
      No. 2--00--0834



      IN THE

      APPELLATE COURT OF ILLINOIS

      SECOND DISTRICT



HAROLD DIEHL and AILEEN DIEHL,    )     Appeal from the Circuit Court
Indiv. and as Ex'rs of the   )    of Ogle County.
Estate of Archie Diehl,           )
                                             )
      Plaintiffs-Appellants, )
                                  )
   v.                                   )     No. 93--L--26
                                  )
POLO COOPERATIVE ASSOCIATION )
and DONNIE MILBY,                 )     Honorable
                                  )     John B. Roe,
      Defendants-Appellees.  )    Judge, Presiding.



      JUSTICE CALLUM delivered the opinion of the court:
      Plaintiffs, Harold Diehl (Harold) and Aileen Diehl,  individually
and as executors of the estate of Archie Diehl, sued  defendants,  Polo
Cooperative Association (PCA) and its  general  manager  Donnie  Milby,
for personal injuries Harold allegedly sustained  from  exposure  to  a
mixture of herbicides recommended by defendants  for  use  on  Harold's
corn crops.  The trial court granted  defendants'  motion  for  summary
judgment on  the  basis  of  preemption  by  the  Federal  Insecticide,
Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C.A. §136 et  seq.  (West
1999)).  Plaintiffs appeal.  We reverse and remand.
       Harold  owns  and  operates  a  grain  farm.   PCA   sells   and
distributes chemicals and fertilizers to farmers.  Harold  had  been  a
customer of PCA for approximately 14  years  and  frequently  consulted
PCA and Milby regarding the use of various chemicals in
his farming operation.  Milby had served as the general manager of  PCA
for over 10  years  and  held  a  custom  applicator  license  for  the
application and recommendation of agricultural  chemicals  since  1984.
On May 29, 1991, Harold consulted Milby concerning the selection of  an
herbicide to apply to his corn crops that year.  When  Milby  suggested
that Harold use the same herbicide, Bicep, that  Harold  had  used  the
prior year, Harold notified Milby that he wanted to eradicate triazine-
resistant lamb's quarter weeds.  Milby  then  advised  Harold  that  he
could combine Bicep with the herbicide Banvel to achieve  this  result.
Milby indicated to  Harold  that  the  Bicep-Banvel  mixture  was  "not
labeled."  Harold asked Milby if he had used this mixture in  the  past
and Milby informed him that he had used it and that it  was  effective.
Harold gave no indication to Milby that he was  familiar  with  Banvel.
Harold testified that  Milby said that the mixture was "safe" and  that
he interpreted this to mean that the mixture was  safe  for  crops,  as
opposed to safe for humans.  However, Harold  also  testified  that  he
assumed that the chemicals were safe for  humans  because  he  did  not
think that Milby would recommend a product to him  that  was  not  safe
for humans and because Milby did not say  anything  about  any  dangers
associated with the chemicals.
      The Bicep  label  indicated  that  the  two  chemicals  could  be
combined for application  onto  no-till  corn.   Milby  recommended  to
plaintiff the amounts  of  each  chemical  to  use  in  a  single  tank
mixture.  However, the proportions  that  Milby  recommended  were  not
those listed on the label.
      The Banvel label contained a  warning  that  users  should  avoid
breathing spray mist and should not get the product in  their  eyes  or
on their skin or clothing.  The Bicep label's precautionary  statements
provided that users should "[a]void breathing vapors or spray mists."
      Weather conditions  were  breezy  on  the  day  that  Harold  was
contemplating applying the Bicep-Banvel mixture to his  crops.   Harold
telephoned Milby to ask him if he should  apply  the  mixture  on  that
day.  Milby assured Harold that he could  apply  the  herbicides  under
such weather conditions and advised Harold that it was urgent to do  so
or else it would be too late to help Harold's crops.   Harold  followed
Milby's advice and spent the next 1½ to 2 days  applying  the  mixture.
He did not read  either  the  Bicep  or  the  Banvel  labels  prior  to
applying the  mixture.   Harold  used  a  tractor  and  a  trail-behind
sprayer and spray nozzle to apply the herbicides to his crops.   During
the application, Harold wore a shirt and pants but no  safety  devices.
