Daniels v. Venta Corp. , 2022 IL App (2d) 210244 ( 2022 )

2022 IL App (2d) 210244No. 2-21-0244
Opinion filed April 14, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ANNA DANIELS, as Special Administrator of ) Appeal from the Circuit Court
the Estate of Darnell Daniels, ) of De Kalb County.
)
Plaintiff-Appellant, )
)
v. ) No. 18-L-71
)
VENTA CORPORATION, f/k/a American )
Bare Conductor, Inc.; SYCAMORE )
INDUSTRIAL PARK ASSOCIATES; and )
ROBERT BOEY, ) Honorable
) Bradley J. Waller,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justices Bridges and Justice Zenoff concurred in the judgment and opinion.
OPINION
¶1 In 1996, Darnell Daniels was directed to remove debris by his employer, the defendant
American Bare Conductor, Inc. (ABC), now known as Venta Corporation (Venta). The debris was
near the facility that ABC leased from the defendant Sycamore Industrial Park Associates (SIPA).
At that time, the defendant Robert Boey was a general partner of both ABC and SIPA. None of
the defendants informed Daniels that the debris he was directed to remove contained asbestos. In
2017, after developing terminal mesothelioma, Daniels filed a complaint against all the defendants,
sounding in negligence and intentional tort. The circuit court of De Kalb County subsequently
2022 IL App (2d) 210244dismissed Daniels’s sixth amended complaint with prejudice. The plaintiff, Anna Daniels, who is
Daniels’s widow and the administrator of his estate, thereafter appealed. For the following reasons,
we reverse the circuit court’s decision and remand for additional proceedings.
¶2 I. BACKGROUND
¶3 The following facts are drawn from undisputed facts in the record and the allegations of
the sixth amended complaint. Because this is an appeal from the dismissal of that complaint, we
take the facts alleged therein as true. Kai v. Board of Directors of Spring Hill Building 1
Condominium Ass’n, 2020 IL App (2d) 190642, ¶ 3.
¶4 Boey and now-deceased Michael Krieger were partners in SIPA. SIPA owned Sycamore
Industrial Park. In 1985, Boey and Krieger formed ABC, a company that manufactured wire. ABC
leased a portion of the industrial park from SIPA for its production facilities.
¶5 In August 1996, SIPA engaged ABC as an independent contractor to remove asbestos-
containing materials and scrap from a building known as the Quonset hut. SIPA told ABC to
remove the asbestos-containing material from the Quonset hut with as little expense as possible.
The Quonset hut was on SIPA’s property, but not directly on the portion of the property leased by
ABC. ABC was not licensed to undertake removal of scrap containing asbestos. ABC directed its
operations manager, John Jacky, to carry out and supervise the asbestos abatement project.
¶6 ABC subsequently worked with Manpower Group US, Inc. (Manpower), a company that
provided services on a temporary basis. Daniels was employed by Manpower. From August 12,
1996, to October 14, 1996, ABC employed Daniels to work under its direction at the premises that
ABC leased at the industrial park. In late August 1996, approximately one week after Daniels
began his employment with ABC, Jacky directed Daniels to dispose of material that, unbeknownst
to Daniels, contained asbestos. The material was in the Quonset hut. Neither Jacky nor ABC
-2-
2022 IL App (2d) 210244informed Daniels that he was being asked to perform work outside the premises leased by ABC.
Neither Jacky nor ABC provided Daniels with protective equipment to remove the asbestos-
containing material.
¶7 Daniels worked on clearing out the materials in the Quonset hut for two weeks. After
working on the project for a week to a week and a half, an ABC wire inspector told him that the
material that he was removing contained asbestos and provided him with a paper mask, which he
used to complete the work. After Daniels finished his temporary assignment in October 1996, he
accepted full-time employment with ABC and worked for ABC until 2003.
¶8 In 2006, Boey and Krieger sold their shares in ABC to its current owner, which changed
the company’s name to Venta Corporation. After Krieger died in 2014, Boey became the sole
owner of SIPA.
