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April 13, 1995


Appeal from Circuit Court of Macon County. No. 91L126. Honorable John K. Greanias, Judge Presiding.

Supplemental Opinion on Denial of Rehearing of May 19, 1995, Reported at; Honorable Robert J. Steigmann, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In May 1991, plaintiffs, Paul E. Malone and Laverne Malone, d/b/a Malone Farms, sued defendant, American Cyanamid Company, for breach of implied warranty of merchantability. Plaintiffs alleged that defendant manufactured, advertised, and sold herbicides under the trade names of "Prowl" and "Scepter," which defendant represented to be safe and effective means of controlling and eliminating weeds from bean crops. Plaintiffs further alleged that in reliance upon defendant's advertisements and pamphlets, they purchased "Prowl" and "Scepter," used these herbicides on their land, and suffereda reduction in yield due to the herbicides' failure to control and destroy weeds in plaintiffs' bean crop.

In May 1994, defendant moved for summary judgment on the ground that section 136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. ยง 136v(b) (1988)) preempted plaintiffs' cause of action. In June 1994, the trial court granted defendant's motion, and plaintiffs appeal.

We reverse and remand.


In May 1987, plaintiffs purchased "Prowl" and "Scepter" from a dealer, who applied them to plaintiffs' bean crop. Plaintiffs never saw the herbicide labeling or relied upon it. Plaintiffs based their decision to buy these particular herbicides upon claims made in certain advertisements distributed by defendant, but plaintiffs did not keep a copy of them.

Plaintiffs alleged these advertisements impliedly warranted that the herbicides were safe and effective methods for the control and elimination of certain weeds growing in a bean crop. Defendant allegedly breached this implied warranty of merchantability because the herbicides did not effectively control the weeds in plaintiffs' 1987 bean crop. As a result of the breach, plaintiffs claimed they sustained a significant reduction in the yield of their 1987 bean crop.

In defendant's May 1994 motion for summary judgment based upon FIFRA, defendant filed an affidavit in support of its motion stating that the herbicides used on plaintiffs' crop were marketed with labeling approved by the Environmental Protection Agency (EPA). Defendant attached a copy of that labeling to the affidavit.


A. Summary Judgment

A trial court properly grants summary judgment when the pleadings, depositions, and affidavits show no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c) (West 1992); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871, 95 Ill. Dec. 305.) In construing a summary judgment motion, the trial court must view all evidence in the light most favorable to the nonmovant. ( Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 518, 622 N.E.2d 788, 792, 190 Ill. Dec. 758.) This court reviews the granting of summary judgment de novo. Golla v. General Motors Corp. (1994), 261 Ill. App. 3d 143, 147, 633 N.E.2d 193, 196, 198 Ill. Dec. 731.

On a defendant's motion for summary judgment, the plaintiff need not establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to judgment. ( West v. Deere & Co. (1991), 145 Ill. 2d 177, 182, 582 N.E.2d 685, 687, 164 Ill. Dec. 122; Northrop v. Lopatka (1993), 242 Ill. App. 3d 1, 4, 610 N.E.2d 806, 809, 182 Ill. Dec. 937.) If the party moving for summary judgment supplies facts which, if uncontradicted, would entitle it to judgment as a matter of law, the opponent to the motion cannot rely solely on his pleadings to raise issues of material fact. Thus, uncontradicted facts contained in the movant's affidavit are admitted and must be taken as true for purposes of the motion. ( Purtill, 111 Ill. 2d at 240-41, 489 N.E.2d at 871-72.) However, the party opposing the motion need not file any counteraffidavits to create a material question of fact unless the moving party presents evidence that precludes any possible liability. ( Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 604-05, 456 ...

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