• Duty to Protect Employees’ Families at Issue: Is Employer Liable for Secondhand Asbestos Exposure at Premises?
  • July 27, 2011 | Authors: Julie R. Evans; Anthony M. Goldner; David M. Holmes
  • Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - New York Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - Chicago Office
  • Illinois appellate courts disagree on whether a duty exists for employers in premises liability cases to protect employees’ families against “take-home,” “household” or “secondhand” asbestos exposure. Recently, the Illinois Supreme Court has decided to hear the secondhand asbestos case of Simpkins v. CSX Corp, et al., No. 5-07-0346, and should ultimately rule on whether an employer owes a duty for secondhand asbestos exposure.

    Current Rulings
    In 2010, the Fifth District, in Simpkins, found, in a premises liability case, that “employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure.” The decedent died following her exposure to asbestos brought home on her husband’s work clothes. The court found “the likelihood of serious or fatal injury to anyone foreseeably exposed to asbestos is substantial enough to warrant the imposition of a duty” and “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.”

    Conversely, in Nelson v. Aurora Equipment Co., 909 N.E.2d 931 (2009), the Second District found that no duty existed for an employer in a premises liability case because the secondhand plaintiff did not enter the premises and failed to establish a special relationship with the defendant. The plaintiff pleaded a premises liability cause of action, and therefore, the court only ruled on that theory of liability (which is well settled in Illinois).

    In the most recent secondhand exposure case, the Fourth District, on June 22, 2011, in a 2¿1 decision, acknowledged both appellate court decisions of Simpkins and Nelson in Holmes v. Pneumo Abex, LLC, No. 4-10-0462 (June 22, 2011). The Fourth District reversed the lower court’s judgment against Honeywell International, Inc., and Pneumo Abex, LLC, jointly and severally, in the amount of $1.5 million. The plaintiff alleged that the defendants conspired to suppress information and refused to warn employees about the harmful effects of asbestos on their premises, which led to secondhand exposure and the wrongful death of his mother.

    The Fourth District found, with Nelson and Simpkins in mind, that “no duty was owed to the decedent in this case.” Further, the Court noted that, even if a duty existed like that in Simpkins, it “would find no duty existed because of the lack of foreseeability in this case.” The decedent’s husband worked at the asbestos plant from 1962 to 1963, and the plaintiff’s expert testified that the first study showing secondhand exposure was published in October 1964. Therefore, “the evidence indicate[d] the danger of household or take-home exposure to asbestos was not reasonably foreseeable until after decedent’s husband worked at [the plant].”

    The upcoming decision of the Illinois Supreme Court, should it decide that employers are liable for second-hand asbestos exposure, has the potential to significantly broaden the pool of plaintiffs in such cases.