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04/02/96 DENNIS DICKMAN v. E. I. DUPONT DE NEMOURS

April 2, 1996

DENNIS DICKMAN, PLAINTIFF-APPELLEE-CROSS-APPELLANT,
v.
E. I. DUPONT DE NEMOURS & COMPANY, DEFENDANT-APPELLANT-CROSS-APPELLEE.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 92-L-31. Honorable Patrick M. Burns, Judge Presiding.

Rehearing Denied April 29, 1996. Released for Publication April 29, 1996.

Honorable Michael P. McCUSKEY, Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice McCUSKEY delivered the opinion of the court: Slater and Michela, JJ., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

The plaintiff, Dennis Dickman, filed a two-count complaint against the defendant, E.I. Du Pont de Nemours and Company (Du Pont). Dickman sought damages for stunted corn crops. The trial court dismissed count I. Following a bench trial, the circuit court of Kankakee County entered judgment in favor of Dickman on count II in the amount of $19,904.55. Du Pont appealed from the judgment, and Dickman cross-appealed from the dismissal of count I.

In its appeal, Du Pont argues that the trial court lacked jurisdiction over Dickman's complaint because his claims were preempted by Federal law. In his cross-appeal, Dickman contends that the trial court erred in dismissing count I of his complaint based upon a release he signed on September 19, 1990. Following our careful review of the record, we affirm the trial court's judgment.

FACTS

Dickman filed his complaint against Du Pont on February 7, 1992. In count I, Dickman alleged that he purchased Canopy herbicide on March 22, 1989. Dickman said he used Canopy to control weeds on his soybean fields. The Canopy was manufactured by Du Pont and "was represented to be useable for the purpose of granting freedom to rotate from beans to corn on the following years." In 1990, he planted corn on the fields. Dickman alleged substantial damage occurred to the corn because of Canopy's "carryover" effect from the prior year. He claimed $9,588.13 in damages to his 1990 corn crop.

In count II, Dickman alleged that on May 2, 1990, he purchased Canopy. He again used the Canopy for weed control on his soybean fields. Dickman claimed $19,904.55 in damages to the corn he planted in 1991.

On May 20, 1992, Du Pont filed a motion to dismiss count I of Dickman's complaint. Du Pont contended that Dickman agreed to settle his 1990 claim. Du Pont attached a copy of a release signed by Dickman on September 19, 1990. The release stated that $400 was the settlement amount for damages to the 1990 corn crop.

In response, Dickman filed an affidavit acknowledging that he signed the release. Dickman said he did not receive the check from Du Pont until after November 12, 1990. Before Dickman received the $400 check, he calculated that his losses were far greater than that amount of money. Dickman did not cash the $400 check and returned it to Du Pont. On January 13, 1993, the trial court granted Du Pont's motion to dismiss count I of Dickman's complaint.

A bench trial on count II commenced on April 5, 1994. At the beginning of trial, Du Pont's attorney made an oral motion in limine. Du Pont argued that no evidence concerning the Canopy label should be admitted by the trial court. Du Pont contended that all questions concerning the label were exclusively Federal questions. Du Pont claimed that the Federal questions could not be decided in State court. The trial court denied the motion in limine, and the bench trial continued.

At trial, Dickman testified that he farms approximately 640 acres. In 1989, John Bright at the Herscher Grain Company gave Dickman two promotional brochures from Du Pont which provided information about the use and application of Canopy. Both brochures stated that Canopy "gives you the freedom to rotate from beans to corn." The brochures also said that Canopy could safely be used on Midwest soil types which had a pH level of 6.8 or lower. Bright said he received his training and instruction from Du Pont. Du Pont only sells its products through trained dealers like John Bright. Soil tests on Dickman's fields showed the average pH level ranged from 5.9 to 6.4. Based on these pH levels, Bright determined that Canopy was appropriate for use on Dickman's farm. As a result of the tests, Bright recommended that Dickman use Canopy.

Dickman said he decided to purchase Canopy based on Du Pont's promotional literature and Bright's recommendation. In 1989 and 1990, Dickman applied Canopy to his soybean fields. He noticed during the 1990 growing season that his corn was stunted on the fields previously treated with Canopy. James Flater, Du Pont's sales representative, inspected Dickman's corn and performed soil tests. Flater determined the cause of Dickman's problem was a high pH level. ...


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