Simpkins v. Csx Corp.

• Decision Date: 10 June 2010
• Docket Number: No. 5-07-0346.,5-07-0346.
• Citation: 929 N.E.2d 1257,341 Ill.Dec. 178,401 Ill.App.3d 1109
• Parties: Cynthia SIMPKINS, Individually and as Special Administrator for the Estate of Annette Simpkins, Deceased, Plaintiff-Appellant,v.CSX CORPORATION and CSX Transportation, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

401 Ill.App.3d 1109

929 N.E.2d 1257

341 Ill.Dec. 178

Cynthia SIMPKINS, Individually and as Special Administrator for the Estate of Annette Simpkins, Deceased, Plaintiff-Appellant,v.CSX CORPORATION and CSX Transportation, Inc., Defendants-Appellees.

No. 5-07-0346.

Appellate Court of Illinois Fifth District.

June 10, 2010.

John A. Barnerd, Amy Garrett, SimmonsCooper LLC, East Alton, IL, Charles W. Chapman, Wood River, IL, for Appellant.

Kurt E. Reitz, Heath H. Hooks, Thompson Coburn LLP, Belleville, IL, for Appellees.

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.

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 (West 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 [, 290 Ill.Dec. 525, 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[, 271 Ill.Dec. 649, 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[, 289 Ill.Dec. 679, 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[, 293 Ill.Dec. 657, 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 [, 288 Ill.Dec. 623, 818 N.E.2d 311, 317] (2004).” Marshall v. Burger King Corp., 222 Ill.2d 422, 429, 305 Ill.Dec. 897, 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, 229 Ill.Dec. 171, 691 N.E.2d 107, 112 (1998); Barber-Colman Co. v. A & K Midwest Insulation Co., 236 Ill.App.3d 1065, 1068, 177 Ill.Dec. 841, 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, 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 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 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.

As...