Rubin v. Marshall Field & Co.

• Decision Date: 14 July 1992
• Docket Number: No. 1-90-2498,1-90-2498
• Citation: 173 Ill.Dec. 714,597 N.E.2d 688,232 Ill.App.3d 522
• Parties: , 173 Ill.Dec. 714, 18 UCC Rep.Serv.2d 753 Cynthia RUBIN, Plaintiff-Appellee, v. MARSHALL FIELD & COMPANY, a Delaware corporation and Princess Marcella Borghese, Inc., a New York corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 688

597 N.E.2d 688

232 Ill.App.3d 522, 173 Ill.Dec. 714,

18 UCC Rep.Serv.2d 753

Cynthia RUBIN, Plaintiff-Appellee, v. MARSHALL FIELD & COMPANY, a Delaware corporation and Princess Marcella Borghese, Inc., a New York corporation, Defendants-Appellants.

No. 1-90-2498.

Appellate Court of Illinois First District, Second Division.

July 14, 1992.

French Kezelis & Kominiarek, P.C., Chicago (Algimantas Kezelis, Russell P. Veldenz and Patrick B. Cage, of counsel), for defendants-appellants.

Law Offices of Arthur S. Gomberg, P.C., Chicago (Gregory A. Friedman, of counsel), for plaintiff-appellee.

Justice McCORMICK delivered the opinion of the court:

Plaintiff, Cynthia Rubin, sued defendants, Marshall Field & Company (Fields) and Princess Marcella Borghese, Inc. (Princess Marcella) for injuries caused by cosmetics that defendants marketed. A jury awarded plaintiff damages for breach of implied warranty of fitness for a particular purpose and for violation of the Illinois Consumer Fraud Act (Ill.Rev.Stat.1985, ch. 121 1/2, par. 261 et seq.). Defendants appeal from the judgment entered on the verdict and from the trial court's award of attorney fees.

On April 5, 1986, plaintiff purchased instant eye makeup remover distributed by Princess Marcella from Fields. That night she used the product to remove her eye makeup. Her eyelids and the skin around her eyes turned red, became taut and rough and started to sting. She washed the skin repeatedly and kept a cold washrag on her eyes all night. Two days later, when the burning did not subside, she called an opthalmologist, and she went to see him the next day. He told her that she had contact dermatitis and he prescribed an ointment.

A few weeks later, because the burning and roughness of her eyelids persisted, plaintiff decided to see Dr. Katherine Wier, a dermatologist. Dr. Wier prescribed a similar ointment and told plaintiff that the chemical which was causing the burning would remain in her system for three or four months. The stinging subsided, but plaintiff could not wear eye makeup again regularly until summer 1987. When she tried to wear makeup again before that, her eyelids turned bright red and began swelling upon removal of the makeup.

In March 1988, plaintiff filed her four-count complaint. In December 1989, she amended her complaint to six counts, charging defendants in count I with violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1985, ch. 121 1/2, par. 261 et seq.) (the Act). She also sought to recover for her personal injuries on theories of breach of express warranty (count II); breach of implied warranty (count III); strict products liability (count IV); negligence (count V); and common law fraud (count VI). Defendants did not object to the amendment of the complaint or to trial by jury on any count of the complaint.

At trial plaintiff testified that when she went to Fields on April 5, 1986, she was not especially shopping for cosmetics. While browsing she got into a conversation with Julianna Reiner, a sales clerk, and she told Reiner that she used Vaseline to remove her eye makeup. Reiner said Vaseline could clog her eye ducts and cause cataracts or other permanent eye damage. Reiner recommended Princess Marcella Borghese Instant Eye Make-Up Remover. Plaintiff asked if the product was safe and Reiner showed her the box, which said "recommended for all skin types." Reiner said, "if it wouldn't be safe for you, it wouldn't say this on the box." Relying on Reiner's representations, plaintiff purchased the product.

Defendants admit that Reiner was an agent for both defendants when she sold plaintiff the product. Reiner testified that she had no specific recollection of the transaction, but she never said anything about adverse effects of other products, and she "never use[d] the word [V]aseline, ever."

Dr. Wier testified that eyelid skin and genital skin is the most sensitive skin on the body, and very fair skin, like plaintiff's, is easily irritated. Dr. Wier could say with medical certainty that the makeup remover caused plaintiff's reaction, which was probably a primary irritant reaction compounded by an allergic reaction. Dr. Wier testified in her deposition that although the distinction is sometimes difficult to draw, an irritant reaction is an immediate skin reaction, like burning, which the irritant would cause on almost anyone's skin, while an allergic reaction is usually delayed and occurs only in persons with the allergy. She classified plaintiff's reaction as a primary irritant reaction because of the speed with which the reaction occurred. The detergent in the makeup remover was probably the irritant, opening the pores and allowing other chemicals, to which plaintiff was allergic, to penetrate the skin. She believed that some other people whose skin was as fair as plaintiff's would react adversely to the product, and "a few might have a similar disastrous reaction."

