i suspect is one of our competitors on good morning made please the court my name is andrew tauber and i represent the defendant appellant c s x transportation and plaintiff asked that this court recognize a novel duty that has no precedent in illinois is whether an entity those a duty of care to protect third parties against second hand exposure dispensed as fibers a clear majority of courts to have considered this question have rejected the duty the pla urges here the question has been considered by the high courts of eight other states six have refused to recognize the duty the question has also been considered by three districts of the appellate court the fifth district decision below stands alone the second district in nelson and more recently the fourth district in homes have rejected the proposed duty there is a good reason why this clear majority of courts in illinois and elsewhere have rejected the duty they understand and opposing such a duty would be bad public policy recognizing a duty to protect third would know the cases are mixed your honor if i understand your honest question correctly you're asking whether the cases that we've cited from the other states are dealing with the same time period as this case some do some do not like it's hard to categorize some courts have looked at the same time period as that issue here and concluded that it was not foreseeable such as the holmes court and this state  some of the states that we cite states in the other jurisdictions yet others have looked at activity that was creating the activity here and found that it was foreseeable i believe the old the case in new jersey is from that period the satterfield case from tennessee from the nineteen seventies i think it's important to recognize that when those other courts have looked and found this activity risk of injury to be foreseeable from such activity they like the fifth district here below did not look at the question of dosage but merely looked at whether the notion of second hand exposure was known at the time they did not consider whether it was known that it would be in sufficient quantities to cause injury second district cases t exposure truth we do not remember the time period involved in nelson which is the premises liability case however the most recent decision from the fourth district in homes involves exposure that is exactly the same type period at issue here i believe in allegations are made that this was for seeable why is that not sufficient at least at this stage several reasons your honor this is a fact leaving state not a notice pleading state and the complaint contains no factual allegations that would support the conclusion that this wrist was in fact foreseeable at the time they do assert that it was proceeded when the conclusory fashion but there are no factual allegations to support that conclusion now one might say we didn't challenge that at the trial level and we did not go and see that right now and therefore at most plaintiff should be given an opportunity to replete however leave to repleat would be futile in this case plaintiff understood that her to david and numerous documents to their opposition to the motion to dismiss they relied on that evidence in the circuit court they relied on that evidence again in the fifth district and i've cited it yet again in this court and describe that evidence as uncontested but that uncontested evidence that was proffered by the plaintiff shows that there were no reported injuries from second hand exposure to a specialist until one thousand nine hundred sixty four which is the plan would be a stop from ignoring that evidence were she given leave to repleat and i know that the first district in the homes phase which as you correctly note was after trial and not on the pleadings considered to much of that very same evidence that here and having considered that evidence the fourth district concluded that it was not foreseeable the slip up pages nine to ten of the homes decision the fourth district included after having reviewed this evidence that it was not reasonably foreseeable that an employee working in the confined spaces of an especially this dust producing factory would leave that space travel through the fresh air of the outside world and then expose those inside the home to whatever amount of dust remained on his clothing at levels causing and especially this related now it so that tied back to the first justice question i think the key is when hordes look at the question of foreseeability they might be inclined to on perceived bill if they only look at the question was it foreseeable whether dust would or would not be transferred home but that is not the relevant question the relevant question is whether dust would be transferred home quantities sufficient to cause disease and as soon as one looks at that the relevant question the courts unanimously conclude no it was not foreseeable as of the relevant time period here because there were no reports of injuries until nine that you assert is inconclusive why isn't that a fact it should be left for an evidentiary matter perhaps i misspoke i don't consider it's inconclusive i think it's absolutely conclusive that it was not foreseeable at the time right and i think the evidence that plane that's the word i used i mean i mean i think you're asserting that there's just no doubt about it but the evidence that plaintiff has presented to the circuit court relied on in the fifth circuit and again relies on and this court shows that it was not foreseeable if there was no reported injuries before one nine hundred sixty four as her uncontested evidence shows it would be impossible for an employer at that point to have foreseen injury and again her evidence shows that as late as one nine hundred seventy nine which is fifteen years after the alleged exposure here such injuries were still considered medical curiosity's so though and the procedural posture perhaps point of might normally be given leave to re recognize a duty to third parties even when the risk of harm was foreseeable and even when the third party was a close family member there is no need for this court to deviate from its longstanding precedent simply to ensure  receive compensation as this case demonstrates a specialist plaintiffs are already able to pursue claims against the manufacturers of assessed its products and against those entities that expose them directly to  