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09/12/95 BRAD ARNETT v. ENVIRONMENTAL SCIENCE &

September 12, 1995

BRAD ARNETT, PLAINTIFF-APPELLANT,
v.
ENVIRONMENTAL SCIENCE & ENGINEERING, INC., A CORPORATION, AND CHARLES JENKINS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court for the 9th Judicial Circuit Fulton County, Illinois. No. 92-L-27. Honorable Charles H. Wilhelm Judge, Presiding.

As Modified on Denial of Rehearing November 22, 1995. Released for Publication November 22, 1995. Petition for Leave to Appeal Denied April 3, 1996.

Present - Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. MC Cuskey, Justice. Justice Lytton delivered the opinion of the court: Breslin and McCUSKEY, JJ., concur.

The opinion of the court was delivered by: Lytton

MODIFIED UPON DENIAL OF REHEARING

The Honorable Justice LYTTON delivered the opinion of the court:

Plaintiff Brad Arnett filed suit alleging that he was injured by exposure to fumes from mastic removers and chemical solvents while working on an asbestos abatement project. Arnett sued Environmental Science and Engineering, Inc. (ESE) and Charles Jenkins in their capacities as asbestos project manager and air sampling professional. The trial judge dismissed the case, and plaintiff filed this appeal. We affirm in part and reverse in part.

I. FACTS

In his second amended complaint, plaintiff alleged that he was injured while working at an asbestos abatement project at the Canton High School in Canton, Illinois. Plaintiff claimed that both defendants, ESE and Jenkins, served in dual capacities as asbestos project manager and air sampling professional for the project. The actual abatement work was performed by the contractor, C & C Environmental (C & C), for whom plaintiff worked.

Plaintiff contended that his duties included pouring buckets of mastic remover and other chemical solvents into 55 gallon drums. While performing this task, plaintiff claims, he was exposed to and injured by the fumes. Plaintiff alleged that defendants owed a duty to exercise reasonable care for his safety, and they breached this duty by (a) failing to require proper ventilation, (b) failing to require use of proper breathing apparatus, and (c) failing to conduct proper air sampling.

Defendants filed a motion to dismiss pursuant to sections 2-615, 2-619 and 2-619.1 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619, 2-619.1 (West 1992)), arguing that they owed no duty to plaintiff and that plaintiff's claims were barred under the doctrine of collateral estoppel. The collateral estoppel defense was premised upon the assertion that in plaintiff's previous worker's compensation case against his employer, C & C, he failed to prove that his injuries were proximately caused by the solvent fumes. The trial judge granted the motion to dismiss on both grounds.

II. ANALYSIS

A court should not dismiss a cause of action on the pleadings unless it clearly appears that no set of facts can be proven which will entitle a plaintiff to recover. ( Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121.) In determining whether the complaint alleges sufficient facts to establish a cause of action, we must accept as true all well-pleaded facts in the complaint and all reasonable inferences therefrom. ( Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 607 N.E.2d 201, 180 Ill. Dec. 307.) Applying these standards, we conclude that while plaintiff has failed to establish a legal duty by the air sampling professional, the project manager did have a duty to act with reasonable care for the safety of plaintiff. We also hold that this suit is not barred by the doctrine of collateral estoppel.

A. DUTY

In order to plead a cause of action for negligence, a plaintiff must allege the existence of a duty owed by defendant to plaintiff, a breach of that duty by defendant, and an injury to plaintiff proximately caused by defendant's breach of the duty. ( Ward v. K Mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288.) The existence of a duty is a question of law to be determined by the court, and a circuit court's ruling is ...


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