Malone v. American Cyanamid Co., 4-94-0811

CourtUnited States Appellate Court of Illinois
Citation271 Ill.App.3d 843,649 N.E.2d 493
Docket NumberNo. 4-94-0811,4-94-0811
Parties, 208 Ill.Dec. 437, 28 UCC Rep.Serv.2d 518, Prod.Liab.Rep. (CCH) P 14,212 Paul E. MALONE and Laverne Malone, d/b/a Malone Farms, Plaintiffs-Appellants, v. AMERICAN CYANAMID COMPANY, a Maine Corporation, Defendant-Appellee.
Decision Date13 April 1995

Opinion Supplementing Decision on Denial of Rehearing May 19, 1995.

Rex L. Brown, Gregory Mattingly (argued), Jeffery J. Hawkins, Brown, Hawkins, Basola & Mattingley, Decatur, IL, for Paul E. Malone.

Todd E. Bugg (argued), Costigan & Wollrab, P.C., Bloomington, IL, for American Cyanamid Co.

Justice STEIGMANN delivered the opinion of the court:

In May 1991, plaintiffs, Paul E. Malone and Laverne Malone, d/b/a Malone Farms, sued defendant, American Cyanamid Company, for breach of implied warranty of merchantability. Plaintiffs alleged that defendant manufactured, advertised, and sold herbicides under the trade names of "Prowl" and "Scepter," which defendant represented to be safe and effective means of controlling and eliminating weeds from bean crops. Plaintiffs further alleged that in reliance upon defendant's advertisements and pamphlets, they purchased "Prowl" and "Scepter," used these herbicides on their land, and suffered a reduction in yield due to the herbicides' failure to control and destroy weeds in plaintiffs' bean crop.

In May 1994, defendant moved for summary judgment on the ground that section 136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) ( 7 U.S.C. § 136v(b) (1988)) preempted plaintiffs' cause of action. In June 1994, the trial court granted defendant's motion, and plaintiffs appeal.

We reverse and remand.

I. BACKGROUND

In May 1987, plaintiffs purchased "Prowl" and "Scepter" from a dealer, who applied them to plaintiffs' bean crop. Plaintiffs never saw the herbicide labeling or relied upon it. Plaintiffs based their decision to buy these particular herbicides upon claims made in certain advertisements distributed by defendant, but plaintiffs did not keep a copy of them.

Plaintiffs alleged these advertisements impliedly warranted that the herbicides were safe and effective methods for the control and elimination of certain weeds growing in a bean crop. Defendant allegedly breached this implied warranty of merchantability because the herbicides did not effectively control the weeds in plaintiffs' 1987 bean crop. As a result of the breach, plaintiffs claimed they sustained a significant reduction in the yield of their 1987 bean crop.

In defendant's May 1994 motion for summary judgment based upon FIFRA, defendant filed an affidavit in support of its motion stating that the herbicides used on plaintiffs' crop were marketed with labeling approved by the Environmental Protection Agency (EPA). Defendant attached a copy of that labeling to the affidavit.

II. ANALYSIS
A. Summary Judgment

A trial court properly grants summary judgment when the pleadings, depositions, and affidavits show no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c) (West 1992); see also Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 309, 489 N.E.2d 867, 871.) In construing a summary judgment motion, the trial court must view all evidence in the light most favorable to the nonmovant. (Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill.2d 511, 518, 190 Ill.Dec. 758, 762, 622 N.E.2d 788, 792.) This court reviews the granting of summary judgment de novo. Golla v. General Motors Corp. (1994), 261 Ill.App.3d 143, 147, 198 Ill.Dec. 731, 734, 633 N.E.2d 193, 196.

