The opinion of the court was delivered by: Moran, District Judge.
This case stems from the salmonella contamination of several
hundred thousand pounds of plaintiff's chocolate products in
early 1982. When ingested by humans salmonella bacteria can
cause salmonellosis, commonly known as food poisoning.
Salmonellosis on occasion can be fatal.
Plaintiff, Blommer Chocolate Company,*fn1 as its name
suggests, is a manufacturer of chocolate products. Its suit is
directed against Bongards Creameries, Inc., which manufactured
the dry whey powder, a milk product,*fn2 that allegedly was
the source of
the contamination, and J.M. Swank Company, Inc., from which
Blommer ordered the whey. Counts I-III of the complaint allege
that defendants breached express warranties, implied warranties
of merchantability and implied warranties of fitness for a
particular purpose, respectively. In Counts IV and V Blommer
alleges that Bongards negligently misrepresented the quality of
the whey powder and was guilty of common law negligence. Count
VI alleges that the defendants were negligent per se because
in selling contaminated whey powder they violated Illinois pure
food laws, Ill.Rev. Stat. ch. 561/2; ¶¶ 215.01 and 503.1. Count
VII alleges that defendants are strictly liable in tort.
Blommer's suit has spawned a third party complaint by Swank
against Pacemaker, Ltd. Swank ordered the whey from Pacemaker
on Blommer's behalf. Pacemaker in turn arranged to have
Bongards prepare the whey for Swank, for delivery to
Blommer.*fn3 Swank has also filed a cross-claim against
Bongards. Before the court are Blommer's motion for partial
summary judgment against Swank, Bongards' motions to dismiss
Blommer's complaint and Swank's cross-claim, and Pacemaker's
motion to dismiss Swank's third party complaint.
Linda Wolin, Blommer's purchasing agent, was responsible for
purchasing the dry whey powder used by Blommer as an ingredient
in its chocolate coatings. During 1980 and 1981 Blommer
regularly purchased whey from Swank, a food broker. According
to Wolin, in ordering from Swank she stressed that the whey
powder supplied Blommer had to be free of salmonella. There is
apparently no safe level of salmonella contamination in
products destined for human consumption.
In the summer of 1981, Wolin contacted Randy Hill, a Swank
employee with whom she had had regular dealings, to arrange a
large order of dry whey powder. According to Wolin, Hill
recommended Bongards as a supplier of whey powder and assured
Wolin that the Bongards whey would meet Blommer's quality
standards. The August 11, 1982 purchase order associated with
their discussion specified that the whey would be "extra
grade," "guaranteed salmonella negative," and "tested
salmonella negative before shipment to Blommer." The order also
stated that "salmonella statements are to accompany invoices or
be written on the invoices."
It is clear from the record that "extra grade" whey denotes
whey of the highest quality that is salmonella-free and fit for
human consumption. Joseph Blommer, who is in charge of
Blommer's Chicago facility, testified to this effect. Larry
Pacha, Swank's president, recognized this fact, as did two
Bongards officials, Raymond Henchen and Jack Budhan. Neither
defendant has submitted any evidence that "extra grade" whey
was not understood in the trade as being free of salmonella.
Having accepted Blommer's order, Swank contracted with
Pacemaker for the requisite amount of extra grade whey.
Pacemaker in turn arranged by phone with Bongards for the
preparation of the whey. According to Jack Budhan, who has been
Bongards' general manager since 1938, most of Bongards'
customers are food processing and manufacturing concerns.
Bongards, however, had no direct dealing with either Swank or
Blommer, at least not before the whey was ready for delivery.
Further, Bongards had no specific knowledge that the whey
prepared for Pacemaker was destined for use by Blommer in
manufacturing chocolate coatings.
According to Damien Gabis, executive vice-president of Silliker
Laboratories, Inc., which acts as a consultant to Blommer on
matters pertaining to the detection and control of salmonella,
there are two sources of salmonella contamination at a food
manufacturing plant like Blommer's. First, salmonella may occur
in the raw ingredients; second, salmonella may exist in the
processing environment and infiltrate the food products during
Between 1967 and early 1982, Silliker had performed several
thousand tests of Blommer's raw ingredients, processing
environment and finished products. Prior to the contamination
at issue here, Silliker never found salmonella in either a
finished product or in the processing environment. Well before
1982 Silliker did find salmonella in one dry milk sample.
Salmonella also was occasionally found in the dust of raw cocoa
beans. Salmonella in cocoa beans is not unexpected and Blommer
isolated the beans before roasting them at a temperature high
enough to kill the salmonella bacteria.
Silliker regularly tested the whey received by Blommer. Its
test of the whey received by Blommer on January 13, 1982
revealed no salmonella contamination. Blommer used all of the
January 13, 1982 shipment to manufacture chocolate coatings
between February 5, 1982 and February 15, 1982. Silliker also
tested the February 2, 1982 shipment soon after it was received
and found no salmonella. Blommer used a portion of this
shipment before mid-February.
On or about February 13, 1982, Silliker found salmonella in
several finished product samples from Blommer. Almost
simultaneously one of Blommer's customers found salmonella in a
recently delivered shipment of Blommer's chocolate compound.
Further tests of Blommer's finished products determined that
only those products which contained Bongards' whey were
contaminated. As a result of the contamination, Blommer was
forced to recall its chocolate coatings, ...