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Traube v. Freund

Case Date: 08/14/2002
Court: 5th District Appellate
Docket No: 5-01-0706 Rel

Notice

Decision filed 08/14/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0706

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


DAVID L. TRAUBE, ) Appeal from the
) Circuit Court of
             Plaintiff-Appellant, ) Randolph County.
)
v. ) No. 97-L-7
)
MARCIA FREUND and CLARENCE E. )
KLOTH, JR.,  )
)
            Defendants,  )
and  )
)
AMERICAN CYANAMID COMPANY, ) Honorable
) Jerry D. Flynn,
           Defendant-Appellee. ) Judge, presiding.

JUSTICE RARICK delivered the opinion of the court:

David L. Traube (plaintiff) appeals the dismissal of his suit against AmericanCyanamid Company (American Cyanamid). We affirm.

The controversy between plaintiff and the defendants began in April of 1995 with theapplication of an agricultural pesticide, Counter 15G (Counter), to acreage owned bydefendant Marcia Freund and farmed by defendant Clarence E. Kloth, Jr. The pesticide,manufactured by American Cyanamid, was used to eliminate grubs on a no-till corn crop. On May 9, runoff from a heavy rainfall contaminated the lake on plaintiff's adjoiningproperty, killing thousands of bluegill fish. Plaintiff settled with defendants Freund andKloth and joined defendant American Cyanamid to the suit. Plaintiff initially alleged thatone of American Cyanamid's sales representatives assisted Kloth in calibrating his planterfor the application of the pesticide. Plaintiff further alleged that American Cyanamidparticipated in the creation of a private nuisance and engaged in an activity which wasultrahazardous, thereby triggering strict liability. American Cyanamid filed motions todismiss, alleging that plaintiff's claims were federally preempted and that AmericanCyanamid's activities were not ultrahazardous. American Cyanamid pointed out that Counteris registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7U.S.C.