NO. 5-07-0346
NOTICE
Decision filed 06/10/10. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
CYNTHIA SIMPKINS, Individually and as Special
) Appeal from the
Administrator for the Estate of Annette Simpkins,
) Circuit Court of
Deceased, ) Madison County.
)
Plaintiff-Appellant, )
)
v. ) No. 07-L-62
)
CSX CORPORATION and CSX )
TRANSPORTATION, INC., ) Honorable
) Daniel J. Stack,
Defendants-Appellees. ) Judge, presiding.
________________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
According to the plaintiff's complaint, Annette Simpkins was exposed to asbestos
fibers brought home on the work clothes of her husband, Ronald Simpkins. Ronald Simpkins
was exposed to asbestos while working for various employers, including the defendants'
predecessor, the B&O Railroad. Annette Simpkins died of mesothelioma cancer in April
2007 while the instant action was pending in the trial court. Her daughter, Cynthia Simpkins,
was appointed as the special administrator of Annette's estate and was substituted as the
plaintiff. She now appeals an order dismissing three counts of the complaint against the
defendants, CSX Corp. and CSX Transportation, Inc. (collectively referred to as CSX). The
counts were dismissed pursuant to a motion under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2006)), on the grounds that an employer has no duty to
protect the family of its employee from the dangers of asbestos brought home on the work
clothes of the employee. We find that such a duty does exist. Accordingly, we reverse and
remand for further proceedings.
1
The fact that this case comes to us on a motion to dismiss pursuant to section 2-615
of the Code of Civil Procedure limits our consideration to the matters asserted in the
pleadings. The supreme court has explained as follows:
"A section 2-615 motion to dismiss (735 ILCS 5/2-615 (W est 2002))
challenges the legal sufficiency of a complaint based on defects apparent on its face.
City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364[, 821 N.E.2d 1099,
1110] (2004). Therefore, we review de novo an order granting or denying a section
2-615 motion. Wakulich v. Mraz, 203 Ill. 2d 223, 228[, 785 N.E.2d 843, 846] (2003).
In reviewing the sufficiency of a complaint, we accept as true all well-pleaded facts
and all reasonable inferences that may be drawn from those facts. Ferguson v. City
of Chicago, 213 Ill. 2d 94, 96-97[, 820 N.E.2d 455, 457] (2004). We also construe
the allegations in the complaint in the light most favorable to the plaintiff. King v.
First Capital Financial Services Corp., 215 Ill. 2d 1, 11-12[, 828 N.E.2d 1155, 1161]
(2005). Thus, a cause of action should not be dismissed pursuant to section 2-615
unless it is clearly apparent that no set of facts can be proved that would entitle the
plaintiff to recovery. Canel v. Topinka, 212 Ill. 2d 311, 318[, 818 N.E.2d 311, 317]
(2004)." Marshall v. Burger King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053
(2006).
For purposes of a motion to dismiss pursuant to section 2-615, the court may not consider
affidavits or other supporting materials. Kirchner v. Greene, 294 Ill. App. 3d 672, 677, 691
N.E.2d 107, 112 (1998); Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.
3d 1065, 1068, 603 N.E.2d 1215, 1218-19 (1992). Unlike a section 2-619 motion or a
section 2-1005 summary judgment motion (735 ILCS 5/2-619, 2-1005 (West 2006)), a
section 2-615 motion relies solely on the pleadings rather than on the underlying facts. It is
for that reason that the plaintiff must prevail if sufficient facts are pled which, if proved,
2
would entitle her to relief.
The scope of our inquiry is confined to the issue of whether the plaintiff's complaint
should have been dismissed on the basis that Ronald Simpkins' employer did not owe a duty
of care to prevent Annette from being exposed to asbestos brought home on her husband's
work clothes and body. We make no determination on the questions of whether a breach of
that duty occurred or whether such a breach was a proximate cause of Annette's death. For
purposes of this opinion, we must assume that the facts contained in the plaintiff's complaint
are true.
The plaintiff's complaint states that Annette and Ronald Simpkins were married from
1951 until 1965, after which time they divorced. For much of that time, Ronald was exposed
to asbestos in his work as a steelworker, welder, railroad fireman, and laborer. He worked
in these capacities for several employers, including the B&O Railroad (the defendants'
predecessor), where he worked from 1958 to 1964.