On cross-examination, Dr. Wier admitted that the detergent in the eye makeup remover was also used in at least three other products, including baby shampoo. She considered the eye makeup remover fairly safe.

Revlon, Inc., which owns Princess Marcella, manufactured the eye makeup remover. Dr. Earl Brauer, vice-president of medical affairs for Revlon Research, testified that he tested the product plaintiff returned to defendants and found that it included only the proper chemicals with nothing extraneous added. He used the returned product in a skin patch test on 105 individuals chosen to represent the general population, and three had some reaction. He concluded that the product did not contain any irritant. He monitors personal injury complaints for Revlon products, and with more than 50,000 units of the eye makeup remover manufactured since 1978, plaintiff is the first consumer to complain of adverse effects. He said that she must have had an idiosyncratic allergic reaction because the product does not contain any irritants.

Dr. Brauer admitted that if the concentration of the detergent were increased sufficiently, it could possibly become an irritant, but he doubted that it would act as such even in high concentrations. He had never heard of Vaseline causing cataracts or similar problems to the eye. He agreed with Dr. Wier's conclusion that plaintiff's injuries were a reaction to the eye makeup remover.

Defendants moved for directed verdicts on all counts. Based on Dr. Wier's testimony that the product was fairly safe, the court granted the motion as to the strict product liability count. Plaintiff then withdrew the negligence count. The court denied the motion as to all other counts.

The jury found for defendants on the express warranty and common law fraud counts, but it found for plaintiff on the implied warranty and Consumer Fraud Act counts. The jury awarded plaintiff damages of $1,250. Defendants filed a post-trial motion for a new trial, arguing that plaintiff failed to prove a defect in the product and a pattern of deceptive practices. At oral argument on the motion, defendants also contended that plaintiffs had not shown an intent to deceive. The court denied the motion.

Plaintiff petitioned for $14,500 in attorney fees, and she supported the petition with an affidavit from her attorney, detailing work performed and charges for that work. Plaintiff contended that she was entitled to fees under both the Consumer Fraud Act and the Magnuson-Moss Warranty Act (15 U.S.C. sec. 2301 et seq. (1982 & Supp.1985)). Defendants did not object to the statutory bases for fees. After the hearing, the court awarded plaintiff fees of $7,500 for work on both counts upon which the jury found in her favor.

I. Breach of implied warranty

Defendants argue that this court should reverse the judgment for plaintiff on the cause of action for breach of implied warranty because plaintiff did not prove that there was any defect in the makeup remover, and because the evidence showed that her reaction to the product was idiosyncratic.

The Uniform Commercial Code, Ill.Rev.Stat.1985, ch. 26, par. 2-315, provides:

"Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose."

Therefore, under the statute, plaintiff needed to prove (1) a sale of goods; (2) before the sale the seller had reason to know (a) a particular purpose for which plaintiff bought the goods, and (b) that she was relying on the seller's skill to select goods suitable for that purpose; and (3) the goods were not suitable for that particular purpose. The action is in contract, not tort, based on the implicit promises "derived from the interplay of a transaction's factual circumstances with the foreseeable expectations of a buyer * * * who is protected by law in those expectations." Collins Co. v. Carboline Co. (1988), 125 Ill.2d 498, 508, 127 Ill.Dec. 5, 532 N.E.2d 834.

Some cases have added a requirement that plaintiff prove the product was defective. (141 S. Main, Inc. v. Magic Fingers, Inc. (1977), 49 Ill.App.3d 724, 7 Ill.Dec. 444, 364 N.E.2d 605; Mullen v. General Motors Corp. (1975), 32 Ill.App.3d 122, 336 N.E.2d 338; Van Winkle v. Firestone Tire & Rubber Co. (1969), 117 Ill.App.2d 324, 253 N.E.2d 588.) None of these cases makes reference to the UCC. The reasoning of these cases has been criticized. Anderson, in his commentary to the UCC, said:

"It is unfortunate that the warranty law has been so influenced by the tort law. With respect to negligence and strict tort, it is logical to require that there be a defect in the goods. In the case of warranty, it should be sufficient to impose liability that there has been a breach of warranty. In many cases, the breach of...