Construction Negligence and Toxic Torts

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 18, Number 4 ( ) Product Liability By: James W. Ozog and Staci A. Williamson Wiedner & McAuliffe, Ltd. Introduction In this column the authors discuss two recent cases of interest to the defense bar. The first involves a premises liability and construction negligence suit arising from exposure to asbestos, a toxic substance that frequently has been the subject of product liability litigation. The second is a case on the subject of a vehicle manufacturer s duty to non-occupants. Construction Negligence and Toxic Torts In Gregory v. Beazer East, Ill. App. 3d, 892 N.E.2d 563 (1st Dist. 2008), the plaintiff attempted to expand the reach of Illinois construction negligence and premises liability law to impose liability on a construction site owner for a construction worker s exposure to asbestos. Employing the traditional concepts of Illinois law on construction negligence and premises liability, the Illinois Appellate Court, First District affirmed summary judgment in favor of the property owner. The decision appropriately limits the liability of construction project owners and premises owners for toxic substance exposure. Factual Background The plaintiff, the Estate of Larry Gregory filed suit in Illinois against numerous defendants after the deceased, Larry Gregory contracted mesothelioma. Gregory, 892 N.E.2d at 567. Gregory, a life-long resident of Indiana, worked as a pipe fitter on numerous jobs in both Indiana and Illinois. From , Gregory worked for four months at an Exxon Mobil plant in Joliet, Illinois. The Mobil project focused on the initial construction of a refinery owned by Mobil. Mobil hired Fluor Corporation (Fluor) as the general contractor. Chicago Bridge & Iron (CBI) was the contractor for the welding portion of the job. CBI hired Petroleum Piping as a welding subcontractor. Gregory was employed by Petroleum Piping and was one of eight pipe fitters on site. CBI supervised Gregory on a daily basis. Gregory received his tools and instructions regarding the project from CBI. Mobil made the ultimate decisions concerning work product, design changes and the stopping of work; however, Mobil did not supervise or direct Gregory during the project. Id. A former Mobil manager testified that the contractor, Fluor had total responsibility for the construction of the refinery and was to supervise, inspect, expedite and control all phases of the work. Id. Gregory s work duties included the hot welding inside and outside of the refinery pipes. Gregory used blankets and gloves containing asbestos to protect himself from the heat of the pipes. The blankets and gloves were supplied by the general contractor, CBI. Gregory was never informed that there was asbestos contained within the blankets and gloves and were a potential health hazard, nor was he provided with respiratory aides or other protection while working on the Mobil site. Page 1 of 6

2 After Gregory was diagnosed with mesothelioma, he filed a negligence suit against several defendants, including Mobil for his exposure to asbestos while working at the Joliet Mobil refinery. Gregory alleged that Mobil negligently failed to warn him of asbestos risks. Mobil moved for summary judgment, asserting that it owed no duty to Gregory as he was employed by an independent contractor, that the Illinois statute of repose barred the claim, and that he failed to establish proximate cause for his negligence claim. The trial court granted Mobil s motion for summary judgment holding that there was no evidence that Mobil controlled the means or methods by which [Larry] performed his work on Mobil s premises. Id. at The court found that Mobil did not constrain Gregory or direct him in his work and therefore Mobil did not owe him a duty. Gregory appealed the court s ruling. The Plaintiff s Construction Negligence Claim Against Mobil The Illinois Appellate Court First District affirmed the trial court s grant of summary judgment, concluding that Mobil owed no duty to Gregory. In affirming the trial court s decision, the Gregory court agreed to review the elements of a negligence cause of action in construction cases. Generally, the rule is that an owner who employs an independent contractor to do work is not liable for the independent contractor s acts or omissions. Id. at 572 (citing Calderon v. Residential Homes of Am., Inc., 381 Ill. App. 3d 333, 340, 885 N.E.2d 1138, 1145 (1st Dist. 2008); Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d 286, 300, 862 N.E.2d 1044 (1st Dist. 2007); Martens