¶9 On February 16, 2017, Daniels was diagnosed with peritoneal mesothelioma. He thereafter
filed a seven-count complaint against the defendants, alleging that the defendants exposed him to
asbestos and caused him to develop mesothelioma. Counts I and II sounded in premises liability
against SIPA. Counts III and IV sounded in secondary premises liability against Boey. Counts V,
VI, and VII were all directed against Venta. Count V alleged negligence, count VI alleged willful
and wanton misconduct, and count VII alleged intentional tort. After allowing Daniels to amend
the complaint numerous times, on April 8, 2021, the circuit court dismissed Daniels’s sixth
amended complaint with prejudice. The circuit court dismissed the counts against SIPA, finding
that it did not owe Daniels a duty of reasonable care. The circuit court also dismissed the counts
against Boey, as Daniels acknowledged that his arguments against Boey were based on SIPA being
found liable. The circuit court dismissed counts V and VI against Venta, finding that those claims
were barred by the exclusive remedy provisions of the Workers’ Compensation Act (820 ILCS
-3-
2022 IL App (2d) 210244305/1(d) (West 2016)). The circuit court dismissed count VII, finding that Daniels had not
sufficiently alleged an intentional tort.
¶ 10 On March 27, 2021, Daniels died of mesothelioma. On May 5, 2021, the circuit court
appointed the plaintiff as special administrator, to pursue an appeal. On May 6, 2021, she filed a
timely notice of appeal.
¶ 11 II. ANALYSIS
¶ 12 On appeal, the plaintiff argues that the circuit court erred in dismissing with prejudice her
(1) negligence and willful and wanton misconduct claims against Venta, (2) intentional tort claim
against Venta, and (3) premises liability claims against SIPA.
¶ 13 SIPA filed a motion to dismiss the plaintiff’s action, pursuant to section 2-615 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018)), while Venta filed a motion to dismiss
pursuant to both sections 2-615 and 2-619 of the Code (id. § 2-619). A motion to dismiss under
section 2-615 challenges the legal sufficiency of the plaintiff’s claim, while a motion to dismiss
under section 2-619 admits the legal sufficiency of the claim but asserts defenses or defects outside
the pleading to defeat the claim. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d
558, 578-79, (2006).
¶ 14 In this case, the circuit court granted the defendants’ motions to dismiss under both section
2-615 and section 2-619. A section 2-615 or section 2-619 motion to dismiss admits as true all
well-pleaded facts and all reasonable inferences from those facts. Patrick Engineering, Inc. v. City
of Naperville, 2012 IL 113148, ¶ 31. When ruling on a motion to dismiss under either section 2-
615 or section 2-619, a court must construe the pleadings and supporting documents in the light
most favorable to the nonmoving party. In re Parentage of M.J., 203 Ill. 2d 526, 533 (2003). Our
review of a dismissal under either section is de novo. Solaia Technology, 221 Ill. 2d at 579.
-4-
2022 IL App (2d) 210244¶ 15 We first address the plaintiff’s contention that the circuit court erred in dismissing her
claims against Venta for negligence and willful and wanton misconduct. The circuit court found
that these claims were barred by the Worker’s Compensation Act. The plaintiff insists, however,
that her claims do not fall within the exclusive remedy provisions of the Workers’ Compensation
Act.
¶ 16 We note that, although the circuit court dismissed counts V and VI of the plaintiff’s
complaint pursuant to the Workers’ Compensation Act, the Workers’ Occupational Diseases Act
(820 ILCS 310/1(d) (West 2016)) is more applicable to the case at bar. The Workers’ Occupational
Diseases Act provides compensation for diseases arising out of, and in the course of, employment.
Id. Nonetheless, our analysis of both acts would be the same.
¶ 17 The Workers’ Occupational Diseases Act is modeled after and designed to complement the
Workers’ Compensation Act, which provides financial protection for accidental injuries arising
out of, and in the course of, employment. See 820 ILCS 305/1(d) (West 2012). In enacting these
statutes, the General Assembly established a new framework for recovery, to replace the common-
law rights and liabilities that previously governed employee injuries. Sharp v. Gallagher, 95 Ill.