On January 19, 2007, Annette Simpkins filed the original complaint in this matter,
alleging that she had contracted mesothelioma cancer due to exposure to asbestos brought
home on Ronald's body and work clothes during their marriage. This is what is commonly
referred to as "take-home" asbestos exposure. (We note that Annette Simpkins also alleged
take-home exposure to asbestos through her father and direct exposure through her own
employment. Those allegations, however, are not at issue in this appeal.) The complaint
named numerous defendants, including asbestos manufacturers and former employers. The
three counts of the complaint here at issue named only CSX (as a successor to the B&O
Railroad) and the Dow Chemical Company, where Ronald Simpkins worked from 1964
through the end of the parties' marriage in 1965. Count VII of the complaint alleged that
both former employers negligently failed to take precautions to protect Ronald Simpkins'
family from take-home asbestos exposure, count VIII alleged that both defendants were
3
strictly liable for engaging in an ultrahazardous activity, and count IX alleged willful and
wanton conduct on the part of both employers.
On February 28, 2007, CSX filed a section 2-615 motion to dismiss the three counts
of the complaint against it. CSX argued that under Illinois law an employer does not owe
any duty to the families of its employees. This was the sole basis for dismissal that it
asserted. We note that the Dow Chemical Company did not join CSX's motion or file its own
motion to dismiss and is not a party to this appeal.
On April 2, 2007, Annette Simpkins died. On May 2, her daughter, Cynthia, was
appointed the special administrator of Annette's estate. Cynthia was later substituted as the
plaintiff in this litigation.
On May 18, 2007, the court heard arguments on CSX's motion to dismiss. CSX
argued that because no Illinois court has previously held that employers owe a duty to the
families of employees who are exposed to asbestos, allowing the plaintiff's case to go
forward against CSX would be creating a new cause of action. Thus, according to CSX, it
is an issue that must be determined by an appellate court or the legislature, not by a trial
court. We note that CSX implicitly acknowledged that no Illinois court has previously held
that employers do not owe a duty to protect families from take-home asbestos exposure
either. CSX's attorney pointed out that the plaintiff could appeal from an order dismissing
her case and that "if [s]he can create a new cause of action, [s]he can create a new cause of
action."
In response, the plaintiff argued that asking the court to recognize a duty where there
are no previous cases on point is not the same as asking the court to create a new cause of
action. She further argued that the Illinois Supreme Court has expressed a broad view of
duty, and she emphasized that finding that a duty exists is not the same thing as finding that
the duty has been breached or that the defendant is liable. In rebuttal, the defendants argued
4
that holding there is a duty to protect family members from take-home asbestos exposure
would expand employers' liability under the Federal Employers' Liability Act (FELA) (45
U.S.C. §51 et seq. (2000)) and that the plaintiff's remedy in this case is against the asbestos
manufacturers, not against the employer. The court told the plaintiff's counsel: "I have to be
candid with you. It sounds like a great argument for the [s]upreme [c]ourt." The court then
granted the motion to dismiss and told the parties it would sever the claims against CSX from
the remainder of the plaintiff's claims and enter a finding, pursuant to Supreme Court Rule
304 (210 Ill. 2d R. 304), making its dismissal a final and appealable order. The court entered
a written order to that effect the same day. The plaintiff then timely filed the instant appeal.
We are perplexed by CSX's argument that somehow the trial court was unable to
decide the issue before it, just as we are perplexed by the judge's apparent acquiescence to
that argument. Our legal system is one of common law, which by its very definition develops
through the case law decisions of the courts. See Black's Law Dictionary 276-77 (6th ed.
1990). The trial judge has both the authority and the duty to decide disputes before it. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60, 73 (1803) (explaining, "It is
emphatically the province and duty of the judicial department to say what the law is"). There
is no prerequisite that an appellate court decide cases of first impression. Nor does the
absence of statutory or regulatory law constrain the court's power to decide disputes before
it. See Ill. Const. 1970, art. VI, §9 (trial courts have jurisdiction over "all justiciable
matters").
Before turning to the merits of the parties' contentions, we note that the motion to
dismiss was directed at three different counts of the plaintiff's complaint. All three counts,
however, involved allegations that the risk of harm to Annette Simpkins was foreseeable.
On appeal, the parties do not distinguish the three counts. Thus, we, too, will discuss them
together.
5
As both parties note, no Illinois case is directly on point. Both parties cite decisions
of other jurisdictions, which reach opposite results. The plaintiff argues that general
principles of duty under Illinois law support finding a duty to protect family members in take-
home asbestos cases. CSX urges us to follow those jurisdictions that have not found a duty
to protect family members from take-home asbestos exposure, arguing that finding such a
duty would lead to unlimited liability. We agree with the plaintiff. Because we find that
ordinary principles of Illinois negligence law support this conclusion, we need not consider
the plaintiff's alternative argument based on a transferred-negligence theory (see Renslow v.
