Widlowski v. Durkee Foods

• Decision Date: 01 November 1989
• Docket Number: No. 1-86-2321,1-86-2321
• Citation: 546 N.E.2d 770,190 Ill.App.3d 381,137 Ill.Dec. 825
• Parties: , 137 Ill.Dec. 825 Patricia WIDLOWSKI, Plaintiff-Appellant, v. DURKEE FOODS, Division of SCM Corporation, Defendant-Appellee (Larry Wells, Defendant).
• Court: United States Appellate Court of Illinois

Page 770

546 N.E.2d 770

190 Ill.App.3d 381, 137 Ill.Dec. 825

Patricia WIDLOWSKI, Plaintiff-Appellant, v. DURKEE FOODS, Division of SCM Corporation Defendant-Appellee (Larry Wells, Defendant).

No. 1-86-2321.

Appellate Court of Illinois,

First District, Third Division.

Nov. 1, 1989.

Leahy & Donovan, Chicago (Tom Leahy and Stephen Phalen, of counsel), for plaintiff-appellant.

Thomas J. Fleischmann, Terence E. Flynn, Kimberley Marsh, Chicago, for defendant-appellee.

Justice RIZZI delivered the opinion of the court:

Plaintiff, Patricia Widlowski, brought this action to recover damages for personal injuries she received as a result of the alleged negligence of defendant, Durkee Foods (Durkee) and its employee, defendant Larry Wells (Wells). The trial court granted Durkee's 2-615 motion to dismiss counts I and II of the complaint on the basis that the complaint is insufficient in law to state a cause of action. Ill.Rev.Stat.1987, ch. 110, par. 2-615. Plaintiff appeals. We reverse and remand.

On December 3, 1983, Durkee, a manufacturer of spice products, operated a food processing plant in Elmwood, Illinois. Wells, a Durkee employee, entered one of Durkee's industrial tanks for the purpose of cleaning the tank. While he was in the process of cleaning the tank, Wells was overcome by nitrogen gas in the tank. Due to oxygen deprivation, Wells became delirious, reflexive and incoherent. He was taken to a hospital where he was attended by plaintiff, a nurse. While in a state of delirium, Wells bit off a portion of plaintiff's right middle finger while she was attending him as a nurse.

When read together, counts I and II of the complaint allege that Durkee was negligent on the basis of respondeat superior and because it (1) allowed Wells to enter the tank when it knew or should have known that it was filled with nitrogen; (2) failed to equip Wells with proper protective gear before sending him into the tank and (3) failed to advise Wells that cleaning the tank without protective gear would result in his being deprived of oxygen and become a danger to persons near him, when Durkee knew or should have known of the alleged facts.

The trial court dismissed the complaint as to Durkee on the basis that it was insufficient as a matter of law to allege a duty to the plaintiff. To support the ruling, Durkee argues that the complaint fails to establish the existence of any duty owed by Durkee to the plaintiff because public policy does not and should not require an employer to control the actions of a delirious employee being treated at a hospital. However, the ability or inability of Durkee to control Wells' actions at the hospital is not the focal point of the duty owed by Wells or Durkee. When Wells was at the hospital, Wells and Durkee had already breached a duty of ordinary care to anyone who within reasonable foreseeability might be injured as a result of the failure to take proper precautions in the manner in which the industrial tank was being cleaned.

We therefore focus our attention on whether it was reasonably foreseeable that plaintiff might be injured if Wells and Durkee breached a duty of ordinary care in the manner in which the tank was being cleaned. If it was reasonably foreseeable, then Wells and Durkee owed plaintiff a duty of ordinary care to take proper precautions before cleaning the tank.

The salient facts are clearly set forth in the complaint. Durkee was using nitrogen gas in its food processing business. One of its food processing tanks required cleaning. When its employee, Wells, entered the tank to clean it, the tank "was filled with nitrogen gas, among other substances, and lacked a sufficient amount of oxygen to sustain an individual during the cleaning process." Also, "Wells, while inside the above-mentioned industrial tank, was overcome by nitrogen gas and as a result, became ill and was in an oxygen deprived state of health." As a result of the nitrogen gas and deprivation of oxygen, Wells became delirious, "agitated, reflective and incoherent," and bit off a portion of plaintiff's finger while she was giving him medical attention at a hospital where he had been taken for his condition.

