We all know about the dangers of second-hand smoke, but lesser known is the danger of second-hand exposure to asbestos. A recent Chicago case hinged on this very issue and the trial court found that when an employee’s family is exposed to asbestos fibers by way of the employee’s clothes that the employer is not liable. Nelson v. Aurora Equipment Co., No. 2-08-0186 (May 29, 2009).
Upon appeal the Illinois Appellate Court for the Second District found that in cases where employees who are exposed to asbestos fibers at work then bring the deadly mineral home on their work clothes and thereby expose family members that it does not result in liability to the employer. The Appellate Court concluded that Aurora Equipment Company owed no duty to the wife of an employee under premises liability law because the wife was not on Aurora’s land.
The case had been brought by the wife’s husband after she died from mesothelioma and colon cancer in 2004. The mesothelioma was allegedly from second-hand exposure to asbestos from both her husband and son’s clothes. The plaintiffs alleged that since the father and son were exposed to asbestos fibers and dust while working at Aurora Equipment and that the wife and mother was exposed to the same asbestos fibers found on their work clothes, that the estate would be entitled to recovery for her death.
The determination of whether a duty exists rests on whether the defendant and plaintiff had a relationship under which the law would imposed an obligation upon the defendant of reasonable conduct for the benefit of the plaintiff. Therefore the nature of the relationship between the parties, i.e. the wife and the employer, was the threshold question in the duty analysis under the Illinois Premises Liability Act.
However, the plaintiff in this case did not base their action against Aurora on that statute, but instead on the common-law duty of a landowner toward an invitee to use reasonable care to maintain its premises in a reasonably safe condition. Yet the common-law analysis does not fit this case because the wife was not on Aurora’s land. She was neither an invitee, a licensee, nor a trespasser.
In the Illinois Supreme Court case of Forsythe v. Clark USA, Inc., 224 Ill.2d 274 (2007), it was stated that the analysis of duty is “to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Given that analysis, the Illinois Appellate Court held that there was no duty because there was no relationship between the worker’s wife and the employer.