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Venus v. O'hara

OPINION FILED AUGUST 10, 1984.

MARY VENUS ET AL., PLAINTIFFS,

v.

ROBERT O'HARA, D/B/A A-1 SERVICES, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, (WIL-KIL PEST CONTROL COMPANY, INC., ET AL., THIRD-PARTY DEFENDANTS; KENOVA CHEMICAL COMPANY ET AL., THIRD-PARTY DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal is from a summary judgment for third-party defendants Kenova Chemical Company (Kenova) and Benlo Chemicals, Inc. (Benlo), in an indemnity action predicated on a theory of strict liability for failure to adequately warn of the dangerous propensities of naphthalene flakes. Third-party plaintiff Robert O'Hara (O'Hara) contends that the trial court erred in ruling that Kenova and Benlo, bulk distributors of naphthalene flakes, could not be held directly liable to him for the failure to provide adequate warnings.

Plaintiffs Mary, Dennis, and Sally Venus (Venus) filed a multicount complaint against O'Hara, alleging in pertinent part that his services were engaged on May 6, 1977, to rid the Venus residence of an animal which had gained access to the attic thereof, and that he was negligent in spreading toxic chemicals in the attic as a method of extermination, in failing to prevent the spread of chemical contamination throughout the residence, and in failing to warn them of the inherently dangerous nature of the chemical used. Venus also asserted that, as a proximate result of this negligence, the residence was rendered unfit for human habitation, their household furnishings were made unfit for use, and each of them suffered personal injuries. O'Hara admitted performing the services, but denied the allegations of negligence. The counts in the Venus complaint alleging property damage were dismissed following a settlement thereof, but it appears that the personal injury counts remain pending before the trial court, and the Venuses are not parties to this appeal.

O'Hara subsequently filed a third-party complaint for indemnity *fn1 against Wil-Kil Pest Control, Inc. (Wil-Kil), Wedor Corporation (Wedor), Benlo, and Kenova, asserting that Venus had filed a complaint against him for property damage and personal injuries allegedly resulting from the use of a container of Wil-Kil Napthalene Flakes; that the parties in question variously manufactured, sold, distributed, and/or repackaged the naphthalene flakes used in the Venus residence; and that the flakes were in the same condition at the time of their use as when they were manufactured, sold, and distributed by the third-party defendants. O'Hara further alleged that at the time the flakes left the possession and control of the third-party defendants, they were unreasonably and inherently dangerous in the following respects:

"a. Said products contained Naphthalene which the third-party defendants knew or should have known had harmful and deleterious effects on those who came into contact with or breathed the vapors from said materials.

b. Said products contained Naphthalene, which the third-party defendants knew or should have known would cause plaintiffs' residence to be rendered unfit for human habitation making it unsaleable and rendering plaintiffs' household articles unfit for human use.

c. Said products contained no warning or alternatively, the warning was insufficient in conveying knowledge to the user or public about the harmful and deleterious effects the chemical would have to persons and property when used to drive small animals from the inside of a residence.

d. Said product was manufactured, sold and distributed without testing or inspection to ascertain the effects it would have on the health and property of consumers and users when used to drive small animals from the inside of a residence.

e. That if injury or damage was suffered to the plaintiff's property or person as a proximate result of any defect or any unreasonably dangerous condition of the said Naphthalene flakes or their container or labeling, then this was because the third-party defendants, and each of them, failed to manufacture, distribute and supply the third-party plaintiff with a safe and suitable product free from any unreasonably dangerous conditions."

The third-party complaint was later amended to allege that Wil-Kil distributed the naphthalene flakes in question to Dill Chemicals, Inc. (Dill), which in turn sold the flakes to O'Hara; however, Dill was not added as a third-party defendant.

In answer to the initial complaint for indemnity, Wedor admitted selling the flakes used in the Venus residence, but Benlo and Kenova neither admitted nor denied the allegation that they sold or distributed them. The answer of Wil-Kil is not contained in the record before us. After the amended complaint was filed, Benlo moved for summary judgment on the ground that it did not distribute naphthalene flakes directly to O'Hara. In support thereof, it cited O'Hara's answer to interrogatories in which he stated that the naphthalene flakes used in the Venus residence were purchased from Dill, and stated that it (Benlo) had never done business as or with Dill Chemical. No affidavits or other materials were attached to the Benlo motion, although the record does contain the affidavit of Kenneth Michaels, its president (the Michaels affidavit), in which he acknowledges that bulk sales of naphthalene flakes were made to Wedor and Wil-Kil from 1974 through 1978, but avers that no sales were ever made to Dill or to O'Hara. Attached to the affidavit are copies of invoices evidencing sales to Wedor and to Wil-Kill of 200-pound containers of naphthalene flakes. Kenova subsequently joined in the motion, asserting that if Benlo were granted summary judgment on the ground that it was not within the chain of distribution, it too would be entitled to summary judgment because it was "upstream" from Benlo in the alleged chain of distribution.

In response to the motions, O'Hara asserted that the facts established that Benlo was within the chain of distribution, relying on the Michaels affidavit which admitted sales to Wedor and Wil-Kil. O'Hara further asserted that the evidence would show that Wil-Kil in turn sold the flakes to Dill. In support thereof, O'Hara attached the affidavit of his attorney, pursuant to Supreme Court Rule 191(b) (87 Ill.2d R. 191(b)), in which it was averred that the facts which would refute the Michaels affidavit were known to Gordon Dill, former owner of Dill Chemical; that no affidavit could be obtained, and Mr. Dill was not in O'Hara's control; and that, if sworn, Mr. Dill would testify that he purchased the naphthalene flakes in question from Wil-Kil and sold them to O'Hara. The attorney based his belief that Mr. Dill would so testify on invoices evidencing sales from Wil-Kil to Dill, and from Dill to O'Hara.

At the hearing on the motions for summary judgment, the trial court did not rule on the grounds asserted by Benlo and Kenova. Instead, it found that, even accepting as true the chain of distribution alleged by O'Hara, no action for indemnity would lie directly against the bulk handlers, who had no control over the warnings or labels placed on the containers by their purchasers. It went on to note that Wil-Kil was the first link in the chain of distribution because it repackaged the naphthalene flakes received from Kenova and Benlo, attaching its own label and warnings, and thus superseded anything Kenova and Benlo might have done. However, the court further stated that Benlo and Kenova could be brought into the action by way of a fourth-party complaint filed by Wil-Kil and ...


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