named seventy three defendants in this case plaintiff will still be able to pursue claims against seventy one of those defendants even if this court rejects the duty that she asked it to recognize today scores of defendants this phenomenon is unique to dispense this litigation there is no other type of litigation in which plaintiffs routinely name so many defendants of the scores of defendants typically named in each many there at most only slight responsibility for the plaintiff's exposure but because of this test this plaintiff's injuries are likely very large and because each defendant faces the threat of joint liability for illustrates what will happen if second hand exposure cases are allowed to proceed the deceit in this simpkins died of lung cancer after having smoked a pack and a half of cigarettes daily for forty one years not only was she a heavy smoker but she herself was directly exposed to a specialist both during the course of her employment and during the course of non occupational activities such as home and automotive repair despite these undisputed fact surely minuscule compared to that of simpkins own employers and those manufactured you specify products which she was directly exposed during home an automotive repairs nevertheless if this court w merit and of course there is no guarantee that plaintiff would be willing to settle with c s x having already applied for compensation from several bankruptcy trusts and having apparently obtained several settlements with product manufacturers plaintiff could decide to roll the dice in the hope of getting a large payout from what she perceives to be a solvent and deep pocketed defendant either way whether she's settled or not the net effect would be true a tremendously distorted tort system in which the primary goal of tort law is to increase public safety by deterring dangerous conduct but imposing a duty to protect third parties against second hand a specified suppose or would not achieve any safety benefits imposing the proposed duty now fifty years after the conduct at issue could not possibly alter c s xs the store conduct or that of any other employer there is quite literally nothing that c s x or any employer could do now to retroactively conform its past behavior to the new duty that plaintiff sees and imposing a new duty now would also have no future safety benefits osha has strictly regulated the use of t court recognized that it is quote unlikely that an overall safety incentive could result by imposing liability forty years after the underside of all occurred and long after the offending product was removed from the market now realizing that the imposition of a new duty would not actually protect anyone against second hand exposure to specify this plaintiff offers to alternative justifications the need to compensate victims and the need to protect against exposure to substances other than  necessary for us to have this new duty and plaintiffs are used then well this case is not really about a status but about dangerous substances generally yet with the exception of the doe case in maryland which involved hiv and it which the court held there was no duty we were not aware of any case in any jurisdiction involving any substance other than a specialist where a second hand exposure claim has been alleged or recognized this is not a coincidence plaintiff's have brought second exposure name scores of defendants rather than enhance safety by altering employers conduct imposing the duty that plaintiff proposes would merely expand liability and unnecessarily enable plaintiffs to coerce settlements from peripheral defendants such as see a sex who almost certainly bear little or no responsibility for the injury of plaintiff alleges the fifth district erred in placing undue emphasis on foreseeability ignoring this cour i explained earlier it did not look to the risk of injury merely as to whether a slightly foreseeable that the specifiers might be brought home but is that that's just not the relevant question the question is whether it was recently forseeable that injury would result but this district on the record now i understand that when this court granted c s s is motion to leave to appeal is likely wanting to decide the issue generally is a matter of illinois law not the new sufficiency just particular complaint but the in adequacy of the complaint is indicative of the  asking this court to adopt a new duty we are not asking this court to adopt a novel tutti we do not consider mrs simpkins to be a third party she was exposed exposed i don't think it would be any question that there would be a duty oh donalson versa see i p s at this court decided where that case dealt with breach of duty not whether there was a duty duty was a given in that case where when they were doing their environmental cleanup it got in the air and exposed children in that area to known carcinogens adams another case we cite where people's gas was held responsible because got out from where there was a connector and exposed people they were being held liable in terms of a duty because they were in the best position to control it that's what this case is about the predecessor of the railroad when he was working there between one nine hundred fifty eight nine hundred fifty four had a choice use a specified products and if you do use them control their release they are allowed this to be released from the premises so it got out into the world the medium for that release was mr simpkins this is not a case in kirk this is not a case like in the simmons case that this court dealt with last term where you're talking about a third party's negligent conduct causing an injury and whether or not there's some special relationship you needed can marshall vs burger king to establish a duty this is a case where the carrier the mechanism by which that especially since was released was mr simpkins now so i'm yes but from reading the briefs i thought we were i thought the focus was on that mrs simpkins was a family member of yes to some things and it seemed to me that the focus was on the danger to the family you seem to be is  good point the fifth district narrowed it to just missing and then also left open the possibility of family members it and that's all we need to a farm but the defendant is raising the possibility that this is going to be a duty to the world and that the number of plaintiffs are in to terminate it and that