In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3474

DUNCAN PLACE OWNERS ASSOCIATION,

on its own behalf and as assignee 

of the Association Members,

Plaintiff-Appellant,

v.

DANZE, INC., f/k/a GLOBE UNION 

AMERICA CORPORATION, and

GLOBE UNION GROUP, INC.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 15 C 01662 — Edmond E. Chang, Judge.

____________________

ARGUED APRIL 4, 2018 — DECIDED JUNE 19, 2019

____________________

Before WOOD, Chief Judge, and BAUER and SYKES, Circuit 

Judges.

SYKES, Circuit Judge. In 2009 faucets manufactured by 

Illinois-based Danze, Inc., were installed in all 63 units of a 

new condominium building in Seattle, Washington. In the 
2 No. 17-3474

years that followed, some of the faucets failed, causing

damage to the building and replacement costs. The condominium association, Duncan Place Owners Association, filed 

a proposed class-action suit against Danze raising multiple 

claims for relief, including breach of express warranty, unjust 

enrichment, negligence, and strict product liability. The 

district judge dismissed all but one of the claims and later 

entered summary judgment on the sole remaining claim.

Duncan Place appeals, seeking reinstatement of the 

claims that were dismissed on the pleadings. We affirm, with 

one narrow exception. The Washington Product Liability Act 

(“WPLA” or “the Act”) subsumes all common-law productliability claims, so we construe Duncan Place’s negligence 

and strict-liability claims as one cause of action under the 

Act. In a suit for damages caused by a defective product, 

Washington’s “independent duty doctrine” (formerly known 

as the “economic loss doctrine”) generally bars recovery in 

tort for direct and consequential economic losses stemming 

from the product’s failure—that is, damages associated with 

the “injury” to the product itself. But the doctrine does not 

bar recovery for damage to other property caused by the 

defective product. See Eastwood v. Horse Harbor Found., Inc., 

241 P.3d 1256, 1265 (Wash. 2010) (en banc). Duncan Place

alleges in general terms that the defective faucets caused 

damage to other condominium property. To that limited 

extent, the WPLA claim is not blocked by the independentduty doctrine and should have been allowed to proceed.

Duncan Place’s arguments for reinstatement of its warranty and unjust-enrichment claims are new on appeal. 

Arguments not raised in the district court are waived, so we
No. 17-3474 3

affirm the dismissal of the warranty and unjust-enrichment 

claims.

I. Background

We take the following factual allegations from Duncan

Place’s second amended complaint, accepting them as true 

for present purposes. When the Duncan Place condominium 

complex was built in 2009, the developers installed Danze 

faucets in the bathrooms of each of the 63 units. The water 

hoses in Danze’s faucets are made from an inferior low

nickel stainless-steel alloy that makes them vulnerable to 

corrosion and cracking when put to normal use. As a result 

several of the faucets failed causing “extensive property 

damage” and replacement costs.

Danze’s “limited lifetime warranty” guarantees the quality of its faucets and promises to replace any parts that prove 

defective. Nonetheless, Danze refused to repair or replace 

the faucets. 

The Duncan Place Owners Association filed this lawsuit

in federal court in the Northern District of Illinois on behalf

of itself, the condominium’s 63 unit owners, and a proposed 

nationwide class of original consumer end-users of Danze

faucets with a steel-braided supply hose. The suit asserted

claims under Washington law, including breach of express 

warranty, unjust enrichment, negligence, and strict product 

liability, as well as other state-law claims that have since 

dropped out of the case. 

Danze moved to dismiss on the ground that Duncan 

Place lacked associational standing to assert the rights of the 

unit owners. The judge agreed and dismissed the claims 

brought on their behalf. Duncan Place then amended its 
4 No. 17-3474

complaint to reflect that it had obtained assignments from 41

of the 63 unit owners, eliminating the need for associational 

standing to support its assertion of their rights.

Danze again moved to dismiss. The judge granted the 

motion for the most part. He held that Washington’s 

independent-duty doctrine barred the claims of negligence 

and strict product liability and dismissed them. The judge 

also dismissed the unjust-enrichment claim because it was 

premised on fraud but did not satisfy the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil 

Procedure.

In the same order, the judge explained that to prevail on 

a claim for breach of an express warranty under Washington 

law, a plaintiff must show that he was aware of the warranty.

Allegations of that sort did not appear in the amended 

complaint, so the judge gave Duncan Place an opportunity 

to investigate whether it had a good-faith basis to allege that

any of the 41 unit owners knew of the warranty. After several months of investigation, Duncan Place was unable to 

make those allegations in good faith with respect to any of 

the unit owners. The judge dismissed the express-warranty

claim brought on the unit owners’ behalf. 