On a defendant's motion for summary judgment, the plaintiff need not establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to judgment. (West v. Deere & Co. (1991), 145 Ill.2d 177, 182, 164 Ill.Dec. 122, 124, 582 N.E.2d 685, 687; Northrop v. Lopatka (1993), 242 Ill.App.3d 1, 4, 182 Ill.Dec. 937, 940, 610 N.E.2d 806, 809.) If the party moving for summary judgment supplies facts which, if uncontradicted, would entitle it to judgment as a matter of law, the opponent to the motion cannot rely solely on his pleadings to raise issues of material fact. Thus, uncontradicted facts contained in the movant's affidavit are admitted and must be taken as true for purposes of the motion. (Purtill, 111 Ill.2d at 240-41, 95 Ill.Dec. at 309-10, 489 N.E.2d at 871-72.) However, the party opposing the motion need not file any counteraffidavits to create a material question of fact unless the moving party presents evidence that precludes any possible liability. (Motz v. Central National Bank (1983), 119 Ill.App.3d 601, 604-05, 75 Ill.Dec. 137, 140-41, 456 N.E.2d 958, 961-62.) Accordingly, a party opposing a motion for summary judgment may rely solely upon his pleadings to create a material question of fact until the movant supplies facts that would clearly entitle him to judgment as a matter of law.

B. Preemption Generally

The supremacy clause of the United States Constitution invalidates any State law that interferes with--or is contrary to--Federal law. (See U.S. Const., art. VI.) Because of the supremacy clause, a State law conflicting with Federal law is preempted, or "without effect." (Maryland v. Louisiana (1981), 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576, 595.) Preemption analysis must begin with "the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459.) Thus, Congressional intent is the "ultimate touchstone" of preemption analysis. (Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422. As the Supreme Court recently stated in Cipollone:

"Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose.' Jones v. Rath Packing Co., 430 US 519, 525, 97 SCt 1305[, 1309], 51 LEd2d 604, [614,] (1977). In the absence of an express congressional command, [S]tate law is pre-empted if that law actually conflicts with [F]ederal law, [citation], or if [F]ederal law so thoroughly occupies a legislative field ' "as to make reasonable the inference that Congress left no room for the States to supplement it." ' Fidelity Federal Savings & Loan Assn. v De [de] la Cuesta, 458 US 141, 153, 102 SCt 3014[, 3022,] 73 LEd2d 664 (1982) (quoting Rice v Santa Fe Elevator Corp., 331 US , at 230, 91 LEd 1447 [at 1459], 67 SCt 1146 [at 1152] ).

* * * * * *

* * * 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,' Malone v White Motor Corp., 435 US [497,] at 505, 55 LEd2d 443, 98 SCt 1185[, 1190] 'there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation. California Federal Savings & Loan Assn. v Guerra, 479 US 272, 282, 93 LEd2d 613, 107 SCt 683 [, 690] (1987) (opinion of Marshall, J.)." Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617-18, 120 L.Ed.2d at 422-23.

In Cipollone, the plaintiff, a woman who ultimately died of lung cancer after several years of smoking, sued several cigarette manufacturers under various State common law causes of action, including the failure to warn consumers of the hazards of smoking. The cigarette manufacturers contended that the following language in the Public Health Cigarette Smoking Act of 1969 (Cigarette Act) (see 15 U.S.C. §§ 1331 through 1340 (1988)), which mandated specific warnings on all cigarette packaging, preempted plaintiff's claims:

"No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this [Cigarette Act]." 15 U.S.C. § 1334(b) (1988).

The Court held that "[t]he phrase '[n]o requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common law rules." (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2620, 120 L.Ed.2d at 426 (opinion of Stevens, J., joined by Rehnquist, C.J., and White and O'Connor, JJ.).) Interpreting the phrase "under State law" in this section of the Cigarette Act to include common law rules, the Court then held that the Cigarette Act preempted common law damages actions that constitute "a 'requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion.' " (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2621, 120 L.Ed.2d at 427 (opinion of Stevens, J., joined by Rehnquist, C.J., and White and O'Connor, JJ.).) The Court relied upon this analysis in holding that the plaintiff's claims concerning the failure to warn were preempted insofar as they required a showing that the defendant's advertising should have included additional or more clearly stated warnings. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2621-22, 120 L.Ed.2d at 427-28 (opinion of Stevens, J., joined by Rehnquist, C.J., and White and O'Connor, JJ.).

However, the Court emphasized that the preemption provision of the Cigarette Act did not preempt all common law claims. Instead, the Court stated that it must fairly but narrowly construe the preemption provision and look at each of the plaintiff's common law claims to determine whether it was preempted. For example, a breach of an express warranty action was not preempted by the Cigarette Act because a manufacturer's liability for...

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