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The Madison County Circuit Court recently granted defendant U.S. Steel Corporation’s Motion for Summary Judgment, in the matter of Taylor v. Air & Liquid Systems Corp., a/k/a Buffalo Pumps, Inc., et al., Case No. 15 L 652. This was a wrongful-death case arising from alleged exposure to asbestos on U.S. Steel’s premises. A key question was whether U.S. Steel, as the premises owner, owed a duty under negligence law in Illinois to the spouse of an employee of an independent contractor who had worked at its facilities.

The decedent, Cheryl Taylor, developed and died from mesothelioma allegedly from take-home exposure to asbestos through her husband, Fred Taylor, who worked as a union insulator in the Chicago area. William Radamacher testified that he worked with Fred Taylor for four to five days at U.S. Steel’s Gary Works site sometime in the 1970s for contractor Paul J. Krez. Mr. Radamacher also testified that he worked with Fred Taylor for three to four months at U.S. Steel’s South Works location in 1981 for independent contractor AC&S.

U.S. Steel first argued that it was entitled to summary judgment because it did not owe a duty of care to Cheryl Taylor, as she was the spouse of an independent contractor. The crux of U.S. Steel’s duty argument was that Plaintiff had not produced any evidence that Cheryl Taylor’s injury and death were reasonably foreseeable to it as a premises owner. U.S. Steel argued there was no basis in the record to assume that it understood the potential danger of household exposure to asbestos-containing products to Cheryl Taylor at the time her husband visited its sites. Further, there was no evidence that U.S. Steel violated any rules, laws or regulations intended to prevent or reduce household exposure applicable to U.S. Steel during the relevant time period. U.S. Steel noted that no Illinois court had directly addressed the issue of whether a premises owner owed a duty to the spouse of an independent contractor, but maintained that since it did not owe a duty of care to Fred Taylor (an independent contractor), under Illinois law, it certainly did not owe a duty of care to his spouse, Cheryl Taylor.

To establish a duty of care, the plaintiff and defendant must stand in a relationship to one another such that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1097 (2012). The relationship is the sum of the following four factors: 1) the reasonable foreseeability of the injury, 2) the likelihood of the injury, 3) the magnitude of the burden guarding against the injury, and 4) the consequence of placing that burden on the defendant. Id.

The Illinois Supreme Court addressed the duty issue in Simpkins, which dealt with whether a duty was owed to a family member of an employee. Ultimately, the Court in Simpkins declined to find the existence of a duty to protect against take-home exposures, but based its ruling on the finding that plaintiff had failed to plead facts specific enough to determine whether defendant reasonably could have foreseen plaintiff’s injury. Id. at 1099.

Before Simpkins, the Third District had found that a premises owner owed no duty to an employee of an independent contractor for injuries suffered by the employee in performing routine and incidental aspects of the employee’s job. Fris v. Personal Products Co., 627 N.E.2d 1265 (3^rd Dist. 1994). Likewise, in Gregory v. Beazer East, the First District Appellate Court ruled that no duty is owed by a premises owner to the employee of an independent contractor where the premises owner did not exercise sufficient control over the work performed by the independent contractor on its premises. Gregory v. Beazer East, 892 N.E.2d 562 (1^st Dist. 2008).

U.S. Steel argued that as Fred Taylor was not an employee of U.S. Steel and that U.S. Steel did not control the operative details of his work while at U.S. Steel, it did not owe him a duty of care, and likewise did not owe a duty of care to his spouse Cheryl Taylor.

Alternatively, U.S. Steel argued that even if the court found a duty of care was owed by U.S. Steel to Cheryl Taylor, that they were entitled to summary judgment as there was no evidence that Cheryl Taylor was secondarily exposed to asbestos as a result of her husband’s presence on a U.S. Steel premises, let alone on a frequent, regular and proximate basis as required by the Illinois Supreme Court in Thacker v. UNR Industries, Inc., 151 Ill.2d 343, 362 (1992). U.S. Steel pointed to the fact that William Radamacher could not testify as to the specific work performed at any U.S. Steel site and could not affirmatively state that Fred Taylor used asbestos-containing products at a U.S. Steel premises. U.S. Steel also relied upon the deposition testimony of plaintiff’s own industrial hygiene expert, Thomas Selders, who testified that based on William Radamacher’s testimony he could not testify to a reasonable degree of industrial-hygiene or scientific certainty that Fred Taylor was exposed to asbestos-containing insulation at U.S. Steel.

Ultimately, the Madison County Circuit Court granted U.S. Steel’s Motion for Summary Judgment, but without ruling on the question of duty. The Court held instead that there was insufficient evidence that Fred Taylor worked with or around or was exposed to asbestos-containing products at U.S. Steel sites, with sufficient frequency, regularity and proximity to create a genuine issue of material fact. The Court’s order initially discussed the duty issue stating that the law of Illinois is Gregory v. Beazer East, which focuses on control over the work performed; however, citing Simpkins, stated, “The Supreme Court astutely noted that ‘the concept of duty in a negligence case is involved, complex, and nebulous.’” Without clearer appellate guidance or firmer footing in the law, the Court ruled on a much more familiar issue (Thacker) and opted to save the duty issue for another day.