The NAM joined with 11 other organizations urging the Illinois Supreme Court to affirm a trial court ruling that landowners have no duty to protect against off-site injuries that could result from secondhand exposures to asbestos and other substances emitted in the workplace. Such a duty has recently been imposed in only a few states, but only after it became clear that a danger existed. This case arose from alleged exposure by an employee on the job from 1958 to 1964.
Whether one person owes a legal duty, as opposed to a moral or ethical obligation, is a policy judgment that must balance providing a remedy with extending exposure to tort liability almost without limit.
On March 22, 2012, the court found that the allegations in the complaint were insufficient to establish that the defendant owed a duty of care to the plaintiff, and it allowed the plaintiff to amend the complaint. It held that Presumably, there are some facts that could be alleged that would lead to the conclusion that everyone owes "a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act . . . ." If a risk was created, a manufacturer might be liable depending on (1) the 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. It found that a manufacturer could have a legal duty to third parties in circumstances like these, and that the plaintiff should be given a chance to allege that the defendant would have been able to foresee the plaintiff's injuries if it had known of the dangers of secondhand asbestos exposure.
Our brief, which focused on the issue of secondhand exposure liability, not product liability, argued that most states considering this issue have rejected such liability. This new duty for landowners would bring about countless new lawsuits, potentially involving asbestos and other substances and involving a wide variety of people who might come in contact with an exposed worker. Illinois has experienced asbestos litigation for decades, often serving as a magnet jurisdiction for claimants from around the country, and a new duty requirement would exacerbate the current asbestos litigation and augment other toxic tort claims.
The Illinois Supreme Court had earlier denied all motions to file amicus briefs, and decided the case without the views of interested organizations.