reason to delay enforcement or appeal. 155 Ill. 2d R. 304(a). Plaintiffs appeal, arguing that the circuit court improperly analyzed the elements of a cause of action under the Act, in particular the concepts of \u201cmateriality\u201d and \u201cproximate causation.\u201d For purposes of this appeal we assume, as did the circuit court, that Boise Cascade\u2019s composite siding was defective, that Boise Cascade\u2019s representations were deceptive, and that Boise Cascade concealed facts with the intent that others rely thereon.\nII. ANALYSIS\nAlthough the use of summary judgment aids in the expeditious disposition of a lawsuit, \u201c[sjummary judgment is a drastic measure and should only be granted if the movant\u2019s right to judgment is clear and free from doubt.\u201d Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992). A motion for summary judgment is properly granted, therefore, only when the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2000). In considering a summary judgment motion, the court has a duty to construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292, 757 N.E.2d 481, 491 (2001). In appeals from orders granting summary judgment, our review is de novo. Travelers, 197 Ill. 2d at 292, 757 N.E.2d at 491.\nA. The Consumer Fraud and Deceptive Business Practices Act\nSection 2 of the Act declares \u201c[ujnfair methods of competition\u201d and \u201cunfair or deceptive acts or practices\u201d to be \u201cunlawful whether any person has in fact been misled, deceived[,] or damaged thereby.\u201d Ill. Rev. Stat. 1983, ch. 1217a, par. 262 (now see 815 ILCS 505/2 (West 2000)). Among those methods and practices, two are specifically described: (1) \u201cthe use or employment of any deception, fraud, false pretense, false promise, [or] misrepresentation,\u201d and (2) \u201cthe concealment, suppression^] or omission of any material fact, with intent that others rely upon the concealment, suppression^] or omission of such material fact.\u201d Ill. Rev. Stat. 1983, ch. 1217a, par. 262 (now see 815 ILCS 505/2 (West 2000)).\n\u201cAny person who suffers actual damage as a result of a violation of *** this Act committed by any other person may bring an action against such person.\u201d Ill. Rev. Stat. 1983, ch. 1217a, par. 270a(a) (now see 815 ILCS 505/10a(a) (West 2000)). Although the Act does not use the words \u201cproximate cause,\u201d a tort concept, the language of section 10a(a) has been held to give rise to a requirement that plaintiff show that the consumer fraud proximately caused plaintiffs injury. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501, 675 N.E.2d 584, 593 (1996).\nB. Privity\nThe circuit court construed the Act to require privity, some sort of direct contact between the plaintiffs and the representations made by Boise Cascade. The circuit court construed the Act too narrowly. The Act created a new cause of action that affords consumers broad protection by prohibiting any deception or false promise. Miller v. William Chevrolet/Geo, Inc., 326 Ill. App. 3d 642, 654, 762 N.E.2d 1, 11 (2001). The Act eliminated many of the elements of common-law fraud in this new cause of action. Miller, 326 Ill. App. 3d at 654, 762 N.E.2d at 11. For example, the plaintiffs reliance on the defendant\u2019s deception is not an element of a consumer fraud claim. Miller, 326 Ill. App. 3d at 655, 762 N.E.2d at 12. Nor need the defendant have intended to deceive the plaintiff; innocent misrepresentations or material omissions intended to induce the plaintiffs reliance are actionable. Miller, 326 Ill. App. 3d at 655, 762 N.E.2d at 12. There is a two-step process under the Act. In the first step it is determined whether the conduct of the defendant is unlawful, without any consideration given to such matters as whether the plaintiff relied thereon, whether the plaintiff could have discovered the truth through reasonable inquiry, or whether the reliance was justified. In the second step it is determined whether plaintiff suffered actual damage as a result of a violation of the Act. The focus of the Act is upon the deceptive conduct of the defendant, not upon the conduct of the plaintiff. Ill. Rev. Stat. 1983, ch. 121V2, par. 262 (now see 815 ILCS 505/2 (West 2000)) (\u201cunlawful whether any person has in fact been misled, deceived[,] or damaged thereby\u201d).\nEven common-law fraud did not require privity between the plaintiff and defendant, only that the statement by the defendant be made with the intention that it reach the plaintiff and influence his action and that it does reach him and that he does rely upon it, to his damage. St. Joseph Hospital v. Corbetta Construction Co., 21 Ill. App. 3d 925, 954, 316 N.E.2d 51, 72 (1974). Nor does the Act impose any privity requirement. Where a material fact is concealed, it is sufficient that there be an \u201cintent that others rely upon the concealment.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. 121\u00bd, par. 262 (now see 815 ILCS 505/2 (West 2000)). It is not required that any particular person rely, or be intended to rely, on the concealment. Some of the cases do list as an element \u201cdefendant\u2019s intent that plaintiff rely on the deception.