Mennonite Hospital, Inc., 67 Ill. 2d 348, 367 N.E.2d 1250 (1977)), nor need we consider
CSX's related argument that the common law cannot expand FELA liability to a
nonemployee spouse. We also take note that in light of the supreme court's recent decision
in Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 920 N.E.2d 220 (2009), we
do not believe that a transferred-negligence theory provides viable support for the plaintiff's
argument regarding duty.
Under Illinois law, the existence of a duty depends on 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. Marshall, 222 Ill. 2d at 436, 856
N.E.2d at 1057. The term "relationship" does not necessarily mean a contractual, familial,
or other particular special relationship. See Marshall, 222 Ill. 2d at 441, 856 N.E.2d at 1060
(explaining that whether or not the law imposes a duty on a defendant for the benefit of a
plaintiff depends on " ' "the sum total of those considerations of policy which lead the law
to say that the plaintiff is entitled to protection" ' " (quoting Kirk v. Michael Reese Hospital
& Medical Center, 117 Ill. 2d 507, 527, 513 N.E.2d 387, 396 (1987) (quoting W. Keeton,
Prosser & Keeton on Torts §53, at 358 (5th ed. 1984))). As the supreme court has
noted, " 'the concept of duty in negligence cases is very involved, complex[,] and indeed
6
nebulous.' " Marshall, 222 Ill. 2d at 435, 856 N.E.2d at 1056-57 (quoting Mieher v. Brown,
54 Ill. 2d 539, 545, 301 N.E.2d 307, 310 (1973)). M oreover, every person owes every other
person the duty to use ordinary care to prevent any injury that might naturally occur as the
reasonably foreseeable consequence of his or her own actions. See Forsythe v. Clark USA,
Inc., 224 Ill. 2d 274, 291, 864 N.E.2d 227, 238 (2007).
Whether a relationship exists between the parties that 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. Marshall, 222
Ill. 2d at 436-37, 856 N.E.2d at 1057; Ward v. K mart Corp., 136 Ill. 2d 132, 140-41, 554
N.E.2d 223, 226-27 (1990). Our determination of duty is informed by public policy
considerations. Marshall, 222 Ill. 2d at 436, 856 N .E.2d at 1057. As a matter of public
policy, it is best to place the duty to protect against a harm on the party best able to prevent
it. See Court v. Grzelinski, 72 Ill. 2d 141, 150-51, 379 N.E.2d 281, 285 (1978).
Applying these principles, we find the out-of-state cases that have found a duty in
similar circumstances to be more persuasive than those that have not. W e find two cases
particularly helpful. The Tennessee Supreme Court's decision in Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347 (Tenn. 2008), offers a thoughtful and persuasive discussion
of the role the parties' relationship should play in determining the existence of a duty, while
the New Jersey case of Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006),
cited by the plaintiff (and relied upon in many of the other cases she cites), required the New
Jersey Supreme Court to apply general principles of duty similar to Illinois's to circumstances
nearly identical to those present in the instant case.
Satterfield involved a 25-year-old woman who died as a result of mesothelioma
cancer, which she contracted after being exposed to asbestos fibers brought home on her
7
father's work clothes during her childhood. Satterfield, 266 S.W.3d at 351-52. In rejecting
the father's employer's argument that it owed no duty to the daughter because it did not have
a special relationship with her, the Tennessee Supreme Court first examined general
principles of negligence law. The court explained that all people have a duty to others to
refrain from actions " 'which involve[] an unreasonable risk of harm' " to others. Satterfield,
266 S.W.3d at 355 (quoting Restatement (Second) of Torts §302 (1965)). Generally,
however, people have no duty "to protect others from dangers or risks except for those that
they themselves have created." Satterfield, 266 S.W.3d at 357. This is what is known as the
"no duty to act" rule. Satterfield, 266 S.W.3d at 357 (citing Restatement (Second) of Torts
§314 (1965)). These propositions, embodied in the Second Restatement of Torts, are not
unique to Tennessee law, and as previously explained, they are the law in Illinois also.
The Satterfield court then went on to explain the role that an analysis of the
relationship between the parties should play in a duty analysis under these general principles.
It explained that exceptions to the no-duty-to-act rule exist where special recognized
relationships exist, either between the plaintiff and the defendant or between the defendant
and a third party whose actions create the risk to the plaintiff. Satterfield, 266 S.W.3d at 359.
