APPEAL from the Circuit Court of Macon County; the Hon. JERRY
L. PATTON, Judge, presiding.
JUSTICE YONTZ DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from an order dismissing its third amended complaint. The complaint attempts to state a cause of action against each defendant based on strict liability. The trial court's order dismissing the third amended complaint is affirmed in part and reversed in part.
The initial complaint in this action was filed on March 8, 1979. Following the dismissal of this complaint and subsequent dismissals of amended complaints, the third amended complaint was filed on September 23, 1980. The complaint contained six counts; the first three against defendant Shell Oil Company (Shell), and the last three against defendant Riverdale Chemical Company (Riverdale). Counts I and III are based on the theory that the products of defendants were inherently defective. Counts II and V are based on the theory that the products are defective and unreasonably dangerous for failure to give adequate warning. Counts III and VI allege inherent defectiveness as well as failure to give an adequate warning.
The complaint alleges that a division of the defendant Shell Oil Company manufactured the substance aldrin, which was the active ingredient in a "tracking powder" rat poison. The rat poison was manufactured by defendant Riverdale by mixing the aldrin with an inert powder. Defendant Riverdale then sold this tracking powder to Illini Pest Control and Service, Inc. (Illini). Plaintiff alleged that defendant Shell sold the aldrin to defendant Riverdale, and defendant Riverdale sold its tracking powder to Illini, each knowing that the powder was very effective as a rodenticide and that it would be used as a tracking powder.
Plaintiff operates a federally inspected duck processing plant, and engaged Illini to conduct an ongoing rat control program for its duck farm. As part of this program, Illini used a tracking powder rat poison containing aldrin. The tracking powder was placed on plaintiff's farm in areas where his ducks ran and fed. This caused the earth and buildings upon the farm to be increasingly contaminated with aldrin and dieldrin, which is a compound formed when aldrin decomposes.
Aldrin and dieldrin have a strong propensity to accumulate in living organisms. Approximately a year after the rat poison was used, plaintiff was required by the Federal government to destroy many thousands of ducks because they contained amounts of aldrin and dieldrin in excess of that allowed by Federal regulations. The chemicals also leave a significant residue in the environment for in excess of one year and as much as 50 years. This contamination caused plaintiff's farm to be unfit for the only purpose for which it is suited, namely, raising ducks.
Count I alleges that the aldrin was defective and unreasonably dangerous at the time it left control of Shell, and count IV alleges that the tracking powder, containing aldrin, was defective and unreasonably dangerous at the time it left defendant Riverdale, in that these products had the propensity to accumulate in substantial quantities in the tissues of animals when ingested or otherwise absorbed into the bodies of animals.
Counts II and V allege that defendants knew of the danger of using aldrin on a poultry farm since the flesh of the poultry would be contaminated while at the same time causing no apparent physical harm or toxicosis to the poultry. Defendants failed to give any warning of this danger although they knew or should have known that such harm would result due to the failure to give a warning of such danger. Consequently, the aldrin, and the tracking powder containing the aldrin, were unreasonably dangerous at the time it left control of each defendant in that there was no adequate warning.
Counts III and VI allege the aldrin and tracking powder containing aldrin were unreasonably dangerous at the time they left control of each defendant in that they had the propensity to contaminate plaintiff's farm leaving it unfit for a period of from one to fifty years. Also, the failure to warn of the danger of this contamination, notwithstanding the fact that each defendant knew or should have known of the consequences of the failure to warn, rendered the products unreasonably dangerous.
Motions to dismiss this third amended complaint were filed by defendant Shell on September 26, 1980, and by defendant Riverdale on October 14, 1980. Both motions were granted on all counts and the complaint was ordered dismissed with prejudice on November 26, 1980. Notice of appeal was filed on December 12, 1980.
II. INHERENT DEFECTIVENESS
Plaintiff has alleged in counts I and III that the product aldrin is defective because it has the propensity to accumulate in the tissue of living organisms, and in counts III and VI that the product is defective in that it has the propensity to contaminate plaintiff's farm leaving it unfit for a period of from one to 50 years. Plaintiff does not cite any authority on this point, but merely asserts that whether a product is unreasonably dangerous is a question of fact and not law.
The theory of strict liability in tort as advanced in section 402A of the second torts restatement (Restatement (Second) of Torts § 402A (1965)), was adopted by the Illinois Supreme Court in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. Comment i to section 402A, entitled "[u]nreasonably dangerous," provides that "[t]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Comment g to section 402A, entitled "[d]efective condition," provides that the rule applies when the product is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." This definition of a ...