Webber v. Armstrong World Industries, Inc.
| Decision Date | 30 September 1992 |
| Docket Number | No. 4-92-0055,4-92-0055 |
| Citation | 601 N.E.2d 286,175 Ill.Dec. 889,235 Ill.App.3d 790 |
| Parties | , 175 Ill.Dec. 889 John WEBBER, Guardian of Robert Webber, Plaintiff-Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., GAF Corporation, National Gypsum Co., and W.R. Grace & Co., et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
James Walker, Ltd., Bloomington, for plaintiff-appellant.
Bret S. Babcock, Peoria, for defendant-appellee W.R. Grace & Co.-Conn.
Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, for defendants-appellees Armstrong World Industries, Inc., GAF Corp. and Nat. Gypsum Co.
There are two issues which arise in this appeal as a result of summary judgment having been entered against plaintiff in this asbestos injury case: (1) whether the movant in a summary judgment motion can prove the absence of a genuine issue of material fact by demonstrating that a nonmovant cannot prove an essential element of his case at trial; and (2) whether the Jones affidavit created a genuine issue of material fact.
Our answer is affirmative as to issue (1) and negative as to issue (2). In so deciding, we affirm the trial court's entry of summary judgment.
On December 20, 1991, the circuit court of McLean County entered an order granting summary judgment in favor of the defendants, Armstrong World Industries, Inc. (Armstrong), GAF corporation (GAF), National Gypsum Company (National Gypsum), and W.R. Grace & Company (Grace). The trial court held that the plaintiff John Webber (John), as guardian for Robert Webber (Robert), did not establish that he would be able to prove an essential element of his case at trial, i.e., identification of defendants' products as causing the injury to Robert. Therefore defendants were entitled to judgment as a matter of law. Plaintiff appeals, contending the trial court erred in granting summary judgment in favor of the defendants because (1) the trial court's holding impermissibly shifts the burden of persuasion on the nonmovant in a summary judgment motion; and (2) the affidavit of Mike Jones creates a genuine issue of material fact.
On December 30, 1988, Robert filed a multicount complaint against numerous defendants, including Armstrong, GAF, National Gypsum, and Grace, seeking damages for personal injury incurred as a result of his exposure to defendants' asbestos products. Robert claimed to have contracted asbestosis as a result of exposure to asbestos while working as a boilermaker in the construction industry from 1946 through 1984. During the course of the proceedings, Robert developed Alzheimer's disease and on April 5, 1991, John was appointed Robert's guardian for the purpose of prosecuting this action.
On September 13, 1991, defendants Armstrong, GAF, and National Gypsum filed a motion for summary judgment with no evidentiary materials attached thereto. Defendants' motion stated Robert, who suffers from Alzheimer's disease, could not identify (1) any particular asbestos product he worked with or around, (2) any specific jobsite, and (3) the manufacturer of any asbestos-containing products which he may have worked with or around at any jobsite. Defendants requested that summary judgment be granted because plaintiff had failed to come forward with evidence of exposure to their products.
On September 19, 1991, defendant Grace moved for summary judgment, adopting the argument portion of the motion for summary judgment of September 13, 1991, filed by Armstrong, GAF, and National Gypsum. Grace maintained that neither Robert nor John could identify any asbestos-containing product to which Robert had been exposed. Attached to Grace's motion were excerpts from the depositions of Robert and John. Excerpts of Robert's deposition contained the following statements: (1) Robert could not identify specific trade names of asbestos he had worked with; he only knew the products as "asbestos"; (2) at every site where he worked, he worked around asbestos-containing products; and (3) he could not remember the manufacturer of any particular asbestos-containing product that he used or he worked around at any particular jobsite. Excerpts of John's depositions state that (1) of all Robert's coworkers, John had only spoken with Joe Reed and had not discussed the lawsuit with him; (2) John had no personal knowledge about manufacturers of asbestos-containing products that Robert may have worked with; and (3) John knew of no other source of information that showed Robert had worked with a specific manufacturer's asbestos product.
