Appeal from the Circuit Court of Cook County. No. 94-L-11385 Honorable Sophia H. Hall, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Peter and Maribeth Engelland brought an action against Clean Harbors Environmental Services, Inc. (Clean Harbors), seeking to recover damages for injuries Peter sustained when he inhaled toxic chlorine gas at Clean Harbors' waste disposal facility. Clean Harbors filed a third- party contribution action under a negligence theory against Peter's employer, Waste Management of Illinois, Inc. (WMIL). Prior to trial, Clean Harbors settled with the Engellands for $9 million. Clean Harbors then proceeded with its contribution action and was granted leave to amend its complaint to add Waste Management, Inc. (WM Inc.), as an additional third-party defendant. WM Inc. and WMIL (hereinafter defendants) brought motions for summary judgment on the negligence issue and also renewed their affirmative defenses, which had previously been rejected. The trial court granted both defendants' motions, without stating the basis for its decision. Clean Harbors then filed a motion to reconsider, which was denied. Clean Harbors now appeals from the entry of summary judgment in favor of defendants. We affirm.
Clean Harbors raises five issues on appeal: (1) whether WM Inc. and WMIL undertook, pursuant to company policy and the Occupational Safety and Health Act (OSHA) (29 U.S.C. §651 et seq. (1994)) regulations, to investigate and warn of any possible risks Peter Engelland (Engelland) might face at Clean Harbors and to train him how to detect and respond to unexpected emissions of toxic gas and whether defendants had a duty to Engelland to fulfill this undertaking with reasonable care; (2) whether defendants breached this duty by failing to inform Engelland that Clean Harbors handled hazardous waste or of the potential risk of an emission of toxic gas at Clean Harbors and did not train him to recognize and respond to an emission of gas; (3) whether the defendants' failure to warn and train Engelland was a proximate cause of Engelland's injury or the severity of his injury; (4) whether the court properly exercised its discretion in finding that Clean Harbors' amended third-party complaint related back to the original, timely filed complaint, pursuant to section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 1994)); and (5) whether the circuit court correctly found that the settlement agreement between Clean Harbors and Engelland served to release WMIL. WMIL raised an additional issue on appeal: whether the issue related to the contribution liability of WMIL had been rendered moot by the waiver of its worker's compensation lien. We find that Clean Harbors' first three issues (collectively, the negligence issue) are dispositive and, therefore, we need only address those issues.
Engelland was employed as a driver by Kankakee Industrial Disposal (KID), a division of Waste Management of the South Suburbs, which was a division of WMIL, a subsidiary of WM Inc. In that capacity, he hauled both hazardous and non-hazardous waste, as well as collected residential garbage. Clean Harbors owned and operated a treatment, storage and disposal facility in Chicago which handled both hazardous and non-hazardous waste. It received its waste from outside sources and then treated and stored it at its facility.
On April 18, 1994, Engelland, while acting within the scope of his employment, transported a tanker truck of non-hazardous red food dye to Clean Harbors. Engelland had made several previous deliveries to Clean Harbors in the 2½ years of his employment as a tanker driver. After checking in and performing all preliminary duties, Engelland was told to dump the dye into one of four adjacent, outdoor pits. While Engelland unloaded his truck, a Clean Harbors employee, unbeknownst to Engelland, was treating hazardous waste in the adjacent pit. That employee negligently added chemicals to the waste in the wrong order, causing a chemical reaction and the creation of a chlorine gas cloud. Engelland smelled a burnt odor, but did not immediately recognize any danger. He remained outside with his truck until he became engulfed in the chlorine cloud. After about two minutes of exposure to this toxic gas, Engelland left the pit area and went inside. Once inside, a Clean Harbors employee told Engelland that the cloud was chlorine gas. Engelland delayed seeking medical treatment for several hours because he did not fully realize the physical dangers from the gas. Tests later revealed that he suffered extensive lung damage and would most likely need a double lung transplant.
On appeal, Clean Harbors argues the trial court erred by granting summary judgment because each defendant had a duty to investigate and warn Engelland of any possible dangers at Clean Harbors and to train him to adequately detect, appreciate the danger of, and appropriately respond to toxic gases such as chlorine. Clean Harbors contends that WM Inc. and WMIL voluntarily undertook these duties, pursuant to company policy and statutory regulations, such as OSHA regulation 1910.1200. 29 C.F.R. §1910.1200 (1999).
A motion for summary judgment should be granted where the pleadings, depositions and affidavits reveal that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 31, 605 N.E.2d 557, 559 (1992). When reviewing a motion for summary judgment, we must take the facts in the light most favorable to the nonmoving party and apply de novo review. Frye, 153 Ill. 2d at 31, 605 N.E.2d at 559. "[W]e may affirm the decision of the trial court to grant summary judgment on any basis in the record, regardless of whether it relied on that ground or whether its reasoning was correct." Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 552, 732 N.E.2d 37, 46 (2000).
