Lewis v. Lead Industries Ass'n, Inc.

• Decision Date: 30 June 2003
• Docket Number: No. 1-02-1034.,1-02-1034.
• Citation: 276 Ill.Dec. 110,342 Ill. App.3d 95,793 N.E.2d 869
• Parties: Mary LEWIS, Tashswan Banks, and Jacqueline Nye, on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. LEAD INDUSTRIES ASSOCIATION, INC., American Cyanamid Company, Atlantic Richfield Company, Fuller-O'Brien Corporation, Conagra Grocery Products Company, NL Industries, Inc., SCM Chemicals, and The Sherwin-Williams Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

793 N.E.2d 869

342 Ill. App.3d 95

276 Ill.Dec. 110

Mary LEWIS, Tashswan Banks, and Jacqueline Nye, on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. LEAD INDUSTRIES ASSOCIATION, INC., American Cyanamid Company, Atlantic Richfield Company, Fuller-O'Brien Corporation, Conagra Grocery Products Company, NL Industries, Inc., SCM Chemicals, and The Sherwin-Williams Company, Defendants-Appellees.

No. 1-02-1034.

Appellate Court of Illinois, First District, Third Division.

June 30, 2003.

Rehearing Denied July 29, 2003.

Block & Landsman, Chicago (Laurence M. Landsman & Alan F. Block, of counsel), Edward T. Joyce & Associates, P.C., Chicago (Edward T. Joyce & Arthur W. Aufmann, of counsel), for Appellants.

Sidley Austin Brown & Wood, Chicago (Michael W. Davis, David B. Johnson & David B. Barlow, of counsel), for American Cyanamid.

Winston & Strawn, Chicago (Dan K. Webb & Bradley E. Lerman, of counsel), for Atlantic Richfield.

Justice HOFFMAN delivered the opinion of the court:

The plaintiffs, Mary Lewis, Tashswan Banks and Jacqueline Nye, appeal from an order of the circuit court dismissing each of the six counts of their second amended class action complaint for failure to state causes of action. The plaintiffs brought the instant action on behalf of themselves and other similarly situated parents and guardians of minor children who have undergone or will undergo medical screening, assessment, or monitoring for lead poisoning or latent diseases associated with lead poisoning. The defendant, Lead Industries Association, Inc. (LEAD), is a corporation which, according to the plaintiffs, promoted the use of lead pigments in paint sold in the United States. The remaining defendants, American Cynamid Company, Atlantic Richfield Company, Fuller-O'Brien Corporation, Conagra Grocery Products Company, NL Industries, Inc., SCM Chemicals and the Sherwin-Williams Company (hereinafter collectively referred to as the "Manufacturing Defendants"), are alleged to have manufactured, marketed, and distributed white lead pigment for use in paint.

The plaintiffs' second amended class action complaint asserted six claims against the defendants. Each count alleged that, as a result of the health hazards associated with lead-based paints offered for sale prior to 1978, all minor children in Illinois "are now, have been in the past, and will be indefinitely in the future, exposed to and at risk for lead poisoning[,]" and, as a consequence, all children six months through six years of age must be either screened for lead poisoning or assessed for the risk of developing it. Common to each count was a prayer seeking an order compelling the defendants to reimburse and pay the plaintiffs and the members of the putative class for the costs of all medical screenings, assessments, and monitoring of their minor children.

The defendants filed motions pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)), seeking the dismissal of all six counts of the plaintiffs' second amended complaint. In addition to asserting grounds addressed specifically to each of the counts, the defendants argued that all of the counts failed to allege either a present injury to the plaintiffs or facts in support of the proximate cause element of the claims pled. The circuit court granted the defendants' motions, and this appeal followed.

As the complaint at issue was dismissed in response to motions brought pursuant to section 2-615 of the Code, the only question before this court is whether the dismissed counts state causes of action upon which relief can be granted. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 488, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). The issue is one of law, and our review is de novo. Metrick v. Chatz, 266 Ill.App.3d 649, 651-52, 203 Ill.Dec. 159, 639 N.E.2d 198 (1994).

We begin our review with an analysis of counts I and II of the plaintiff's second amended complaint. Initially, we note that we, like the trial court, have had difficulty in identifying the specific causes of action that the plaintiffs attempted to plead in these counts. However, a motion to dismiss should not be granted if any good cause of action has been stated, even if that cause of action is not the one intended by the pleader. Illinois Graphics Co., 159 Ill.2d at 488, 203 Ill.Dec. 463, 639 N.E.2d 1282. Consequently, our first task is to endeavor to identify the causes of action that the charging allegations in counts I and II might support.

