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In Re: the Estate of Robert Compton v. Pneumo Abex Corporation

January 20, 2012

IN RE: THE ESTATE OF ROBERT COMPTON,
MARGARET COMPTON, INDIVIDUALLY AND AS
PLAINTIFF-APPELLEE,
v.
PNEUMO ABEX CORPORATION, PNEUMO ABEX, LLC, METROPOLITAN LIFE INSURANCE COMPANY, OWENS-ILLINOIS, INC., HONEYWELL INTERNATIONAL, INC., JOHN CRANE, INC., SPRINKMANN SONS CORPORATION OF ILLINOIS, AND BOSTON SCIENTIFIC CORPORATION, DEFENDANTS, AND ILLINOIS CENTRAL RAILROAD COMPANY, DEFENDANT-APPELLANT.
JAMES SMITH, DIANNE SMITH, MICHAEL MCGOWAN, AND EVELYN MCGOWAN, PLAINTIFFS-APPELLEES,
v.
PNEUMO ABEX CORPORATION, PNEUMO ABEX, LLC, METROPOLITAN LIFE INSURANCE COMPANY, OWENS-ILLINOIS, INC., HONEYWELL INTERNATIONAL, INC., AND RAILROAD FRICTION PRODUCTS CORPORATION, DEFENDANTS, AND
ILLINOIS CENTRAL RAILROAD COMPANY, DEFENDANT-APPELLANT, AND
JOHN MONICAL, PATRICIA MONICAL, AND JOHNIE BROWN, PLAINTIFFS-APPELLEES, V. PNEUMO ABEX CORPORATION, PNEUMO ABEX, LLC, METROPOLITAN LIFE INSURANCE COMPANY, OWENS-ILLINOIS, INC., AND HONEYWELL INTERNATIONAL, INC., DEFENDANTS, AND ILLINOIS CENTRAL RAILROAD COMPANY,
DEFENDANT-APPELLANT.



Appeal from Deceased, Circuit Court of McLean County Special Administratrix, No. 07L204 No. 05L117; No. 06L69 Honorable Scott Drazewski, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

(No. 4-10-1002) (No. 4-10-1003) (No. 4-10-1003)

JUSTICE McCULLOUGH delivered the judgment of the court, with opinion.

Justices Appleton and Cook concurred in the judgment and opinion.

OPINION

¶ 1 This is an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). Defendant, Illinois Central Railroad Company, filed a motion to dismiss the complaint filed by plaintiff, Margaret Compton, individually and as special administratrix of the estate of Robert Compton, and the complaint filed by plaintiffs, John Monical, Patricia Monical, and Johnie Brown. The circuit court denied defendant's motions to dismiss and then certified the following question for our review: "Whether the defendant, Illinois Central Railroad Company, had a duty to the employees of an asbestos company to pick up unloaded boxcars upon the request of the asbestos company in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from plant operations, or warn such employees prior to moving the boxcars after the railroad had taken possession of the boxcars." For the reasons that follow, we answer the certified question in the negative.

¶ 2 On December 28, 2007, petitioner Compton filed a complaint against defendant and others for the wrongful death of her husband, Robert Compton. The complaint alleged decedent worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment (April to June of 1961), decedent was exposed to asbestos. The complaint alleged decedent contracted asbestosis. Decedent died on September 14, 2007. Specific to defendant, the complaint alleged in counts IV, V, and VI that prior to and during the 1960s, defendant negligently transported asbestos to and from Unarco, and failed to warn decedent of the dangers posed by asbestos.

¶ 3 On May 31, 2006, plaintiffs John Monical, Patricia Monical, and Johnie Brown filed a complaint against defendant and others. The complaint alleged John Monical and Johnie Brown worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco. During their employment in the 1950s, Monical and Brown were exposed to asbestos. The complaint alleged Monical and Brown contracted asbestosis. Specific to defendant, the complaint alleged in counts III, IV, and VI that in the 1950s, defendant negligently transported asbestos to and from Unarco, and failed to warn Monical and Brown of the dangers posed by asbestos.

¶ 4 On July 31, 2009, defendant filed an amended motion to dismiss counts IV, V, and VI of plaintiff Compton's complaint pursuant to section 2--619(a)(9) of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2--619(a)(9) (West 2008)). On August 12, 2009, defendant filed an amended motion to dismiss counts III, IV, and VI of Monical and Brown's complaint pursuant to section 2--619(a)(9) of the Procedure Code (735 ILCS 5/2--619(a)(9) (West 2008)). In support, defendant argued that plaintiffs attempted to regulate interstate commerce through the judicial system in violation of the commerce clause of the United States Constitution (U.S. Const., art. I, § 8, cl. 3).

¶ 5 In response, plaintiffs stated that their complaints did not invoke commerce clause scrutiny because they alleged only that "after the railroad transported and delivered the asbestos, it negligently removed the empty railcars in such a manner that asbestos was emitted into the air in and around the plant." (Emphasis in original.) Further, defendant did not warn decedent and plaintiffs Monical and Brown of the hazards. Following a hearing, the trial court denied defendant's motions to dismiss.

¶ 6 On July 9, 2010, defendant filed a motion for a Rule 308 finding. On August 30, 2010, the court granted defendant's request and noted a Rule 308 order would be entered. On November 30, 2010, the court entered the written Rule 308 order, certifying the previously stated question.

¶ 7 Defendant timely filed applications for leave to appeal, which this court denied on January 20, 2011. Defendant then filed petitions for leave to appeal with our supreme court. On June 29, 2011, the supreme court denied defendant's petitions for leave to appeal and entered a supervisory order directing this court to accept the interlocutory appeals and consolidate the appeals, which this court did on July 7, 2011. In re Estate of Compton, No. 111945, 947 N.E.2d 770 (Ill. May 25, 2011) (nonprecedential supervisory order on denial of petition for leave to appeal); Smith v. Pneumo Abex Corp., No.111944, 947 N.E.2d 770 (Ill. May 25, 2011) (nonprecedential supervisory order on denial of petition for leave to appeal).

¶ 8 Defendant argues it owed no duty to decedent, and plaintiffs Monical and Brown, to remove the unloaded boxcars in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from plant operations, or warn decedent and plaintiffs Monical and Brown, prior to moving the boxcars, and therefore cannot be held liable.

¶ 9 Whether a duty exists depends on whether the parties stood "in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff." Marshall v. Burger King Corp., 222 Ill. 2d 422, 436, 856 N.E.2d 1048, 1057 (2006). Our supreme court has stated that whether a ...


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