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02/15/96 RICHARD BUSCH v. GRAPHIC COLOR CORPORATION

February 15, 1996

RICHARD BUSCH, ADM'R OF THE ESTATE OF MELISSA BUSCH, DECEASED, APPELLANT,
v.
GRAPHIC COLOR CORPORATION ET AL., APPELLEES.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Richard A. Lucas, Judge, presiding.

Chief Justice Bilandic delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case. Justice Miller, specially concurring:

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The plaintiff, Richard Busch, as administrator of the estate of his deceased wife, Melissa, filed this wrongful death action in the circuit court of Du Page County against AMREP, Inc. (AMREP), and Graphic Color Corporation (Graphic Color) for the benefit of himself, the surviving spouse. Melissa died of methylene chloride intoxication after using a paint stripper manufactured by AMREP while on the premises of R. Busch Drum, Inc. (Busch Drum), a corporation of which Richard Busch is president and part owner. Prior to Melissa's death, several cases of the paint stripper had been supplied to Busch Drum by a representative of Graphic Color. No claim or action for Melissa's death was brought by the plaintiff against Busch Drum.

The trial court entered summary judgment in favor of the defendants on the ground that the common law tort claims on which the plaintiff's wrongful death action is based are preempted by provisions of the Federal Hazardous Substances Act (FHSA) (15 U.S.C. § 1261 et seq. (1988)). The appellate court affirmed. (268 Ill. App. 3d 763, 206 Ill. Dec. 71, 644 N.E.2d 839.) We allowed the plaintiff's petition for leave to appeal (145 Ill. 2d R. 315).

FACTS

Busch Drum is a small corporation engaged in the business of buying, selling, and brokering industrial drums. Richard Busch is the president of Busch Drum, and he and his mother, Carol Busch, are the sole owners and the only employees of the company. Although Richard and Melissa were married, Melissa was not connected with Busch Drum in any capacity.

Graphic Color is a printing company which uses large ink vats in its printing operations. In the summer of 1988, nearly a year before Melissa's death, Busch Drum entered into an agreement with Graphic Color to periodically clean its ink vats. This task, however, was not part of Busch Drum's regular business operations. Richard, who was Busch Drum's only production employee, undertook the task of cleaning the vats in the company's garage. Graphic Color delivered the vats to Busch Drum along with rags, dust masks, and cleaning solvent, and a Graphic Color representative instructed Richard on how to clean the vats.

The solvent was a product called "Misty Paint Stripper and Decal Remover" (Misty Paint Stripper) manufactured by AMREP. The paint stripper contained a variable amount of methylene chloride, which AMREP purchased from Dow Chemical Corporation, with a maximum concentration of 77%. Richard was given five cases of Misty Paint Stripper for each vat to be cleaned. Each case contained 12 cans of the product, and Richard was told by the Graphic Color representative that it would take 60 cans to clean each vat.

Melissa was not an employee, agent, or independent contractor of Busch Drum but helped out in the office from time to time without pay. On occasion, Melissa saw Richard cleaning the ink vats. However, she was never asked or required to clean the vats.

On March 20, 1989, the day of Melissa's death, Richard went to the office early in the morning before leaving to meet with customers. Melissa was at home at this time. When Richard returned to the office at approximately 12:20 p.m., he found Melissa unconscious in the garage near one of the vats. Several empty cans of Misty Paint Stripper and numerous rags were lying about; Melissa was wearing a dust mask and was covered with ink. According to Richard, the windows were open and the fans were on when he found Melissa. The medical examiner's report, however, indicated that Richard had told an investigator that the garage had "no mechanical ventilation" and that "all windows and doors were closed" when he returned to find Melissa. Richard and his mother both submitted affidavits stating that Melissa had not been requested or authorized to clean the ink vats. Richard further stated that he was "totally unaware of her presence" on the premises until he returned to find her. The cause of Melissa's death was determined to be methylene chloride intoxication.

