Fifth District asbestos ruling holds employers have duty of care in second hand exposure

Kelly Holleran Jun. 14, 2010, 3:41am



An employer who allows its workers to bring home clothing contaminated with asbestos fibers is responsible for any disease that worker or his immediate family members contract as a result of exposure to the carcinogenic fibers, justices for the Fifth District Appellate Court of Illinois have ruled.

The ruling, issued June 10, holds that an employer is duty-bound to not only provide a safe work place to its employees, but also must provide a safe environment for its employees' family members.

In the ruling, authored by Justice Melissa A. Chapman, justices struck down a number of defendant CSX Corporation's arguments against the expansion of liability and upheld plaintiff Cynthia Simpkins' contentions for a duty owed by the employer to an employee's family members.

The case was brought before the Fifth District Appellate Court after Madison County Circuit Court Judge Daniel J. Stack dismissed three counts of a woman's asbestos complaint against CSX.

Annette Simpkins, Cynthia Simpkins' mother, brought her complaint against the railroad after she says she was exposed to asbestos fibers from 1958 until 1964 when she repeatedly washed her husband's, Robert Simpkins', clothing after he spent his days working as a steelworker, welder, railroad fireman and laborer for CSX's predecessor, B&O Railroad. Annette Simpkins eventually developed mesothelioma and filed a complaint on Jan. 19, 2007. When she died in April 2007, her daughter, Cynthia Simpkins, took over as plaintiff in the matter.

In the complaint, numerous companies were named as defendants, including CSX as successor to B&O. Counts against CSX allege that it failed to take precautions against protecting Robert Simpkins' family members from take-home asbestos exposure and willful and wanton conduct. In addition, Cynthia Simpkins alleged CSX should be held liable for ultrahazardous activity.

CSX fought back, arguing the three counts against it should be dismissed because the Illinois courts had never deemed an employer owed a duty to family members of employees who are exposed to asbestos. Thus, an appellate court or legislature should determine whether employers hold such a responsibility to family members -- not a trial court, the corporation argued.

Cynthia Simpkins contended that the Illinois Supreme Court had expressed a broad view of duty and emphasized that finding a duty exists is not the same thing as finding a duty has been breached or liability against a company.

Stack then granted CSX's motion to dismiss, saying, "I have to be candid with you. It sounds like a great argument for the [s]upreme [c]ourt." Cynthia Simpkins subsequently filed an appeal.

The Fifth District Court Appellte Court disagreed with CSX's argument that the case should have been heard before an appellate court and not a trial court because of its unprecedented nature.

"We are perplexed by CSX's argument that somehow the trial court was unable to decide the issue before it, just as we are perplexed by the judge's apparent acquiescence to that argument," Chapman wrote.

Still, the justices heard the appeal, in which both CSX and Cynthia Simpkins cited cases decided by previous courts, which had opposite results. CSX, for example, argued that the appellate court should follow jurisdictions that have ruled against an employer's duty to protect family members, saying that finding otherwise would lead to unlimited liability. Cynthia Simpkins, on the other hand, provided rulings that found employers did have a duty to protect their employees' family members.

Upon reaching their decision, the justices for the appellate court relied upon four factors to justify whether such a duty exists: the foreseeability of harm, the likelihood of the injury, the magnitude of the burden in protecting against the harm and the consequences of placing the duty on the defendant to protect against the harm.

Justices also heavily relied upon two rulings in separate jurisdictions -- Tennessee Supreme Court's decision in Satterfield v. Breeding Insulation and a New Jersey court's decision in Olivo v. Owens-Illinois.

In Satterfield, a 25-year-old woman's family issued a complaint after they said the woman died from mesothelioma after she was exposed to asbestos fibers throughout her childhood when her father brought them home on his work clothing. The Tennessee Supreme Court rejected Breeding Insulation's argument that it had no duty to the woman because it had no special relationship with her.

Illinois justices found the ruling persuasive, saying all entities should take reasonable steps to protect others from their actions.

"To find that an employer whose workers are exposed to asbestos owes no duty to protect others from exposure -- assuming the exposure is both foreseeable and preventable without undue burden -- merely because the others do not have any particular special relationship with the employer (such as employee or business invitee) would defy logic and lead to grossly unfair results," Chapman wrote.

In Olivo, a woman died of mesothelioma after being exposed to asbestos fibers on her husband's work clothing. The New Jersey Supreme Court found the dangers to the woman foreseeable because the employer would have to be aware of the dangers to the launderer of its employee's clothing.

As in Satterfield, Illinois justices found the ruling convincing, saying the question lies in whether the employer should have foreseen a risk -- not whether it actually did predict a hazard.

"We believe that it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well," Chapman wrote.

Foreseeability is just one of the factors necessary to determine whether CSX had a duty of care, and the justices also examined the remaining three factors.

The likelihood of injury -- a second factor in determining duty -- in a person who is exposed to asbestos fibers is substantial considering the fibers are toxic and poisonous, the justices determined.

The employer's burden in protecting against the harm -- the third factor -- would not have been cost prohibitive or excessive, Illinois justices found.

"Annette's complaint alleges a number of ways the employer could have reduced the risk of exposure -- i.e., by substituting other products, providing warnings of the danger, providing safety instructions, testing the products, and requiring hygienic practices," Chapman wrote. "We find that the burden of guarding against take-home asbestos exposure is not unduly burdensome when compared to the nature of the risk to be protected against."

When considering the final factor -- the consequences of placing such a burden on an employer -- justices found the scope of liability against employers would be limited by the foreseeability of harm. In other words, they decided that CSX and other employers would not be exposed to unlimited liability as CSX argued.

"It is certainly foreseeable that the wife of an asbestos-exposed worker would be exposed to asbestos dust through washing his clothing," Chapman wrote. "It is also foreseeable that other members of the household could be exposed. It is not necessarily foreseeable that any person who shares a cab with the asbestos worker would inhale asbestos dust and develop mesothelioma."

After reviewing the factors and other state's cases, Illinois justices found CSX had a duty of care to Annette Simpkins. In turn, they reversed Madison County Circuit Court's prior dismissals and remanded the case back to circuit court for further proceedings.

"Duty is not the equivalent of liability; she (Cynthia Simpkins) must still prove a breach and proximate cause," Chapman wrote. "These are factual matters for a jury to decide. We have merely found that, under the facts alleged, the B&O Railroad owed a duty of care to the spouse of one of its employees."

Justices James K. Donovan and James M. Wexstten concurred with Chapman.

Illinois Appellate Court case number: 5-07-0346.

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