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04/19/94 SUZANNE M. GYLLIN NATHAN GYLLIN AND NICK

April 19, 1994

SUZANNE M. GYLLIN; NATHAN GYLLIN AND NICK GYLLIN, MINORS, BY THEIR FATHER AND NEXT FRIEND, BERT A. GYLLIN, AND INDIV., PLAINTIFFS-APPELLANTS,
v.
COLLEGE CRAFT ENTERPRISES, LTD., DEFENDANT AND THIRD-PARTY DEFENDANT-APPELLEE (JEREMY P. STRAMAGLIO, DEFENDANT AND THIRD-PARTY DEFENDANT; PATRICK STRAMAGLIO AND CHRISTINA STRAMAGLIO, THIRD-PARTY DEFENDANTS; R. JAMES BREUNLIN, DEFENDANT AND THIRD-PARTY PLAINTIFF; AND MARCIA L. BREUNLIN, THIRD-PARTY PLAINTIFF).



Appeal from the Circuit Court of Kane County. No. 90-L-0315. Honorable Michael J. O'Brien, Judge, Presiding.

Released for Publication May 27, 1994.

McLAREN, Geiger, PECCARELLI

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiffs, Suzanne Gyllin, Bert A. Gyllin, and Nathan Gyllin and Nick Gyllin, minors, filed an amended complaint alleging negligence against the defendants, Jeremy P. Stramaglio, R. James Breunlin, and College Craft Enterprises, Inc., for damages sustainedin an automobile collision. R. James Breunlin and Marcia L. Breunlin, his wife, the third-party plaintiffs, filed an amended third-party complaint alleging negligence against Jeremy P. Stramaglio, Patrick Stramaglio and Christina Stramaglio, his parents, and College Craft, the third-party defendants, for damages arising out of a related collision. After settlements were obtained between the Gyllin plaintiffs and Jeremy Stramaglio and R. James Breunlin, the trial court entered an order dismissing Jeremy Stramaglio and R. James Breunlin from the causes of action asserted by the plaintiffs. Jeremy Stramaglio and his parents were dismissed from the causes of action asserted by the Breunlin third-party plaintiffs after settlements were obtained. The causes of action asserted by the Gyllin plaintiffs and the Breunlin third-party plaintiffs against College Craft were preserved. After a hearing, the trial court granted summary judgment in favor of College Craft on the complaints filed by the Gyllin plaintiffs and the Breunlin third-party plaintiffs. The Gyllin plaintiffs and the Breunlin third-party plaintiffs appealed. This appeal addresses the issue of the propriety of the trial court's order entering summary judgment in favor of College Craft on the Gyllin plaintiffs' complaint and on the Breunlin third-party complaint. For the following reasons, we affirm.

The facts gleaned from the record reveal that Jeremy Stramaglio was employed as a summer painter by College Craft Enterprises, Ltd., in the summer of 1989. On the day of the collision, Stramaglio was working for College Craft and had been applying stain to the exterior of a home in St. Charles, Illinois. During the course of the day, he spilled some stain on his clothing, hands, and arms. It began to rain and Stramaglio left the jobsite wearing the painter's pants and T-shirt supplied by College Craft and possibly some rags in his back pocket. Since it was raining, Stramaglio drove with the windows rolled up. The vehicle did not have air conditioning.

At approximately 3:55 p.m. on July 11, 1989, Suzanne Gyllin was driving a 1977 Lincoln Versailles automobile southbound on Randall Road in Elgin, Illinois. Her minor sons, Nathan and Nicholas Gyllin, and two other minors were passengers in the vehicle. At a point approximately 2/10th of a mile south of Hopps Road, a vehicle travelling north on Randall Road, operated by Jeremy Stramaglio, crossed the center line and collided head-on with the Gyllin vehicle. Shortly after Stramaglio collided with the Gyllins, a vehicle driven by R. James Breunlin struck the Gyllin vehicle from behind.

The Gyllins filed an amended complaint seeking damages against Jeremy Stramaglio, R. James Breunlin, and College Craft Enterprises, Ltd. The Breunlins filed an amended third-party complaint against Jeremy Stramaglio and his parents and against College Craft. Since the Gyllin plaintiffs settled with Jeremy Stramaglio and R. James Breunlin, and the Breunlin third-party plaintiffs settled with the Stramaglios, this appeal solely concerns the alleged negligence of College Craft.

The Gyllin plaintiffs and the Breunlin third-party plaintiffs assert that the fumes from the spilled stain overcame Stramaglio and caused him to drift into oncoming traffic. Both the Gyllin plaintiffs' complaint and the Breunlin third-party complaint alleged that College Craft had a duty to prevent its employees, including Jeremy Stramaglio, from causing harm to other persons, such as themselves, and that College Craft breached this duty in each of the following respects:

(1) Failing to warn Stramaglio of the effects of the inhalation of vapors produced by Sherwin Williams Alkyd Wood Preservative Stain which contained hazardous ingredients including mineral spirits and ethylene glycol, which effects included drowsiness, dizziness, loss of coordination, unconsciousness, and possibly death;

(2) Failing to exercise ordinary care in instructing Stramaglio in the use of Sherwin Williams Alkyd Wood Preservative Stain;

(3) Failing to provide adequate training to Stramaglio with respect to the measures available to him to protect himself and the hazards in the use of Sherwin Williams Alkyd Wood Preservative Stain;

(4) Failing to provide Stramaglio with sufficient details of its hazard communication program and instruction with respect to the use of appropriate hazard information;

(5) Failing to adequately provide Stramaglio with material safety data sheets with respect to Sherwin Williams Alkyd Wood Preservative Stain as required by regulations established by the "Toxic Substances Disclosure to Employee Act" and the regulations established ...


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