v. MCL Constr. Corp., 347 Ill. App. 3d 303, , 807 N.E.2d 480 (1st Dist. 2004)). This is because an owner generally does not supervise the contractor s work and is not in as good a position to prevent negligence as the independent contractor that monitors and directs the employees. The Retained Control Exception The Gregory court acknowledged one exception to this general rule: the retained control exception in 414 of the Restatement (Second) of Torts. Gregory, 892 N.E.2d at 572. That exception requires that an owner who retains control of any part of a project must exercise his control over that part of the work with reasonable care. An owner does not subject himself to liability when exercising a general right to stop or resume work, but rather must retain a degree of control where the contractor is not entirely free to do the work in his own way. Id. at 573 (quoting RESTATEMENT (SECOND) OF TORTS 414, cmt. c (1965)). The Gregory court held that Mobil clearly did not retain the sufficient degree of control to create a duty. According to the record, Gregory conceded that Mobil did not provide Gregory with any direction or supervision concerning his pipe fitting duties, nor did Gregory seek Mobil s direction or supervision. Most significantly, Mobil did not provide Gregory with the asbestos blankets or gloves and it did not instruct Gregory to use these items. As such, the Gregory court reasoned that although Mobil possessed the general rights to oversee operations and stop work, these were only general rights and Mobil clearly did not control the means and methods of Gregory s work. Therefore, Mobil did not incur a duty to warn Gregory of the asbestos risk. On appeal, the plaintiff cited several cases reversing summary judgment orders in favor of general contractors. The Gregory court distinguished two cases that involved contractual agreements where the general contractor reserved a more active role in ensuring job site safety. See Moorehead v. Mustang Constr. Co., 354 Ill. App. 3d 456, 821 N.E.2d 358 (3rd Dist. 2004), and Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 884 N.E.2d 208 (1st Dist. 2008). Both cases involved contractual provisions where the general contractor contracted with the subcontractor to be solely responsible for jobsite safety. The three other cases cited by the plaintiff all involved general contractors or owners taking extra steps in order to control jobsite safety (e.g., employing a site manager, safety manager, scheduled walkthroughs requiring approval of work, and supervising specific processes). See Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 728 N.E.2d 726 (1st Dist. 2000); McConnell v. Freeman United Coal Co., 198 Ill. App. 3d 322, 555 N.E.2d 993 (5th Dist. 1990) and Dillon v. U.S. Steel Corp., 159 Ill. App. 3d 186, 511 N.E.2d 1349 (1st Dist. 1987). The Gregory court held that Mobil had minimal involvement on the day to-day jobsite, never took any extra steps Page 2 of 6

3 concerning safety and thus did not owe Gregory a duty under the retained control exception. Gregory, 892 N.E.2d at 575. As such, the court found summary judgment to be proper. The Plaintiff s Premises Liability Claim Against Mobil Gregory presented an alternative theory of liability against Mobil. According to Gregory, Mobil owed a duty to warn Gregory of the asbestos risks based on 343 of the Restatement (Second) of Torts since Mobil was the owner and possessor of the land. The general rule is that an owner or possessor of land owes its invitees a common law duty of reasonable care to maintain its premises in a reasonably safe condition. Gregory, 892 N.E.2d at (quoting Deibert v. Bauer Bros. Constr. Co., 141 Ill. 2d 430, , 566 N.E.2d 239 (2nd Dist. 1990)). In part, 343 states: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. RESTATEMENT (SECOND) OF TORTS, 343 (1965). The court stated that Gregory s premises liability argument failed on several grounds. First, the court noted that Gregory s mesothelioma was caused by the asbestos contained in the blankets and gloves. It was determined that these items were provided by CBI and could not be defined as a condition of the land owned by Mobil and therefore 343 is inapplicable. Gregory, 892 N.E.2d at 577. Premises liability does not apply when the injury is not caused by a condition located on the owner s land. Id. (citing Recio v. GR-MHA Corp., 366 Ill. App. 3d. 48, 851 N.E.2d 106 (1st Dist. 2006)). Moreover, even if the court were to consider the blankets and gloves a condition of the land, the court found no evidence that Mobil knew or should have