Appeal from the Circuit Court of Cook County; the Hon. Lester
Foreman, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
This wrongful death action was brought to recover damages for the death of Harvey Schroeder, by his wife and administratrix of his estate, Inge Schroeder, under a strict liability theory in products liability. The circuit court of Cook County granted summary judgment for defendants Mine Safety Appliance Company, Reddick Fumigants, Incorporated, Velsicol Chemical Corporation, and Great Lakes Chemical Corporation.
Harvey Schroeder was employed by B. Heller & Company as a maintenance manager whose duties included fumigation of Heller's Bedford Park plant, in which meat cures, tenderizers, and seasonings were produced. On the afternoon of June 1, 1979, Harvey Schroeder and a co-worker, James Bergstedt, prepared to fumigate the plant. According to the deposition of Bergstedt, he and Schroeder checked their gas masks and canisters (which were designed to absorb noxious fumes) before fumigating and observed an expiration date of March 1978 on the canisters. Schroeder stated that they would have to order new canisters the following Monday. The men then fumigated the plant with methyl bromide, utilizing the masks and canisters. The next morning Schroeder reopened the plant, apparently to ventilate any remaining methyl bromide vapors. Shortly thereafter he became ill and was admitted to the hospital. He died hours later of what plaintiff has alleged to be methyl bromide intoxication.
• 1 The mask and canister utilized by Schroeder were supplied by defendant Mine Safety. It is plaintiff's contention that these products were unreasonably dangerous in that they were inappropriate for methyl bromide fumigation and the warnings and instructions attached to the canister were inadequate. We do not reach the merits of these contentions, because we agree with the trial court's finding that the proximate cause of Schroeder's death was his knowing use of an expired gas mask canister, a use which the defendants could not reasonably have foreseen. Although foreseeability is ordinarily a question of fact, it may be decided as a matter of law when the facts demonstrate that the plaintiff could never be entitled to recover. Gasdiel v. Federal Press Co. (1979), 78 Ill. App.3d 222, 396 N.E.2d 1241.
The gas mask canister at issue here bore the following message:
"DIRECTIONS FOR STORAGE use canister before _______ if seals are not broken. discard one year after removing seals (OR SOONER, IF CANISTER'S EXPENDED) seal broken _______ 19 _______."
It is undisputed by the parties that one of the blanks was filled in with the date March 1978. Thus, even assuming that this date was the one on which the seal was broken (rather than the date before which the canister was to be used), the canister would have become out of date in March 1979, well before Harvey Schroeder used it in June 1979. It is also undisputed that Schroeder saw the expiration date, explicitly commented on the need to replace the canister, and yet still utilized the expired canister in fumigation. Given these facts, the trial court was justified in granting summary judgment for defendant Mine Safety, as it could not reasonably have anticipated that its product would be used after its expiration date.
• 2 Defendants Reddick, Velsicol and Great Lakes were all involved in the manufacture or distribution of methyl bromide. Plaintiff contends that their product was unreasonably dangerous in that it was packaged with inadequate warnings and should have included an odor additive. We agree with the trial court's determination that the warnings on the cylinder were adequate as a matter of law. In Harris v. Solna Corp. (1974), 16 Ill. App.3d 1039, 307 N.E.2d 434, the plaintiff brought an action in products liability and negligence, alleging that he suffered injury by exposure to a container of carbon tetrachloride which bore inadequate warnings. The label contained the word "poison," surrounded by two skull-and-crossbones, along with these statements: "Danger — Volatile Solvent," "Warning — Harmful Vapor," "May be Fatal if Inhaled," "Use with Adequate Ventilation." The court held that this warning was stated with a degree of intensity that would cause a reasonable man to exercise caution commensurate with the potential danger and so affirmed summary judgment for the defendant. The label on the methyl bromide cylinder in this cause contained in bold-faced type the word "DANGER" with a skull-and-crossbones on either side of the word "POISON." It also stated:
"VAPOR EXTREMELY HAZARDOUS
HIGHLY VOLATILE CAUSE BURNS
WARNING: Poisonous Liquid and Vapor!
Contact with liquid may produce burns. Do not breathe vapor. Wear a full-face gas mask with black canister meeting specifications of the U.S. Bureau of Mines. Do ...