10, 1982, and February 19, 1982. The deliveries were promptly
followed by invoices from Swank. These invoices stated that the
whey delivered was "guaranteed Salmonella Penicillin free and
conforms to all other U.S.D.A. and F.D.A. specifications where
it [sic] applies." The whey was packaged in heavy-duty
plastic-lined bags labeled "extra grade," that had been sealed
at Bongards and remained sealed until opened at Blommer.
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, decontaminate its
processing facilities and assist several of its customers who
were forced to decontaminate their facilities.
There are approximately 1500 strains of salmonella bacteria.
The distinctiveness of the various strains assist in tracking
down the source of the salmonella contamination. The strain
found in Blommer's chocolate compound is known as cubana.
Suspecting that the Bongards whey was the source of the
contamination, Silliker tested what remained of the whey in the
February 2, 1982 shipment. This re-test found that the shipment
was contaminated with salmonella cubana. All of the January 13,
1982 shipment had by this point been used up, so no test on
this whey was possible. Silliker then notified the Chicago
office of the Food and Drug Administration [FDA] of this data.
The FDA dispatched investigators to Bongards. These
investigators found salmonella cubana in tailings taken from
the dry whey sifter collection barrel. The FDA also dispatched
investigators to Blommer. After examining the Blommer
processing facilities they permitted production to continue,
presumably convinced that the source of contamination was
neither the processing environment nor other raw materials.
Bongards was not unacquainted with the problem of salmonella
contamination. During an inspection of Bongards from January
11, 1982 through January 14, 1982 inspectors from the U.S.
Department of Agriculture [USDA] found salmonella in dry whey
powder that had been produced on January 10, 1982. Tests of
whey powder produced on January 16, 1982 revealed salmonella.
Bongards' testing records also revealed occasional instances of
contamination. None of these tests included the serological
typing, which would have revealed whether the salmonella was of
the cubana strain. Other USDA tests performed before and after
January and February 1982 uncovered salmonella contamination at
1. Blommer's Motion for Partial Summary Judgment against
In its April 11, 1984 Memorandum and Order, this court
dismissed Counts VI and VII as to Swank. The counts were based,
respectively, on negligence per se, because of a violation of
Illinois statutes against the sale of adulterated milk and food
products, Ill.Rev.Stat. ch. 561/2;, ¶¶ 215.01*fn4 and 503.1,
and on strict tort liability. Blommer's motion for summary
judgment is based on Counts I-III of the complaint, which are
breach of warranty claims.
Swank does not contest the applicability of contract law to the
dispute. Blommer's purchase order, after all, did call for
extra grade whey that was free from salmonella. Invoices that
Swank issued to Blommer stated that it had supplied extra grade
whey that was guaranteed salmonella-free. Swank's president
testified that extra grade whey was by definition fit for human
consumption and free of salmonella. The real dispute is whether
Blommer has shown with a sufficient degree of certainty that
the Bongards whey supplied by Swank was the source of the
As summarized above, the record shows that only those Blommer
products that were made with Bongards' whey were contaminated.
Tests show that the February 2, 1982 shipment of Bongards' whey
was contaminated. In late February 1982 the FDA found that
Bongards' whey-processing facilities were contaminated. The
USDA found salmonella contamination at Bongards twice in
mid-January 1982 and at other times both before and after the
Blommer incident. Bongards' own records show occasional
contamination of the whey it produced during early 1982. In
contrast, while the USDA has noted some sanitary deficiencies
at Blommer, records reveal no instances of salmonella
contamination of Blommer's processing environment or finished
product, and only one instance of raw material contamination,
outside of cocoa beans, prior to this occurrence.
These facts alone point strongly towards summary judgment.
Because the samples taken from the Blommer chocolate, Bongards'
February 2, 1982 shipment of whey and Bongards' whey-processing
facility, were all subjected to serological testing, the
evidence becomes compelling. These samples all revealed that
the salmonella was of the cubana strain. Given this
commonality, the existence of 1500 strains of salmonella, the
well-accepted use of serological testing to track down the
source of contamination, the likelihood that Bongards' whey
contaminated Blommer's food products is extremely strong.
After extensive discovery Swank has still failed to do more
than make minor dents in the armor of Blommer's case. It has
not explained why only the products using Bongards' whey became
contaminated. It does not dispute that salmonella cubana was
found in the February 2, 1982 shipment and in Bongards'
processing facility. It has not rebutted the presumption of the
culpability that springs quite naturally from finding the same
strain of salmonella in the Bongards' whey, in only those
prodducts using Bongards' whey, and in the Bongards processing
Swank makes a valiant effort to avoid summary judgment, based
primarily on the fact that the tests performed on the whey
before its use by Blommer did not reveal salmonella
contamination. However, even if Blommer's failure to discover
before use that the whey was contaminated reveals the
inadequacy of test procedures, this would not help Swank.
