Alm v. Van Nostrand Reinhold Co., Inc.

• Decision Date: 28 June 1985
• Docket Number: No. 83-2365,83-2365
• Citation: 134 Ill.App.3d 716,480 N.E.2d 1263,89 Ill.Dec. 520
• Parties: , 89 Ill.Dec. 520 William ALM, Plaintiff-Appellant, v. VAN NOSTRAND REINHOLD CO., INC., Defendant-Appellee, and Alexander G. Weygers, Defendant.
• Court: United States Appellate Court of Illinois

Page 1263

480 N.E.2d 1263

134 Ill.App.3d 716, 89 Ill.Dec. 520

William ALM, Plaintiff-Appellant, v. VAN NOSTRAND REINHOLD CO., INC., Defendant-Appellee and Alexander G. Weygers, Defendant.

No. 83-2365.

Appellate Court of Illinois First District, Fifth Division.

June 28, 1985.

Crooks & Gilligan, Ltd., Chicago (John W. Gilligan, John P. Prusik, Chicago, of counsel), for plaintiff-appellant William E. Alm.

Ross & Hardies, Chicago (Barbara Ross, Chicago, of counsel), for defendant-appellee Van Nostrand Co., Inc.

LORENZ, Justice:

Plaintiff appeals from the dismissal of his amended complaint as against defendant, Van Nostrand Reinhold Co., Inc. On appeal, plaintiff contends that a publisher of a "How To" book has a duty to provide adequate and safe instructions and warnings to intended purchasers and users of its publications. We affirm.

The Making of Tools was written by Alexander Weygers ("Weygers"), published by Van Nostrand Reinhold Co., Inc. ("defendant") and sold to plaintiff by Kroch's and Brentano's. On March 23, 1980 plaintiff was injured when a tool shattered while he was allegedly following the instructions in the book for making that tool.

On January 10, 1983, plaintiff filed the amended complaint which is at issue here sounding in negligence against both author and publisher. With respect to the defendant publisher, plaintiff's amended complaint alleged, inter alia, that defendant was in the business of manufacturing, publishing and selling books, including "How To" books such as The Making of Tools; that the book was published by defendant; that it was intended to be used by the novice craftsman in woodcarving or in making tools associated with woodcarving; that defendant knew or should have known the dangers present in the processes of woodcarving and toolmaking recommended in the book; that defendant knew or should have known that the book would be used by novice craftsmen who would rely on the instructions in the book; that defendant therefore had a duty to provide adequate instructions and warnings to alert craftsmen of the dangers present in the woodcarving and toolmaking process; and that defendant breached this duty. Finally, plaintiff alleged that he was following instructions in The Making of Tools when, as a result of defendant's negligence, the tool shattered and caused him injury.

On May 23, 1983, the trial court heard defendant's motion to dismiss plaintiff's amended complaint. The court dismissed plaintiff's complaint as to defendant, ruling that there is no duty on the part of a publisher to verify the material it publishes. Plaintiff's case continues as against author Weygers. The court found no just reason to delay plaintiff's appeal on this count of the complaint, and plaintiff filed a timely notice of appeal.

OPINION

The parties agree that whether the allegations in plaintiff's amended complaint set forth a cognizable claim is essentially a question of law.

Plaintiff argues that the publisher of a "How To" book has a duty to provide adequate and safe instructions and warnings to intended purchasers and users of its publications. In support of his argument, plaintiff urges this court to adopt Section 311 of the Restatement (Second) of Torts, so as to impose a duty to provide safe and adequate instructions upon defendant. Although plaintiff acknowledges that section 311 has yet to be recognized as a basis for his theory of negligent misrepresentation of information, he urges that its adoption is long overdue.

Conversely, defendant argues that the law does not and should not impose a duty upon a publisher to warn the reading public as to the content of an author's text. Defendant posits that the Illinois appellate court has already stated a publisher is not liable for physical injuries resulting from the procedures it publishes (see MacKown v. Illinois Publishing & Printing Co. (1937), 289 Ill.App. 59, 6 N.E.2d 526), and that other jurisdictions have also refused to acknowledge such a duty. In addition, defendant states that the imposition of such a duty would have a chilling effect on the free expression of thoughts and ideas which is entitled to First Amendment protection.

