Daniels v. Venta Corp.

2022 IL App (2d) 210244

221 N.E.3d 503

468 Ill.Dec. 675

Anna DANIELS, as Special Administrator of the Estate of Darnell Daniels, Plaintiff-Appellant,

v.VENTA CORPORATION, f/k/a American Bare Conductor, Inc.; Sycamore Industrial Park Associates ; and Robert Boey, Defendants-Appellees.

No. 2-21-0244

Appellate Court of Illinois, Second District.

Filed April 14, 2022

William A. Kohlburn (pro hac vice) and Ryan J. Kiwala, of Simmons Hanly Conroy LLC, of Alton, for appellant.

Margaret O. Byrne, John J. O'Sullivan, Catherine Basque Weiler, and Andrew A. Lothson, of Swanson Martin & Bell, LLP, of Chicago, for appellee Venta Corporation. James R. Branit, Kevin A. Titus, and Joseph P. Sullivan, of Litchfield Cavo LLP, of Chicago, for other appellees.

OPINION

JUSTICE SCHOSTOK delivered the judgment of the court, with 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 dismissed 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, Inc. , 2020 IL App (2d) 190642, ¶ 3, 446 Ill.Dec. 607, 171 N.E.3d 42.

¶ 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 informed 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 305/1(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, 578-79 304 Ill.Dec. 369, 852 N.E.2d 825, (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, 364 Ill.Dec. 40, 976 N.E.2d 318. 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, 272 Ill.Dec. 329, 787 N.E.2d 144 (2003). Our review of a dismissal under either section is de novo. Solaia Technology , 221 Ill. 2d at 579, 304 Ill.Dec. 369, 852 N.E.2d 825.

¶ 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, 69 Ill.Dec. 351, 447 N.E.2d 786 (1983) ; Zimmerman v. Buchheit of Sparta, Inc. , 164 Ill. 2d 29, 44, 206 Ill.Dec. 625, 645 N.E.2d 877 (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, 253 N.E.2d 373 (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, 120 N.E. 249 (1918) )).

¶ 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, 69...