Illinois' Toxic Tort Liability: "Take-Home Exposure"
8/26/2010 - Take Home Liability: Illinois Extends an Employer's Potential Liability to the Employee's Family Members in Toxic Tort Cases
Does an employer owe a duty of care to protect
its employees’ family members from hazardous substances? By answering “yes” to that question in a
recent opinion, the Fifth District of the Appellate Court of Illinois dramatically
expanded an employer’s potential liability and validated an emerging theory of
liability: “Take-home exposure.” In Simpkins
v. CSX Corp.,
2010 WL 2337778 (Ill. App. 5 Dist. 2010), the Fifth District concluded that
an employer owes a duty of care to the family members of employees who bring
home asbestos fibers on their work clothes.
the plaintiff filed a complaint in the Circuit Court of Madison County, alleging she contracted mesothelioma due to exposure
to asbestos brought home on her husband Ronald’s work clothes. The plaintiff named as a defendant CSX
Corporation, the successor to Ronald’s former employer. The plaintiff alleged CSX negligently failed
to take precautions to protect Ronald’s family from take-home asbestos
CSX filed a motion to dismiss plaintiff’s
lawsuit, arguing under Illinois law it owed no duty to the families of its
employees. The trial court granted CSX’s
motion to dismiss. In doing so, the
court explained that no Illinois court had previously imposed a duty upon employers to
protect its employees’ family members from chemical exposure.
On appeal, the Fifth District reversed the trial
court’s decision, concluding CSX owed a duty of care to Ronald’s family
members, including the plaintiff, to protect against asbestos exposure. Because no Illinois opinion previously addressed this issue, the Fifth
District reached its decision based upon general principles of Illinois negligence law.
In Illinois, the existence of a duty depends upon whether the
parties stand in such a relationship to each other that the law imposes upon
the defendant an obligation to act in a reasonable manner for the benefit of
the plaintiff. Id. at *4. (citing Marshall
v. Burger King Corp., 222 Ill.2d 422, 436 (Ill. 2006)). To
determine whether the parties stand in a relationship sufficient to impose a
duty upon the defendant, Illinois courts examine the following 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. Id.
Ultimately, the Fifth District concluded that
each factor warranted the imposition of a duty upon an employer to protect its
employees’ family members from asbestos exposure. As to foreseeability, the Fifth District explained:
“It takes little imagination to presume that when an employee who is exposed to
asbestos brings home his work clothes, members of his family are likely to be
exposed as well.” Id. at *6. The
Fifth District further concluded the likelihood of injury to the plaintiff was
sufficient to impose a duty upon CSX,
given the scientific evidence linking frequent asbestos exposure to the
development of mesothelioma. Id. at *7.
Regarding the potential burden of imposing a
duty of care upon an employer to protect the families of its employees from
asbestos exposure, the Fifth District determined that any burden was slight
when compared to the harm sought to be prevented. Id. at *7-*8. The
court provided examples of precautionary measures CSX could have taken to
protect against the harm, including: (1)
providing warnings to employees; (2) providing safety instructions to
employees; (3) testing its products for asbestos; and (4) imposing employee
hygienic practices. Id. at *8. The
Fifth District concluded that none of these measures would have imposed a
significant burden upon CSX.
Finally, the Fifth District addressed the potential
consequences of imposing a duty upon the defendant. CSX argued that imposing such a duty of care
upon it would expose it to limitless liability.
For example, CSX claimed that a housekeeper or babysitter who regularly
launders an employee’s clothes may be regularly exposed to asbestos fibers and now
would have a cause of action against the employer. Id. at *8. The
Fifth District rejected that argument, explaining the court’s decision was
limiting to subjecting employers to a duty of care to the immediate family members of employees to protect against take-home
asbestos exposure. Id. at *9 (emphasis added).
While the Fifth District indicated it had limited
its holding to immediate family members of employees, the court left open the
possibility for more expansive employer liability. The Fifth District noted that, “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.” Id. Thus, CSX may
have correctly argued that an employer now could face liability for exposing
non-family members who come into close contact with an employee’s work clothes.
Overall, the Simpkins
opinion has several important ramifications. First, under Illinois law, employers now owe a duty of care to the family
members of employees to protect against asbestos exposure. Additionally, depending upon the facts of future
cases, Illinois courts may extend this duty of care to non-family
members who frequently came into contact with an employee’s work clothes. Finally, and perhaps most importantly, the
Fifth District has validated the “take-home exposure" theory gaining prominence
in asbestos litigation. The Fifth
District’s decision has created a new class of plaintiffs, while leaving the
limits of employer liability undefined.
Thus, in future asbestos litigation, counsel must be prepared not only
to defend against an employee alleging direct exposure to asbestos, but also
against those alleging exposure by coming into contact with an employee’s work