Simmons equates asbestos exposure to injured pedestrians and released anthrax in SC brief

Steve Korris May 18, 2011, 1:55am



SPRINGFIELD – Businesses that expose families of employees to asbestos deserve equal justice with drivers who run over pedestrians and researchers who release anthrax, John Simmons of East Alton argues at the Illinois Supreme Court.

He and Timothy Eaton of Chicago drew the comparisons on May 6, in asserting a duty on the part of employers to warn families about hazardous materials.

They urged the Justices to affirm Fifth District appeals judges in Mount Vernon, who ruled that Cynthia Simpkins could pursue a claim against CSX Transportation.

Her late mother, Annette Simpkins, sued 72 defendants in 2007, in Madison County.

Simpkins sued CSX as successor to Baltimore & Ohio Railroad.

She alleged that from 1958 to 1964, she inhaled fibers that husband Ronald Simpkins brought home on his clothing from his job with B & O in Granite City.

They divorced in 1965.

Annette died after suing, and her daughter carried on the case.

CSX moved to dismiss, denying it owed any duty to warn families of employees.

Circuit Judge Daniel Stack granted the motion.

"It sounds like a great argument for the Supreme Court," he said.

The Fifth District reversed him last year, rejecting CSX's defense that it didn't know the danger of take-home asbestos.

Justice Melissa Chapman wrote, "The question, however, is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether, through reasonable care, it should have foreseen the risk."

She limited the decision to families but added, "Should a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos containing products."

"Duty is not the equivalent of liability; she must still prove a breach and proximate cause," she wrote.

Justices James Donovan and James Wexstten concurred.

CSX appealed to the Supreme Court, warning of massive liability to an unlimited universe of plaintiffs.

CSX pleaded it owed no duty to Annette because they had no relationship.

Simmons and Eaton answered, "These claims involve more than mere casual contact with asbestos from a contaminated worker."

They wrote that families were continuously and regularly exposed.

"The risks of harm associated with releasing a known toxic substance were or should have been within the reasonable contemplation of any prudent user of such materials," they wrote.

"As the wife of defendant's employee, Annette was foreseeably within the path of those risks.

"Plaintiff does not allege that users of hazardous substances should be required to police their employees' activity away from the workplace, but only take reasonable precautions to prevent such substances from escaping in the first place.

"The cost of keeping hazardous materials from escaping is the same, no matter how many indeterminate individuals might or might not be allowed to pursue claims.

"This case is not, as CSX wants to make it, a referendum on asbestos litigation."

They wrote that materials from CSX were irrelevant and unsupported.

"The fact that Annette smoked, for example, goes to medical causation and has nothing to do with duty," they wrote.

"Plaintiff does not allege that the railroad should have warned Annette directly, but that it should have warned Ronald, its employee, of the hazard to his family.

"She was exposed to a risk that the railroad created and, then, negligently failed to control.

"It was not merely likely, but inevitable that Annette would inhale the railroad's asbestos that contaminated her home.

"Recognizing a duty here will encourage the users of hazardous materials to do so with care – to contain and control them for the benefit of anyone who might be exposed."

They challenged CSX's claim that it lacked relationship with Annette.

"That relationship is not appreciably different than that between an injured pedestrian and a negligent driver, who could be complete strangers prior to an accident," they wrote.

They wrote that Ronald was the conduit of the exposure and not the cause.

They wrote that duty is not specific to asbestos but applies to any hazardous substance.

"Protecting innocent people from the negligent use of toxic substances merits as much
public policy consideration as does protecting careless actors from liability – especially speculative liability," they wrote.

"If a defendant that used or kept anthrax or some virus for research purposes had allowed it to escape into the surrounding community, no one would question the existence of a duty to those injured," they wrote.

Ted Gianaris, John Barnerd and Amy Garrett, all of the Simmons firm, worked on the brief, as did John Cooney and Patricia Spratt of Chicago.

CSX's reply is due June 17.

The case is ready for argument in a term starting in September.

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