Burkhart v. Wolf Motors of Naperville, Inc.
61 N.E.3d 1155
Ill. App. Ct.2016Background
- Carla Burkhart saw an online advertisement for a 2011 Toyota 4Runner listed at $19,991 and contacted Wolf Motors to buy it.
- After a test drive, Burkhart offered to purchase at the advertised $19,991; dealership staff said the correct price was $36,991 and that $19,991 was a clerical error.
- Dealer personnel explained the error arose from mis-entry into Dealer Daily by a trainee; the incorrect price remained online for several days before correction.
- Burkhart refused the dealer’s later offer to sell “at cost” (~$35,000) and sued for breach of contract and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.
- The trial court granted summary judgment for Wolf Motors, finding no meeting of the minds (no contract) and no intent to deceive (no consumer fraud). Burkhart appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the erroneous advertisement constituted an offer creating a binding contract | Burkhart contends the ad (plus her acceptance) formed a contract for $19,991 | Wolf Motors argues an advertisement is an invitation to deal; the ad was a clerical error and not an offer | Court held no contract: the ad was not an offer and there was no mutual assent on price |
| Whether advertising a price the seller did not intend to honor violates the Illinois Consumer Fraud Act per se | Burkhart argues the dealer committed consumer fraud by advertising a price it did not intend to sell at | Wolf Motors contends there was no deceptive intent to induce reliance and Burkhart suffered no actual damages | Court held no recoverable consumer-fraud claim: plaintiff failed to prove actual damages and no evidence of intent to deceive |
| Whether negligent/innocent misrepresentations under the Act relieve plaintiff of proving damages | Burkhart asserts any deceptive ad is actionable regardless of damages | Wolf Motors notes even innocent misrepresentations require proof of damages | Court held plaintiff still must prove actual damages; damages are not presumed |
| Whether the facts present a ‘bait-and-switch’ actionable under the Act | Burkhart likened the conduct to bait-and-switch tactics | Wolf Motors argues it did not attempt to switch to different merchandise or induce purchase of other goods | Court held no bait-and-switch: dealer did not induce purchase of a different vehicle and no damages shown |
Key Cases Cited
- O’Keefe v. Lee Calon Imports, Inc., 128 Ill. App. 2d 410 (1970) (newspaper advertisement with erroneous price is generally an invitation to deal, not an offer)
- The Delcon Group, Inc. v. Northern Trust Corp., 187 Ill. App. 3d 635 (1989) (no mutual assent when essential terms are not agreed)
- Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403 (2002) (consumer-fraud claims may be based on unfair as well as deceptive practices; factors for unfairness)
- Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100 (2005) (plaintiff must show actual deception to establish proximate causation under the Act)
- White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278 (2006) (Act provides remedies for economic injuries; actual damages required)
- Mulligan v. QVC, Inc., 382 Ill. App. 3d 620 (2008) (private plaintiff must allege and prove actual damages under the Act)
- Montgomery Ward & Co. v. Fed. Trade Comm’n, 379 F.2d 666 (7th Cir. 1967) (discusses deceptive advertising practices; does not substitute for proof of customer damages)