\u201d (Emphasis added.) See, e.g., Connick, 174 Ill. 2d at 501, 675 N.E.2d at 593. The cases which make that statement, however, all seem to be cases in which the deception was made directly to plaintiff. Certainly Boise Cascade did not need to know plaintiffs\u2019 identities when it made its deceptive statements. A more accurate statement of the element in the present case would appear to be: \u201cdefendant\u2019s intent that someone rely on the deception.\u201d\nThe circuit court entered summary judgment against plaintiffs Fischer and Torongo, who bought their homes new, concluding that they were not aware of any representations by Boise Cascade. The builder-seller of the homes was probably aware of the representations, but according to the circuit court that did not help plaintiffs because there was no evidence the builder-seller was an agent of Boise Cascade. That analysis is mistaken. Whether or not the builder-seller was plaintiffs\u2019 agent, Boise Cascade\u2019s representations reached plaintiffs through the builder-seller, and plaintiffs Fischer and Torongo relied upon those representations, to their damage. In the St. Joseph Hospital case, General Electric made representations in a letter to the contractor that its Textolite plastic laminate wall paneling did not carry a flame spread rating of any kind. St. Joseph Hospital, 21 Ill. App. 3d at 951, 316 N.E.2d at 70. The paneling had been tested by Underwriters Laboratories, which determined that the rating would be 255 (applicable codes required a rating no higher than 15). Underwriters Laboratories refused to rate the paneling because it believed no product testing out over 200 should be given a rating. St. Joseph Hospital, 21 Ill. App. 3d at 949-51, 316 N.E.2d at 68-70. The court concluded that General Electric was guilty of fraud, and even though its representations were made to the contractor, and not directly to the hospital, the verdict in favor of the hospital was affirmed. St. Joseph Hospital, 21 Ill. App. 3d at 954-57, 316 N.E.2d at 72-74.\nThe circuit court\u2019s insistence on privity is apparent in its analysis of what constitutes a \u201cmaterial fact.\u201d The Act provides that the \u201cconcealment *** of any material fact, with intent that others rely upon the concealment,\u201d is unlawful. Ill. Rev. Stat. 1983, ch. 121\u00bd, par. 262 (now see 815 ILCS 505/2 (West 2000)). Not every concealment of a fact is unlawful. A manufacturer is generally under no obligation, for example, to disclose the day the product was made, the rate of pay of its workers, or what its product tastes like. The concealed fact must be \u201cmaterial.\u201d \u201cA material fact exists where a buyer would have acted differently knowing the information, or if it concerned the type of information upon which a buyer would be expected to rely in making a decision whether to purchase.\u201d Connick, 174 Ill. 2d at 505, 675 N.E.2d at 595. The circuit court, however, did not focus on a hypothetical buyer in determining materiality. Rather, it focused on the plaintiffs in this case, six of whom were unaware the homes had Boise Cascade siding at the time they purchased them: \u201cIt follows logically that none of those six plaintiffs would have acted differently had they been aware of the alleged undesirable characteristics, false representations!!,] and non[ ]disclosures.\u201d The circuit court\u2019s mistaken focus on the particular plaintiffs in this case misreads the Act. The Act and the cases refer to \u201ca buyer,\u201d to \u201cany buyer,\u201d and to \u201cothers.\u201d In determining whether a practice is unlawful there are no specific references to the person harmed.\nC. Proximate Cause\nThe circuit court determined that plaintiffs were relying on a marketing theory of proximate cause and that to prevail plaintiffs must establish that \u201cwithout the allegedly deceptive advertising, the defendant would not have been in the siding business, because there would have been no market for its siding.\u201d Cf. Munjal v. Baird & Warner, Inc., 138 Ill. App. 3d 172, 180-81, 485 N.E.2d 855, 863 (1985) (misrepresentation was an attempt to induce the purchaser to buy the house for a value that did not reflect the existence of the defect). The court concluded that plaintiffs could not prove such a case without plunging \u201cthe trier of fact into the murky depths of speculation.\u201d The court stated that while plaintiffs need not prove reliance to recover under the Act, \u201cthey must prove that someone saw the specific advertising in question with the result that the plaintiffs were directly impacted, i.e., made a decision to their detriment.\u201d The court concluded that its observations concerning materiality were applicable on the issue of proximate cause, that most of the plaintiffs were unaware that Boise Cascade had manufactured the siding on their homes when they made their purchase:\n\u201cThus, it seems that no representation or non[ ]disclosure concerning Boise Cascade siding could have affected their purchasing decision. The conclusion seems inescapable, therefore, that nothing the defendant said, wrote, advertised!!,] or refrained from disclosing could proximately cause the damages six of the plaintiffs claim they have suffered.\u201d\nThe circuit court\u2019s conclusion as a matter of law that causation was too remote, that there was no proximate causation, is erroneous. Where reasonable minds could differ whether the defendant\u2019s conduct was a substantial factor in bringing about the injury, the matter is for the jury to decide. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455, 605 N.E.2d 493, 502-03 (1992). Proximate cause must be proved by a reasonable certainty, but that is true of every element found by a jury. If there is some evidence indicating proximate cause, the jury verdict cannot be overturned. See LaFever v. Kemlite Co., 185 Ill. 2d 380, 405-06, 706 N.E.2d 441, 454-55 (1998) (reversing ruling there was no reasonably certain evidence to support future lost earnings instruction; some evidence all that is required); McDonnell v. McPartlin, 192 Ill. 2d 505, 516, 736 N.E.2d 1074, 1082 (2000) (some evidence of sole proximate cause sufficient to support instruction). The fact that Boise Cascade is separated from some plaintiffs by the builder-seller or by intervening purchasers does not necessarily destroy proximate cause. Proximate cause means any cause which, in natural or probable sequence, produced the injury complained of. It need not be \u201c \u2018the only cause, nor the last or nearest cause.\u2019 \u201d Holton v. Memorial Hospital, 176 Ill. 2d 95, 110-11, 679 N.E.2d 1202, 1209 (1997), quoting Illinois Pattern Jury Instructions, Civil, No. 15.01 (1995 ed.).\nThe term \u201cproximate cause\u201d describes two distinct requirements: cause in fact and legal cause. Lee, 152 Ill. 2d at 455, 605 N.E.2d at 502. Generally it is not enough to show cause in fact, or \u201cbut for\u201d causation. A plaintiff may not recover against his mother, although but for his birth he would not have suffered all the problems he encountered in life. There must also be \u201clegal cause,\u201d a policy decision that limits how far a defendant\u2019s legal responsibility can be extended for conduct that did, in fact, cause plaintiffs harm. Lee, 152 Ill. 2d at 455, 605 N.E.2d at 502 (question of duty also a policy decision). Legal cause is essentially a question of foreseeability; a defendant should not be found liable for a highly extraordinary result. Lee, 152 Ill. 2d at 456, 605 N.E.2d at 503. In cases arising under the Act, it appears that these policy decisions have been made by the Act, and damages are proximately caused if they are in fact caused by a method or practice which is unlawful under the Act, that is, if the damages would not have occurred but for the violation of the Act.\nWhen a manufacturer is able to incorporate its defective product into a building by deception and the concealment of material facts, it is foreseeable that the purchaser or some subsequent purchaser will suffer damages when the defect is discovered. The proposition that use of defective materials, as a result of misrepresentation, will cause damages when the defects are discovered is not a highly extraordinary one. Using the circuit court\u2019s terms, was it possible or foreseeable that Boise Cascade\u2019s representations, of which plaintiffs were unaware, \u201ccould have affected their purchasing decision\u201d? Deceptive advertising can affect a home buyer who is unaware of it, if it is relied upon by those with whom he deals, such as architects or builders. See St. Joseph Hospital, 21 Ill. App. 3d at 950-57, 316 N.E.2d at 69-74. If such a buyer has a cause of action when he discovers the misrepresentation, why should a subsequent buyer, who is the one to discover the misrepresentation, not have a cause of action?\nBoise Cascade knew there would be subsequent buyers. Boise Cascade disseminated its allegedly deceptive advertising for the purpose that it would be relied upon. It makes no difference whether the deceptive advertising was read by architects, builders, or new home buyers, or whether they saw and liked homes built by others who had read the advertising. Proximate cause need not be the only cause, nor the last or nearest cause. The trial court\u2019s view of proximate cause is overly restrictive. See Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill. App. 3d 32, 44, 680 N.E.2d 407, 415 (1997) (possibility that colliding with a building will disrupt a gas line or create a fire hazard is not so inherently farfetched as to merit the label \u201cfreakish\u201d or \u201cfantastic\u201d).\nD. Other Arguments\nThe argument is made that plaintiffs\u2019 \u201cmarketing theory\u201d would result in infinite liability for the manufacturer for any injury associated with the product. It is not correct that every purchaser of these homes from this time forward will have a cause of action against Boise Cascade. Only a purchaser who paid full price for the home, unaware of the defect, and then was unable to resell the home for its full price would have a cause of action. A purchaser who buys the home at a discount because of known problems with the siding has not been damaged.