Clean Harbors alleges a negligence cause of action against WM Inc. and WMIL. To establish a claim for negligence, a plaintiff must prove all four elements of the claim: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, proximate cause and injury. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116, 660 N.E.2d 863, 867 (1995). We first address whether WM Inc. and WMIL owed a duty to Engelland.
Clean Harbors argues that WM Inc. and WMIL owed Engelland a duty under the voluntary undertaking doctrine. Under this doctrine, one who gratuitously, or for consideration, renders services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care or such competence and skill as one possesses. Frye, 153 Ill. 2d at 32, 605 N.E.2d at 560. However, this duty of care imposed upon a defendant is limited to the extent of the undertaking. Frye, 153 Ill. 2d at 32, 605 N.E.2d at 560; Demos v. Ferris-Shell Oil Co., 317 Ill. App. 3d 41, 48, 740 N.E.2d 9, 15 (2000). "Liability is imposed upon a defendant who voluntarily undertakes a duty but performs the undertaking negligently, if the negligence is the proximate cause of the injury to the plaintiff." Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521, 526, 644 N.E.2d 515, 519 (1994). The Frye court also weighed public policy considerations when it adopted a narrow construction of the doctrine. Frye, 153 Ill. 2d at 33, 605 N.E.2d at 560.
Clean Harbors contends that WMIL and WM Inc. voluntarily undertook two duties to Engelland: (1) a duty to investigate and warn of any possible risks and hazards at Clean Harbors, including unexpected and accidental emissions of toxic gas such as chlorine, and (2) a duty to train Engelland how to detect and properly respond to any unexpected emission of toxic gas. Both WMIL and WM Inc. deny that they undertook such duties.
We first address whether WM Inc. voluntarily undertook a duty to investigate and warn. First, Clean Harbors contends that the evidentiary materials establish that WM Inc. voluntarily undertook to investigate and warn Engelland of any risks or hazards he might face at Clean Harbors, specifically the accidental emission of chlorine gas. Clean Harbors relies on the deposition testimony of David Malter, the director of health, safety and transportation for WM Inc. at the time of Engelland's injury. Malter testified that governmental regulations required the company to warn employees of potential risks of chemical exposure, including accidental exposure. He also stated that WM Inc. had an obligation to provide a safe and healthful workplace, in partnership with OSHA regulations.
However, Malter also testified that the duty to warn drivers was limited to circumstances where WM Inc. obtained information concerning a risk and perceived the risk as exceeding minimum thresholds of harm. Malter described how WM Inc. evaluated non-WM Inc. sites before beginning deliveries to that site. According to Malter, a special waste coordinator would visit a non-WM Inc. site, such as Clean Harbors, to assess what risks might face WM Inc. drivers. In evaluating the non-WM Inc. site, the coordinator relied on the facility to provide WM Inc. with information concerning potential risks. Malter stated OSHA regulations required a non-WM Inc. facility to provide this precautionary information. WM Inc. then used this information to identify the potential risks at that facility. After the evaluation, the coordinator completed a special waste decision logic form containing written warnings about the potential risks that had been identified.
Based on this testimony, we hold that WM Inc. undertook a duty to investigate and warn Engelland of risks at Clean Harbors. However, the extent of any duty is strictly limited by the scope of the undertaking. Here the scope of WM Inc's. duty to warn was much narrower than that urged by Clean Harbors. The act of undertaking to warn employees of some potential hazards did not impose a duty to warn the same employees as to all unforeseen hazards. To do so would place WM Inc. in the untenable position as an absolute insurer of its employees' safety. We decline to hold WM Inc. responsible for such an unrealistic task. Therefore, we hold that WM Inc. assumed a duty to warn of only known, identifiable risks present at Clean Harbors.
Despite Clean Harbors' claims, there are no facts in the record to prove that WM Inc. or WMIL knew or should have known of the potential accidental emission of chlorine gas at Clean Harbors. WM Inc. conducted an audit of Clean Harbors' facility and completed extensive paperwork regarding details on the facility before approving Clean Harbors for use by WM Inc. None of these documents suggest the potential for the unexpected release of any gas. There is no evidence that WM Inc. or WMIL knew of previous chlorine gas emissions at the facility, or even that these emissions did, in fact, occur. James Laubsted, who worked at Clean Harbors and its predecessor for 10 years as plant manager and compliance manager, did not know of any prior emissions of chlorine gas at the facility. Clean Harbors refers us to deposition transcripts of Clean Harbors employees that discuss the chemical processes and potential chemical reactions that may occur at Clean Harbors. However, Laubsted stated that the ...