First, Swank does not contest the accuracy of the later
findings of salmonella cubana contamination in the Bongards'
whey, in only the products using Bongards' whey, and in
Blommer's plant. Nor has Swank undercut the validity of the
USDA inspections that found contamination of Bongards'
processing facilities and of Bongards' own records that showed
occasional product contamination.
Second, Swank's suggestion that the inadequacy of test
procedures may mean that salmonella contamination of Blommer's
raw materials or its processing environment was never uncovered
and that this contamination caused the contamination of the
chocolate products, is the sort of speculation that cannot
defeat a well-supported motion for summary judgment. Swank has
yet to advance any hard evidence that Bongards' whey was not
the source of the contamination. Swank has advanced nothing to
suggest that the inconsistent results of the early Blommer
tests stem from poor testing methods rather than from the
nature of the contamination or some other factor.
While summary judgment is to be granted with caution, it is
appropriate here. Swank, of course, does not bear the burden of
proving that Bongards' whey was not the source of the
contamination. Faced with the well-supported theory that
Bongards was the source of the contamination, however, Swank
has failed to even hint at the outlines of an exculpatory
theory for which there is some evidentiary support. Although
the conclusion that the salmonella originated at Bongards rests
upon inferences from undisputed facts it is no less compelling.
2. Bongards' Motion for Summary Judgment on all Counts of
Bongards mounts a two-pronged attack on Blommer's complaint. It
argues that the breach of warranty claim, Counts I-III, fail
for lack of privity and the tort claims, Counts IV-VII, fail
because Blommer's losses were only economic and not recoverable
in tort. Because Blommer has not moved for summary judgment
against Bongards, the issue in effect is whether under the
existing record it is impossible as a matter of law for Blommer
to recover either tort or contract damages against Bongards.
In its previous memorandum and order this court held that
recovery in tort is not barred by Moorman Manufacturing Co. v.
National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746,
435 N.E.2d 443 (1982). Moorman rejected use of a theory of strict
liability in tort for recovery of solely economic losses. Id.
61 Ill.Dec. at 751, 435 N.E.2d at 448. The Moorman court also
held that "when a product is sold in a defective condition that
is unreasonably dangerous to the user or consumer or to his
property, strict liability in tort is applicable to physical
injury to plaintiff's property, as well as the personal
Relying upon ABCO Metals Corp. v. J.W. Imports Co., Inc.,
560 F. Supp. 125 (N.D.Ill. 1982), aff'd on other grounds
721 F.2d 583 (7th Cir. 1983), this court held that at least part of
Blommer's loss may have stemmed from a "sudden and calamitous
occurrence" caused by contaminated whey. Nothing since our
memorandum and order has indicated that this holding was
incorrect. In fact, in Vaughn v. General Motors Corp.,
102 Ill.2d 431, 80 Ill.Dec. 743, 466 N.E.2d 195 (1984), the
Illinois Supreme Court embraced an expansive view of what
damages are compensable in a strict liability action. The
plaintiff in Vaughn, uninjured himself, sued the manufacturer
of a truck whose brakes were defective. He sought compensation
for the loss of the truck, expenses incurred in renting another
truck, extra time expended at work, costs of cleaning up the
load of spilled fuel, expenditures for repairs of the brakes
prior to the occurrence and the cost of repairing the bulk fuel
tank being carried. Id. 80 Ill.Dec. at 743, 466 N.E.2d at
195. The Vaughn court permitted recovery under Moorman
because these losses stemmed from the sudden and calamitous
occurrence caused by the brake defect. Id. 80 Ill.Dec. at
745, 466 N.E.2d at 197.
As noted in this court's previous opinion, the contamination of
Blommer chocolate and of its processing facilities might be
analogized to a sudden and calamitous occurrence caused by a
defective product. Moorman and Vaughn pose no legal bar to
Blommer's maintenance of a tort action against Bongards.
Bongards has yet to mount challenges to the specific tort
Count VI, however, must be dismissed for a different reason.
