Failure to Warn: To Whom and How Does it Apply?

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As we have seen nationwide, plaintiffs assert claims against various types of defendants in asbestos litigation, including product manufacturers, suppliers, and premises owners. Even further, some of the product manufacturers may or may not have actually manufactured asbestos-containing products, whereas others’ products merely required the use of asbestos-containing component parts. Even more proliferating as to the possible types of claims, there are different standards related to the plaintiffs with direct asbestos exposure versus take-home cases, where the individual injured never worked directly with or around the asbestos-containing product at issue.

Regardless, in assessing the legitimacy of claims against a given defendant, it is critical to understand the factual circumstances for which a particular type of defendant can be held liable, and to acknowledge when such allegations do and do not apply. This article provides an overview of the application of failure to warn claims against various defendants under New York law, as well as some other decisions from other states.

 

Product Manufacturers

The progeny of cases regarding product manufacturer liability clearly establishes a duty to warn from product manufacturers to plaintiffs.  In re New York City Asbestos Litigation (Dummit)[i],), the court of appeals explicitly addressed the standards as it relates to failure to warn claims in asbestos litigation. In Dummit, the court of appeals held that:

“given that failure-to-warn cases are governed by negligence principles, it is incumbent on the court in such cases, as in any case featuring a claim of negligence, to decide whether an applicable legal duty exists. Our decisions yield the general principle that the court must decide whether there is any proof in the record that might support the recognition of a duty to warn owed by the manufacturer to the injured party.”

In the court’s assessment of the legal duty, the court considered several factors, such as the most reasonable allocation of risks, burdens and costs among the parties and within society, accounting for the economic impact of a duty, pertinent scientific information, the relationship between the parties, the identity of the person or entity best positioned to avoid the harm in question, the public policy served by the presence or absence of a duty, and the logical basis of a duty[ii].

When specifically explaining the standards for manufacturers of products, the court of appeals held that “[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known, from the product’s intended use or a reasonably foreseeable unintended use, and regarding hazards arising from foreseeable uses of the product about which the manufacturer learns after the sale of the product.”[iii]

In Dummit, the court of appeals also addressed the requirements for product manufacturers whose potential liability for its products relates to component parts used in their end-products. In its analysis, the court emphasized the manufacturers’ superior position to know of and warn against those hazards when mandating an obligation to warn of potential hazards. Additionally, the court referenced its decision in Rastelli v. Goodyear Tire & Rubber Co.,[iv], where it held that “a manufacturer’s duty to warn of combined use of its product with another product depends in part on whether the manufacturer’s product can function without the other product.”

Courts outside of New York State have taken varying approaches to the duty owed by product in manufacturers. In Bell v. Foster Wheeler Energy Corp.,[v] , the Louisiana court criticized the Dummit decision, holding that “recognizing such a duty contravene the rule that a court cannot recognize a duty based entirely on the foreseeability of the harm.”

 

Suppliers

A supplier of asbestos-containing materials must also be aware of potential claims for failure to warn. In Penn v. Amchem Products,[vi] a plaintiff was exposed to asbestos from asbestos-containing dental liners, and developed mesothelioma. The plaintiff’s dental technician school provided the plaintiff with boxes containing dental liners used to make prosthetic teeth that were manufactured by other defendants, and were distributed by a supplier. The supplier’s name appeared on all of the boxes. In ruling on the claims against the supplier and its failure to warn regarding the potential hazards, the first department held that since there was evidence that the supplier did not test or investigate the safety of its asbestos liners, the jury was permitted to conclude that the supplier failed to adequately warn the plaintiff of a potential danger it knew or should have known about.

However, courts in other states have considered issues related to the relevant state of the art in determining potential liability in failure to warn cases. Courts from other jurisdictions have held that the state of the art component to a failure to warn claim is not an affirmative defense, but rather must be proved by the plaintiff. Owens-Illinois Inc. v. Zenobia,[vii] The court explained that:

[in a] strict liability failure to warn case, the alleged defect is failure of the seller to give an adequate warning. The seller, however, need not give any warning if the requisite state of the art or knowledge does not require it. Thus, where a product lacks a warning because of insufficient knowledge on the part of the manufacturer or in the scientific field involved, the product is not defective. As defectiveness is an element to be proven by the plaintiff, the knowledge or state of the art component is not an affirmative defense.[viii]

In so holding, the Owens court relied on Prosser and Keeton’s allocation of the burden proof to the plaintiff with respect to the “state of the art.”. This approach has been followed by other jurisdictions. See, Owens-Illinois, supra; Delta Marine, Inc. v. Whaley.[ix] While the “state of the art” is sometimes referred to as a defense, it is only a defense in the sense that it negates one or more of the essential elements of a plaintiff’s case, and may thereby defeat recovery.  See Ellsworth v. Sherne Lingerie, Inc.[x]

Courts will consider other defenses from suppliers of asbestos-containing materials. As reported in July 2019 in the Asbestos Case Tracker, The U.S. District Court of Delaware ruled on the admissibility of a plaintiff’s expert regarding a component part supplier’s duty to warn. The plaintiff, Icon Henry Evans, worked as a fireman and boiler tender in the U.S. Navy from 1957 through 1967, and alleged exposure to asbestos from his work involving asbestos-containing gaskets manufactured by John Crane, Inc. The plaintiff retained an expert in marine engineering authority, to offer opinions regarding the existence of warnings related to the procurement of component parts. Specifically, the court granted John Crane’s motion to exclude the expert’s testimony, finding that the documents relied upon by the expert to demonstrate the existence of a warning requirement did not govern component parts.

