A state appeals panel has revived a lawsuit from the family of a man whose death they attribute to asbestos exposure during debris removal at a quonset hut in the north central Illinois community of Sycamore, as the court said both the company that hired the man to remove the debris, and the owner of the quonset hut, could be on the hook for judgment.
The litigation’s origins trace to 1996, when Darnell Daniels was working for American Bare Conductor — now known as Venta — removing debris from a facility ABC leases from Sycamore Industrial Park Associates (SIPA.) In 2017, after developing terminal mesothelioma, Daniels sued the companies and Robert Boey, a general partner of both ABC and SIPA, alleging no one told him the debris contained asbestos.
DeKalb County Circuit Judge Bradley Waller dismissed Daniel’s complaint, with prejudice. But his widow, Anna Daniels, challenged that ruling before the Illinois Second District Appellate Court. Her appeal sought renewal of claims against Venta for negligence and willful and wanton misconduct, and an intentional tort claim, and premises liability claims against SIPA.
Justice Mary Schostok wrote the opinion, issued April 14, for a three-justice panel of the Illinois Second District Appellate Court in Elgin. Second District Justices George Bridges and Kathryn Zenoff concurred.
“When ABC directed Daniels to remove the asbestos, that directive violated the Commercial and Public Building Asbestos Abatement Act because ABC was not licensed to do that work,” Schostok wrote. “As such, the subject matter of ABC and Daniels’s alleged contract was illegal and therefore unenforceable.”
Because there wasn’t a valid contract, the panel continued, the Workers’ Compensation Act didn’t bar Daniels from suing ABC. As such, Judge Waller improperly dismissed the negligence and willful and wanton misconduct claims against Venta.
Daniels’ tort claim against Venta relied on allegations the corporate officers knew of asbestos hazards and intended to injure him by directing him to work with contaminated materials. Venta repeatedly argued Daniels needed to allege ABC specifically intended he suffer a fatal injury. But the panel disagreed, saying Daniels needed only to allege the company knew the work would be medically compromising, but made him do it anyway.
“We further reject Venta’s argument that the plaintiff’s allegations are too conclusory to survive a motion to dismiss,” Schostok wrote, agreeing Daniels “did not need to set forth every pertinent fact at the pleadings stage.”
Judge Waller also determined SIPA didn’t owe Daniels a duty of reasonable care, since ABC was the entity that invited Daniels onto the property, but the panel disagreed. Daniels alleged SIPA told ABC it wanted the asbestos removed, meaning Daniels’ contract work for ABC established a business visitor relationship with SIPA.
The panel further noted the corporate overlap between ABC and SIPA, and highlighted Daniels’ allegations that “SIPA directed ABC to not subcontract the project to a licensed asbestos-abatement contractor, not obtain permits for the project, hire someone who was unfamiliar with the composition of the materials being removed and unaware of the hazards of asbestos and not use any precautions to minimize asbestos contamination.”
SIPA knew ABC wouldn’t tell Daniels about the asbestos, the panel continued, “because SIPA and ABC were related entities and SIPA had directed ABC not to inform him.” It found that allegation sufficient for the premises liability claim to survive dismissal. The panel also said the Commercial and Public Building Asbestos Abatement Act stipulates landowners have the burden of properly removing asbestos, but “it is not the responsibility of the person hired to remove debris to determine that he is removing asbestos.”
The panel also revived a secondary premises liability claim against Robert Boey, agreeing with Daniels that he was named only “in the event SIPA cannot satisfy a possible judgment.”
The case now heads back to circuit court.
Attorneys William A. Kohlburn and Ryan J. Kiwala, of Simmons Hanly Conroy, of Alton, are representing Daniels.
Venta is represented by Margaret O. Byrne, John J. O’Sullivan, Catherine Basque Weiler and Andrew A. Lothson, of Swanson Martin & Bell, of Chicago. The other defendants are represented by James R. Branit, Kevin A. Titus and Joseph P. Sullivan, of Litchfield Cavo, also of Chicago.