A court may enter a judgment n.o.v. only when, viewing the evidence in a light most favorable to the nonmoving party, it so overwhelmingly favors the movant that a contrary verdict could not stand. Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696, 702, 749 N.E.2d 16, 22 (2001), citing Pedrick v. Peoria Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). A defendant's motion for judgment n.o.v. presents "'a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any necessary element of the plaintiff['s] case.'"

To establish that a product was defective when it left the manufacturer's control, where no specific defect in the product is alleged, the plaintiff is required to prove the product was not used in an unreasonable manner and that no reasonable secondary causes of the defect existed. Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696, 704 (2001). A plaintiff may prove her case inferentially by establishing that the product malfunctioned and by excluding other reasonable causes of the malfunction.

On appeal, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment. Specifically, plaintiff argues that the evidence established that defendant breached its limited written warranty under the Magnuson-Moss Act in that the written warranty covered the engine and transmission for 120 months or 120,000 miles; given the extensive repair history and amount of time the vehicle was out of service, a question of fact exists as to whether defendant breached its warranty; a question of fact exists regarding "defendant's purported abuse defense"; defendant's witness lacked credibility; defendant failed to file a proper affidavit in support of its motion; and Norman v. Ford Motor Co., 160 Ill. App. 3d 1037 (1987), and Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696 (2001), are inapposite. Additionally, plaintiff contends that defendant breached its implied warranty of merchantability under the Magnuson-Moss Act. Before we reach the merits of the appeal, we must first address defendant's contention that it should be dismissed due to plaintiffs "complete disregard for the appellate court [ sic] procedures."

Whether an implied warranty has been breached is a question of fact. Check, 342 Ill. App. 3d at 150. Defendant, relying on Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696 (2001), contends that the Dakota was fit for the ordinary purpose of driving because plaintiff drove it daily for more than three years after purchase and traded it in for its fair market value. In Alvarez, the court held that a "` prima facie case that a product was defective and that the defect existed when it left the manufacturer's control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed "to perform in the manner reasonably to be expected in light of its nature and intended function.

As for Plaintiffs' implied warranty of merchantability claims, the Non-Manifestation Classes and California Manifestation Class will, in general, have to show that the product's failure to meet a minimum quality standard caused harm to the consumer. See, e.g., Castagna v. Newmar Corp., No. 3:15-CV-249, 2018 WL 4335130, at *5 (N.D. Ind. Sept. 11, 2018) (Indiana law); Hawkins v. Medtronic, Inc., 909 F. Supp. 2d 901, 910 (S.D. Ohio 2012) (Ohio law); Gertz v. Toyota Motor Corp., No. CV 10-1089, 2011 WL 3681647, at *4 (C.D. Cal. Aug. 22, 2011) (California law); Alvarez v. Am. Isuzu Motors, 749 N.E.2d 16, 22-23 (Ill. App. Ct. 2001) (Illinois law). For the California Manifestation Class, this standard can be met by showing that the product failed to perform as expected.

In order to prove a breach of warranty, a plaintiff must show that the product at issue was defective and that the defect existed when the product left defendant's control. Alvarez v. Am. Isuzu Motors, 749 N.E.2d 16, 22 (Ill. App. Ct. 2001). Thus, the cornerstone of all of Horne's claims against Electric Eel is the existence of a defect in the drain cleaner at the time it left Electric Eel's control.

Because the question of how the paint debonded is beyond the knowledge that an average layperson could be expected to possess, competent proof on this issue requires expert testimony. See, e.g., id.; Alvarez v. Am. Isuzu Motors, 749 N.E.2d 16, 23-24 (Ill.App.Ct. 2001). See also Bluestein v. Upjohn Co., 430 N.E.2d 580, 586 (Ill.App.Ct. 1981) (causation is essential element of breach of warranty theory); Van Winkle v. Firestone Tire Rubber Co., 253 N.E.2d 588, 590 (Ill.App.Ct. 1969) (offer of blown-out tire into evidence alone with no expert testimony was not sufficient to establish proof of defect in wall of tire which caused it to blow out); Bethards v. Bard Access Sys., Inc., No. 94 C 1522, 1995 WL 75356, at *6 (N.D. Ill. Feb. 22, 1995) (uninjured implantees have no standing to sue due to lack of proof of proximate causation which is essential element of both strict liability and breach of implied warranty); Harris v. GMC, 34 Fed. Appx. 487, 490 (7th Cir.), reh'g den., 2002 U.S. App. LEXIS 12553 (7th Cir. 2002) (plaintiff failed to provide evidence that airbag system was defective, or, if so, that defective airbag caused her injuries).

Writing for a unanimous Court, Judge Eldridge stated: Other cases that have also come to this conclusion include: Spain v. Brown Williamson Tobacco Corp., 872 So.2d 101, 111 (Ala. 2003); Evans v. Evans, 153 N.C.App. 54, 569 S.E.2d 303, 307 (2002); DeWitt v. Eveready Battery Co., Inc., 355 N.C. 672, 565 S.E.2d 140, 151 (2002); Alvarez v. American Isuzu Motors, 321 Ill.App.3d 696, 255 Ill.Dec. 236, 749 N.E.2d 16, 23 (2001); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444-45 (Tex. 1989). The plaintiffs in this case, by their own testimony, presented sufficient evidence to support the judgments in their favor based on the theory of strict liability.

We next consider the viability of the plaintiffs' claims for breach of implied warranty (counts III and IV of the amended complaint), in light of the Rule 216 admissions. A product breaches the implied warranty of merchantability if it is not "`fit for the ordinary purposes for which such goods are used.' [Citation.]" Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696, 703 (2001). With regard to motor vehicles, "`[f]itness for the ordinary purpose of driving implies that the vehicle should be in a safe condition and substantially free of defects.' [Citation.]" Check v. Clifford Chrysler-Plymouth of Buffalo Grove, Inc., 342 Ill. App. 3d 150, 159 (2003).

"In order to prove a breach of an implied warranty of merchantability, plaintiff must prove that [the car] was defective and that the defect(s) existed when the car left defendant's control." Alvarez v. American Isuzu Motors, 321 Ill. App. 3d 696, 702-03 (2001). •11 "In order for a plaintiff to file a claim for economic damages under the UCC for the breach of an implied warranty, he or she must be in vertical privity of contract with the seller."