known that these items contained asbestos. Id. at 577. Specifically, there was no evidence that any Mobil employee observed an unsafe condition, had control of the construction site or received any complaints concerning the asbestos in the blankets of gloves. Consequently, Mobil did not have notice of the allegedly dangerous condition on the land and did not owe Gregory a duty to warn against the asbestos in the blankets and gloves. Conclusion With new toxic torts emerging everyday, the Gregory case draws a fair boundary which limits a project owner s liability for exposure to toxic substances. Liability for toxic substance exposure will not be imposed for construction negligence in the absence of an owner s retained control. Nor will there be premises liability, provided the owner is not responsible for the presence of a toxic substance on the project or property. Page 3 of 6

4 The Duty of Vehicle Manufacturers to Protect Non-Occupants It is generally accepted under the Restatement (Second) of Torts 435(2) that a vehicle manufacturer has a duty to design a vehicle so that it is reasonably safe to the occupants. The issue of whether a manufacturer owes a duty to protect occupants of another vehicle upon collision is far less certain and has been analyzed and debated many times. This issue was most recently discussed in the Seventh Circuit case, Rennert v. Great Dane Ltd. P ship, No , 2008 WL (7th Cir. Sept. 11, 2008). Factual Background In Rennert, the plaintiff and his wife were driving behind a large truck towing a trailer when the plaintiff s minivan collided with the trailer. Rennert, 2008 WL at *1. The trailer was designed and manufactured by defendant Great Dane Limited Partnership. As a result, the underride guard of the back of the trailer failed and the plaintiff s vehicle went under the trailer. The plaintiff was injured and his wife was killed. Consequently, the plaintiff brought a strict products liability action against the manufacturer in Illinois state court. The defendant removed the case to federal court based on diversity jurisdiction. The defendant brought a motion to dismiss for failure to state a claim and the district court dismissed the claim with prejudice. On appeal, the Seventh Circuit affirmed the district court s decision, holding that a manufacturer owes no duty to protect those who collide with its vehicle. The Plaintiff s Claim Against Great Dane The plaintiff alleged that: (1) the trailer s underride guard was unreasonably dangerous based on its poor design; (2) a superior design was feasible; (3) the risks of the allegedly poor design outweigh its benefits; and (4) the risk of an impact of the type in question was reasonably foreseeable. The Seventh Circuit found this last allegation to be the most important regarding the plaintiff s case. In its review, the Seventh Circuit applied Illinois law and analyzed whether the Supreme Court of Illinois would acknowledge a cause of action based on the plaintiff s allegations. As a threshold manner, the Seventh Circuit noted that the Illinois Supreme Court had not definitively addressed the issue at hand and therefore looked to state appellate courts for guidance. The Seventh Circuit noted that nine states recognize a cause of action in a case with similar facts. However, Illinois is not one of these states. Illinois Supreme Court Precedent: Mieher v. Brown In Mieher v. Brown, 54 Ill. 2d 539, 633 N.E.3d 307 (1973), the Illinois Supreme Court held that a manufacturer s duty of care does not extend to those persons not within the vehicle it manufactured. The Mieher court did not consider the alleged defective design which created an unreasonable risk as alleged in plaintiff s negligence claim. In its ruling, the Mieher court drew a bright line rule based on the Restatement (Second) of Torts 435(2), stating that a manufacturer has a duty to design a vehicle that is reasonably safe for the occupants, but it owes no duty to those who collide with that vehicle. Rennert, 2008 WL at *1 (citing Mieher v. Brown, 54 Ill. 2d 539, 633 N.E.3d 307 (1973)). Further, the Mieher court reasoned that even if accidents are foreseeable... the manufacturer is obliged to secure the occupants of only its vehicle from that foreseeable harm: the manufacturer does not owe a duty to protect those who collide with its vehicle. Rennert, 2008 WL at *1 (citing Mieher v. Brown, 54 Ill. 2d 539, 633 N.E.3d 307 (1973)). Page 4 of 6

