The Illinois Appellate Court for the Second District in Nelson v. Aurora Equipment Co., Docket No. 2-08-0186 (May 22, 2009), recently affirmed a trial court ruling that held no duty was owed by a premises defendant to a decedent allegedly exposed to asbestos through her husband and son's clothing (i.e., a household exposure claim). Although not applicable to all defendants, premises defendants can now attempt to wash their hands of these household exposure claims.

Background
Vernon Nelson and John Q. Nelson, as Special Administrators of the Estate of Eva Nelson, brought suit against Aurora Equipment Company ("Aurora"), and various other defendants, alleging that Eva Nelson developed mesothelioma and colon cancer through her household exposure to asbestos and products which contained asbestos. Aurora painted, packaged and sold steel manufactured items.

It was alleged that Vernon Nelson (decedent's husband) and John Nelson (decedent's son), were employed by Aurora where they were regularly exposed to asbestos fibers and dust at the company's facility. The asbestos fibers and dust were allegedly brought home on Vernon and John's work clothing. Plaintiffs claimed that Eva was around Vernon and John's contaminated clothing, and that she also washed their clothes and therefore breathed in the asbestos fibers and dust. Eva Nelson was never employed by Aurora, and was never present on its premises.

Plaintiffs alleged that Aurora's use of its premises involved an unreasonable risk of harm not only to persons on the premises, but to "those who might breathe fibers deposited on said persons." Aurora filed a motion for summary judgment arguing that it did not owe a duty to Eva, and that there was no evidence in the record to establish that she was exposed to asbestos as a result of Aurora's activities. Aurora's motion for summary judgment was granted by the trial court on the basis that the "magnitude of the burden and the consequences of assigning blame to Aurora militated against imposing a duty." In the trial court's determination, this would create a potential limitless number of plaintiffs. Since the trial court found that no duty existed, it did not address the issue of proximate cause. Plaintiffs appealed.  

Appellate Court
Plaintiffs based their action on the common-law duty of a landowner or occupier toward an invitee to use reasonable care to maintain his premises in a reasonably safe condition. The Appellate Court was now faced with the question of whether a duty arises within the context of a common-law premises liability theory in a household exposure asbestos case.

Plaintiffs argued that Aurora had a duty of ordinary care "to provide a reasonably safe place for persons lawfully on the property and to those who could foreseeably be harmed by dangerous conditions on Aurora's premises." Plaintiffs attempted to have the Appellate Court impose a duty on Aurora to safeguard against off-premises injury caused by airborne asbestos from Aurora's premises. Plaintiffs stated it was foreseeable that such exposures would cause injury and death. Aurora argued that the law did not require a duty because there was no relationship with Eva and therefore foreseeability of injury was irrelevant.  

"With respect to conditions on land, the scope of the landowner's or occupier's duty owed to entrants upon his premises traditionally turned on the status of the entrant." (Emphasis added). Ward v. K mart Corp., 136 Ill.2d 132, 141 (1990). "Traditionally, the liability of a landowner in Illinois has been delineated in terms of the duty owed to persons present on the land." (Emphasis added). Lee v. Chicago Transit Authority, 152 Ill.2d 432, 445-46 (1992). Eva was not an entrant on Aurora's land and therefore was not an invitee, licensee or trespasser. The Appellate Court stated that the asbestos fibers and dust Eva was alleged to have come into contact with through her husband and son, were no longer a condition on Aurora's premises.

Plaintiffs further argued, however, that Aurora had a duty to persons off the premises who would foreseeably be harmed by conditions on the premises. The Appellate Court stated that this requires a special relationship between a business invitor and invitee. Marshall v. Burger King Corp., 222 Ill.2d 422 (2006). In rejecting this theory, the Appellate Court stated that Eva had no special relationship with Aurora, never encountered any condition on Aurora's premises and was never in a position to enter Aurora's premises for any reason.  

Conclusion
The Second District Appellate Court refused to hold a premises owner liable to persons off the premises when it was foreseeable that a danger on the premises would cause injury to those persons. Premises liability requires that a plaintiff either be an entrant onto the defendant's premises or otherwise have some special relationship with the defendant. Eva was never present on Aurora's premises and had no special relationship with Aurora. The Court therefore refused to rewrite the law of premises liability as established by the Illinois Supreme Court.

Click on "Download PDF" to view a copy of this decision.

For further information, please contact Craig T. Liljestrand, Paul M. Markese or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.