is just not true what we're talking about here is a situation where someone comes into contact with this best as as this court requires and backer on a regular basis their proximately close to it and they're frequently exposed to it that's what would have to be proved but we welcome that opportunity to prove those facts it's just tice pointed out we haven't even gotten past the pleading stage we haven't been given the opportunity to prove whether or not it was reasonably hundred sixty four for them to imagine that this injury could have occurred to family members if there had been a half a directly across the street and they went in there on a regular basis and they had the clothing and this person was there every day could that create a duty possibly but in this case it was limited to mrs simpkins and possible other family members and if you look at the duty that grappled with and i know when marshall versus burger king a point that was made by this court in that case was we are not talking yet about reach again the only issue that was context you're absolutely right that was irrelevant and the fifth district noted that we haven't had the opportunity to show yet whether it's reasonably forseeable in the homes case which is a fourth district case that involved  articles saying that was wasn't known that by the way i happen to agree with the dissent in that case just an actor who said the literature in the thirty's was replete with information that dealt with exposure of family members when workers were coming home with pesticides with lead with all sorts of hazardous substances and what i think defines this issue which the defendant wants to avoid by talking about proximate caus talking about breach of perceived billiam breach of duty is the fact that as best as is a hazardous material i don't think there's any question about it when you're dealing with a hazardous material you take on a responsibility to make sure it doesn't affect others in fact i thought the defendants put it very well in their brief when they were saying this court has steadfastly refused to say there is a duty unless the parties stood in such a relationship where one party is obligated to conform to a certain standard of conduct for the benefit of the other and we submit that that standard of conduct is and has been recognized by this court repeatedly when you're dealing with a hazardous substance you have a responsibility to make sure it doesn't get released you mention studies that have been in the or or reports that have been made are you equating reports of positions taken by experts in this this feeling  take precautions such as having them change their clothes shower isolate contain and that's a responsibility and this best is just fits in all that you are saying that sixty four sixty five is not the date we should look at opportunity to do that we will present a full record we have not had that opportunity to prove that prior to nine hundred sixty four it was well known that these hazardous substances can cause lethal consequences to people that come in contact with them right now we're talking about do we have a duty and is this court has said repeatedly an iceberg versus rose and marshall versus burger king in dallas and versus e i t s there is a duty to protect people from known hazardous substances when you are in control and who is the best person to control the release counsel just talked about all these manufactures these seventy people that were maimed and said we were just a small part of why i paid to differ who said this is a to six fifteen it seems to me that's where we should start in regard and the duty is described in the complaint is this defendant had a duty to use ordinary care to see that the premises which plans family member  present were in a reasonably safe condition for use by the plan is family member and using ordinary care for the safety of the planet in the plainest family member in conducting any operations or activities on said illinois the second district case in the nelson case the only issue before them was whether or not there was a duty by a promise owner to a third party who was off the premises other cases the georgia case dealt with whether or not there was liability to a third party not an employee that's the way the question was framed the way we are framing the question the way we did below was that there was a duty to protect anyone that might come in contact with that hazardous substance whether it be through workers whether it be through a failure to warn it's a duty to contain it not release it if we were simply describing the circumstances under which this duty was breached it was on the premises they didn't handle the material safely because they allowed it to be released so we have to read between the lines of this paragraph three i wouldn't say read between the lines i think if you go on in the complaint we say specifically that they breached their duty by failing to provide either safeguard so it didn't leave the premises or secondly that they failed to warn this is not a premises liability case we're bringing that under ordinary negligence concept which by the way is what the fifth district said the fifth district said we're dealing here with ordinary negligent handsets of where someone takes on the responsibility of using the hazardous substance in fails to contain it and actually harm somebody else we are not i think what the defendants are trying to do here is put this in a box they're trying to say well there's no duty the promises he's there's no duty it's an employer employee case there's no duty because it's a third party case it's this court dealt with and ted her and her and others she's not a third party she was directly harmed the box that we want to fit in is the box of a driver driving down the street who hits an innocent at best ram was there a special relationship no was there preexisting relationship no they even know that person he had no but he had a duty to refrain from hitting someone due to his negligence that is a situation that we have here and this court has repeatedly found that one party stand in relationship to one another where someone has an obligation quoting again from their brief to conform their standard of conduct to a certain form so someone else is not our that's what we're dealing with here mrs simpson's is not we're not seeking a to rivet eve duty based upon her husband's employment