2d 322, 326 (1983); Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 44 (1994) (“[t]he
Workers’ Compensation Act reflects the legislative balancing of rights, remedies, and procedures
that govern the disposition of employees’ work-related injuries”); Duley v. Caterpillar Tractor
Co., 44 Ill. 2d 15, 18 (1969) (“ ‘The [Workers’ Compensation Act] was designed as a substitute
for previous rights of action of employees against employers and to cover the whole ground of the
liabilities of the master, and it has been so regarded by all courts.’ ” (quoting Matthiessen &
Hegeler Zinc Co. v. Industrial Board of Illinois, 284 Ill. 378, 382-83 (1918))).
-5-
2022 IL App (2d) 210244¶ 18 In exchange for a system of no-fault liability upon the employer, the employee is subject
to statutory limitations on recovery for injuries and occupational diseases arising out of and in the
course of employment. The acts further provide that the statutory remedies “ ‘shall serve as the
employee’s exclusive remedy if he sustains a compensable injury.’ ” Sharp, 95 Ill. 2d at 326-27(quoting McCormick v. Caterpillar Tractor Co., 85 Ill. 2d 352, 356 (1981)). Accordingly, both
acts contain an exclusive remedy provision as part of the quid pro quo, which balances the
sacrifices and gains of employees and employers. Meerbrey v. Marshall Field & Co., 139 Ill. 2d
455, 462 (1990).
¶ 19 The exclusive remedy provisions are embodied in two separate sections of the acts. Section
5(a) of the Workers’ Occupational Diseases Act provides, in pertinent part, as follows:
Ҥ 5. (a) There is no common law or statutory right to recover compensation or
damages from the employer *** for or on account of any injury to health, disease, or death
therefrom, other than for the compensation herein provided ***.” 820 ILCS 310/5(a) (West
2016).
¶ 20 Similarly, section 11 of the same act provides:
Ҥ 11. The compensation herein provided for shall be the full, complete and only
measure of the liability of the employer bound by election under this Act and such
employer’s liability for compensation and medical benefits under this Act shall be
exclusive and in place of any and all other civil liability whatsoever, at common law or
otherwise, to any employee or his legal representative on account of damage, disability or
death caused or contributed to by any disease contracted or sustained in the course of the
employment.” Id. § 11.
-6-
2022 IL App (2d) 210244¶ 21 The corresponding exclusive remedy provisions in sections 5 and 11 of the Workers’
Compensation Act (820 ILCS 305/5(a), 11 (West 2016)) have been viewed analogously for
purposes of judicial construction. Folta v. Ferro Engineering, 2015 IL 118070, ¶ 13. Thus, cases
that have construed the exclusive remedy provisions in the context of the Workers’ Compensation
Act also apply in the context of the Workers’ Occupational Diseases Act. Id.¶ 22 In discussing the scope of the exclusive remedy provisions under the Workers’
Compensation Act, our supreme court has indicated that the statute generally provides the
exclusive means by which an employee can recover against an employer for a work-related injury.
Meerbrey, 139 Ill. 2d at 462. However, an employee can escape the exclusive remedy provisions
of the Workers’ Compensation Act if the employee establishes that the injury (1) was not
accidental, (2) did not arise from his employment, (3) was not received during the course of
employment, or (4) was not compensable under the Workers’ Compensation Act. Collier v.
Wagner Castings Co., 81 Ill. 2d 229, 237 (1980).
¶ 23 The Workers’ Compensation Act further recognizes the concept of borrowing and loaning
employers. 820 ILCS 305/1(a)(4) (West 2012). The exclusive remedy provision extends immunity
to borrowing and loaning employers as well. 820 ILCS 305/5(a) (West 2018). To determine
whether a borrowed-employee relationship existed, the inquiry is twofold: (1) whether the special
employer had the right to direct and control the way the special employee performed the work and
(2) whether there existed a contract of hire between the special employee and the special employer,
either express or implied. A.J. Johnson Paving Co. v. Industrial Comm’n, 82 Ill. 2d 341, 348
(1980). Whether a borrowed-employee relationship existed is generally a question of fact, but if
the facts are undisputed and permit but a single inference, the question is one of law. Folta, 2015
IL 118070, ¶ 14.