5 Most notably, the Mieher court did not even address the question of duty because it ruled as a matter of law that there was no unreasonable risk and that without an unreasonable risk, there is no need to assess to whom a duty would be owed. Illinois Appellate Court Precedent: Beattie v. Lindelof Since its ruling in Mieher, the Illinois Supreme Court has been silent on this issue. Therefore, the Seventh Circuit in Rennert looked to the appellate courts for direction. Rennert, 2008 WL at *2. In Beattie v. Lindelof, 262 Ill. App. 3d 372, 633 N.E.2d 1227 (1st Dist. 1994), 21 years later, the Meiher decision was extended to cover a strict liability claim. Based on these two cases, the Seventh Circuit found a clear articulation of law from the Illinois Supreme Court. Rennert, 2008 WL at *2. Even further, the Seventh Circuit found that the clear articulation of law had been extended by the Illinois Appellate Court, First District in Beattie to cover the facts virtually identical to the case at bar. Id. Based on the case law before it, the Seventh Circuit in Rennert was not persuaded by the plaintiff s argument that the Supreme Court of Illinois would overturn Mieher and find that the plaintiff had a strict products liability cause of action against the defendant manufacturer. Id. In its ruling, the Seventh Circuit stated that regardless of the plaintiff s argument that nine states recognize the plaintiff s cause of action, it was bound by Illinois rulings because it sat in federal diversity jurisdiction. The Seventh Circuit found that both the Illinois Supreme Court s and the Illinois Appellate Court s positions regarding the duty owed by a manufacturer to those in other vehicles were consistent. Additionally, the Seventh Circuit noted that not only had the Illinois Supreme Court been silent on this issue since Mieher, but that the Illinois General Assembly has also been silent, choosing not to legislatively overrule Mieher or even discuss policy considerations regarding the dangers posed by tractor-trailers. Finally, the Seventh Circuit stated that it voiced no opinion regarding the wisdom of Illinois decisions finding that a manufacturer has no duty to protect those who collide with its vehicle, but noted that it had a duty to protect and respect the decisions. Id. at *3. Accordingly, the Seventh Circuit affirmed the district court s ruling dismissing the plaintiff s claim with prejudice for failure to state a cause of action. Conclusion Although the question of whether or not a vehicle manufacturer owes a duty of reasonable care to protect non-occupants from another vehicle upon collision is not addressed uniformly throughout the United States, the Seventh Circuit s decision in Rennert v. Great Dane Limited Partnership has taken a step in solidifying Illinois position. In the wake of Rennert, it is clear that, although there has been much silence, the Illinois Supreme Court, the Illinois Appellate Court and the Illinois General Assembly all share the view that Illinois law does not, and should not, impose a duty of reasonable care upon vehicle manufacturers to protect occupants of other vehicles upon collision. About the Authors James W. Ozog is a partner in the Chicago firm of Wiedner & McAuliffe, Ltd. He received his undergraduate degree from Northwestern University and law degree from Washington University in Mr. Ozog concentrates his practice in product liability defense matters and commercial litigation. In addition to his Illinois defense practice, he is National Trial Counsel for several product manufacturers. He has appeared as lead defense counsel in over twenty states and tried cases to verdict in seven states besides Illinois. He also represents clients on a regular basis in matters before the United States Consumer Products Safety Commission. He is a member of the American Bar Association, DRI, IDC and the Propane Gas Defense Association. Staci Williamson is an associate in Wiedner & McAuliffe s Chicago office. Ms. Williamson is a member of the Firm s Civil Litigation Practice. Ms. Williamson focuses in Products Liability Defense. Ms. Williamson earned a J.D. from Loyola University Chicago School of Law in 2006, graduating cum laude. While attending Loyola University, Ms. Williamson served as a member of the Loyola University Chicago Law Review. Ms. Williamson is a member of the American Bar Association, the Illinois State Bar Association, and the Chicago Bar Association. She is also a Page 5 of 6

6 licensed member of the Illinois Bar and is admitted to the United States District Court for the Northern District of Illinois. Ms. Williamson is also an active member of the Illinois Association of Defense Trial Counsel and the Defense Research Institute. Page 6 of 6