In his affidavit, Richard stated that, had he known the Misty Paint Stripper could be fatal if inhaled, he "would not have accepted the assignment" to clean the vats. He also indicated that he was told by representatives of Graphic Color that he could use as much of the product as was necessary to clean the vats and that the only safety equipment needed was a dust mask.

Robert Davis, a chemist which the plaintiff retained as an expert witness, explained in an affidavit that methylene chloride "is poisonous when inhaled in that it causes the inhibition of the release of carbon dioxide from hemoglobin in the blood which prevents the hemoglobin from picking up oxygen." He stated that inhalation of a sufficient amount of the chemical can cause unconsciousness and even death. According to Davis, the risk of cancer which has also been tied to methylene chloride is a risk "separate and apart from its risk as a poisonous substance when inhaled." Accordingly, a warning separate from that concerning the chemical's potential carcinogenic effects needed to be included in the Misty Paint Stripper's label. Davis reviewed the warning appearing on the Misty Paint Stripper label, which reads as follows:

[Front Panel]

"WARNING

VAPOR HARMFUL. CONTENTS UNDER PRESSURE. KEEP OUT OF REACH OF CHILDREN. Read other precautions on back panel."

[Back Panel]

"WARNING

Contains methylene chloride which has been shown to cause cancer in certain laboratory animals. Risk to your health depends on level and duration of exposure. Use this product outdoors if possible. If you must use it indoors, open all windows and doors or use other means to ensure fresh air movement during application and drying. If properly used, a respirator may offer additional protection. Obtain professional advice before using. A dust mask does not provide protection against vapors. Do not use in basement or other unventilated areas. Avoid contact with skin and eyes. First Aid Treatment: Contains Methylene Chloride and less than 4% Methyl Alcohol. In case of eye contact, flush with water thoroughly. Call a physician immediately. If swallowed, induce vomiting by placing fingers or spoon at back of throat. Call physician immediately. Keep patient warm. Avoid inhalation of spray mist. If overcome, move patient to fresh air. Call physician immediately."

Based on a reasonable degree of scientific certainty, Davis concluded that the label was insufficient in that it failed to specifically warn the user that the product can cause death by asphyxiation if a sufficient amount of methylene chloride is inhaled. He further concluded that in order for the product to be reasonably safe for its intended use, it would have to be accompanied by warnings substantially similar to those contained in the manufacturer's safety data sheet which Dow Chemical provided to AMREP. Among other things, the data sheet indicates that methylene chloride vapor is "heavier than air and will collect in low areas such as *** storage tanks and other confined areas." The data sheet also indicates that accumulated vapors "can readily cause unconsciousness or death." Davis explained that additional warnings such as these arc essential because methylene chloride has a narcotic effect which gives the user a false sense of well-being prior to the time he loses consciousness. According to Davis, a general warning about ventilation is "insufficient."

In his amended complaint, the plaintiff based his wrongful death claim against AMREP on the doctrine of strict product liability. Specifically, the plaintiff asserted that the Misty Paint Stripper was defective and unreasonably dangerous because the product's label failed to warn that the inhalation of the paint stripper vapors would cause death. He also asserted that the label contained inadequate instructions regarding how to safely use the product. According to the plaintiff, the defective and unreasonably dangerous condition of the product proximately caused Melissa's death.

The plaintiff's wrongful death claim against Graphic Color sounded in negligence. Specifically, the plaintiff asserted that Graphic Color was negligent in failing to warn Busch Drum that the inhalation of Misty Paint Stripper could prove fatal and in failing to properly instruct Busch Drum as to the proper use of the product. According to the plaintiff, Graphic Color's negligent conduct proximately caused Melissa's death.

AMREP and Graphic Color filed separate motions for summary judgment contending that the plaintiff's allegations of strict product liability and negligence were preempted by the FHSA. In addition, Graphic Color argued that it owed no legal duty to Melissa to warn of the dangers of using the Misty Paint Stripper because Melissa was not one whom Graphic Color could have reasonably anticipated would use the product. In granting the defendants' motions, the trial court agreed that the FHSA preempted the plaintiff's State-law tort claims The appellate court affirmed. 268 Ill. App. 3d 763, 644 N.E.2d 839, 206 Ill. Dec. 71.

