Bailey v. Edward Hines Lumber Co., 1-98-3217.

• Decision Date: 29 September 1999
• Docket Number: No. 1-98-3217.,1-98-3217.
• Parties: Richard BAILEY, Plaintiff, v. EDWARD HINES LUMBER CO., et al. Defendants. Edward Hines Lumber Co., Third-Party Plaintiff-Appellant, v. Truss Plate Institute, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

719 N.E.2d 178

308 Ill. App.3d 58

241 Ill.Dec. 317

Richard BAILEY, Plaintiff, v. EDWARD HINES LUMBER CO., et al. Defendants.

Edward Hines Lumber Co., Third-Party Plaintiff-Appellant, v. Truss Plate Institute, Third-Party Defendant-Appellee.

No. 1-98-3217.

Appellate Court of Illinois, First District, Third Division.

September 29, 1999.

Robert J. Ambrose, Julie L. Trester and Bruce H. Schoumacher of Querrey & Harrow, Ltd., Chicago, for Third-Party Plaintiff-Appellant.

Thomas R. Pender and Christopher T. Conrad of Cremer, Kopon, Shaughnessy & Spina, Chicago, for Third-Party Defendant-Appellee.

Justice WOLFSON delivered the opinion of the court:

Until now, no reviewing court in Illinois has decided whether a trade association owes a duty of reasonable care to construction workers who rely on installation instructions it has released to the industry. We hold that, under the facts of this case, no duty is owed. For that reason, we affirm the trial court's grant of summary judgment to third-party defendant Truss Plate Institute (TPI) in the action brought by third-party plaintiff Edward Hines Lumber Company (Hines).

FACTS

On June 24, 1991, three carpenters installing a wood roof truss system at the Evergreen Plaza Shopping Center in Vernon Hills were injured when several trusses collapsed. Hines had designed, built, and furnished the truss system to comply with the architect's plans. With the truss system, Hines also provided the construction workers with a document called the "Green Sheet," published by TPI, a non-profit trade association representing the truss plate manufacturing industry. The Green Sheet was a single, two-sided, legal-size sheet reduction of an 18-page pamphlet entitled "Bracing Wood Trusses: Commentary and Recommendations" (BWT-76).

The "tentative recommendations" provided in the Green Sheet begin with a caveat:

"While the recommendations for bracing contained herein are technically sound, it is not intended that they be considered the only method for bracing a roof system. Neither should these recommendations be interpreted as superior to or a standard that would necessarily be preferred in lieu of an architect's or engineer's design for bracing a particular roof system.

These recommendations for bracing wood trusses originate from the collective experience of leading technical personnel in the wood truss industry, but must, due to the nature of the responsibilities involved, be presented only as a guide for the use of a qualified building designer, builder, or erection contractor. Thus, the Truss Plate Institute expressly disclaims any responsibility for damages arising from the use, application, or reliance on the recommendations and information contained herein by building designers or by erection contractors." (Emphasis in original.)

When the carpenters sued Hines, Hines impleaded TPI. Hines' third-party complaint alleged TPI proximately caused the carpenters' injuries by failing "to provide adequate instructions for the erection of roof trusses" and failing "to provide adequate warnings for the safe erection of roof trusses." Hines asked for contribution from TPI if Hines were found liable to the carpenters'.

On April 1, 1996, the trial court granted TPI's summary judgment motion. More than two years later, on July 9, 1998, the trial court granted Hines' Rule 304(a) motion. See 155 Ill.2d R. 304(a). On July 30, 1998, the court denied Hines' motion to reconsider the summary judgment order, and this appeal followed.

DECISION

We review de novo the trial court's decision to grant summary judgment. Murneigh v. Gainer, 177 Ill.2d 287, 298, 226 Ill.Dec. 614, 685 N.E.2d 1357 (1997).

Hines' third-party complaint against TPI is based on the Contribution Act, 740 ILCS 100/0.01 et seq. (West 1994). The basis for a third-party defendant's obligation to contribute is its liability to the original plaintiff. Taake v. WHGK, Inc., 228 Ill.App.3d 692, 715, 170 Ill.Dec. 479, 592 N.E.2d 1159 (1992). We, therefore, must examine TPI's alleged negligence liability to the carpenters here.

The elements of a common law negligence claim are a duty owed by the defendant to the plaintiff, breach of that duty by the defendant, and damages proximately caused by that breach. Ward v. K mart Corp., 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). If the plaintiff fails to establish an element of its negligence claim, summary judgment is appropriate. Smith v. Tri-R Vending, 249 Ill. App.3d 654, 657, 188 Ill.Dec. 808, 619 N.E.2d 172 (1993).