On October 23, 1991, the hearing was held on the defendants' motion for summary judgment. On that date, plaintiff filed the affidavit of Mike Jones, a coworker of Robert, which states:
"Mike Jones, being duly sworn upon his oath, states as follows:
1. He is a resident of Pekin, Illinois.
2. During the course of his occupational career, he had occasion to work on repeated occasions with Robert Webber, prior to Robert Webber's retirement.
3. On repeated occasions he was employed at the same job site as Robert Webber, including job sites in Indiana, where insulation work was done in connection with boilers and pipes.
4. Affiant recalls Robert Webber being present when affiant, Webber, and others, used products containing asbestos from the following manufacturers:
5. When the products containing asbestos of each of the manufacturers named in paragraph 4 were used, either directly by Webber, affiant, or others in the vicinity where affiant and Webber were working, dust was given off into the atmosphere, including the atmosphere where Robert Webber was employed."
During the hearing on the motion for summary judgment on October 23, 1991, defendants orally moved to strike the Jones affidavit. Basis for the motion to strike is not clear, although it appears to be a similar basis as complained of on appeal, i.e., Jones does not specify what products he is talking about, how he knows the products contain asbestos, how he knew who manufactured the product, and how he knew Robert inhaled any asbestos.
The trial court, citing Kozak v. Armstrong World Industries, Inc. (1991), 213 Ill.App.3d 1061, 157 Ill.Dec. 210, 572 N.E.2d 279, stated that it felt the Jones affidavit was insufficient as to certain specifics, i.e., identifying products with particularity, place of exposure, time of exposure, to provide the kind of evidence needed by a plaintiff in an asbestos case. Therefore, the trial judge gave the plaintiff an option:
"I'm going to give you the opportunity to go out and depose Mike Jones and present his deposition in opposition to the motion for summary judgment, or you can stand on the * * * affidavit, in which case, I'm going to grant the motion for summary judgment."
Principal counsel for plaintiff was not present on that day and substitute counsel did not wish to make the decision, so the trial judge took the matter under advisement. The docket entry for that day indicates the motion to strike was denied.
On December 20, 1991, a hearing was again held on the motion for summary judgment. At that time, plaintiff indicated he would not depose Jones because he believed the affidavit was sufficient to defeat the defendants' motions for summary judgment. The trial court entered summary judgment in favor of the defendants, stating:
"[T]he affidavit is not sufficiently particular to identify specific products at specific job sites, and * * * therefore, I am going to find that there is no genuine issue of material fact, and that there is an inherent weakness in the Plaintiff's case, that being an inability to particularly identify products to particular job sites as required in Kozak * * *."
The order of summary judgment dated December 20, 1991, contains a Rule 304(a) (134 Ill.2d R. 304(a)) finding that there is no just reason to delay enforcement or appeal.
PROVE AN ESSENTIAL ELEMENT OF
In the present case, the basis for the summary judgment is not the absence of a question of fact necessary for plaintiff to prove his case, but the inability of the plaintiff, because of his mental incapacity, to specifically link himself to use of a specific defendant's product. For purposes of the summary judgment motion, there appears to be no doubt Robert worked with (and where) asbestos was involved, and that he was injured by asbestos entering his lungs. However, the specific manufacturers and suppliers on various jobs cannot be identified. Plaintiff contends the trial court, in granting summary judgment, impermissibly shifted the burden of proof to the nonmovant by forcing plaintiff to prove with particularity that Robert was exposed to defendants' products, despite the lack of an affirmative showing by defendants that Robert had not been exposed to the defendants' products.
Generally, the purpose of summary judgment is to determine whether a genuine issue of material fact exists. (Kobus v. Formfit Co. (1966), 35 Ill.2d 533, 538, 221 N.E.2d 633, 635.) A motion for summary judgment should only be granted when:
"[T]he pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c).)
(See also Purtill v. Hess (1986), 111 Ill.2d 229, 95 Ill.Dec. 305, 489 N.E.2d 867.) In deciding whether to grant summary judgment, a court shall construe the pleadings, affidavits, depositions,...
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