Each time he turned the tractor, Harold  drove  through  a  vapor  mist
generated by the chemical application.
      Following the application  of  the  chemicals,  Harold  began  to
experience headaches, nausea, and muscle and joint  pain  in  his  arms
and legs.  He had never before experienced similar symptoms  after  any
other chemical application.
      Plaintiffs  sued  defendants,  requesting  damages  for  Harold's
personal injuries.  Defendants moved to dismiss the complaint,  arguing
that FIFRA preempted plaintiffs' claim.  The  trial  court  denied  the
motion, finding that plaintiffs' claim could encompass  (1)  a  failure
to warn; (2) a failure to act to prevent foreseeable danger; or (3)  an
act  negligently  undertaken  or  performed.   Defendants  subsequently
moved  for  summary  judgment,  arguing  that   (1)   FIFRA   preempted
plaintiffs' claim; and (2) as a matter of  law,  plaintiffs  could  not
establish  that  defendants'  conduct   proximately   caused   Harold's
injuries.   The  trial  court  granted  that   motion,   finding   that
plaintiffs' claim constituted a failure-to-warn  cause  of  action  and
was preempted by FIFRA.  The court did not address the proximate  cause
issue.
      Plaintiffs appeal, arguing that (1) the trial court  misconstrued
their claim as a failure-to-warn claim  and,  thus,  misapplied  FIFRA;
and (2)  the  pleadings  and  depositions  raise  a  genuine  issue  of
material fact as to whether Harold's  conduct  proximately  caused  his
injuries.
       Summary  judgment  is  properly  granted   if   the   pleadings,
affidavits, depositions, admissions, and exhibits on file, when  viewed
in the light most favorable to the nonmovant, reveal that there  exists
no genuine issue as to  any  material  fact  and  that  the  movant  is
entitled to judgment as a matter of law.   Zekman  v.  Direct  American
Marketers, Inc., 182 Ill. 2d  359,  374  (1998);  see  735  ILCS  5/2--
1005(c) (West 2000).  The nonmovant need not  prove  its  case  at  the
summary judgment stage (Bickerman v. Wosik, 245 Ill. App. 3d  436,  438
(1993)) but must come forward with evidence that establishes a  genuine
issue of material fact (Salinas v.  Chicago  Park  District,  189  Ill.
App. 3d 55,  59  (1989)).   We  review  de  novo  a  grant  of  summary
judgment.  Zekman, 182 Ill. App. 3d at 374.
      FIFRA regulates  the  sale,  use,  and  labeling  of  pesticides.
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991-92, 81 L.  Ed.  2d  815,
825, 104 S. Ct. 2862, 2867 (1984).  The statute  describes  the  extent
to which states may regulate pesticides:
      "(a)  In general
            A State may regulate the  sale  or  use  of  any  federally
      registered pesticide or device in the State, but only if  and  to
      the extent the  regulation  does  not  permit  any  sale  or  use
      prohibited by this subchapter.
        b)       Uniformity
            Such State shall not  impose  or  continue  in  effect  any
      requirements  for  labeling  or  packaging  in  addition  to   or
      different from those required under this subchapter."  7 U.S.C.A.
      §136v(a)(b) (West 1999).
      In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L. Ed.  2d
407, 112 S. Ct. 2608 (1992), the Supreme Court held  that  the  Federal
Cigarette Labeling and Advertising Act (Pub. Law 89--92, 79 Stat.  282,
as amended, 15 U.S.C.A.  §§1331  through  1340  (West  1982))  and  its
successor, the Public Health Cigarette Smoking Act of 1969  (1969  Act)
(Pub. Law 91--222, 84 Stat 87, as amended, 15 U.S.C.A.  §§1331  through
1340) (West 1982)), preempted a plaintiff's  state  law  claim  seeking
recovery for defendants' failure to warn of the  hazards  of  cigarette
smoking.  Cipollone, 505 U.S. at 524, 120 L. Ed. 2d at 428, 112 S.  Ct.
at 2621.  However, the Court held that the 1969  Act  did  not  preempt
those  claims  premised  on  the  defendants'  "testing   or   research
practices or other actions  unrelated  to  advertising  or  promotion."
