IL App (2nd Dist.) / Asbestosshoke2013
Complaint Sufficiently Alleges Intentional Tort & Negligence of Employer’s Intent to Expose Decedent
The Appellate Court of Illinois, Second District, in an opinion written by Justice Schostok, applying Illinois law, reversed the circuit court’s dismissal of a complaint by a widow against her now-deceased husband’s employers, holding that the plaintiff properly alleged claims of negligence and intentional tort. The plaintiff alleged that the two defendants, Sycamore Industrial Park Associates (SIPA) and American Bare Conductor, Inc (ABC), knowingly and intentionally exposed the plaintiff’s husband, Daniels, to asbestos. Specifically, SIPA contracted with ABC to remove debris from SIPA’s property despite ABC not being permitted for such work. Daniels was directed to remove this debris as an employee of ABC. Both companies knew the debris contained asbestos, but neither company informed Daniels nor provided him with adequate protective gear, since they “[planned] to perform the project as cheaply as possible.” Daniels was diagnosed with mesothelioma years later due to his asbestos exposure and died due to complications from the disease.
The Circuit Court dismissed the plaintiff’s sixth amended complaint, which the plaintiff appealed. The Appellate Court reversed the Circuit Court, holding that the complaint fell outside the “exclusive remedy” provisions of the Workers’ Compensation Act and Workers’ Occupational Diseases Act. The Appellate Court concluded there was no employment contract between Daniels and ABC because ABC was not permitted to conduct asbestos-removal work. Thus, Daniels contracted to do illegal work, which nullifies the contract itself and the workers’ statutes do not apply.
Additionally, the Appellate Court found that plaintiff sufficiently alleged that the defendants intended that Daniels be injured from asbestos. This intent arises from the combination of the companies’ knowledge of the existence of asbestos at the site and their “plan to perform the project as cheaply as possible.” As a result, ABC knew that Daniels would be injured if he performed the asbestos removal, yet ABC instructed him to do it anyway.
Finally, the Appellate Court held that the complaint sufficiently alleges that Daniels was a “business visitor” to SIPA’s property, and, thus, SIPA owed Daniels a duty of care. Finding that the plaintiff properly and sufficiently alleged negligence and intentional tort theories against her husband’s employers, the Appellate Court reversed the circuit court’s dismissal of her complaint and remanded the case for additional proceedings in the circuit court of De Kalb County. Daniels v. Venta Corporation, 2022 IL App (2d) 210244 (Apr. 4, 2022).