August 6, 2010
In a case of first impression in Illinois, an appellate court held recently that an employer has a duty to protect an employee's family members from exposure to asbestos that the employee brings home on his or her clothing. In Simpkins v. CSX Corp., 401 Ill. App. 3d 1109, 929 N.E.2d 1257 (Ill. App. Ct. 2010), a railroad worker's wife contracted mesothelioma. She filed suit against her husband's employer, alleging that the employer had breached its duty to her to take precautions to protect her from take-home asbestos exposure. The wife ultimately died from the disease, and an administratrix was appointed and substituted as plaintiff. The trial court dismissed the suit on the ground that the employer had no duty to protect its employee's family. The Illinois Appellate Court for the Fifth District reversed that decision and remanded the case for further proceedings.
The defendant in Simpkins argued that Illinois law did not recognize a duty owed to families of its employees. It claimed that because no Illinois court had previously recognized such a duty, allowing the plaintiff's case to go forward would amount to the creation of a new cause of action, which was the province of the appellate courts, not the trial courts. The trial court acquiesced to that argument and dismissed the case. The fifth district rejected that contention, as there is no prerequisite that an appellate court decide cases of first impression.
The fifth district recognized the conflicting opinions in other jurisdictions on the "take-home" asbestos theory. The court then applied Illinois law, where the existence of a duty depends on the parties' relationship to each other. Whether a relationship between the parties "will justify the imposition of a duty depends upon four factors: (1) the foreseeability of the harm, (2) the likelihood of the injury, (3) the magnitude of the burden involved in guarding against the harm, and (4) the consequences of placing on the defendant the duty to protect against the harm." 929 N.E.2d at 1262. The court found the out-of-state cases finding a duty in similar circumstances to be more persuasive.
With respect to the foreseeability factor, the defendant argued that its predecessor did not know of the dangers of take‑home asbestos while the decedent's husband worked there. The court rejected that argument because the test is not whether the employer actually foresaw the risk to the wife but whether it should have foreseen the risk. It held that the risk was reasonably foreseeable.
As for the second factor, the court noted that the likelihood of contracting mesothelioma through take-home exposure varies depending on the duration of exposure. The complaint alleged facts supporting the conclusion that the magnitude of the harm was great. The wife eventually died from her asbestos‑related cancer. Thus, according to the court, "the likelihood of serious or fatal injury to anyone foreseeably exposed to asbestos is substantial enough to warrant the imposition of a duty." Id. at 1264.
In analyzing the third factor, the court found that the burden involved in guarding against take‑home asbestos exposure was not unduly onerous when compared to the nature of the risk. The complaint alleged a number of ways the employer could have reduced the risk of exposure, and the defendant offered no real argument regarding the burden that implementing any of the practices alleged would have placed on it.
As for the consequences of placing the burden on employers, the court rejected the defendant's argument that the recognition of a duty under the circumstances presented would expose employers to limitless liability to everyone in the world. It reasoned that the focus on foreseeability provided an acceptable limitation on employers' potential liability. The court noted further that the only question before it was whether employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure. The court did not expressly limit the duty to immediate family members, however. Instead, it said that "[s]hould 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." Id. at 1266.
Thus, after consideration of the factors used to determine duty under Illinois law and a review of out-of-state authorities, the court held that the wife was entitled to the exercise of care from her husband's employer. This did not, however, relieve the plaintiff of the burden of proving her case, as the only question decided on appeal was whether the plaintiff's complaint sufficiently stated a cause of action under Illinois law.