Fourth District rejects another asbestos case; Court declines to create duty 'where no duty exists'

Steve Korris Jan. 25, 2012, 1:22am


SPRINGFIELD – Fourth District appellate judges lifted a load of litigation from Illinois Central Railroad on Jan. 20, finding it had no duty 50 years ago to move boxcars in a way that protected workers at an asbestos plant.

Three judges ruled that McLean County Circuit Judge Scott Drazewski should have dismissed three suits against Illinois Central.

Justice John McCullough wrote that plaintiffs failed to cite any authority establishing a duty to prevent movement of asbestos fibers or warn plant employees.

He wrote that plaintiffs sought an order creating a duty where no duty exists.

"This court declines to create such a cause of action," McCullough wrote.

Justices Thomas Appleton and Robert Cook concurred.

The decision marked the Fourth District's third rejection in six months for Bloomington asbestos lawyer James Wylder.

Last July and December, Fourth District judges reversed jury verdicts from asbestos conspiracy trials against Honeywell International.

Both decisions knocked down precedents that had allowed Wylder to stage a series of sensational conspiracy trials.

Wylder's clients sued Honeywell as successor to brake maker Bendix, Pneumo-Abex as successor to American Brake and Block, and Owens-Illinois.

While pursuing conspiracy claims against those defendants, Wylder pursued negligence claims against Illinois Central.

His clients claimed that when Illinois Central hauled asbestos to the Union Asbestos and Rubber Company plant in Bloomington, it exposed plant workers to deadly fibers.

Illinois Central moved to dismiss three suits with eight plaintiffs in 2009, claiming they sought to regulate interstate commerce through the judicial system.

Wylder answered that his clients alleged the railroad acted negligently after delivering asbestos, rather than during delivery.

He argued that Illinois Central failed to warn workers of hazards it created.

Drazewski didn't dismiss the suits, but he certified a question to the Fourth District.

He asked whether Illinois Central had a duty to prevent movement of asbestos fibers, or a duty to warn employees prior to moving boxcars.

The Fourth Circuit found Illinois Central owed neither duty.

"Whether a duty exists depends on whether the parties stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff," McCullough wrote.

He wrote that imposition of a duty depends on the foreseeability and the likelihood of an injury, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on a defendant.

He quoted a federal appellate court decision that a carrier "will not, and should not, be required to examine information about the content of the shipment entrusted to him and warn the ultimate consignee of that shipment of any potential dangers arising from the nature of the cargo."

He quoted a federal court decision from Southern Illinois, defining a trucking company as a peripheral party unable to press a manufacturer to enhance the safety of a product.

The judge in that case found a trucking company couldn't reasonably be expected to anticipate injuries from any and every product it might transport.

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