status we are not seeking a derivative duty based upon transfer of negligence we are seeking a direct duty to her to make sure that we are using a hazardous substance does not get release it does not escape in the hands in the dolls in case the question of duty was not even chalons the defendant accepted that when they were involved in an environmental cleanup and something the scapes if they're responsible but then they allege we didn't reach our duty because we did what was necessary to protect that from happening even though the court ultimately saw it the other way we are dealing here plain and simple with a duty and then once you establish the fact that there is this relationship with this victim in this case product on their clothing is going to come in contact with people and then you decide whether or not there's a breach of that perceivably that's another issue likelihood of injury is or any question here in looking at that duty question that the injury here is serious is there any question that exposure to this bastard's is serious magnitude of the burden to protect against this what imposition are we imposing  this person who's using hazardous substance we're not saying they have to follow people outside of the plant to make sure they don't get on an airplane we're not saying that they don't have fallen so they don't go to the local legion hall expose others what we're saying is contain it while it's there in your premises make them change clothes make them shower because that's how you contain it so there be no exposure to anyone let alone the entire world if it doesn't leave the premises you don't have to even get into the issue of these indeterminate number of lateness bats the bird the consequences  this court looks at this court would be putting the responsibility on the party that control they release of that hazardous substance that's the consequence if you say there is no duty then what you are saying is there's no consequence if you fail to prevent the spread of the release  do not believe that that's what this court would want to do and send the message that there are no consequences they've already said it's not a significant or because they say well we don't use a spe defendant at the time that the activity occurred so if this means there's going to be a few more cases and by the way this is second hand exposure and i would like this  liability and other than the holmes case was decided by the fourth district after they've been a complete trial there's no other case that i'm aware of that is had to deal with with this issue but again i think this mr eaton says that you simkins is not a third party and they're not relying on the transferred negligence theory however in the circuit court and again in the fifth district that was their primary emphasis mr eaton says well as we see here scores of defendants are named and that difference leads to a series of policy considerations that lead to a different result than a large number of defendants possibly liable counsel very very steadfastly refuses to use the word specialist and talks about toxins and dangerous substances but this isn't this that's this case in donaldson there were two defendants the owner of the premises and the contractor who did the cleanup on the premise that fact leads to different policy considerations and lead to a should lead to a different result here now this isn't  this court said there's no special laws as best as cases that's certainly true but it is the application of generally applicable illinois tort law that leads to the conclusion that there is no duty here the touchstone of duty analysis is the party's relationship plaintiff has conceded that ms simpkins had no direct relationship to c s s and was linked only through an intermediary the forethought policy factors that should be considered when evaluating whether a given relationship is sufficient to support a duty also leads conclusion that no duty is posed here as reflected in curve with lau ski and pelham intemperate this quote is rightly been reluctant to recognize that you do  third parties especially when the policy considerations mean the other way so here if you look at those policy considerations the injury was not foreseeable at the relevant time yes the fact that it just might be transferred home was perhaps forseeable but that does not mean that the risk of injury was foreseeable second imposing the duty now simply would not protect anyone against second and assess exposure they can't change what happened fifty years ago dissents suggestion that litigation burden should be ignored and recognized that is in fact a relevant policy consideration when considering the implications for the court system and what madison county courts will have to do surely the amount of litigation and the need to separate the wheat from the chaff is a significant consideration that should be taken into account when deciding whether there is or is not a burden and finally the extraordinary the consequences of placing the burden on employers the settlement dynamic is real and deleterious and that is what separates this from the desk green case or the environment the neighborhood pollution case where you have one readily identifiable defendant here when you have multiple defendants there's a much much greater pressure on the individual defendant to settle because the difference between what they would have to pay on settlement and what they would pay if held liable at trial is far far greater than when you only have one defendant involved if you have one how is that a legal factor on the sufficiency of this complaint it's a legal factor because when considering whether the court will recognize a duty in a particular instance one looks at the policy at it looks at the artes relationship and also policy considerations and if one can see that recognizing a duty would have terribly deleterious consequences for the tort system if it would divorce liability from culpability that's a relevant consideration in determining whether this duty should be recognized in the state again i point back to smith this court at the time was not considering duty of considering market share liability but nonetheless realized that any tort regime that divorces liability from culpability is a bad tort cian and should be avoided in that case this court decided not to adopt the market share liability doctrine for that reason and i suggest the very