Cipollone, 505 U.S. at 524-25, 120 L. Ed. 2d at  428,  112  S.  Ct.  at
2622.  Moreover, a plurality of the Court held that the  1969  Act  did
not preempt the plaintiff's claim for breach of  an  express  warranty.
Cipollone, 505 U.S. at 526-27, 120 L. Ed. 2d at  429,  112  S.  Ct.  at
2623.  The statutory provision in  Cipollone  is  similar  to  that  in
FIFRA.  See Shaw v. Dow Brands, Inc.,  994  F.2d  364,  371  (7th  Cir.
1993); Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4th Cir.  1993);
Papas v. Upjohn Co., 985 F.2d 516, 517-18 (11th Cir. 1993).
      Courts have applied the Cipollone  analysis  to  state  tort  law
claims involving pesticides, and they have  held  that  FIFRA  preempts
state tort actions premised on a failure to warn or on a breach  of  an
implied warranty.  See Kuiper v. American Cyanamid Co., 131  F.3d  656,
666 (7th Cir. 1997)  (off-label  statement  that  essentially  repeated
label warnings is preempted by FIFRA); Worm, 5 F.3d at  748-49  (claims
based on  representations  that  repeated  those  made  on  labels  and
literature distributed with herbicide are preempted by FIFRA);   Papas,
985 F.2d at 519-20 (claims challenging  the  adequacy  of  warnings  of
materials other than the label or packaging of a  chemical  necessarily
imply that the labeling and packaging failed to warn the user and  are,
therefore, preempted by FIFRA;  state  law  claims  for  breach  of  an
implied warranty of merchantability  are  preempted  by  FIFRA  to  the
extent that they depend upon inadequacies in  labeling  or  packaging).
But see Malone v. American Cyanamid Co., 271  Ill.  App.  3d  843,  850
(1995) (FIFRA does not preempt actions for breach of  implied  warranty
based upon advertising).  However, courts have  held  that  FIFRA  does
not   preempt   actions   based   on   express   warranty   claims   or
representations voluntarily made and that do not  merely  repeat  label
warnings.  See Prather v. Ciba-Geigy  Corp.,  852  F.  Supp.  530,  532
(W.D. La. 1994); Casper v. E.I. Du Pont De Numbers & Co., 806 F.  Supp.
903, 909 (E.D. Wash. 1992).
      In Prather, the plaintiff purchased an agricultural pesticide  in
an effort to rid his corn crops of  Johnson  grass.   Prather,  852  F.
Supp. at 531.  He sued the manufacturer  and  seller  of  the  chemical
when  the  pesticide  failed  to  eradicate  the  Johnson   grass   and
prohibited full production of his crops.   Prather,  852  F.  Supp.  at
531. The plaintiff alleged that  the  defendants  made  recommendations
concerning the amount of the chemical to apply to  his  crops  and  the
benefits of the chemical  over  alternatives  proffered  by  plaintiff.
Prather, 852 F. Supp. at 531.  Plaintiff also alleged  that  defendants
failed to advise him of the possibility of adverse  results  associated
with the use of the chemicals.  Prather, 852  F.  Supp.  at  531.   The
court held that FIFRA did not preempt plaintiff's claims for breach  of
voluntarily undertaken warranties and redhibition  of  the  sale  of  a
defective pesticide.   Prather,  852  F.  Supp.  at  532.   "[W]here  a
pesticide  manufacturer  or  retailer  has  voluntarily   warranted   a
product's fitness for  a  particular  purpose,  courts  have  permitted
plaintiffs to assert state law claims for  breach  of  this  warranty."
Prather, 852 F. Supp. at 532 (citing cases).
       Here,  plaintiffs   do   not   assert   that   defendants   made
representations that repeated any information on the  Bicep  or  Banvel
labels or in any product advertising.  Rather, they  argue  that  Milby
was negligent in recommending an off-label combination without  warning
Harold of any dangers to humans.  Because that claim  does  not  depend
on the content of the labels, FIFRA does not apply.
      While defendants  acknowledge  that  Milby's  dosages  were  off-
label, they assert that the labels' warnings  remained  operative  and,
therefore, that plaintiffs' claims essentially  constitute  failure-to-
warn claims that are clearly preempted  by  FIFRA.   We  disagree.   We
fail to see  how  warnings  on  labels  prepared  by  manufacturers  to
accompany certain specified applications can apply to any and all  off-
label  chemical  combinations.   We  conclude  that  a  label's  safety
warnings do not remain operative when a  retailer  makes  an  off-label
recommendation.  Plaintiffs' claims, therefore, do  not  challenge  the
manufacturers' labels.  A claim that does not  challenge  the  labeling
of a product is not preempted by FIFRA.  Papas, 985 F.2d at 520;  Worm,
5 F.3d at 747.
      We note here that the trial court erroneously  read  the  record.
In its memorandum opinion, the  court  found  that  Milby's  statements
were not off-label statements because the Bicep label recommended tank-
mixing Bicep with Banvel.  However, in  his  deposition,  Milby  stated
that the dosages that he recommended to Harold were not taken from  the
label.  For these reasons,  we  reverse  the  trial  court's  grant  of
summary judgment for defendants on the preemption issue.
      We now turn to the issue of proximate  cause.   The  trial  court
did not address this issue.  However, because we may affirm a grant  of
summary judgment on any  basis  supported  by  the  record  (Castro  v.
Brown's Chicken and Pasta, Inc., 314 Ill. App.  3d  542,  552  (2000)),
both parties address this issue, and so will we.
      Ordinarily, proximate cause is a question of fact for  the  jury.
Castro, 314 Ill. App. 3d at 553.  However,  it  may  be  decided  as  a
matter of law when reasonable people cannot draw  divergent  inferences
from the undisputed facts.  Englund v. Englund, 246 Ill. App.  3d  468,
477 (1993).
      Proximate cause is primarily  a  question  of  foreseeability:  a
negligent act is a proximate cause of an injury if the injury is  of  a
type that a reasonable person would see as a likely result  of  his  or
her conduct.  Masotti v. Console, 195 Ill. App.  3d  838,  845  (1990).
An injury will be found to be beyond the scope of the defendant's  duty
if it appears highly extraordinary that the breach of the  duty  should
have caused the particular injury.  Masotti, 195 Ill. App. 3d at 845.
      Defendants argue that  they  are  entitled  to  summary  judgment
because Harold's own conduct  was  the  sole  proximate  cause  of  his
injuries.  They assert that  Harold  never  discussed  with  Milby  any
safety issues associated with the chemicals or the method  of  applying
the chemicals; that Harold never read the Bicep or Banvel  labels;  and
that Harold wore no safety devices when he  applied  the  chemicals  to
his crops.
      Plaintiffs  respond  that  it  was  reasonably  foreseeable  that
Harold would rely on Milby's advice to use  the  off-label  combination
and ignore the warnings on the Bicep  and  Banvel  labels.   Plaintiffs
assert  that  Milby  stated  that  his  recommended  mixture  was  "not
labeled"; that he knew that Harold was not familiar with  Banvel;  that
he  assured  Harold  that  the  mixture  had  been  used  in  the  past
successfully; and that, when Harold called Milby to discuss the  breezy
weather conditions, he told Harold that it was  urgent  that  he  apply
the mixture on that day to save his crops.
      We conclude that plaintiffs have  presented  sufficient  evidence
to  establish  a  question  of  fact  concerning  whether   Harold   is
responsible for his own injuries.  Unless a plaintiff fails to  present
any facts to support  his  assertion  that  the  defendant  proximately
caused the plaintiff's injury, proximate cause is  a  factual  question
to be decided by the trier of fact.  Masotti, 195 Ill. App. 3d at  845;
see also Buchaklian v. Lake County Family YMCA, 314 Ill. App.  3d  195,
205 (2000)  (question  whether  plaintiff's  negligence  was  the  sole
proximate cause or a contributing cause of the injury is an  issue  for
the jury to decide under principles of  comparative  negligence).   For
these reasons, defendants are not entitled to summary judgment on  this
basis.
      The judgment of the circuit court of  Ogle  County  is  reversed,
and the cause is remanded.
      Reversed and remanded.
      O'MALLEY and BYRNE, JJ., concur.
