Widlowski v. Durkee Foods, Div. of SCM Corp.

Decision Date18 October 1990
Docket NumberNo. 69588,69588
Citation138 Ill.2d 369,562 N.E.2d 967,150 Ill.Dec. 164
Parties, 150 Ill.Dec. 164 Patricia WIDLOWSKI, Appellee, v. DURKEE FOODS, DIVISION OF SCM CORPORATION, et al. (Durkee Foods, Division of SCM Corporation, Appellant).
CourtIllinois Supreme Court

Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., Chicago (Thomas J. Fleischmann, William Paul Jones, Terence E. Flynn and Kimberley Marsh, of counsel), for appellant.

Leahy & Donovan, Chicago (Mark N. Pera and Tom Leahy, of counsel), and Roy D. Simon, Jr., of St. Louis, Mo., for appellee.

Law Office of Jeffrey M. Marks, Chicago (Clark M. Raymond, of counsel), for amicus curiae Illinois Trial Lawyers Ass'n.

Chief Justice THOMAS J. MORAN delivered the opinion of the court:

Plaintiff, Patricia Widlowski, filed a two-count negligence action against defendants, Durkee Foods, Division of SCM Corporation (Durkee Foods), and Larry Wells. The circuit court of Cook County granted Durkee Foods' motion to dismiss (Ill.Rev.Stat.1983, ch. 110, par. 2-615). The appellate court, with one justice dissenting, reversed and remanded the cause to the circuit court. (190 Ill.App.3d 381, 137 Ill.Dec. 825, 546 N.E.2d 770.) We granted Durkee Foods' petition for leave to appeal (107 Ill.2d R. 315), and granted leave to the Illinois Trial Lawyers Association to file an amicus curiae brief in support of plaintiff (107 Ill.2d R. 345).

The following issues are presented on review: (1) whether Durkee Foods owed plaintiff a duty of ordinary care; and (2) whether Durkee Foods was subject to liability to plaintiff under the doctrine of respondeat superior.

Plaintiff alleged the following facts in her complaint. On December 3, 1983, Larry Wells, an employee of Durkee Foods, a spice manufacturing company, entered an industrial tank with the purpose of cleaning it. The tank contained nitrogen gas, among other substances, and lacked a sufficient amount of oxygen to breathe. Wells failed to wear protective gear and failed to purge the tank of the nitrogen gas. Upon entering the tank, Wells was overcome by nitrogen gas and became restless, incoherent and delirious. He was transported to St. Joseph's Medical Center for treatment. Plaintiff, a nurse at the medical center, attended to Wells. While in a state of delirium, Wells bit off a portion of plaintiff's right middle finger.

In count I of the complaint, plaintiff alleged that Wells was negligent for entering the tank without protection when he knew or should have known that exposure to the nitrogen gas would cause him to become ill, which in turn would cause him to place those around him in danger. Plaintiff alleged that Wells was liable for damages and further alleged that Durkee Foods was liable under the doctrine of respondeat superior. In count II of the complaint, plaintiff alleged that Durkee Foods was negligent for allowing Wells to enter the tank without protection when it knew or should have known that the tank was filled with nitrogen gas.

The circuit court granted Durkee Foods' motion to dismiss. The circuit court held that neither defendant owed plaintiff a duty of ordinary care. On appeal, the appellate court, with one justice dissenting, reversed the order of the circuit court. The appellate court held that both defendants owed plaintiff a duty of ordinary care and that Durkee Foods was subject to liability under the doctrine of respondeat superior. 190 Ill.App.3d at 382-83.

The first issue presented for review is whether Durkee Foods owed plaintiff a duty of ordinary care. Plaintiff asserts that Durkee Foods owed her a duty, because the risk of harm was reasonably foreseeable and other factors support the imposition of such a duty. Durkee Foods argues that the risk of harm was not reasonably foreseeable and other factors do not support the imposition of such a duty.

A complaint for common law negligence must set forth the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from that breach. (Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307.) A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 554, 328 N.E.2d 538.) Whether a duty exists, i.e., whether the defendant and the plaintiff stood in such a relationship to one another where the defendant is obliged to conform to a certain standard of conduct for the benefit of the plaintiff, is an issue of law that must be resolved by the court. Ward v. K mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223.

It is well settled that every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill.2d 378, 390, 98 Ill.Dec. 1, 493 N.E.2d 1022; Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 86, 199 N.E.2d 769.) Therefore, in determining whether the defendant owed a duty to the plaintiff, the court will consider whether the risk of harm to the plaintiff was reasonably foreseeable. Cunis v. Brennan (1974), 56 Ill.2d 372, 376, 308 N.E.2d 617.

In reliance upon this standard, the appellate court held that Durkee Foods owed plaintiff a duty of ordinary care, because the risk of harm was reasonably foreseeable. The appellate court reasoned that both Durkee Foods and Wells owed plaintiff a duty to take proper precautions before cleaning the tank. The appellate court determined that it was reasonably foreseeable that exposure to the nitrogen gas would cause Wells to become delirious, and it was also foreseeable that he would harm anyone with whom he came into contact while in a state of delirium.

We disagree with the appellate court's holding that the risk of harm to plaintiff was reasonably foreseeable. Furthermore, the appellate court's analysis was incomplete, because the court should have considered other factors, in addition to foreseeability, to determine the existence of a legal duty.

While there can be no doubt that Wells' failure to wear protective gear upon entering the tank caused him to become ill, we do not believe that the risk of harm to plaintiff, who was removed in time and place, was reasonably foreseeable. In Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, both the hospital and the physician failed to warn the patient that a drug prescribed to him could diminish his physical and mental abilities. After ingesting the drug, the patient was involved in an automobile accident resulting in an injury to the plaintiff. While there was clearly a risk of harm involved, the court found that the risk of harm to the plaintiff was not reasonably foreseeable. (Kirk, 117 Ill.2d at 526, 111 Ill.Dec. 944, 513 N.E.2d 387.) Likewise, at the time Wells entered the tank, the risk of harm to plaintiff was not reasonably foreseeable.

It can be said, with the benefit of hindsight, that virtually every occurrence is foreseeable. Thus, the question of whether a legal duty exists is contingent upon a variety of factors, and the weight accorded each factor depends upon the circumstances of each case. (O'Hara v. Holy Cross Hospital (1990), 137 Ill.2d 332, 148 Ill.Dec. 712, 561 N.E.2d 18.) In addition to foreseeability, the court will consider the likelihood of injury, the magnitude of the burden of guarding against it, the consequences of placing that burden on the defendant (...

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