Defending Take-Home Exposure Cases Duty in the Context of Premises and Employer Liability
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1 Defending Take-Home Exposure Cases Duty in the Context of Premises and Employer Liability Presented by Deborah K. St. Lawrence Thompson, Counsel Miles & Stockbridge, P.C. Baltimore, Maryland September 16, 2010 September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 1
2 Household Exposure Cases Take Home Household Bystander Second-Hand Secondary September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 2
3 Who Are the Bystanders? The most common occupation of those now contracting mesothelioma is the housewife An increasing number of plaintiffs are the children of those who worked with asbestos Their grandchildren are also increasingly common plaintiffs. (See Price case (2006), Farrar case (2009)) September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 3
4 Do Employers Owe a Duty to Employees Families? A majority of jurisdictions have held that claimants who never set foot on the premises of asbestos manufacturing plant cannot bring premises liability claims. See R.I. Toxic Tort and Environmental Law Newsletter, Winter September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 4
5 State by State: Courts Look at Employers Duty to Take Home Claimants September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 5
6 Courts Are Split on Employers Duty to Plaintiffs Claiming Take-Home Exposure September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 6
7 Employer Liability NO DUTY JURISDICTIONS Delaware Riedel v. ICI Americas, Inc., 2009 WL (Mar. 4, 2009) Kentucky Michigan Ohio Texas* Martin v. Cincinnati Gas & Elec. Co., et al., 2009 WL (6th Cir. 2009) In re Certified Question from 14 th Dist. Ct of App. of Texas, (Miller, et al., v. Ford Motor Co.), 740 N.W.2d 206 (July 2007) Boley, et al. v. Goodyear & Co., 8 th Dist. No (Ohio 2009) Exxon Mobil Corp. v. Altimore, No CV, 2007 WL (April 19, 2007) (leaving open the possibility, without expressly deciding, that an employer/premises owner would have had knowledge after 1972) Washington Rochon v. Saberhagen Holdings, Inc., 140 Wash.App (Wash. Ct. App., Div ) September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 7
8 Employer Liability DUTY JURISDICTIONS California Illinois* Louisiana New Jersey Tennessee September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 8
9 Riedel v. ICI Americas, Inc. 968 A.2d 17 (Del. Super. 2009) Wife alleged defendant Employer was negligent in failing to warn OR prevent Employee from bringing home asbestos fibers on work clothes during his employment from DELAWARE Supreme Court affirmed summary judgment in favor of Employer holding where allegations are based upon purported failure to act, Employer cannot be held liable absent the existence of a special relationship between claimant and Employer Court explicitly declined to adopt any section of the Rest. 3d of Torts Foreseeability is not the only factor September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 9
10 Simpkins v. CSX Corp., et al. 5th App. Dist. Ill. No WL (June 10, 2010) Claim filed by wife of Employee against Employer Circuit court dismissed claim ILLINOIS Appellate court found Employer owed a duty of care to family members of Employee because under Illinois law, the existence of a duty depends on whether the parties stand in such a relationship to each other that the law imposes upon the defendant an obligation to act in a reasonable manner for the benefit of the plaintiff. September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 10
11 Simpkins v. CSX Corp., et al. 5th App. Dist. Ill. No WL (June 10, 2010) Appellate court considered 4 factors: Foreseeability of harm; Likelihood of injury; Magnitude of burden on Defendant; and Consequences of placing such burden on Defendant While we do not expressly limit the duty to immediate family members, we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure. September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 11
12 Premises Liability NO DUTY JURISDICTIONS Delaware Riedel v. ICI Americas, Inc., 2009 WL (Mar. 4, 2009) Georgia CSX Transp., Inc. v. Williams, 608 S.E.2d 208 (Ga. Jan. 2005) Illinois Nelson v. Aurora Equipment Co., 2009 WL (May 29, 2009) Iowa Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689 (Nov. 13, 2009) Kentucky Martin v. Cincinnati Gas & Elec. Co., et al., 2009 WL (6th Cir. 2009) Maryland Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. App. 1998) New York Holdampf v. A C & S, et al., 840 N.E.2d 115 (N.Y. 2005) Ohio Adams v. Goodyear Tire & Rubber Co., 233 Oh. St. 3d (8th Dist. 2009) Texas* Washington Exxon Mobil Corp. v. Altimore, No CV, 2007 WL (April 19, 2007) Rochon v. Saberhagen Holdings, Inc., 140 Wash.App (Wash. Ct. App., Div ) September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 12
13 Premises Liability DUTY JURISDICTIONS California Louisiana September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 13
14 Adams v. Owens-Illinois, Inc. 705 A.2d 58 (Md. Ct. App. 1998) MARYLAND Court of Appeals held that there is no duty of care to a wife who was exposed to asbestos that her husband allegedly brought home on his clothing Wife never set foot on premises and had no relationship to or with premises owner, as such wife was a mere stranger Holding otherwise would impose a broad duty that would necessarily extend to other strangers who similarly had no relationship with premises owner, such as those sharing a ride to work or other relatives of Employee September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 14
15 Adams v. Owens-Illinois, Inc. 705 A.2d 58 (Md. Ct. App. 1998) BUT Court noted under same facts, outcome would have been different in a strict liability action, because [w]ith regard to strict liability, if a product is defective when sold by a manufacturer... and if the product reaches the plaintiff without substantial change, middlemen or other intermediate sellers of the defective product are strictly liable to the plaintiff, just as the manufacturer is liable to the plaintiff. September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 15
16 Olivo v. Owens-Illinois, Inc. 895 A.2d 1143 (N.J. Apr. 2006) NEW JERSEY Supreme Court upheld reversal of summary judgment in favor of premises owner due to foreseeability that asbestos might be carried home on the clothing of one working in vicinity of it Court held the risk reasonably to be perceived defines the duty to be obeyed. Court weighed the following factors after determining that risk was foreseeable: Relationship of parties; Nature of risk; Opportunity and ability to exercise care; and The public interest September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 16
17 Factors to Consider Type of Claim Asserted Premises Liability Negligence Strict Liability Foreseeability Who knew what and when? September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 17
18 Manufacturers Liability Depending on the cause of action, the relationship of the parties could be significant. In the context of product liability actions against manufacturers, for example, a strict liability claim will render the relationship irrelevant, because a strict liability claim sounds in tort, and no privity of contract is required. September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 18
19 Discovery Alleged Exposure Period Has Jurisdiction Established a Date for Notice? Government Contract Involved? September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 19
20 Special Challenges at Trial Nature of Plaintiffs Innocent Victims Spouses (usually women) Children Grandchildren Completely unaware of risk of asbestos OR risk of exposure Plaintiffs tend to be younger than past plaintiffs September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 20
21 Special Challenges at Trial Alternative Exposure Difficult to ascertain No employment history suggesting exposure Little or no alternative environmental exposure Usually chrysotile exposure, if any Type of mesothelioma - pleural vs. peritoneal September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 21
22 Special Challenges at Trial Employee Accountability is Difficult Juries disregard Employee s contributory negligence or comparative fault September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 22
23 Special Challenges at Trial Industrial Hygiene Ascertaining Quantity and Dose of exposure is difficult Ascertaining exposure level of Employee is difficult Entrainment September 16, 2010 Defending ʺTake Homeʺ Exposure Cases, HB Asbestos Teleconference, Presented by Deborah K. St. Lawrence Thompson 23
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