Board of Educ. of City of Chicago v. A, C and S, Inc.
| Decision Date | 25 October 1989 |
| Docket Number | 67585,Nos. 67576,s. 67576 |
| Citation | 546 N.E.2d 580,137 Ill.Dec. 635,131 Ill.2d 428 |
| Parties | , 137 Ill.Dec. 635, 58 USLW 2285, 57 Ed. Law Rep. 206, 10 UCC Rep.Serv.2d 90, Prod.Liab.Rep. (CCH) P 12,285 The BOARD OF EDUCATION OF CITY OF CHICAGO et al., Appellees, v. A, C AND S, INC., et al., Appellants. |
| Court | Illinois Supreme Court |
Novack & Macey, Chicago (Stephen Novack and P. Andrew Fleming, of counsel), for appellant A, C and S, Inc.
Baker & McKenzie, Chicago (Francis D. Morrissey, Daniel J. Cheely, Steven R. Ayres and Corinne Seither, of counsel), for appellant Fiberboard Corp.
Nolan, O'Malley & Dunne, Chicago (S. Robert Depke and Michael J. Nolan, of counsel), for appellant Thompson-Hayward Chemical Co.
Schiff, Hardin & Waite, Chicago (Robert H. Riley, Catherine Masters Epstein and Andrea E. Lodahl, of counsel), for appellant Owens-Illinois, Inc.
Katten, Muchin & Zavis, Chicago (James C. Murray, Jr., Patrick J. Lamb and Kirk T. Hartley, of counsel), for appellant GAF Corp.
Haskell & Perrin, Chicago (Edward Matushek III and Jerome Duchowicz, of counsel), for appellant A & M Insulation, Inc.
Arnstein, Gluck, Lehr & Milligan, Chicago (Patrick F. Geary and Terri L. Bartelstein, of counsel), for appellants Hill-Behan Lumber Co. and J.J. Barney Lumber Co.
Schroeder & Seeley, Ltd., Geneva (John L. Schroeder and Therese S. Seeley, of counsel), for appellant Wilkin Insulation.
Rooks, Pitts & Poust, Chicago (Douglas P. Roller, William D. Seith and Tamara A. Capello, of counsel), for appellant Dana Corp.
Rooks, Pitts & Poust, Chicago (Kathy A. Smith, John G. Poust and Jill M. Rappis, of counsel), for appellant Chicago Fire Brick Co.
Sachnoff, Weaver & Rubinstein, Ltd., Chicago (Arnold A. Pagniucci, Steven H. Cohen and Stuart A. Chanen, of counsel), for appellant Eagle-Picher Industries, Inc.
Tressler, Soderstrom, Maloney & Priess, Chicago (Patrick E. Maloney and Stephen T. Grossmark, of counsel), for appellant Flintkote Co. McDermott, Will & Emery, Chicago (Gary Jackson and Lawrence E. Zabinski, of counsel), for appellants Georgia-Pacific Co. and Uniroyal, Inc.
Pretzel & Stouffer, Chtd., Chicago (Neil K. Quinn and John V. Smith II, of counsel), for appellant Lake Asbestos of Quebec, Ltd.
Chadwell & Kayser, Ltd., Chicago (J. Michael Newton and Erica A. Munzel, of counsel), for appellant Raymark Industries, Inc.
McDermott, Will & Emery, Chicago (Steven P. Handler, Maureen A. Murphy and Janet M. Koran, of counsel), for appellant Cassiar Mining Corp.
Kiesler & Berman, Chicago (Robert Kiesler and Cynthia A. Meister, of counsel), for appellant Illinois Insulation & Construction Co.
John B. Grogan, Ltd., Chicago (Susan Gunty, of counsel), for appellant Grant-Wilson, Inc.
Gorham, Metge, Bowman & Hourigan, Chicago (Edward H. MacCabe and Christopher A. Kreid, of counsel), for appellant John J. Moroney & Co.
Burke, Bosselman & Weaver, Chicago (Victor P. Fillippini, Jr., Keith A. Klopferstein, Edward F. Ryan and Mark A. Stang, of counsel), for appellant Union Carbide Corp.
Michael P. Connelly, Bruce C. Howard and John R. Ostojic, Connelly, Mustes & Palmer, Chicago, for appellants Carey-Canada, Inc. and The Celotex Corp.
Schoen & Smith, Ltd., Chicago (David Smith, of counsel), for appellant Pittsburgh-Corning Corp.
Kirkland & Ellis, Chicago (John H. Morrison and James H. Gale, of counsel), for appellant Pfizer, Inc.
Pellett, Lundblad & Baker, Chicago (Robert L. Martier, of counsel), for appellant Owens-Corning Fiberglas Corp.
O'Brien, Redding & Hyde, Chicago (James M. Domer, of counsel), for appellant M. Mauritzon & Co.
French, Rogers, Kezelis & Kominiarek, P.C., Chicago (Gilbert J. Rogers and Terence R. Selby, of counsel), for appellant Armstrong World Industries, Inc.
Kurnik & Cipolla, Arlington Heights (Thomas Platt, of counsel), for appellant Nicolet Industries, Inc.