Hines' appeal raises two issues: duty and causation. Because of the conclusion we reach in this case, we limit our discussion to the matter of duty. That is, does a construction trade association, which disseminates discretionary installation recommendations for the products it represents, owe a duty of reasonable care to construction workers who rely on these recommendations?

Summary judgment is appropriate where the defendant owed no duty to the plaintiff. Jania v. Aguilera, 293 Ill. App.3d 940, 942, 228 Ill.Dec. 311, 689 N.E.2d 183 (1997). The issue of whether a duty exists is a question of law. Kuzmanich v. Cobb, 276 Ill.App.3d 634, 637, 213 Ill.Dec. 409, 659 N.E.2d 39 (1995).

In analyzing the duty issue, we ask whether the plaintiff and the defendant stood in such a relation to each other that the law should impose an obligation of reasonable conduct on the defendant for the benefit of the plaintiff. Ward, 136 Ill.2d at 140, 143 Ill.Dec. 288, 554 N.E.2d 223. To determine whether a duty of reasonable care exists we examine several factors: the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant. Ward, 136 Ill.2d at 140, 143 Ill.Dec. 288, 554 N.E.2d 223; Kirk v. Michael Reese Hospital, 117 Ill.2d 507, 526, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987).

Illinois courts never have addressed Hines' duty issue, so we turn our attention to cases from other jurisdictions examining trade association liability in similar circumstances. See generally Annotation, Products Liability of Endorser, Trade Association, Certifier, or Similar Party Who Expresses Approval of Product, 1 A.L.R.5th 431 (1992).

In Evenson v. Osmose Wood Preserving, Inc., 760 F.Supp. 1345 (S.D.Ind.1990), a wood treatment worker used a pesticide manufactured by a wood preservation company. After he developed asthma and chest pain allegedly attributable to the pesticide, the worker sued a wood preservation industry trade association. The trade association contended it owed no duty to warn the worker about the dangers presented by the pesticide.

In granting summary judgment to the trade association, the court agreed:

"In the instant case, the plaintiff has alleged no facts showing that AWPI [the trade association] owed him a duty to communicate the dangers of working with [the pesticide]. AWPI is a trade association; it is undisputed that AWPI did not manufacture, sell[,] distribute, design, test, conduct safety research on, or set standards for [the pesticide]. We believe that there is no relationship upon which plaintiff may base a claim for negligence against AWPI." Evenson, 760 F.Supp. at 1349.

In Klein v. Council of Chemical Associations, 587 F.Supp. 213 (E.D.Pa.1984), a printing industry worker was exposed to various commercial chemicals over a 50-year period. After he developed bladder cancer allegedly attributable to these chemicals, the worker sued several trade associations representing the printing industry. These defendants contended they owed no duty to warn the worker of the dangers presented by these chemicals. The court dismissed the worker's complaint against the trade associations because they did not produce or supply the chemicals to which he was exposed. Klein, 587 F.Supp. at 225.

In Meyers v. Donnatacci, 220 N.J.Super. 73, 531 A.2d 398 (Super.Ct.1987), a swimming pool user became paralyzed after diving into the pool's shallow end. The pool user sued the pool industry trade association for negligence, alleging the trade association failed to disseminate information on the hazards of shallow-end diving. The trade association contended it owed no duty to the pool user.

The court agreed with the trade association, holding the trade association and the pool user had no special relationship. Meyers, 531 A.2d at 402. The court explained: "[The trade association] provides various services and programs to its members so as to achieve an ever expanding public interest in swimming and aquatics in general. Its services are directed to its membership in an attempt to provide a forum where the members can exchange ideas." (Emphasis in original.) Meyers, 531 A.2d at 403. The court also noted the trade association promulgated "Suggested Minimum Standards for Residential Swimming Pools." (Emphasis in original.) Meyers, 531 A.2d at 403. The trade association had very little power to enforce these discretionary standards. Meyers, 531 A.2d at 403. Accord Howard v. Poseidon Pools, Inc., 133 Misc.2d 50, 506 N.Y.S.2d 523, 527 (Sup.Ct.1986), aff'd in part, rev'd on other grounds, 134 A.D.2d 926, 522 N.Y.S.2d 388 (App.Div.1987) (swimming pool industry trade association owed no duty to a pool user because it did not have the authority to control the tortfeasing manufacturer).

In Beasock v. Dioguardi Enterprises, Inc., 130 Misc.2d 25, 494 N.Y.S.2d 974 (Sup.Ct.1985), a driver was killed when his tire exploded while he inflated it. The driver's wife sued the tire and rim industry trade association, alleging the trade association failed to correct a tire/rim mismatch in its annual industry publication.

The court held the trade association owed no duty to the driver because it did not exercise control over tire and rim manufacturers. Beasock, 494 N.Y.S.2d at 979. The trade association's publication merely "* * * reiterates * * * that the information contained in...