That left only Duncan Place’s own claim for breach of express warranty. The judge eventually entered summary 

judgment for Danze on that claim, setting up this appeal.

II. Discussion

Duncan Place does not challenge the judge’s summaryjudgment ruling. This appeal focuses instead on the claims 

that were dismissed on the pleadings—namely, the claims 

for breach of express warranty, unjust enrichment, negli-
No. 17-3474 5

gence, and product liability. Waiver doctrine precludes our 

consideration of some of Duncan Place’s arguments. For 

what remains, our review of the judge’s dismissal order is de 

novo. Catinella v. County of Cook, 881 F.3d 514, 518 (7th Cir. 

2018).

A. Warranty and Unjust-Enrichment Claims; Waiver

Duncan Place seeks reinstatement of the warranty and 

unjust-enrichment claims brought on behalf of the unit 

owners. Its arguments are new on appeal and thus are 

waived.

Taking the warranty claim first, as we’ve just explained, 

the judge ultimately dismissed this claim because Duncan 

Place could not allege in good faith that any of the unit 

owners were aware of Danze’s warranty at the time of 

purchase. On appeal Duncan Place argues that Washington 

law requires that element if the claim is based on representations contained in advertisements but not if the claim is 

based on a standard written warranty like Danze’s lifetime 

limited warranty.

We don’t need to decide if that is an accurate statement of 

Washington law. Duncan Place never raised this specific 

legal argument in the district court. Normally “a party 

waives the ability to make a specific argument for the first 

time on appeal when the party failed to present that specific 

argument to the district court, even though the issue may 

have been before the district court in more general terms.” 

Homoky v. Ogden, 816 F.3d 448, 455 (7th Cir. 2016) (quoting 

Hannemann v. Door Cty. Sch. Dist., 673 F.3d 746, 754 (7th Cir. 

2012)). There is an exception, however. If the district court 

raises an issue sua sponte and the appellate brief is the first 
6 No. 17-3474

opportunity to discuss it, the waiver rule does not preclude 

review. Prop. & Cas. Ins. Ltd. v. Cent. Nat’l Ins. Co. of Omaha, 

936 F.2d 319, 323 n.7 (7th Cir. 1991). 

The exception to the waiver rule doesn’t open the door 

for review of this argument. It’s true that the judge sua 

sponte raised the issue about the unit holder’s knowledge of 

the warranty. Ruling on the second motion to dismiss, he 

informed the parties that under Washington law the unit 

owners could prevail on the warranty claim only if they 

knew of Danze’s warranty at the time of purchase. The 

amended complaint was silent on this subject, so the judge 

gave Duncan Place an opportunity to file a position statement clarifying the matter. He also warned that the warranty 

claim would be dismissed if Duncan Place’s follow-up

submission revealed that the unit owners did not know 

about the warranty at the time of purchase. 

In the months that followed, Duncan Place filed three position statements on this subject. In the first and second, it 

reported that it had been unable to confirm whether 39 of 

the 41 unit owners were aware of Danze’s warranty. Two

owners initially said they were aware of it but later recanted.

In neither position statement did Duncan Place advance an 

argument that the knowledge requirement did not apply at 

all. 

After the second position statement but before the third,

the judge held a hearing at which Danze announced its 

intention to renew its motion to dismiss based on Duncan 

Place’s inability to allege that the unit owners were aware of 

the warranty. Duncan Place did not take this opportunity to 

argue that Washington law distinguishes between represen-
No. 17-3474 7

tations made in advertisements and representations made in 

a standard written warranty like the one at issue here.

Soon after this hearing, Duncan Place filed its third and 

final position statement. Like the first two, this one did not 

so much as hint that the knowledge requirement was inapplicable because the claim alleged breach of a standard 

written warranty. Rather, Duncan Place asked for more time 

to investigate the extent of the unit owners’ knowledge. At 

yet another hearing a few weeks later, the parties again 

discussed the knowledge issue. As before, Duncan Place

never suggested that knowledge of the warranty was not 

required.

In short, Duncan Place had multiple opportunities to advance the argument it now raises on appeal. At every turn, it 

failed to do so. That’s a waiver. And because Duncan Place 

makes no other argument to support reinstatement of the

warranty claim on behalf of the unit owners, we affirm the 

dismissal of that claim.

Next up is the claim for unjust-enrichment. The judge 

ruled that the unjust-enrichment claim is premised on fraud 

and thus the amended complaint had to satisfy the heightened pleading requirements of Rule 9(b). Because it did not, 

the judge dismissed the claim.

