Summary Judgment Granted to Premises Owner Because Asbestos Not Inherent on the Premise Superior Court of Delaware, August 30, 2017

Plaintiff Sandra Kivell alleged her husband developed and died from mesothelioma due to his asbestos exposure as a union pipefitter and welder.  Defendant Union Carbide moved for summary judgment, which was granted.

Union Carbide was a premises owner of a petrochemical facility in Taft, Louisiana, where decedent worked from January 1967-October 1969.  Decedent did not work for and did not receive instruction from Union Carbide, which employed third-party contractors to build process units.  Decedent testified he ran pipe and worked side by side with insulators.  Plaintiff cited to Louisiana case law with similar facts which found that the duty of reasonable care extended to employees of independent contractors.

Here, the court stated “…it seems that a key issue the court looks at in negligence actions against the premises owner under Louisiana law is whether genuine issues of material fact exist as to defendant’s knowledge of the dangers posed by asbestos at the time plaintiff was employed on the premises.”  The court found that this case was distinguishable from the cases cited by Plaintiff.  First, other case law found a distinction between hazards inherent in a defendant’s premises (for which a premises owner owes a duty) and hazards inherent in an independent contractor’s job (for which a premises owner does not owe a duty).  Here, there was nothing in the facts to infer that asbestos was inherent in Union Carbide’s premises.  Second, even if Union Carbide owed a duty, plaintiff did not present evidence that Union Carbide knew of the risks of asbestos or specified the use of asbestos in construction.

The court likewise granted summary judgment on plaintiff’s strict liability claim, because “…custody, ‘for the purposes of strict liability, does not depend upon ownership, but involves the right of supervision, direction, and control…the mere physical presence of the thing on one’s premises does not constitute custody.’”

Read the full decision here.


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