We believe that under the alleged facts it was reasonably foreseeable that if Wells and Durkee breached a duty of ordinary care in the manner in which the tank was being cleaned, Wells would be overcome by inhaling the nitrogen gas and a deprivation of oxygen. We also believe that it was reasonably foreseeable that Wells would thereby become delirious, agitated, reflexive and incoherent, and a danger to himself and others with whom he made direct contact. In determining whether an injury was reasonably foreseeable to warrant a duty to the injured party, it is not essential that the defendant should have foreseen the precise hazard or exact consequences and injury resulting from the defendant's action or inaction. Dillon v. U.S. Steel Corp. (1987), 159 Ill.App.3d 186, 198, 111 Ill.Dec. 54, 62, 511 N.E.2d 1349, 1357.

In addition, the fact that the direct contact between Wells and the plaintiff was made at the hospital rather than Durkee's plant is immaterial to determine whether the injury was reasonably foreseeable. We therefore conclude that the injury to the plaintiff was reasonably foreseeable and that Durkee and Wells owed plaintiff a duty of ordinary care to take proper precautions to clean the tank.

Durkee also contends that "the complaint fails to state a cause of action sounding in negligence, and was properly dismissed." To support its contention Durkee states that "Wells bit plaintiff's finger while in an unconscious and agitated state," and that therefore the "standard of conduct which applies to Wells is that of a reasonable man who is in an unconscious, agitated state." Durkee concludes that "Well's conduct was in keeping with that of a reasonable man operating under a like disability." However, it is plain that whether Wells was negligent is measured by his conduct in entering the tank without adequate equipment. It follows that there is no merit to Durkee's contention. The complaint states a cause of action sounding in negligence.

Durkee next contends that "a principal cannot be held liable for the actions committed by an agent who was delirious" and "thus no duty arose." Durkee's contention misconceives the nature of the case. This case is based on whether Durkee and Wells were negligent in the manner in which Wells entered the tank and the manner in which the tank was being cleaned. These acts were committed, and the duty arose, before Wells became delirious. The act that Wells committed while in a delirium was not the negligence or breach of duty but rather the result of the negligence and breach of duty that had already been committed. Durkee's contention is without merit.

Accordingly, the order dismissing counts I and II of the complaint as to Durkee is reversed. The case is remanded for further proceedings in the trial court.

REVERSED AND REMANDED.

FREEMAN, P.J., concurs.

McNAMARA, J., ^* dissents.

McNAMARA, Justice, dissents.

I dissent from the majority holding which reverses the trial court order dismissing plaintiff's complaint. I would find that defendant owed no duty to plaintiff, and that the complaint was properly dismissed.

A motion to dismiss a complaint under section 2-615 (Ill.Rev.Stat.1985, ch. 110, par. 2-615) may be granted where it clearly appears that no set of facts could be proved which would entitle plaintiff to recover. (Mohrdieck v. Village of Morton Grove (1981), 94 Ill.App.3d 1021, 50 Ill.Dec. 409, 419 N.E.2d 517.) Failure to allege facts from which the law will raise a duty justifies dismissal of a complaint. Anderson v. Davis Development Corp. (1968), 99 Ill.App.2d 55, 241 N.E.2d 222.

The existence of a duty in a common law negligence action is a matter of law to be determined by the court. (Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088; Curtis v. Cook County (1983), 98 Ill.2d 158, 74 Ill.Dec. 614, 456 N.E.2d 116.) The complaint before us adequately alleges the breach of a duty which defendant owed to its employee, but the complaint fails to sufficiently allege the breach of a duty defendant owed to plaintiff.

The imposition of a duty is an exercise of judicial policy making. (Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250.) The majority ignores the well-established principle that in determining whether the law imposes a duty, foreseeability of possible harm must be considered along with the magnitude of the risk involved in defendant's conduct; the burden of requiring defendant to guard against that risk; and the consequence of placing the burden upon defendant. (Renslow v. Mennonite Hospital.) In this case, all of the factors relevant to a court's determination of whether a duty exists support a finding that defendant owed no duty to plaintiff as a matter of law.

Foreseeability is a factor in both the court's duty determination and the jury's proximate cause determination. (Nelson v. Commonwealth Edison (1984), 124 Ill.App.3d 655, 80 Ill.Dec. 401, 465 N.E.2d 513; Ortiz v. City of Chicago (1979), 79 Ill.App.3d 902, 35 Ill.Dec. 57, 398 N.E.2d 1007.) Foreseeability is not solely a matter to be determined by a jury. (Renslow v. Mennonite Hospital;...