However, the court found that neither the no-duty-to-act rule nor these exceptions were
applicable to the facts before it. This is because the case did not involve a situation where
the father's employer simply failed to act to protect the daughter from harm caused by a third
party; rather, it involved "the employer's own misfeasance–its injurious affirmative act of
operating its facility in such an unsafe manner that dangerous asbestos fibers were
transmitted outside the facility" on its employees' work clothes. Satterfield, 266 S.W.3d at
364. The court, therefore, found it unnecessary to consider whether the employer had any
additional duties to the daughter flowing from a special relationship. Satterfield, 266 S.W.3d
at 364.
8
At least one other court has followed the Tennessee court's approach. See Rochon v.
Saberhagen Holdings, Inc., No. 58579-7-I, slip op. at 12 (Wash. App. August 13, 2007)
(unpublished opinion) (finding that a duty to prevent harm from take-home asbestos exposure
can arise "even in the absence of any special relationship" if the injury is foreseeable). We
find this approach persuasive. For one thing, as mentioned, the Satterfield court described
general principles of negligence law embodied in the Second Restatement of Torts. Also as
previously mentioned, in Illinois, as in Tennessee, all parties owe to all others the duty to take
reasonable precautions to prevent their actions from harming all others. To find that an
employer whose workers are exposed to asbestos owes no duty to protect others from
exposure–assuming the exposure is both foreseeable and preventable without undue
burden–merely because the others do not have any particular special relationship with the
employer (such as an employee or a business invitee) would defy logic and lead to grossly
unfair results. This is not to say the employer has unlimited liability to all the world; as we
will discuss later in this opinion, liability will be limited by foreseeability.
With this in mind, we turn our attention to Olivo, where the New Jersey Supreme
Court found the risk of take-home asbestos exposure foreseeable in a case of a woman who
died of mesothelioma cancer after being exposed to asbestos brought home on her husband's
work clothes. Under New Jersey law, as under Illinois law, a duty analysis involves both a
determination of whether the injury was foreseeable and a consideration of public policy.
Olivo, 186 N.J. at 403, 895 A.2d at 1148. W e find the court's analysis of both factors
persuasive. We focus now on its analysis of the foreseeability of the harm.
In Olivo, as here, one of the husband's employers argued that it owed no duty to
protect its former employee's wife from take-home asbestos exposure. Olivo, 186 N.J. at
400, 895 A.2d at 1146-47. When considering the foreseeability of the harm, the Olivo court
explained as follows: "It requires no leap of imagination to presume that during the decades
9
of the 1940's, 50's, 60's, [70's,] and early 1980's when Anthony [Olivo] worked as a welder
and steamfitter[,] either he or his spouse would be handling his clothes in the normal and
expected process of laundering them so that the garments could be worn to work again.
Anthony's soiled work clothing had to be laundered[,] and [his employer] *** should have
foreseen that whoever performed that task would come into contact with the asbestos that
infiltrated his clothing while he performed his contracted tasks." Olivo, 186 N.J. at 404, 895
A.2d at 1149.
CSX argues that the B&O Railroad did not know of the dangers of take-home asbestos
while Ronald Simpkins worked for it. The question, however, is not whether the employer
actually foresaw the risk to Annette Simpkins; rather, the question is whether, through
reasonable care, it should have foreseen the risk. " '[W]hat is required to be foreseeable is
the general character of the event or harm ***[,] not its precise nature or manner of
occurrence.' " Marshall, 222 Ill. 2d at 442, 856 N.E.2d at 1060 (quoting Bigbee v. Pacific
Telephone & Telegraph Co., 34 Cal. 3d 49, 57-58, 665 P.2d 947, 952, 192 Cal. Rptr. 857,
862 (1983)). Like the Olivo court, we believe that 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. Thus, the general character of the harm to be
prevented was reasonably foreseeable.
As we have previously stated, under a section 2-615 motion to dismiss, courts may not
consider affidavits or other supportive documentation. Kirchner, 294 Ill. App. 3d at 677, 691
N.E.2d at 112; Barber-Colman Co., 236 Ill. App. 3d at 1068, 603 N.E.2d at 1218-19.