Duncan Place concedes on appeal that its fraud allegations are inadequate under Rule 9(b). It argues instead that 

the judge should have excised the fraud allegations and

evaluated whether the remaining nonfraud allegations 

stated a claim for unjust enrichment under Rule 8(a).

It is not clear to us that there is anything left of the

unjust-enrichment claim if the fraud allegations are disre-
8 No. 17-3474

garded. But we don’t need to sort that out. This argument

too is waived because Duncan Place never raised it in the 

district court.

Duncan Place insists that it preserved the argument by 

contending below that Rule 9(b) does not apply at all. But 

that general contention is insufficient to preserve the specific 

argument Duncan Place advances here. See Homoky, 816 F.3d 

at 455. Duncan Place points out that its response to Danze’s 

second motion to dismiss cited Goodman v. HTC America, Inc., 

No. C11-1793MJP, 2012 WL 2412070, at *9 (W.D. Wash. 

June 26, 2012), which discusses the two-step approach that it 

argues should have been applied here. Goodman indeed 

addresses that subject, but Duncan Place never drew the 

judge’s attention to the relevant part of the case. Instead, it

relied on Goodman for a different purpose. Because Duncan 

Place raises no other argument to support reinstatement of 

the unjust-enrichment claim, we affirm the dismissal of that 

claim.

B. Product-Liability Claim

The judge dismissed Duncan Place’s claims for negligence and strict product liability, reasoning that Washington’s independent-duty doctrine blocks recovery. That’s

partially correct. In a suit for damages caused by a defective 

product, Washington’s independent-duty doctrine generally 

bars recovery in tort for economic losses associated with the 

injury to the product itself, but it does not bar recovery of 

damages for injury to other property caused by the defective 

product.

At the outset we note that the Washington Product

Liability Act “created a single cause of action for product-
No. 17-3474 9

related harms, and supplants previously existing common 

law remedies, including common law actions for negligence.” Wash. State Physicians Ins. Exch. & Ass’n v. Fisons 

Corp., 858 P.2d 1054, 1066 (Wash. 1993) (en banc); see also

WASH. REV. CODE § 7.72.010(4). We therefore construe the 

claims styled as negligence and strict product liability as one 

WPLA claim. 

Under the WPLA, a manufacturer is liable for harm proximately caused by its defective products, WASH. REV. CODE 

§ 7.72.030(1), but not all harms are cognizable under the Act, 

id. § 7.72.010(6). Economic losses arising from defective 

products often trigger remedies in both contract and tort, 

and Washington’s independent-duty doctrine—formerly 

known as the economic-loss doctrine—provides a test for

“distinguish[ing] between claims where a plaintiff is limited 

to contract remedies and cases where recovery in tort may be 

available.” Eastwood, 241 P.3d at 1261–62.

In Eastwood the Washington Supreme Court renamed and 

substantially clarified the contours of the doctrine. The court 

began with the terms of the WPLA, which codified the “tort 

duty to avoid product designs and construction that are 

unreasonably dangerous.”1 Id. at 1265; see WASH. REV. CODE

§ 7.72.030(1)–(2). The Act’s definition of “harm” includes 

“any damages recognized by the courts of this state” but 

specifically excludes “direct or consequential economic loss

under Title 62A,” the state’s version of the Uniform Commercial Code. WASH. REV. CODE § 7.72.010(6). This limiting 

language “leav[es] the law of sales contracts as the sole 

 1 The Act also covers harm caused by inadequate product warnings, see 

WASH. REV. CODE § 7.72.030(1)(b)–(c)), but that’s not at issue here.
10 No. 17-3474

source of a plaintiff’s remedy for economic loss.” Eastwood, 

241 P.3d at 1265.

But this limitation applies to economic losses associated 

with a breach of contractual duties. Under Washington’s

independent-duty doctrine, a product-related injury “is 

remediable in tort if it traces back to the breach of a tort duty 

arising independently of the terms of the contract.” Id. at 

1262. To determine whether a harm can be reasonably traced 

to a tort duty independent of the contract, the Washington 

Supreme Court has adopted a “risk of harm” test that endeavors to “distinguish[] between a harm that implicates 

only the contract and a harm that implicates the independent [tort] duty as well.” Id. at 1265. Relevant factors in the 

risk-of-harm analysis include the nature of the product 

defect, the type of risk at issue, and the manner in which the 

injury arose. Id.

Crucial for our purposes, however, Eastwood explains that

“[w]hen a product defect results in a personal injury or 

damage to other property, the cause can plainly be a breach of 

the tort duty.” Id. (emphasis added). On the other hand,

“[w]hen a product defect results in injury only to the product itself, ... the risk of harm must be carefully analyzed.” Id.