-7-
2022 IL App (2d) 210244¶ 24 Under both the tests for whether an employee can escape the exclusive remedy provisions
of the Act and whether a borrowed-employee relationship exists, it is imperative that a valid
contract between the parties exists. A.J. Johnson Paving, 82 Ill. 2d at 348; Klug v. Industrial
Comm’n, 381 Ill. 608, 611 (1943) (“In order for an accident to arise out of the employment it must
be incidental to the performance of the contract of service, and the origin or cause of the accident
must belong to and be connected with the contract of service.”). Here, however, there was no
enforceable contract.
¶ 25 A contract that requires someone to do something illegal is equivalent to there being no
contract at all. In re Marriage of Newton, 2011 IL App (1st) 090683, ¶ 39 (if the subject matter of
a contract is illegal, that contract is void ab initio and treated as if it never existed); see also
Frydman v. Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 859 (1997) (“[I]t is well settled in Illinois
that if a contractual agreement expressly contravenes a law or public policy of the State, that
contract will be deemed illegal and unenforceable.” (Internal quotation marks omitted.)). 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. See 225 ILCS
207/5 (West 1996). As such, the subject matter of ABC and Daniels’s alleged contract was illegal
and therefore unenforceable. See Ransburg v. Haase, 224 Ill. App. 3d 681, 684-85 (1992) (“courts
will not enforce a contract involving a party who does not have a license called for by legislation
that expressly prohibits the carrying on of the particular activity without a license where the
legislation was enacted for the protection of the public”). Whether or not Daniels ultimately
consented to removing the asbestos is irrelevant because one cannot contractually consent to
performing an illegal act. See Marriage of Newton, 2011 IL App (1st) 090683, ¶ 39 (a party cannot
choose to ratify an illegal contract).
-8-
2022 IL App (2d) 210244¶ 26 As no valid contract existed between Daniels and ABC, the exclusive remedy provisions
of the Workers’ Compensation Act did not prevent Daniels from bringing an action against ABC.
A.J. Johnson Paving, 82 Ill. 2d at 348; Klug, 381 Ill. at 611. The circuit court therefore erred in
dismissing counts V and VI of the plaintiff’s complaint based on the exclusive remedy provisions
of the Workers’ Compensation Act.
¶ 27 We next address the plaintiff’s contention that the circuit court erred in dismissing her
claim that ABC committed an intentional tort against Daniels. To survive the exclusive remedy
provisions of the Act, a plaintiff who brings an intentional tort claim must allege that the defendant
acted deliberately with the specific intent to injure. Hartline v. Celotex Corp., 272 Ill. App. 3d 952,
955 (1995). An allegation that the defendant was “substantially certain,” or knew with a “strong
probability,” that injury would result from its actions is not sufficient to escape the strictures of
the Workers’ Compensation Act. Id.¶ 28 Here, the plaintiff alleged that the officers of ABC—Boey and Krieger—had acquired
sufficient knowledge and information concerning asbestos and the hazards thereof that, by and
well before August 1996, they knew that persons inhaling asbestos would be medically
compromised and suffer immediate bodily injury and harm. Having this knowledge, ABC then
deliberately and with specific intent to cause Daniels bodily injury directed him to remove scrap
materials from the Quonset hut while intentionally concealing from him that said materials
contained asbestos. ABC did not tell Daniels that such work was illegal, hazardous, and injurious.
ABC intentionally determined not to provide him with the information, instruction, and equipment
needed to reduce or eliminate his exposure to and inhalation of asbestos. ABC specifically intended
that Daniels, an uninformed temporary worker, would be medically compromised as a
-9-
2022 IL App (2d) 210244consequence of unprotected exposure to asbestos, because protecting or informing him would have
jeopardized ABC’s plan to perform the project as cheaply as possible.