However, the plaintiff did file a number of documents in support of her allegations and
arguments that the hazards of take-home asbestos were known or should have been known
to the defendants' predecessor, the B&O Railroad, during the relevant years of Ronald
Simpkins' employment from 1958 to 1964. The defendants have also argued that the risk of
10
harm from take-home exposure was not foreseeable until 1972, when the Occupational
Safety and Health Administration, or OSHA, introduced regulations to prevent take-home
asbestos exposure. We cannot consider those fact-specific arguments derived from affidavits
or other supportive documentation. The defendants' choice of a section 2-615 motion, rather
than a section 2-619 motion or a section 2-1005 motion for a summary judgment, controls
the way both the parties may proceed and our scope of review. Again, for purposes of this
motion we must take as true the plaintiff's pleadings, which allege that the B&O Railroad
knew or should have known during the relevant times that the asbestos fibers carried home
from work on Ronald Simpkins' clothing and body posed a risk of harm to Annette Simpkins.
We find that the risk of harm to Annette Simpkins was foreseeable at the time Ronald
Simpkins worked for the B&O Railroad.
Finding that the risk of harm was foreseeable does not end our inquiry. Foreseeability
is an important factor (see Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326, 383
N.E.2d 177, 180 (1978) (explaining that foreseeability is the cornerstone of our duty
analysis)); however, it is not the only factor. As previously outlined, we must also consider
the likelihood of the injury, the level of the burden involved in protecting against take-home
asbestos exposure, and the consequences of placing that burden on an employer whose
workers are exposed to asbestos. See Marshall, 222 Ill. 2d at 436-37, 856 N.E.2d at 1057.
We will next consider the likelihood of the injury. A cursory look at the cases that
both the parties cite to in support of their various positions illustrates both the pervasiveness
and the seriousness of asbestos-related diseases. While apparently the likelihood of
contracting mesothelioma or another asbestos-related lung disease through take-home
exposure varies depending on the duration of exposure, these cases also demonstrate that the
likelihood of developing such a disease from anything more than incidental exposure is not
remote. Annette Simpkins' complaint alleges facts that support the conclusion that the
11
magnitude of the harm was great, asserting that asbestos fibers have a "toxic, poisonous, and
highly deleterious effect upon the health of persons inhaling, ingesting[,] or otherwise
absorbing them." Allegedly, Annette eventually died from her asbestos-related cancer. Thus,
the likelihood of serious or fatal injury to anyone foreseeably exposed to asbestos is
substantial enough to warrant the imposition of a duty. See Forsythe, 224 Ill. 2d at 291, 864
N.E.2d at 238 (finding a duty where the "likelihood of injury *** would not be remote and
could be deadly").
We must also consider the burden involved in guarding against take-home asbestos
exposure. We again find the decisions in Satterfield and Olivo persuasive. Although the
courts in both Tennessee and New Jersey describe differently from Illinois courts the factors
they consider in determining the existence of a duty, the courts in both states in fact
addressed this issue.
The Satterfield court considered whether "the degree of foreseeability of the risk and
the gravity of the harm outweigh the burden that would be imposed if the defendant were
required to engage in an alterative course of conduct that would have prevented the harm."
Satterfield, 266 S.W.3d at 365. The court discussed measures that could have prevented the
daughter's exposure: the employer could have provided warnings to its employees about the
dangers of bringing asbestos-laden clothing home, it could have provided coveralls for
employees to wear while working around asbestos, and it could have required the employees
to change before leaving and provided an on-site laundry facility to clean the coveralls. The
court found these measures "to be feasible and efficacious without imposing prohibitive costs
or burdens" on the employer. Satterfield, 266 S.W.3d at 368. Similarly, the Olivo court
considered "the nature of the risk and how relatively easy it would have been to provide
warnings to workers such as Anthony about the handling of his clothing or to provide
protective garments." Olivo, 186 N.J. at 405, 895 A.2d at 1149.
12
Annette's complaint alleges a number of ways the employer here could have reduced
the risk of exposure–i.e., by substituting other products, providing warnings of the danger,
providing safety instructions, testing the products, and requiring hygienic practices. CSX
offers no real argument regarding the burden that implementing any of these practices would
have placed on the employer, choosing instead to rely on the lack of any special relationship
with Annette Simpkins as dispositive of its duty analysis. We find that 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.
Finally, we consider the consequences of placing that burden on employers such as
the defendants or their predecessor. The defendants contend that recognizing a duty here
would expose employers to limitless liability to "the entire world." The Olivo court
addressed a similar argument and found that such fears of limitless liability were
"overstated." Olivo, 186 N.J. at 405, 895 A.2d at 1150. The court explained that the duty
it was recognizing "is focused on the particularized foreseeability of harm to plaintiff's wife,
who ordinarily would perform typical household chores that would include laundering the
work clothes worn by her husband." Olivo, 186 N.J. at 405, 895 A.2d at 1150. Thus, the
scope of liability will be inherently limited by the foreseeability of the harm.
