The Northern District of Illinois in Neumann v. Borg-Warner Morse Tec LLC, No. 15-C-10507, 2016 WL 930662 (N.D. Ill. March 10, 2016), recently granted a motion to dismiss on the basis that a product manufacturer does not owe a duty to a plaintiff in a take-home exposure case.
Plaintiff Doris Jane Neumann filed a negligence action against manufacturers of asbestos-containing products alleging take-home exposures from products that her son, Greg Neumann, worked with and around while employed as a gas station attendant and mechanic from 1970 through 1974. MW Custom Papers, a supplier of asbestos-containing friction paper used at Mr. Newman’s jobsite, moved to dismiss arguing it had no duty to a take-home plaintiff.
After holding that the plaintiff’s allegations were sufficiently plead to survive MW Custom Papers’ motion to dismiss, the court turned its attention to determining whether MW Custom Papers was negligent. A negligence determination is guided by four factors, the first of which the court characterized as essential to finding the existence of a duty: “(1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant.” Foreseeability is determined not in hindsight, “but from the perspective, ‘at the time defendant engaged in the allegedly negligent action.’” Id. at *3. Although Illinois analyzes the existence of a duty using the four-part test, plaintiff’s reply to the motion to dismiss focused solely on the foreseeability factor, and failed to address the other three factors necessary for a court to find the existence of a duty.
The court reasoned that the Illinois Fifth District appellate court’s determination that employers have a duty to protect family members from take-home exposure to asbestos, Simpkins v. CSX Corp., 929 N.E.2d 1257, 1266 (5th Dist. 2010) (remanded on sufficiency of the pleadings as to foreseeability by Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1096 (Ill. 2012)), and the Fourth District’s dismissal of a take-home exposure claim based entirely on the foreseeability prong of the four-part negligence test in Holmes v. Pneumo Abex, L.L.C, 955 N.E2d 1173, 1178 (4th Dist. 2011) provide limited direction on how Illinois courts will weigh the public policy factors of the four-part, take-home exposure test. The court noted in a footnote that it did not construe the Illinois Supreme Court’s remand order in Simpkins “as an implicit endorsement of take-home asbestos negligence liability.” Id. at *6 (citing Simpkins v. CSX Transp. Inc., 965 N.E.2d 1092, 1101 (Ill. 2012)). Instead, the court determined that Illinois’ highest court “simply did not reach the question.” Id.
The Court again made the distinction that this case is different than most situations in which take-home asbestos exposure cases are brought, namely against employers or premises owners. Here, plaintiff brought her suit against product manufacturers and distributors who neither employed her son, nor owned the premises where he worked.
Ultimately, the court made clear that the standard for determining exposure in a take-home case is the four-part negligence test. See Neumann. at *3. Further, the court elucidated the fact that no Illinois courts have made a determination on the two policy factors of the four-part test. See id. at *4-5. Because there is no clear Illinois state caselaw on the two policy factors, the court used Seventh Circuit rules of interpretation to direct it to limit liability in this case. Id. at *7. The court stated it is the Seventh Circuit’s instruction to “‘choose the narrower interpretation which restricts liability, rather than [a] more expansive interpretation which creates substantially more liability.’” Id. (internal citation omitted). Due to the limitations of the court’s analysis and a lack of clear Illinois caselaw on the relevant public policy factors, this ruling has limited precedential value in Illinois state court. However, Neuman will continue to be strong precedent in Federal District Court involving Illinois exposures until an Illinois court clarifies the state’s position on the take-home public policy factors.