Common law negligence consists of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by the breach. (Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307; Prosser, Torts, § 30, at 143 (4th ed. 1971).) The existence of a duty, that is, a legal obligation to conform one's conduct to a certain standard for the benefit or protection of another, is a matter of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 555, 328 N.E.2d 538; Prosser, Torts, § 37 at 206 (4th ed. 1971).) It is important to recognize that the imposition of a duty is an exercise of judicial policy-making. (See Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307; Prosser, Torts, § 53, at 325-26 (4th ed. 1971).) "In determining whether the law imposes a duty, foreseeability of possible harm alone is not the test, for in retrospect almost every occurrence may appear to be foreseeable. The likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant must be taken into account." Barnes v. Washington (1973), 56 Ill.2d 22, 29, 305 N.E.2d 535.

Such considerations led our appellate court in MacKown v. Illinois Publishing & Printing Co. (1937), 289 Ill.App. 59, 6 N.E.2d 526, to refuse to hold a newspaper liable for injuries to one of its readers allegedly resulting from the use of a dandruff remedy recommended in an article. The MacKown court dismissed the reader's claim and found that the newspaper owed no duty to the plaintiff, relying in part on a series of New York cases in which the lack of privity between the plaintiff and the defendant was held to bar a cause of action for "information negligently given." (289 Ill.App. 59, 67, 6 N.E.2d 526; see Jaillet v. Cashman (1921), 115 Misc. 383, 189 N.Y.S. 743, aff'd (1923), 235 N.Y. 511, 139 N.E. 714 (ticker service not liable to non-subscriber plaintiff who saw an erroneous report in broker's office and relied on report to sell stock); Ultramares Corp. v. Touche (1931), 255 N.Y. 170, 174 N.E. 441 (accountant not liable to third party who relied on balance sheet to loan money to company which later defaulted).) Plaintiff correctly notes that the doctrine of privity, by itself, no longer shields tort-feasors from the consequences of negligent conduct. (See Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 84, 199 N.E.2d 769.) What does remain as a factor is the concern behind the privity requirement, that the duty imposed not constitute an unduly severe burden upon a defendant. Rozny v. Marnul (1969), 43 Ill.2d 54, 66, 250 N.E.2d 656, 662; Demuth Development Corp. v. Merck & Co. (E.D.N.Y.1977), 432 F.Supp. 990, 93-94.

The Illinois appellate court in MacKown in effect determined that as a matter of policy it would not impose upon a newspaper the duty of protecting its readers from articles containing instruction that might cause injury if followed. Courts in other jurisdictions have reached similar conclusions. Thus, in Yuhas v. Mudge (1974), 129 N.J.Super. 207, 322 A.2d 824, plaintiff sustained personal injuries in an explosion of fireworks purchased by a third party who responded to an advertisement in POPULAR MECHANICS magazine. The court found no actionable duty to investigate these products on the part of the magazine publisher, stating:

"To impose the suggested broad legal duty upon publishers of nationally circulated magazines, newspapers and other publications, would not only be impractical and unrealistic, but would have a staggering adverse effect on the commercial world and our economic system. For the law to permit such exposure to those in the publishing business who in good faith accept paid advertisements for a myriad of products would open the doors 'to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.' (citation.)" (Yuhas v. Mudge (1974), 129 N.J.Super. 207, 209-10, 322 A.2d 824, 825; accord Suarez v. Underwood (1980), 103 Misc.2d 445, 426 N.Y.S.2d 208.)

Concerns about the devastating effects of imposing such broad liability were cited by the court in Cardozo v. True (Fla.App.1977), 342 So.2d 1053, which held that a book dealer would not be held liable under a warranty theory where the purchaser of a cookbook was poisoned as a result of an alleged failure to warn.

Plaintiffs concede that they have discovered no case in any jurisdiction which has imposed liability on a publisher for negligent misrepresentation merely because of the publication of material written by a third party. In Hanberry v. Hearst Corp. (1969), 276 Cal.App.2d 680, 81 Cal.Rptr. 519, the court recognized a cause of action for negligent misrepresentation against a publishing company which had affirmatively represented in its magazine that certain shoes had "Good Housekeeping's Consumers' Guaranty Seal," and had certified that the product was a good one. The plaintiff purchased a pair of the shoes and was injured when she slipped on a vinyl floor, allegedly because the shoes were defective. In allowing the complaint the court specifically relied on the defendant's endorsements of the product which were contained not only in its own magazine but in other advertising...