We agree with the Olivo court that our focus on foreseeability provides an acceptable
limitation on an employer's potential liability. It is certainly foreseeable that the wife of an
asbestos-exposed worker would also be exposed to asbestos dust through washing his
clothing. It is also foreseeable that other members of the household could be exposed. It is
not necessarily foreseeable that any person who shares a cab with the asbestos worker would
inhale asbestos dust and develop mesothelioma. See Satterfield v. Breeding Insulation Co.,
No. E2006-00903-COA-R3-CV, slip op. at 14 (Tenn. App. April 19, 2007) (explaining that
while harm to family members "who routinely come into close contact with employees'
13
contaminated clothing" is foreseeable, the risk of harm to people "who might possibly come
into contact with the employees' clothing, but whose contacts are sporadic or unpredictable,"
is "only a remote possibility"), aff'd, 266 S.W.3d 347 (Tenn. 2008).
We note that the plaintiff argues that the duty to protect against take-home asbestos
exposure can be limited to the immediate family of workers who are exposed to asbestos,
while the defendants contend that there is no rational reason to draw the line there. As an
example, they contend, a housekeeper or babysitter who regularly launders the employee's
clothing might be just as likely to be exposed as members of the immediate family, if not
more so. The court in Satterfield addressed similar arguments. The court agreed that there
was no principled reason to limit liability to the immediate families of workers who handle
asbestos. Satterfield, 266 S.W.3d at 374. The court explained as follows:
"There is no magic talisman that protects persons from the harmful effects of
exposure to asbestos simply because they do not live under the same roof or are not
a member of the employee's family by blood or marriage. It is foreseeable that the
adverse effects of repeated, regular, and extended exposure to asbestos on an
employee's work clothes could injure these persons." Satterfield, 266 S.W.3d at 374.
The court therefore held that the duty to protect against exposure to asbestos transported
outside the workplace on an employee's clothing extends to any person who is foreseeably
exposed through "close contact with an employee's contaminated work clothes over an
extended period of time." Satterfield, 266 S.W.3d at 374.
We do not believe that the issue of whether anyone other than a member of an
employee's immediate family is owed a duty is before us. Whether harm to any such person
is foreseeable depends on an assessment of circumstances not presented in this case. While
we do not expressly limit the duty to immediate family members, we decide today only that
employers owe the immediate families of their employees a duty to protect against take-home
14
asbestos exposure. 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.
After a consideration of the policy factors used to determine duty, we believe that
Annette Simpkins was entitled to the exercise of care from her husband's employer. We
reiterate, however, that we are not relieving the plaintiff of the burden of proving her case.
Duty is not the equivalent of liability; she must still prove a breach and proximate cause.
These are factual matters for a jury to decide. W e have merely found that, under the facts
alleged, the B&O Railroad owed a duty of care to the spouse of one of its employees.
We hold that the plaintiff's complaint sufficiently states a cause of action to establish
a duty of care owed by the defendants' predecessor to the decedent. W e reverse the circuit
court's dismissal of the plaintiff's complaint and remand the cause for further proceedings.
Reversed; cause remanded.
DONOVAN and W EXSTTEN, JJ., concur.
15
NO. 5-07-0346
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
CYNTHIA SIMPKINS, Individually and as Special
) Appeal from the
Administrator for the Estate of Annette Simpkins,
) Circuit Court of
Deceased, ) Madison County.
)
Plaintiff-Appellant, )
)
v. ) No. 07-L-62
)
CSX CORPORATION and CSX )
TRANSPORTATION, INC., ) Honorable
) Daniel J. Stack,
Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: June 10, 2010
___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable James K. Donovan, J., and
Honorable James M. Wexstten, J.,
Concur
___________________________________________________________________________________
Attorneys John A. Barnerd, Amy Garrett, SimmonsCooper LLC, 707 Berkshire Boulevard,
for East Alton, IL 62024; Charles W . Chapman, 300 Evans Avenue, Wood River, IL
Appellant 62095
___________________________________________________________________________________
Attorneys Kurt E. Reitz, Heath H. Hooks, Thompson Coburn LLP, 525 W est Main Street,
for P.O. Box 750, Belleville, IL 62222-0750
Appellees
___________________________________________________________________________________
Simpkins v. CSX Corp.
Combined Opinion