¶ 29 The premise of the plaintiff’s allegations is that ABC knew that Daniels would be injured
if he performed the asbestos removal, yet ABC instructed him to do it anyway. These allegations
demonstrate that ABC specifically intended to harm Daniels. The circuit court therefore erred in
dismissing count VII of the plaintiff’s complaint, which alleged that ABC committed an intentional
tort against Daniels.
¶ 30 In so ruling, we note that ABC repeatedly argues that the plaintiff had to allege that ABC
specifically intended that Daniels suffer a fatal injury from the asbestos removal. That is simply
not true. See People v. Dorn, 378 Ill. App. 3d 693, 698-99 (2008) (actor need not intend nor
contemplate exact harm actually suffered to commit intentional tort); see also Miller v. Hecox,
2012 IL App (2d) 110546, ¶ 44 (specific intent entails having contemplated the wrongfulness of
one’s conduct and that it will cause harm to others).
¶ 31 We also are unpersuaded by Venta’s reliance on Copass v. Illinois Power Co., 211 Ill. App.
3d 205 (1991), and Wells v. IFR Engineering Co., 247 Ill. App. 3d 43 (1993). In both of these
cases, the reviewing courts held that the plaintiffs’ allegations of the employers’ substantial
certainty or knowledge of the strong probability that their directives would cause the employees
harm did not set forth a cause of action for intentional tort. Copass, 211 Ill. App. 3d at 213; Wells,
247 Ill. App. 3d at 45-46. However, the plaintiff alleged more than that here. Taking the plaintiff’s
allegations in the light most favorable to her, we determine that the plaintiff alleged that ABC
directed Daniels to remove asbestos knowing with 100% certainty that such an act would injure
him.
- 10 -
2022 IL App (2d) 210244¶ 32 We further reject Venta’s argument that the plaintiff’s allegations are too conclusory to
survive a motion to dismiss. Specifically, Venta claims that the plaintiff did not allege any specific
facts “about who possessed information about the serious hazards of asbestos exposure, what
information those individuals possessed when,” and “who concluded that *** Daniels definitively
would be medically compromised, inevitably, if exposed to asbestos.” The plaintiff responds that
she did not need to set forth every pertinent fact at the pleadings stage of the case. We agree. See
Avery v. GRI Fox Run, LLC, 2020 IL App (2d) 190382, ¶ 27 (a complaint will be deemed sufficient
if the allegations contained therein “ ‘reasonably inform the defendants by factually setting forth
the elements necessary to state a cause of action’ ” (quoting People ex rel. Scott v. College Hills
Corp., 91 Ill. 2d 138, 145 (1982))). Here, the plaintiff identified three decisionmakers at ABC
(Boey, Krieger, and Jacky) who were aware of the asbestos in the Quonset hut and the dangers of
having it removed. Further, although Venta asserts that the plaintiff improperly concludes that
ABC intended Daniels to be medically compromised, an illicit intent to injure is rarely amenable
to direct proof and therefore must be inferred from the circumstances as a whole, including the
defendant’s acts and knowledge. See Cincinnati Insurance Co. v. Guccione, 308 Ill. App. 3d 220,
226 (1999). Based on the circumstances here, the plaintiff alleged enough to survive a motion to
dismiss at the pleadings stage.
¶ 33 We next turn to the plaintiff’s argument that the trial court improperly dismissed her claims
against SIPA after finding that SIPA did not owe Daniels a duty of reasonable care. The plaintiff
asserts that SIPA owed Daniels a duty under (1) general Illinois duty law, (2) section 343 of the
Restatement (2d) of Torts (Restatement (Second) of Torts § 343 (1965)), and (3) section 414 of
the Restatement (2d) of Torts (Restatement (Second) of Torts § 414 (1965)).
- 11 -
2022 IL App (2d) 210244¶ 34 Unless a duty is owed, there is no negligence. American National Bank & Trust Co. of
Chicago v. National Advertising Co., 149 Ill. 2d 14, 26 (1992). Whether a duty exists is a question
of law. Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990). Whether a duty exists is also an inquiry
shaped by public policy, since we must decide whether the defendant and the plaintiff stand in
such a relationship to one another that the law imposes on the defendant an obligation of reasonable
conduct for the benefit of the plaintiff. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388-89 (1998).
