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Hammond v. N. American Asbestos Corp.

OPINION FILED MAY 6, 1982.

CHARLOTTE HAMMOND, PLAINTIFF-APPELLEE,

v.

NORTH AMERICAN ASBESTOS CORPORATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McLean County; the Hon. JAMES A. KNECHT, Judge, presiding.

JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 3, 1982.

Plaintiff, the wife of an asbestos worker who contracted asbestosis, sued defendant, North American Asbestos Corporation, for loss of consortium on theories of strict liability and wilful and wanton negligence. Judgment was entered on the jury's verdict awarding plaintiff $125,000 in compensatory and $375,000 in punitive damages, and defendant appeals.

Plaintiff's husband, Charles Hammond, was employed by Union Asbestos and Rubber Company (UNARCO) from 1953 until 1971. During this time Hammond contracted respiratory diseases and asbestosis, which is a chronic, degenerative condition caused by inhaling asbestos fiber and dust. Defendant existed from 1953 until 1978 and was a wholly owned subsidiary of Cape Industries, Ltd., a British corporation, which mines and sells raw asbestos. Plaintiff alleged that defendant supplied raw asbestos directly to UNARCO, which in turn produced various asbestos insulation products. Defendant also sold raw asbestos to Calabrian Industries, a New York barter corporation, which bartered the asbestos to the Federal government for its critical materials stockpile. When the stockpile was reduced by the government, portions of defendant's asbestos were sold to UNARCO for its manufacturing enterprise. Plaintiff's count in strict liability alleges that defendant sold an unreasonably dangerous product without providing warnings of its danger; plaintiff's other count alleges that defendant wilfully and wantonly failed to provide warnings.

Defendant first contends that plaintiff has no cause of action in strict liability because the raw asbestos is not a product within the meaning of section 402A of the Restatement (Second) of Torts. Section 402A provides:

"`(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

`(a) the seller is engaged in the business of selling such a product, and

`(b) it is expected to reach the user or consumer in the condition in which it is sold.

`(2) The rule stated in subsection (1) applies although

`(a) the seller has exercised all possible care in the preparation and sale of his product, and

`(b) the user or consumer has not brought the product from or entered into any contractual relation with the seller.'" (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 621, 210 N.E.2d 182, 187.)

Defendant argues that because raw asbestos fiber must be processed or refined and has no marketable value unless such processing occurs, raw asbestos should not be considered a product because it is not sold in substantially the same condition in which it is expected to reach the ultimate user or consumer.

The Restatement does not define the term "product." Illinois cases that have faced the question whether an article or substance is a product within the meaning of the Restatement have concluded that a particular item will be considered a product if to do so will effectuate the policy basis for imposing strict liability in tort. (Lowrie v. City of Evanston (1977), 50 Ill. App.3d 376, 365 N.E.2d 923.) The public policy concern at issue is whether the loss caused by a defective article should be borne by those who have created the risk or reaped the profit by placing the item in the stream of commerce. Suvada.

As the court in Lowrie noted, products are not simply something resulting from a production or manufacturing process. Such a definition would exclude water, wood, all living things, and anything else that remains in a natural state at the time it is supplied and distributed. In Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, 266 N.E.2d 897, the supreme court concluded that although whole blood may be viable human tissue and thus not manufactured as an article of commerce, it is a product in much the same way as other articles that are distributed for human ...


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