Jurisdictions Remain Split on Existence of Liability and Scope of Same in Secondary Exposure Cases

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The U.S. District Court for the Eastern District of Louisiana recently issued a decision holding that an employer or premises owner, in a negligence claim, may owe a duty of care to a plaintiff who alleges exposure to asbestos from coming into contact with that employer’s or premises owner’s employees at an offsite location. In Hernandez v. Huntington Ingalls, Inc., the plaintiff, Jesse Hernandez, alleged he was exposed to asbestos from working at a family grocery store and deli that was frequented by employees of a nearby Allied Chemical plant. 2020 U.S. Dist. LEXIS 81237 (E.D. La. May 8, 2020). Mr. Hernandez alleged that Allied Chemical employees had asbestos on their clothing when they entered the grocery store and deli for lunch, and that he had to clean the surfaces that they encountered during their visits. Id. Honeywell International, sued as the successor to Allied Chemical, moved to dismiss the plaintiff’s negligence claim on the grounds that it did not owe a duty to third parties like Mr. Hernandez, to protect them from asbestos that may have been on its employees’ clothing. Id. In a decision reported here, the court denied Honeywell’s motion to dismiss the case, finding it “plausible that Honeywell owed a duty to Mr. Hernandez.” Id. The court held that given the lower burden on the motion to dismiss, the plaintiff had established that the exposure was foreseeable and the danger from same was probable, which was all that was required. Id.

This is one of the few cases that discusses the potential extension of an employer’s or premises owner’s duty to those outside of an employee’s immediate family or household (e.g. take-home or third-party plaintiffs). This prompts a review various jurisdictions’ analyses of negligence claims against premises owners and employers in secondary exposure cases, which general hinge on a negligence inquiry, specifically as to whether a duty exists, and if so, the scope of such duty.

A handful of jurisdictions have historically held that employers and premises owners owe no duty to warn take-home plaintiffs of potential exposure to asbestos carried home on the clothing of family members. New York’s landmark case, Holdampf v. AC&S, Inc., holds that an employer’s common law duty to provide a ‘safe workplace’ has been codified in its Labor Law (N.Y. Lab. Law § 200), and that the duty is limited to employees. 840 N.E.2d 115, 120 (2005) (holding that New York does not acknowledge the duty of an employer for injuries incurred by an employee’s family member as a result of exposure from toxins carried home on the employee’s clothing). Michigan’s Supreme Court has held that the owner of property on which asbestos-containing products are located does not owe an individual “who was never on or near that property, a legal duty to protect her from exposure to any asbestos fibers carried home on the clothing of a member of her household” who was on the property. Miller v. Ford Motor Co. (In re Certified Question), 740 N.W2d 206, 222 (2007).

Arizona’s Supreme Court recently held in 2018 that an employer owes “no duty to the public regarding secondary asbestos exposure.” Quiroz v. Alcoa, Inc., 416 P.3d 824, 827 (2018). In the Quiroz case, the family of decedent Ernest V. Quiroz alleged that he was exposed to asbestos from living with his father, who worked at a Reynolds Metal Company plant. Id. The plaintiffs alleged that Reynolds had a duty to protect Mr. Quiroz from take-home exposure to asbestos. Following a discussion of special relationships and public policy, which form the basis of a duty under Arizona law, as well as how other jurisdictions have handled secondary or third-party exposure claims, the court concluded that Reynolds had no duty to protect Mr. Quiroz from take-home exposure to asbestos, as “[n]o special relationship existed between Reynolds and Quiroz, and no duty existed based on public policy.” Id. at 843 (“[o]f course, it would be ‘simpler’ if everyone owed a legal duty of care to all people at all times. Doubtless, if such a general duty existed, courts would not have to grapple with the issue of duty at all.”).

While Pennsylvania’s state courts have yet to address this issue, the U.S. District Court for the Eastern District of Pennsylvania, in the Third Circuit, has predicted that Pennsylvania law would not recognize the duty of an employer to an employee’s spouse for take-home exposure, holding that “the specter of limitless liability and the lack of a relationship” between the take-home plaintiff and the employer weigh heavily against imposing such a duty. Gillen v. Boeing, 40 F. Supp. 3d 534, 542 (E.D.Pa. 2014).

On the contrary, the U.S. District Court for the Western District of Washington, in the Ninth Circuit, concluded in Hoyt v. Lockheed Shipbuilding Co. that “while the Washington Supreme Court has not yet addressed the issue of whether an employer owes a duty to the family members of its employees to protect them from ‘take home’ exposure to asbestos,” the Washington Supreme Court would acknowledge this duty under the state common law. 2013 U.S. Dist. LEXIS 90148 (W.D. Wash. June 26, 2013).

In 2018, the Supreme Court of Delaware overruled prior precedent holding that no duty existed on the part of employers to warn of potential take-home exposure in Ramsey v. Ga. S. Univ. Advanced Dev. Ctr. In Ramsey,the court held that “a household member who regularly launders an employee’s asbestos-covered clothing…may sue her spouse’s employer for its failure to provide warnings and safe laundering instructions.” 189 A.3d 1255, 1262 (Del. 2018). However, the court acknowledged a safe harbor for employers in that “the spouse cannot recover if the employer made adequate arrangements on-site to address the harms that may result from laundering asbestos-covered clothes, or gave the employee the information needed to protect himself or others who launder his clothes.”

Other jurisdictions have recognize the duty, but limited its scope. The Supreme Court of California, for example, has recognized a limited duty extending only to household members of an employee, or persons who “live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time.” Kesner v. Superior Court, 384 P.3d 283, 298 (2016) (“By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.”). The Supreme Court of Tennessee has also recognized a duty, expanding it slightly further to only those “who regularly and repeatedly come into close contact with an employee’s contaminated work clothes over an extended period of times, regardless of whether they live in the employee’s home or are a family member.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 374 (Tenn. 2008) (“We see no reason to prevent carpool members, babysitters, or the domestic help from pursuing negligence claims against an employer should they develop mesothelioma after being repeatedly and regularly in close contact with an employee’s asbestos-contaminated work clothes over an extended period of time.”).

It is clear that jurisdictions remain split not only regarding the existence of a duty of an employer or premises owner to protect against take-home or secondary exposure, but also as to the scope of such duty, if it exists, with some jurisdictions limiting the duty to only those in an employee’s immediate family, and others extending the duty to those with some regular or repeated contact with an employee, such as a caregiver. It does not appear, however, that any jurisdiction has made a similar ruling to that of the Eastern District of Louisiana, potentially extending the duty to individuals such as Mr. Hernandez, who worked at a grocery store and deli frequented by the defendant’s employees. We will take care to follow the Hernandez matter, and any forthcoming motion for summary judgment filed by Honeywell, which, on a heightened burden following discovery, may clarify the court’s initial decision reported above.