ANALYSIS

Summary judgment is appropriate where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(c); Espinoza v. Elgin, Joliet & Eastern Ry. Co. (1995), 165 Ill. 2d 107, 113, 208 Ill. Dec. 662, 649 N.E.2d 1323; Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 517-18, 190 Ill. Dec. 758, 622 N.E.2d 788.) The purpose of summary judgment is to determine whether a question of fact exists. ( Gilbert, 156 Ill. 2d at 517.) Although summary judgment is encouraged to aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should thus be allowed only when the movant's right is clear and free from doubt. ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867.) As in all cases involving summary judgment, our review of the evidence is de novo. Espinoza, 165 Ill. 2d at 113.

The plaintiff contends that the appellate court erred in upholding the trial court's grant of summary judgment for the defendants on the basis that his tort claims were preempted by provisions of the FHSA. For the reasons which follow, we affirm the grant of summary judgment in favor of AMREP and Graphic Color. As to AMREP, we premise our holding on the doctrine of Federal preemption. As to Graphic Color, however, our holding is based on the principles set forth in section 388 of the Restatement of Torts (Restatement (Second) of Torts § 388 (1965)).

A. AMREP

The supremacy clause contained in article VI of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land, *** any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (U.S. Const., art. VI, cl. 2.) Thus, where State law conflicts with Federal law, the former is "without effect." ( Maryland v. Louisiana (1981), 451 U.S. 725, 746, 68 L. Ed. 2d 576, 595, 101 S. Ct. 2114, 2128.) The United States Supreme Court recently revisited the issue of Federal preemption in Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608. In Cipollone, the Court reiterated that "consideration of issues arising under the Supremacy Clause 'start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.'" ( Cipollone, 505 U.S. at 516, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617, quoting Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146, 1152.) Accordingly, the Court noted, "'"the purpose of Congress is the ultimate touchstone"' of pre-emption analysis. [Citations.]" Cipollone, 505 U.S. at 516, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617; accord Spitz v. Goldome Realty Credit Corp. (1992), 151 Ill. 2d 71, 74, 175 Ill. Dec. 727, 600 N.E.2d 1185; Castillo v. Jackson (1992), 149 Ill. 2d 165, 173-74, 171 Ill. Dec. 471, 594 N.E.2d 323 ("It is the power and intent of Congress to preempt an area of law which triggers the requirements of the supremacy clause" (emphasis in original)).

Congress' intent to preempt State law may be manifested "by express provision, by implication, or by a conflict between federal and state law." (New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance (1995), 514 U.S. , , 131 L. Ed. 2d 695, 704, 115 S. Ct. 1671, 1676.) However, "when Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a 'reliable indicium of congressional intent with respect to state authority,' [citation], 'there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation. [Citation.]" Cipollone, 505 U.S. at 517, 120 L. Ed. 2d at 423, 112 S. Ct. at 2618.

In addressing the preemptive scope of the FHSA, we note preliminarily that the decisions of the Federal courts interpreting a Federal act such as the FHSA are controlling upon Illinois courts, "in order that the act be given uniform application." ( Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186, 200, 142 N.E.2d 104; Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d 31, 34, 230 N.E.2d 173; Elgin, Joliet & Eastern Ry. Co. v. Industrial Comm'n (1956), 9 Ill. 2d 505, 507, 138 N.E.2d 553; see also Hiles v. Norfolk & Western Ry. Co. (1994), 268 Ill. App. 3d 561, 563, 205 Ill. Dec. 952, 644 N.E.2d 508; Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 620, 98 Ill. Dec. 459, 494 N.E.2d 581.) Having so noted, we proceed now to determine how the Federal courts have construed the FHSA's preemptive scope.

In the recent case of Moss v. Parks (4th Cir. 1993), 985 F.2d 736, the Fourth Circuit Court of Appeals set forth the relevant legislative history of the FHSA and its ...


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