APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 13, 1974.
Donald Jonescue, as parent and guardian of Denise Jonescue, his minor daughter, sued the defendant, Jewel Home Shopping Service, for injuries allegedly sustained by the child when she drank from a bottle of Jetco HD All Purpose Cleaner manufactured and sold by the defendant. Plaintiff's theory of recovery, set forth in a single count complaint which contained elements of both strict tort liability and negligence, was that defendant negligently failed to warn of the dangers of or to properly label an otherwise non-defective product, thereby creating an inherently dangerous condition resulting in injury when ingested by the child. The court directed a verdict for defendant at the close of the plaintiff's case, and plaintiff appeals.
Diane Mary Jonescue, the child's mother, testified that on November 9, 1968, her 18-month old daughter Denise drank part of the contents of a Jetco bottle she kept in a vanity under the bathroom sink. Mrs. Jonescue found the baby spitting bubbles, and shortly thereafter throwing up. She immediately took Denise to the office of Dr. Bruno Beinoris. Dr. Beinoris ordered that Denise be taken to the hospital because he did not know what ingredients the Jetco cleaner contained. Upon arrival at the hospital the baby was vomiting violently, with blood in the vomit.
The hospital physician first gave Denise syrup of Ipecac which induces vomiting, and after noticing the blood gave her Charcoal and Maalox. The defendant was then called and about ten minutes after the call the technical director of Jewel Laboratories gave the hospital the toxicity data and formula of the cleaner.
Denise was kept in the hospital from November 9th until her discharge on November 21st. Her stomach was never pumped, and she was given solid foods during her hospital stay. Dr. Beinoris' diagnosis was hemorrhagic gastritis caused by ingestion of the fluid; together with bronchial pneumonia which developed during her hospital stay. He said that the pneumonia "could have been" caused by the ingestion of the cleaner, because sometimes a "toxic" substance can get in the lungs. He testified that on the day after the child's admission she had no fever and appeared asymptomatic except for a foul smelling stool, but on the following day she was coughing slightly and X-rays showed definite pneumonitis. Antibiotic and empycillin, together with cough syrup, were prescribed and by November 17th the cough had subsided. On November 18th, the child ran a slight fever and her X-rays showed that the pneumonia was healed but that she still had bronchial inflammation. The fever subsided on the 20th, and she was completely asymptomatic on the 21st of November when she was discharged. It was the doctor's opinion that Denise did not suffer any permanent injury.
On cross-examination, Dr. Beinoris said that some of the medicine the child was given, by getting into her lungs, could also have been the cause of the pneumonia. He had no idea how much of the cleaner the child consumed, and did not know the composition of defendant's product. He said that ingesting an excessive amount of a nonpoisonous product could cause illness.
Stanley Czepial, an employee of defendant holding a degree in chemistry, was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act. He testified that Jetco All Purpose Cleaner contains 36.2% water, 10% sodium xylene sulphonate, 33.3% tetro potassium pyrophosphate, 5.8% sodium alkyl benzene sulphonate, 3.4% ammonium salt of linear alcohol, 1% coconut acid diathanolamine, .1% formalin, and 10% water, soft. Batches of the cleaner manufactured on the same day as that of the one in question had pH's from 9.9 to 10.12. He said that a product with a pH of 8 or 9 would not be corrosive; that some natural foods eaten daily have pH's of 8 or 9, with soup having a pH of 9 1/2.
Paul E. Tack, an employee of the defendant company, also holding a chemistry degree, called as an adverse witness under section 60 testified that Jetco has an LD (Lethal Dosage) of 50, "the amount of the product that when tested by the laboratory to determine its toxicity, the amount that will cause 50 percent of the test animals to expire." He further testified that the product contained enough alkaline substance that it could have a caustic effect on human tissue on contact. On cross-examination, evidence was adduced to show that the product was considered to be non-toxic orally under the Federal Hazardous Substance Labeling Act.
A bottle of Jetco cleaner was submitted in evidence. The bottle contained the labels:
• 1 Mrs. Jonescue testified that she kept cleaning products such as Drano, Lestoil and Pine Sol on a very high shelf out of the reach of children. Defendant's product was kept in the vanity where she had toilet paper, towels, creme rinses and brushes.
Plaintiff contends that he presented sufficient evidence from which a jury could conclude that Jetco HD Cleaner is a toxic, corrosive detergent; and that defendant's failure to warn constituted a basis for recovery against the manufacturer. Defendant argues that the plaintiff failed to prove the cleaner inherently dangerous, and that no duty or need to warn existed because the danger of illness from ingestion was apparent.
Although plaintiff's complaint consisted of only one count, it contained allegations for pleading both strict tort liability and negligence. In their briefs and in oral argument the parties have assumed both theories apply. In the particular circumstances of this case which turns on the absence of warnings on an otherwise non-defective product, the differences between strict liability and negligence become immaterial. (See Anderson v. Klix Chemical Co. (1970), 256 Or. 199, 201, 472 P.2d 806, 808-9.) If resolved in defendant's favor, the crucial issue, whether the danger was patent or apparent so that there was no duty to warn, would bar recovery under either theory. Weiss v. Rockwell Manufacturing Co. (1973), 9 Ill. App.3d 906, 913, 915-917.
• 2 Whether the Jetco Cleaner is defective or hazardous when used for its intended use is not in issue. Mrs. Jonescue testified that she had used the product in various ways and that it performed satisfactorily. A manufacturer may be liable, however, for damage caused by a nonintended use of a product if the use is one which may be reasonably foreseen. (Hardman v. Helene Curtis Industries, Inc. (1964), 48 Ill. App.2d 42, 63-64; Spruill v. Boyle-Midway, Inc. (4th Cir. 1962), 308 F.2d 79, 83-84; Haberly v. Reardon Company (1958), 319 S.W.2d 859, 863.) If a product is not reasonably safe for a use that may be expected to be made of it and no adequate warning is given of its dangerous propensities, the manufacturer or seller of ...