Count I alleged that LEAD and the Manufacturing Defendants knew of the hazards and toxicity of lead-based paint and, nevertheless, intentionally failed and refused to warn manufacturers, wholesalers, retailers, consumers, purchasers, appliers, and users of the following: (1) that lead-based paint should not be used in areas where persons might foreseeably be exposed to lead through ingestion, inhalation, or absorption; (2) that ingestion, inhalation, or absorption of lead from lead-based paint posed a serious and immediate risk to the health and well-being of residents in buildings with surfaces containing lead-based paint; and (3) the risks, hazards, and damage to persons or property that would be caused or increased by the use of lead-based paint. The caption of the count, "Intentional Failure to Warn," is not descriptive of a recognized cause of action. Failure to warn of a product's dangerous propensities may, however, under appropriate circumstances, constitute a breach of duty upon which an action for negligence might be predicated (see Beadles v. Servel, 344 Ill.App. 133, 100 N.E.2d 405 (1951)), and may also serve as the basis for holding a defendant liable under a strict product liability theory (Woodill v. Parke Davis & Co., 79 Ill.2d 26, 29, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980)).

Count II, captioned "Supplier Liability," alleged that the "[d]efendants supplied lead pigment for use in manufacturing lead-based paints knowing that the lead pigments were not safe for such use and could not be made reasonably safe before the lead-based paint was used by consumers and applied to surfaces encountered by children." Again, however, the caption of the count does not disclose the tort theory upon which it is grounded and the allegations might be construed as asserting several different causes of action. The supplier of an unreasonably dangerous product may be liable for injuries proximately caused by the product in a negligence action (see Watts v. Bacon & Van Buskirk Glass Co., 18 Ill.2d 226, 231-32, 163 N.E.2d 425 (1959); Restatement (Second) of Torts § 389 (1977)), or in an action premised upon the theory of strict product liability (see Gilliland v. Rothermel, 83 Ill.App.3d 116, 118, 38 Ill.Dec. 528, 403 N.E.2d 759 (1980)).

We note also that, in counts I and II, the plaintiffs alleged that the defendants' acts and omissions were both knowing and intentional. Although not a separate tort, the theory of willful and wanton misconduct might encompass the intentional wrongdoing that the plaintiffs alleged in these counts. See Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 274-75, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994).

Since the charging allegations of counts I and II might be construed as supporting several theories of tort liability, we will address the grounds for dismissal raised by the defendants which are common to all of these theories.

In moving for dismissal, the defendants asserted that all six counts of the plaintiffs' second amended complaint failed to allege a compensable injury. They argued that the cost of screening a child for lead poisoning, absent any allegation that the child suffered a physical injury, is not a compensable present injury that will satisfy the damage element of a tort claim. The trial court agreed, characterizing the relief sought by the plaintiffs as damages for an increased risk of future harm.

The plaintiffs contend that the trial court "misconstrued" the relief sought in their second amended complaint. According to the plaintiffs, "[t]hey are not seeking damages for an increased risk of future physical harm[;]" rather, they seek only compensation for the cost of medical testing made necessary by the defendants' manufacturing, marketing, and sale of a dangerous product. The plaintiffs argue that the cost of testing to detect an injury or disease is a compensable injury, even in the absence of any present physical injury.

The defendants are correct in their assertion that, in order for a plaintiff to recover damages for an increased risk of future harm in a tort action, he or she must establish, among other things, that the defendant's breach of duty caused a present injury which resulted in that increased risk. See Dillon v. Evanston Hospital, 199 Ill.2d 483, 496-507, 264 Ill. Dec. 653, 771 N.E.2d 357 (2002)(citing with approval Connecticut Civil Jury Instruction No. 2-40(c)). An increased risk of future harm standing alone is insufficient to support an award of damages under the theories of strict product liability, negligence (Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill.2d 428, 442-43, 137 Ill.Dec. 635, 546 N.E.2d 580 (1989)), or willful and wanton misconduct. In this case, however, we are faced with the preliminary question of whether the cost of diagnostic testing to detect a possible injury, which testing was made necessary by a defendant's breach of duty, is in itself a present injury compensable in a tort action.

Relying primarily upon the holding in Friends For All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C.Cir. 1984), the plaintiffs contend that an action seeking recovery for the cost of such examinations is distinct from a claim seeking recovery for an increased risk of harm of developing an injury or disease in the future. In Friends For All Children, the court reasoned that "an individual has an interest in avoiding expensive diagnostic examinations just as he or...