 

Premises Owners

Under New York law, premises owners can be found liable for failure to warn of a dangerous condition when the property owner had notice of the condition itself as well as the unreasonable risk it created. Saland v. Village of Southampton[xi]. In Saland, the plaintiff sustained injuries after he jogged down to the surf and dove head-first into a submerged sandbar while going for a swim at a public facility owned and operated by the defendant. The plaintiffs claimed that the defendant was negligent in failing to warn of the presence of the sandbar and/or prohibit diving in the area. The court ultimately granted the defendant’s motion for summary judgment, holding that there was no duty to warn against such conditions.

In Ramos v. Baker,[xii] the court granted a defendant premises owner’s motion for summary judgment based on claims for negligent failure to warn. In Ramos, a defendant contracted with another company for two individuals to work on the defendant’s premises and split wood. While working with a wood splitting machine owned by the company, one of the workers suffered injuries to his hand. The defendant filed a motion for summary judgment regarding the plaintiff’s claims for negligent failure to warn, and the court held that the defendant established his prima facie entitlement to judgment as a matter of law by tendering evidence that he lacked actual or constructive notice of the allegedly dangerous condition presented by alleged defects in the log-splitter that the plaintiff was using when he was injured..

However, premises owners are not entirely shielded from speculative failure to warn claims. In Frieder v. Long Island R. R.,[xiii] a former diner cashier brought a premises liability claims against a railroad. Although the diner was owned by a third party, the diner operated on the premises of the railroad’s maintenance facility. In the complaint, the former alleged that he was exposed to asbestos through the dust on hundreds of railroad employee’s clothes who ate at the diner, and testified that the employees made no effort to clean the dust off their clothes prior to eating at the diner. The railroad moved for summary judgment, which was ultimately denied by the court. In denying the railroad’s motion for summary judgment, the court held that:

  1. The railroad as premises owner controlled the circumstances of the diner and was in the best position to remedy any dangerous condition
  2. The concern for limitless liability was circumscribed by the unique nature of the diner’s operation on the railroad’s premises

Jurisdictions across the country are divided on the issue of the duty to warn owed in take-home exposure case. In the 2005 New York decision Holdampf v. A.C.&S., Inc.,[xiv] the injured plaintiff’s exposure to asbestos came from laundering her husband’s clothes from 1971 to the 1990s while he worked at the Port Authority of New York. The court of appeals focused on the Port Authority’s lack of a duty of care to protect the injured plaintiff against its allegedly negligent acts because she was a beneficiary of her husband’s work-related benefits. In declining to extend the duty to warn in Holdampf, the court of appeals held that the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship, noting that the injured plaintiff and the Port Authority had no relationship.

In Campbell v. Ford Motor Co.,[xv] the California Court of Appeals held that property owners owed no duty to protect family members of workers from secondary asbestos exposure. The court noted that even if the defendant could foresee that workers on its premises could be exposed to asbestos, an injury suffered by a worker’s family member who never set foot on the premises is far more attenuated.

Not all courts are in agreement with the Holdampf and Campbell decisions. In Olivo v. Owens-Ill., Inc.,[xvi] the New Jersey Supreme Court held that the defendant land owner had a duty to an injured spouse based on the foreseeable risk of exposure to asbestos. The plaintiff worked as a steamfitter for several independent contractors at various sites in New Jersey over the course of more than 35 years, including an ExxonMobil refinery in Paulsboro, N.J. The plaintiff alleged that his deceased wife, who died of mesothelioma, was exposed to asbestos brought home on his work clothes. In ruling in favor of a duty to warn, the court held that:

“to the extent Exxon Mobil owed a duty to workers on its premises for the foreseeable risk of exposure to friable asbestos and asbestos dust, similarly, Exxon Mobil owed a duty to spouses handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos [brought] home on contaminated clothing.”

In so holding, the New Jersey Supreme Court rendered the duty owed to be derivative in nature.

Conclusion

As outlined above, the law regarding a defendant’s duty to warn in an asbestos case is dependent upon several factors, including its role in the potential exposure, the jurisdiction in which the case is venued, and the defendants’ knowledge regarding the potential hazards associated with work involving their products or at their premises. As we press into 2020, it will be very interesting to see how courts will continue to contract and expand the rules enforced against defendants in asbestos litigation.

 

[i] 27 N.Y. 3d 765, 777-78 (2016).

[ii] