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THIRD DIVISION
FILED: 06/30/03

No. 1-02-1034

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiffs, Mary Lewis, Tashswan Banks and Jacqueline Nye,appeal from an order of the circuit court dismissing each of thesix counts of their second amended class action complaint forfailure to state causes of action. The plaintiffs brought theinstant action on behalf of themselves and other similarly situatedparents and guardians of minor children who have undergone or willundergo medical screening, assessment, or monitoring for leadpoisoning or latent diseases associated with lead poisoning. Thedefendant, Lead Industries Association, Inc. (LEAD), is acorporation which, according to the plaintiffs, promoted the use oflead pigments in paint sold in the United States. The remainingdefendants, American Cynamid Company, Atlantic Richfield Company,Fuller-O'Brien Corporation, Conagra Grocery Products Company, NLIndustries, Inc., SCM Chemicals and the Sherwin-Williams Company(hereinafter collectively referred to as the "ManufacturingDefendants"), are alleged to have manufactured, marketed, anddistributed white lead pigment for use in paint.

The plaintiffs' second amended class action complaint assertedsix claims against the defendants. Each count alleged that, as aresult of the health hazards associated with lead-based paintsoffered for sale prior to 1978, all minor children in Illinois "arenow, have been in the past, and will be indefinitely in the future,exposed to and at risk for lead poisoning[,]" and, as aconsequence, all children six months through six years of age mustbe either screened for lead poisoning or assessed for the risk ofdeveloping it. Common to each count was a prayer seeking an ordercompelling the defendants to reimburse and pay the plaintiffs andthe members of the putative class for the costs of all medicalscreenings, assessments, and monitoring of their minor children.

The defendants filed motions pursuant to section 2-615 of theCode of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)),seeking the dismissal of all six counts of the plaintiffs' secondamended complaint. In addition to asserting grounds addressedspecifically to each of the counts, the defendants argued that allof the counts failed to allege either a present injury to theplaintiffs or facts in support of the proximate cause element ofthe claims pled. The circuit court granted the defendants'motions, and this appeal followed.

As the complaint at issue was dismissed in response to motionsbrought pursuant to section 2-615 of the Code, the only questionbefore this court is whether the dismissed counts state causes ofaction upon which relief can be granted. Illinois Graphics Co. v.Nickum, 159 Ill. 2d 469, 488, 639 N.E.2d 1282 (1994). The issue isone of law, and our review is de novo. Metrick v. Chatz, 266 Ill.App. 3d 649, 651-52, 639 N.E.2d 198 (1994).

We begin our review with an analysis of counts I and II of theplaintiff's second amended complaint. Initially, we note that we,like the trial court, have had difficulty in identifying thespecific causes of action that the plaintiffs attempted to plead inthese counts. However, a motion to dismiss should not be grantedif any good cause of action has been stated, even if that cause ofaction is not the one intended by the pleader. Illinois GraphicsCo, 159 Ill. 2d at 488. Consequently, our first task is to endeavorto identify the causes of action that the charging allegations incounts I and II might support.

Count I alleged that LEAD and the Manufacturing Defendantsknew of the hazards and toxicity of lead-based paint and,nevertheless, intentionally failed and refused to warnmanufacturers, wholesalers, retailers, consumers, purchasers,appliers, and users of the following: (1) that lead-based paintshould not be used in areas where persons might foreseeably beexposed to lead through ingestion, inhalation, or absorption; (2)that ingestion, inhalation, or absorption of lead from lead-basedpaint posed a serious and immediate risk to the health and well-being of residents in buildings with surfaces containing lead-basedpaint; and (3) the risks, hazards, and damage to persons orproperty that would be caused or increased by the use of lead-basedpaint. The caption of the count, "Intentional Failure to Warn," isnot descriptive of a recognized cause of action. Failure to warnof a product's dangerous propensities may, however, underappropriate circumstances, constitute a breach of duty upon whichan action for negligence might be predicated (see Beadles v.Servel, 344 Ill. App. 133, 100 N.E.2d 405 (1951)), and may alsoserve as the basis for holding a defendant liable under a strictproduct liability theory (Woodill v. Parke Davis & Co., 79 Ill. 2d26, 29, 402 N.E.2d 194 (1980)).

Count II, captioned "Supplier Liability," alleged that the"[d]efendants supplied lead pigment for use in manufacturing lead-based paints knowing that the lead pigments were not safe for suchuse and could not be made reasonably safe before the lead-basedpaint was used by consumers and applied to surfaces encountered bychildren." Again, however, the caption of the count does notdisclose the tort theory upon which it is grounded and theallegations might be construed as asserting several differentcauses of action. The supplier of an unreasonably dangerousproduct may be liable for injuries proximately caused by theproduct in a negligence action (see Watts v. Bacon & Van BuskirkGlass Co., 18 Ill. 2d 226, 231-32, 163 N.E.2d 425 (1959); Restatement (Second) of Torts