\nIn some marketing transaction cases, plaintiffs may be far removed from the deception or concealment. For example, in stock transactions, private representations may be made to only a few individuals, causing them to purchase the stock and driving up the price. Other individuals with no access to the representations may also purchase the stock at the inflated price (not necessarily from the individuals to whom the representations were made) and attempt to recover for the representations. See Oliveira v. Amoco Oil Co., 311 Ill. App. 3d 886, 893-94, 726 N.E.2d 51, 58 (2000), appeal pending, Nos. 89497, 89511 cons. The present case involves a much tighter transaction: allegations of a physical defect in a product which has been transferred to plaintiffs. Even where privity of contract was required, privity was held to accompany a valid assignment of the contract. Collins Co. v. Carboline Co., 125 Ill. 2d 498, 511, 532 N.E.2d 834, 839 (1988). Boise Cascade\u2019s representations apparently were widely distributed, and a jury could reasonably conclude that plaintiffs would not have suffered damages if the representations had not been made.\nWe further reject the circuit court\u2019s contention that plaintiffs cause of action is inconsistent with the Uniform Commercial Code (810 ILCS 5/2 \u2014 316(2), (3) (West 2000)), which allows the disclaimer of an implied warranty of merchantability. There is nothing wrong with a manufacturer marketing Grade D siding. A problem only arises where the manufacturer markets that siding as Grade A siding. The existence of defects unaccompanied by misrepresentations does not amount to fraud. Naiditch v. Shaf Home Builders, Inc., 160 Ill. App. 3d 245, 261, 512 N.E.2d 1027, 1036 (1987); Heider v. Leewards Creative Crafts, Inc., 245 Ill. App. 3d 258, 270-71, 613 N.E.2d 805, 815 (1993) (misrepresentations lacking in Naiditch-, evidence merely established house was defective).\nIII. CONCLUSION\nThe focus of the Act is upon the conduct of the defendants, not upon the conduct of the plaintiffs. Whether defendants are guilty of unlawful practices under the Act must be determined without considering whether any person has in fact been misled, deceived, or damaged thereby. If defendants are guilty of unlawful practices, the question becomes whether plaintiffs have suffered actual damage as a result, normally a question for the jury. We cannot say that a reasonable jury could never conclude that plaintiffs sustained damages or that those damages were a natural and probable consequence of Boise Cascade\u2019s unlawful conduct.\nWe reverse the trial court\u2019s order entering summary judgment and remand for further proceedings.\nReversed and remanded.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "JUSTICE TURNER,\ndissenting:\nI 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.\nHere, in the amended count I based on the Act, plaintiffs asserted the following:\n\u201cDefendant\u2019s 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.\u201d\nThe trial court concluded the relationship between Boise Cascade\u2019s 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.\nPlaintiffs\u2019 theory essentially eviscerates the proximate-cause requirement. Under plaintiffs\u2019 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\u2019s advertising created a market for the product. Such a theory results in infinite liability of the manufacturer for any injury associated with the product\u2019s 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.\nFurther, 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\u2019s 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\u2019s 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.\nAccordingly, the causation theory set forth by plaintiffs is too remote to establish proximate causation.\nEven under the majority\u2019s proximate-cause theory, plaintiffs have not alleged proximate cause. While the focus of the Act is on the defendant\u2019s 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\u2019s alleged violations of the Act were not the proximate cause of the plaintiffs injuries because he was not deceived by the defendant\u2019s actions. Zekman, 182 Ill. 2d at 376, 695 N.E.2d at 862.\nWhile 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\u2019 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\u2019 homes.\nFor 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\u2019s siding is now performing.\nLike 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.\nAdditionally, the majority in reversing the trial court\u2019s grant of summary judgment notes \u201c[a] purchaser who buys the home at a discount because of known problems with the siding has not been damaged.\u201d 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.\nFor the reasons stated, I would affirm the trial court\u2019s 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.", "type": "dissent", "author": "JUSTICE TURNER," } ], "attorneys": [ "Nancy J. Glidden, Joseph W Phebus, Steven D. Wright, and Gary D. For-rester, all of Phebus & Winkelmann, of Urbana, for appellants.", "John E. Thies and Lara L. Quivey, both of Webber & Thies, P.C., of Urbana, and Steve Y. Hoh, of Perkins Coie, L.L.E, of Seattle, Washington, for appellee." ], "corrections": "", "head_matter": "LISA M. SHANNON et al., Plaintiffs-Appellants, v. BOISE CASCADE, Defendant-Appellee.\nFourth District\nNo. 4\u201401\u20140143\nOpinion filed February 20, 2002.\nModified on denial of rehearing April 16, 2002.\nTURNER, J., dissenting.\nNancy J. Glidden, Joseph W Phebus, Steven D. Wright, and Gary D. For-rester, all of Phebus & Winkelmann, of Urbana, for appellants.\nJohn E. Thies and Lara L. Quivey, both of Webber & Thies, P.C., of Urbana, and Steve Y. Hoh, of Perkins Coie, L.L.E, of Seattle, Washington, for appellee." }, "file_name": "0621-01", "first_page_order": 639, "last_page_order": 651 }