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Geotechnical News • June 2012
ASFE NEWS
misconduct. Rule 30(b)(6) testimony
can be used as evidence, but not a
judicial admission that ultimately
decides an issue, and the court will
not hold Plaintiff as absolutely bound
to the designee’s recollection. The
court will consider Davis’s statements
in support of Defendant’s motion for
summary judgment, but allow Plaintiff
to rebut those statements with compe-
tent evidence.”
The court then ordered that its ruling
would be “reserved on whether a
genuine issue of material fact exists as
to wanton and willful negligence on
Defendant’s part. If it is shown that a
genuine issue of material is present,
the damages limitation clause is void,
pursuant to Illinois law, and the case
may continue. If no genuine issue of
material fact exists, the limitations
clause applies, limiting damages to
$6,100, and this court will be deprived
of subject matter jurisdiction.”
Cat Iron filed its supplemental brief
on October 7, 2011. According to
court records, “Plaintiff included the
following facts to support the will-
ful and wanton negligence claim: (1)
Defendant failed to identify all ACMs
located at the Intermet Facility; (2)
some of the ACMs that were not iden-
tified by Defendant were easily identi-
fied by Stowers after he arrived at the
facility to begin asbestos remediation;
(3) the areas of asbestos found by
Stowers, which included exterior walls
and accessible rooftops, were large,
visible and accessible; and (4) after
Stowers pointed out what the ACMs
looked like to Davis, Davis was per-
sonally able to identify similar ACMs
at the Facility.” Additionally, Stow-
ers in his affidavit commented, “For
an experienced inspector to miss this
many square fee of visible and acces-
sible ACMs was either intentional or
the inspector acted with incompetence,
or with an extreme departure from
the applicable standards. Richard
Evey, the inspector from Bodine, told
me he could not believe they missed
this much. He admitted that Bodine
screwed up.”
Bodine filed its reply on October 14,
2011, arguing that Stowers’ opinions
were not evidence, and that the actual,
admissible evidence fell far short of
establishing that Bodine acted in a
willful and wanton manner.
In deciding the matter, the court
explained that two types of willful
and wanton conduct exist in Illinois
– intentional or reckless – and that
the two “are distinguishable based
on the mental state of the defendant.”
Intentional willful and wanton conduct
occurs when the defendant’s action or
omission is committed with an actual
intent to harm. Reckless willful and
wanton conduct is committed with
“utter indifference” to or “conscious
disregard” for the property or safety
of others. Additionally, Illinois case
law indicates a defendant’s failure to
follow the standard of care is enough
for a fact-finder to find the defendant’s
conduct willful and wanton. In that
case, however, allegations must be
supported by admissible evidence –
such as that provided by an expert
– that the defended failed to adhere to
the standard of care.
The only really damning “evidence”
that Cat Iron could provide was Stow-
ers’. But, said the court, “Stowers is
not an expert, and even if he was, he
failed to provide sufficient explanation
of how he arrived at his opinion that
Defendant acted intentionally, incom-
petently, or with an extreme departure
from applicable standards. Stowers
did not explain what standards he was
referring to and certainly did not list
the specific standards that the Defen-
dant failed to follow. Therefore, Stow-
ers’ opinion will not be considered by
this court, because it is an inadmis-
sible, speculative opinion provided by
a fact witness.”
The court went on: “In this case, it
is clear that the Plaintiff has failed
to offer any admissible evidence
supporting a finding that Defendant
was either intentionally or recklessly
willfully and wantonly negligent….
Although it is true that a departure
from the applicable standard of care is
sufficient for a fact-finder to find that
the defendant’s conduct is willful and
wanton, Plaintiff offered no admis-
sible evidence which either established
the applicable standard of care or…
that demonstrates that Defendant was
careless or reckless in preparing its
report. Therefore,…. summary judg-
ment is granted in part with regards to
Plaintiff’s claim based on willful and
wanton negligence” meaning the LoL
“remains valid and operates to limit
the available damages in this case to
$6,080. Although the amount in con-
troversy at this point of the litigation
fails to exceed $75,000, as required for
federal diversity jurisdiction, this court
disagrees with the Defendant that dis-
missal of this case is now mandated.”
And then it went on to rule.
“After granting partial summary
judgment in favor of the Defendant
on the willful and wanton negligence
claim, the Plaintiff’s remaining claims
are as follows: (1) breach of contract;
(2) breach of express warranty; (3)
ordinary negligence; and (4) negli-
gence misrepresentation. However, as
determined by this court, any damages
that Plaintiff may recover on these
four remaining claims will be limited
to a combined total of $6,080 – the
fees charged by the Defendant for the
services performed at the Intermet
Facility – because of the impact of the
limitation of liability clause contained
in the contract entered into between
the parties.”
Observations/speculations by the
editor (who is not an attorney)
• The plaintiff did not suffer any
real damages that we’re aware
of. Bodine may have performed
poorly, but the cost to remove
the asbestos would have been the
same even if Bodine had found
every scrap. This seems to be a
classic case of a plaintiff equat-
ing disappointment (having to pay