O'Connor & Schiff, Chicago (Neil D. O'Connor and William C. Brittan, of counsel), for appellant Iten Industries.
Edward Melia and George F. Fitzpatrick, Jr., Wildman, Harrold, Allen & Dixon, Chicago, for appellants CertainTeed Corp. and Combustion Engineering, Inc.
John J. Verscaj, Bell, Boyd & Lloyd, Chicago, for appellant W.R. Grace & Co.
Jack T. Riley, Jr., Johnson, Cusack & Bell, Chicago, for appellant Proko Industries, Inc.
Eugene E. Gozdecki, Gozdecki, Zido & Behnke, Chicago, for appellant C. Tennant Sons & Co. of New York.
Thomas R. Meites, Lynn Sara Frackman, Michael M. Mulder and Joan H. Burger, Meites, Frackman & Mulder, Chicago, for appellee Evanston Community Consolidated School.
Patricia Whitten, Susan Einspar-Wayne and Karen Gatsis Anderson, Chicago, of counsel, for appellee Chicago Board of Education.
Neil F. Hartigan, Atty. Gen., Springfield , for amicus curiae Attorney General of the State of Illinois.
The issue presented in this case is whether the plaintiffs, 34 school districts, have sufficiently pleaded a cause of action to recover the removal and repair costs of asbestos-containing material (ACM) in their buildings from the various defendants who are or were involved at some level of the manufacturing and distribution chain of This case involves three consolidated complaints filed in the circuit court of Cook County by the board of education of the City of Chicago, Evanston Community Consolidated School District No. 65, along with several suburban school districts, and the boards of education of Township High School Districts Nos. 211 and 207. There are 78 named defendants, ranging from lumber yards to multinational corporations. These business entities are alleged to "have been and/or are now engaged in the mining, manufacturing, marketing, sales and/or installation of asbestos, asbestos materials and/or friable asbestos materials."
[137 Ill.Dec. 639] ACM. The circuit court of Cook County granted the defendants' motion to dismiss each of the 13 causes of action alleged in the plaintiffs' complaints. The appellate court affirmed as to the concert of action and implied cause of action under the Asbestos Abatement Act (Ill.Rev.Stat.1987, ch. 122, par. 1401 et seq.), but reversed on the strict liability, negligence, intentional and negligent misrepresentation, restitution, consumer fraud and breach of warranty counts. (171 Ill.App.3d 737, 121 Ill.Dec. 643, 525 N.E.2d 950.) The remaining four counts were not raised on appeal. We agree with the appellate court that these complaints allege sufficient facts to survive a motion to dismiss as to the negligence, strict liability and negligent misrepresentation counts, but affirm the trial court's dismissal of the other counts
The complaints were filed following the enactment of the Asbestos Abatement Act (Ill.Rev.Stat.1985, ch. 122, par. 1401 et seq.). The Act requires schools throughout the State to identify, contain and remove all asbestos materials that constitute a significant health hazard, and to repair or maintain asbestos materials that do not pose a significant health hazard in the schools. (Ill.Rev.Stat.1987, ch. 122, par. 1402(d).) The Act directs that funding for this project includes "appropriations from the General Revenue Fund, proceeds from litigation against manufacturers, distributors and contractors of asbestos products, funds provided under the provisions of the federal Asbestos School Hazard Abatement Act of 1984, or any combination thereof." (Ill.Rev.Stat.1987, ch. 122, par. 1409.) In anticipation of spending "substantial sums of money" to correct the conditions and comply with the Act, these plaintiffs brought suit seeking damages for the cost of such efforts.
The trial court held the complaints failed to allege sufficient facts to withstand the defendants' motion to dismiss and, further, that they were barred by the statute of limitations. Therefore, each of the 13 counts which were argued before the court was dismissed. The plaintiffs' appeal was based on nine of the causes of action. The appellate court ruled that the complaint pleaded sufficient facts for a cause of action in strict products liability, negligence, negligent and fraudulent misrepresentation, restitution, and breach of warranty, and for a cause of action based on "An Act to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices * * * " (Ill.Rev.Stat.1985, 121 1/2, par. 261 et seq.) (hereinafter the Consumer Fraud Act), and that the school districts were exempt in these causes of action from the appropriate statutes of limitations. The court also held there was no private cause of action based on the Asbestos Abatement Act (Ill.Rev.Stat.1985, ch. 122, par. 1401 et seq.), and that the concert of action claim was properly dismissed. The defendants appeal, in this court, as to the reinstatement of the eight causes of action and the plaintiffs cross-appeal the dismissal of the private right of action under the Asbestos Abatement Act.
While notice pleading prevails under the Federal rules, a civil complaint in Illinois is required to plead the ultimate facts which give rise to the cause of action. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill.2d 138, 145, 61 Ill.Dec. 766, 435 N.E.2d 463.) Upon a motion to dismiss, all facts properly pleaded in the complaint are accepted as true and all reasonable inferences are drawn in favor of the non-movant. (Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill.2d 146, 148, 104 Ill.Dec. 689, 503 N.E.2d 246; United Air Lines, Inc. v. CEI Industries Each of the three complaints essentially allege the same facts; in fact, the Chicago and Evanston complaints are nearly identical. The trial court, therefore, based its...
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