Accordingly, Washington law allows tort recovery for economic loss associated with the product’s failure—i.e., tort 

recovery for “injury” to the product itself—only if the product 

is hazardous and poses an unreasonable risk of harm under 

the “risk of harm” test, implicating the “safety interests of 

the WPLA.” Id.

So the first step in the analysis is to determine whether 

the plaintiff seeks recovery for losses associated with damage to the product itself, on the one hand, or for personal 
No. 17-3474 11

injury or damage to other property, on the other. Id. If the 

injury falls in the first category, then the next step requires 

application of the risk-of-harm test to determine whether the 

injury is nonetheless cognizable in tort under the Act. Id. If it 

falls in the second category, however, the claim is cognizable 

under the Act without further analysis because “the cause 

can plainly be a breach of the tort duty” independent of the 

contract. Id.

Here the judge acknowledged that the claim seeks recovery for damage to other property—i.e., other parts of the 

condominium building—caused by the defective faucets. But 

he went on to conduct a risk-of-harm analysis as if Duncan 

Place sought to recover for faucet-related injuries alone. That 

was error. The amended complaint alleges that Danze’s 

defective faucets caused “extensive damage” to the condominium building. To that extent, the WPLA claim should 

have been allowed to move forward.

There is an important limitation, however. As we’ve explained, Duncan Place obtained assignments from 41 unit 

owners, and everyone agrees that it may assert the rights of 

those unit owners. On remand the WPLA claim may proceed 

to the extent that it alleges that Danze’s defective faucets 

caused damage to other property in those 41 units. As it 

stands, the amended complaint contains specific allegations 

only with respect to two unit owners; the allegations about 

“extensive damage” to the condominium building are 

otherwise quite general. These generalized allegations 

support an inference that the defective faucets caused damage to common condominium property as well, and we take 

this to mean that the homeowners’ association also asserts 
12 No. 17-3474

this claim on its own behalf. To that additional extent, the 

claim may proceed to factual development.

Finally, Duncan Place insists that it may also assert the 

rights of the unit owners from whom it did not obtain 

assignments. This argument verges on frivolous. “[W]hether 

an association has standing to invoke the court’s remedial 

powers on behalf of its members depends in substantial 

measure on the nature of the relief sought.” Warth v. Seldin, 

422 U.S. 490, 515 (1975). “‘[I]ndividual participation’ is not 

normally necessary when an association seeks prospective or 

injunctive relief for its members, but ... such participation 

would be required in an action for damages to an association’s members ... .” United Food & Commercial Workers Union 

Local 751 v. Brown Grp., Inc., 517 U.S. 544, 546 (1996) (citing 

Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 

(1977)). Associational standing is inappropriate if “whatever 

injury may have been suffered is peculiar to the individual 

members concerned, and both the fact and extent of injury 

would require individualized proof.” Warth, 422 U.S. at 515–

16; see also Sanner v. Bd. of Trade of City of Chi., 62 F.3d 918, 923 

(7th Cir. 1995) (forbidding a farming association from asserting standing on behalf of its members where the suit would 

“require the calculation of damages for each of the individual farmers”). 

Duncan Place has no viable claim for prospective relief. 

What it casts as a plea for declaratory and injunctive relief is 

instead a straightforward claim for damages. Duncan Place 

seeks a declaration announcing that all Danze faucets manufactured from 2000 to the present have defects of which 
No. 17-3474 13

Danze was well aware.2 This request reflects a misunderstanding of the purpose of declaratory judgments. A declaratory judgment serves to “settle the particular controversy 

and clarify the legal relations at issue.” NUCOR Corp., v. 

Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 579 

(7th Cir. 1994) (quoting Sears, Roebuck & Co. v. Am. Mut. Liab. 

Ins. Co., 372 F.2d 435, 438 (7th Cir. 1967)). A declaration that 

Danze produced defective faucets would not settle the 

controversy between Duncan Place and Danze or clarify 

their legal relationship. It would only lay the groundwork 

for a claim for damages. 

And associational standing cannot support a damages 

claim on behalf of the nonassigning unit owners. There’s no 

question that each unit owner with a viable claim would

have to provide “individualized proof” of “the fact and 

extent of injury” to the condominium unit. Warth, 422 U.S. at 

515–16.

In sum, we AFFIRM the dismissal of Duncan Place’s warranty and unjust-enrichment claims, REVERSE the dismissal 

of Duncan Place’s WPLA claim, and REMAND for further 

proceedings consistent with this opinion.

 2 Duncan Place also seeks declaratory and injunctive relief regarding 

Danze’s failure to honor its warranty. We’re affirming the dismissal of the 

warranty claim, so we need say no more about associational standing to 

pursue these remedies.