Accordingly, we consider not only the (1) reasonable foreseeability and (2) likelihood of injury,
but also (3) the magnitude of the burden on the defendant in guarding against injury and (4) the
consequences of placing that burden on the defendant. Ward, 136 Ill. 2d at 140-41.
¶ 35 SIPA insists that it did not have such a relationship with Daniels because it did not invite
him on to its property, ABC did. However, the fact that SIPA did not personally invite Daniels on
to its property is not dispositive of whether it had a relationship with him. Section 332 of the
Restatement (Second) of Torts explains:
“(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of
the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose
directly or indirectly connected with business dealings with the possessor of the land.”
Restatement (Second) of Torts § 332 (1965)
¶ 36 In her allegations, the plaintiff alleges that SIPA informed ABC that it wanted the asbestos
removed from its property. ABC subsequently hired Daniels to perform that task. Thus, Daniels
was invited on to SIPA’s land as a business visitor for a reason directly connected to SIPA’s
business dealings. See id.; see also Reynolds v. American Oil Co., 32 Ill. App. 3d 905, 911 (1975)
- 12 -
2022 IL App (2d) 210244(explaining that principle of tort law set forth in Restatement (Second) of Torts § 332 (1965) has
wide recognition). Accordingly, the plaintiff’s allegations demonstrate a relationship between
SIPA and Daniels.
¶ 37 As the plaintiff alleged that Daniels’s injury occurred based on a condition on SIPA’s
property while Daniels was on the property as an invitee, we decide the foreseeability prong of the
duty test by reference to section 343 of the Restatement (Second) of Torts. LaFever, 185 Ill. 2d at
389. Section 343 states in relevant part:
“A possessor of land is subject to liability for physical harm caused to his invitees by a
condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”
Restatement (Second) of Torts § 343 (1965).
¶ 38 The plaintiff argues that another significant consideration in determining whether SIPA
owed Daniels a duty of reasonable care is that SIPA and ABC were related entities who were
closely held by two individuals. See Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, 144-
45 (1897); Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 291 (2007). In Chicago Economic Fuel, a
contractor’s employee was injured when engaged in installation of natural gas pipelines under
Chicago streets. 168 Ill. at 142. The court held the principal gas company liable on several grounds.
First, the contractor’s foreman negligently supervised the worker. Id. at 140. Second, the gas
company was independently negligent for prematurely running the natural gas through the pipes.
- 13 -
2022 IL App (2d) 210244Id. at 144. Third, the court determined that the gas company and the construction company were
related entities, as they both had the same partners. Id. at 144-45. As the gas company had retained
control over the construction project, it could not shift its liabilities to the construction company,
which was its “mere instrument or tool.” Id. at 144.
¶ 39 In Forsythe, an employee of the defendant-parent company’s subsidiary was killed in a
work-related accident. 224 Ill. 2d at 277. His family brought a wrongful death action against the
defendant, alleging that it had unreasonably restricted the subsidiary’s budget for worker health
and safety. Id. at 281. Looking to the prescribed factors for determining duty, the supreme court
held that a duty existed based upon the defendant’s participation in causing the injury to a related
entity’s employee. The supreme court explained that “[i]t is conceivable that severe cutbacks in
staffing, safety, maintenance, and training in such industries could lead, with reasonable
foreseeability, to the injury of others.” Id. at 291.
¶ 40 In her complaint, the plaintiff alleged that, SIPA, by and through its partners Boey and
Krieger, restricted the means and methods to be used by ABC in removing asbestos materials from
the Quonset hut by requiring that project to be performed with as little expense as possible and
without complying with any laws or regulations. Specifically, SIPA directed ABC to (1) not
subcontract the project to a licensed asbestos-abatement contractor, (2) not obtain permits for the
project, (3) hire someone who was unfamiliar with the composition of the materials being removed
and unaware of the hazards of asbestos, and (4) not use any precautions to minimize asbestos
contamination.