That count alleges that Bongards was negligent per se, having
violated state pure food laws, Ill.Rev.Stat. ch. 561/2;, ¶¶
215.01 and 503.1. As this court noted in its earlier opinion,
violation of a statute designed for the protection of human
life or property does not constitute negligence per se but is
only prima facie evidence of negligence which may be rebutted
by proof that the party acted reasonably under the
circumstances, despite the violation. Davis v. Marathon Oil
Co., 64 Ill.2d 380, 1 Ill.Dec. 93, 97, 356 N.E.2d 93, 97
Bongards argues that it should be granted summary judgment on
Count I because it made no express warranties to Blommer as to
the condition of the whey. It has introduced evidence that the
socalled salmonella statements that Blommer has used as a basis
for the express warranty claim were in fact prepared after the
contamination was discovered. Bongards, however, did expressly
warrant, in invoices issued to Pacemaker, that its whey was
"extra grade." Because it appears that "extra grade" whey was
understood to be free of salmonella, it cannot be concluded
that Bongards made no express warranties as to the condition of
The breach of warranty action is the appropriate way for
Blommer to recover purely economic losses. Bongards argues that
the breach of warranty claims fail because there was no privity
of contract between Blommer and Bongards. Generally a plaintiff
must have been in privity of contract with the defendant in
order to bring a breach of warranty action. Historically, as
the economic relationships became more complex the privity
requirement increasingly permitted manufacturers to escape
liability to individuals harmed by their defective products.
The tort theory of strict liability developed in part in
response to limitations imposed by the privity requirement in
breach of warranty actions. Moorman, 80 Ill.Dec. at 748, 435
N.E.2d at 445. See generally Prosser, Assault Upon the
Citadel, 69 Yale L.J. 1099 (1960).
Even before the Illinois Supreme Court embraced the doctrine of
strict tort liability in Suvada v. White Motor Co., 32 Ill.2d 612,
210 N.E.2d 182 (1965), Illinois courts had done away with
the privity requirement in breach of warranty actions involving
victuals. See Sharpe v. Danville Coca-Cola Bottling Co.,
9 Ill. App.2d 175, 132 N.E.2d 442 (3d Dist. 1956); Patargias v.
Coca-Cola Bottling Co., 332 Ill. App. 117, 74 N.E.2d 162 (1st
Dist. 1947); Welter v. Bowman Dairy Co., 318 Ill. App. 305,
47 N.E.2d 739 (1st Dist. 1943).
Bongards argues that the privity requirement is waived with
respect only to ultimate consumers of the product. This
approach, however, does not appear to be followed in Illinois,
see Southland Milling Co. v. Vege Fat, Inc., 248 F. Supp. 482
(E.D.Ill. 1965) (applying Illinois law) or elsewhere, see
Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5,
226 N.Y. So.2d 363, 181 N.E.2d 399 (1962). In Southland, for
example, the vegetable fat supplied by defendant injured
plaintiff's chickens and not consumers of the chickens, and the
court nevertheless permitted recovery. Here, the allegedly
contaminated whey made chocolate destined for human consumption
Consequently, Blommer is not barred as a matter of law from
recovering its damages from Bongards in tort, or its purely
economic losses under a breach of warranty theory. At this
point the court need not consider objections to specific
warranty and tort claims, especially because Bongards has
3. Bongards' Motion for Judgment on all Counts of Swank's
In Counts I-III of the cross-claim Swank seeks indemnity on the
basis of express and implied warranties purportedly made by
Bongards. Count IV attempts to state a claim for indemnity as
by the Illinois Supreme Court in Maxfield v. Simmons,
96 Ill.2d 81, 70 Ill.Dec. 236, 449 N.E.2d 110 (1983). Count V
seeks contribution pursuant to Ill.Rev.Stat. ch. 70, ¶ 301 et
seq., Counts VI-VIII of the cross-claim seeks damages stemming
from Blommer's refusal to pay for the February 2, February 9
and February 16, 1982 shipments of whey because they were
allegedly contaminated by salmonella. These latter counts rest
upon the theory that Bongards breached express and implied
As noted in the previous section, the cross-claims for
indemnity based upon a breach of express warranty do not fail
for lack of an express representation, nor do the claims for
indemnity based upon a breach of warranty fail for lack of
privity. Count IV of the cross-claim draws vitality from
Maxfield, where the Illinois Supreme Court permitted a home
builder to maintain a third party complaint for indemnity and
contribution from the manufacturer of roof trusses. Given that
Blommer is legally entitled to proceed in tort against the two
defendants, Swank is permitted to preserve a claim in Count V
under the Illinois Contribution Statute, Ill.Rev.Stat. ch. 70,
¶ 301 et seq.
4. Pacemaker's Motion to Dismiss Swank's Third Party
Swank's third party complaint against Pacemaker is identical to
its cross-claims against Bongards. Pacemaker raises several
creative but unavailing arguments in its motion to dismiss the
third party complaint in its entirety.