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Ill. SC allows plaintiff to amend complaint in asbestos lawsuit

By Jessica M. Karmasek | Mar 22, 2012


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court, in a ruling Thursday, deemed a plaintiff's allegations in a case over asbestos exposure "insufficient."

In a nine-page opinion, the Court majority said Annette Simpkins' three-count complaint filed in 2007 against defendant CSX Transportation failed to establish that the company owed a duty of care to her.

Simpkins, later substituted by her daughter Cynthia, alleged negligence, wanton and willful conduct, and strict liability for her exposure to take-home asbestos on the clothing of her husband, Ronald, who worked for CSX from 1958 to 1964.

Just months after filing the lawsuit, Annette Simpkins died of mesothelioma, a cancer caused by asbestos exposure.

CSX argues that because it had no direct relationship with Annette Simpkins, it cannot be liable for her injury.

And because she was not an employee, never visited its premises and was not a "vicarious beneficiary" of any duty it owed her husband, CSX asserts it owed her no duty.

Simpkins, in turn, argues that CSX created the risk of harm at issue and, in such a case, a preexisting special relationship is not a prerequisite to a finding that there was a duty owed by defendant to plaintiff.

The Madison County Circuit Court granted CSX's motion to dismiss.

An appellate court later reversed and remanded the case to the circuit court.

CSX then appealed to the state's high court.

The Court affirmed the appellate court's reversal but remanded the case to the circuit court to allow Simpkins to amend her complaint.

"The concept of duty in negligence cases is involved, complex and nebulous," Justice Rita B. Garman wrote for the majority.

At issue is the relationship between the defendant CSX and plaintiff Simpkins, the Court said.

"We have recognized four relationships that give rise to an affirmative duty to aid or protect another against an unreasonable risk of physical harm: 'common carrier and passenger, innkeeper and guest, custodian and ward, and possessor of land who holds it open to the public and member of the public who enters in response to the possessor's invitation.'

"We have also recognized a duty to a third party to control the individual who is the source of the harm when a defendant has a special relationship with that person, such as a parent-child relationship and a master-servant or employer-employee relationship."

The next question, the Court said, is whether the defendant, by its act or omission, contributed to a risk of harm to this particular plaintiff.

In this case, CSX argues that Simpkins' complaint is insufficient because it relies on the "conclusory allegation" that the company "knew or should have known" of the dangers of secondhand asbestos exposure.

"Defendant is correct," Garman wrote. "Plaintiff has failed to allege facts specific enough to analyze whether, if those facts were proven true, defendant would have been able to reasonably foresee plaintiff's injury."

However, the Court said CSX was wrong in just now making the argument.

"Because foreseeability is such an integral factor to the existence of duty and because the weight to be accorded to that foreseeability (as well as to the other factors) depends on the particular circumstances of the case, without more detailed pleadings we cannot determine whether, if all well-pled facts are taken as true, a duty of care ran from defendant to plaintiff in this case," Garman wrote.

Chief Justice Thomas L. Kilbride and Justices Lloyd A. Karmeier and Mary Jane Theis concurred.

Justice Charles E. Freeman dissented, along with Justice Anne M. Burke.

"In remanding this case to allow for amending the complaint, the Court does not answer the substantive question of whether a legal duty exists at all for secondhand asbestos exposure, ostensibly the reason we granted leave to appeal," Freeman wrote.

Remand, he argues, is inappropriate here.

"The facts as already alleged put the issue of liability for secondhand asbestos exposure squarely before the Court for determination," Freeman wrote.

The justice said he would hold that no duty exists in this case and that the circuit court correctly granted CSX's motion to dismiss.

Justice Robert R. Thomas took no part in the decision.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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