¶ 41 We believe that the plaintiff’s complaint sufficiently alleged that SIPA owed Daniels a
duty of reasonable care on the basis of premises liability. The allegations indicate that SIPA knew
that there was a dangerous condition—asbestos—on its property and that the asbestos would injure
- 14 -
2022 IL App (2d) 210244anyone who encountered it. Although ABC also had this knowledge, SIPA knew that ABC would
not share this information with Daniels because SIPA and ABC were related entities and SIPA had
directed ABC not to inform him. See Chicago Economic Fuel, 168 Ill. at 144-45. As such, it was
foreseeable to SIPA that Daniels would be injured if it did not inform him of the asbestos. See
Forsythe, 224 Ill. 2d at 291.
¶ 42 Further, public policy, as reflected in the Commercial and Public Building Asbestos
Abatement Act (225 ILCS 207/5 (West 2020)), places on the landowner the burden of having
asbestos properly removed. It is not the responsibility of the person hired to remove debris to
determine that he is removing asbestos. As the plaintiff sufficiently set forth a cause of action
based on SIPA’s failure to warn Daniels of the dangers on its property, we hold that the circuit
court improperly dismissed counts I and II of the plaintiff’s complaint.
¶ 43 In so ruling, we note that SIPA insists that the plaintiff improperly relies on Chicago
Economic Fuel and Forsythe to suggest that “relatedness” between two entities is sufficient to
impose a duty on both. SIPA misconstrues the plaintiff’s argument. The plaintiff does not contend
that SIPA and ABC’s relatedness creates a duty but rather that relatedness is appropriate to
consider in determining whether a duty should be imposed on the landowner. The plaintiff’s
argument is consistent with both Chicago Economic Fuel and Forsythe.
¶ 44 Based on our determination that SIPA owed Daniels a duty of care pursuant to section 343
of the Restatement, we need not address whether SIPA also owed Daniels a duty of care under
section 414 of the Restatement.
¶ 45 As a final matter, we note that SIPA requests that the circuit court’s dismissal of the
secondary premises liability claims against Boey be affirmed because Boey is not alleged to have
any direct liability for Daniels’s injuries. At most, SIPA contends that Boey would be subject to
- 15 -
2022 IL App (2d) 210244secondary liability, which is not yet ripe for consideration, because no judgment has been entered
against SIPA. The plaintiff responds that Boey’s position is now contrary to the parties’ earlier
agreement and understanding that Boey was named only for secondary liability in the event that
SIPA cannot satisfy a possible judgment. The plaintiff insists that the parties have already agreed
that Boey’s potential liability simply follows SIPA’s fortunes.
¶ 46 Based on the parties’ agreement, and the fact that a secondary-liability claim against a
partner may be brought in the same action as one against the partnership (805 ILCS 206/307(b)
(West 2020)), we determine that the plaintiff’s action against Boey is not premature. We therefore
reverse the circuit court’s dismissal of counts III and IV of the plaintiff’s complaint sounding in
secondary premises liability against Boey.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, the judgment of the circuit court of De Kalb County is reversed
and remanded for additional proceedings.
¶ 49 Reversed and remanded.
- 16 -
2022 IL App (2d) 210244No. 2-21-0244
Cite as: Daniels v. Venta Corp., 2022 IL App (2d) 210244Decision Under Review: Appeal from the Circuit Court of De Kalb County, No. 18-L-71;
the Hon. Bradley J. Waller, Judge, presiding.
Attorneys William A. Kohlburn (pro hac vice) and Ryan J. Kiwala, of
for Simmons Hanly Conroy LLC, of Alton, for appellant.
Appellant:
Attorneys Margaret O. Byrne, John J. O’Sullivan, Catherine Basque Weiler,
for and Andrew A. Lothson, of Swanson Martin & Bell, LLP, of
Appellee: Chicago, for appellee Venta Corporation.
James R. Branit, Kevin A. Titus, and Joseph P. Sullivan, of
Litchfield Cavo LLP, of Chicago, for other appellees.
- 17 -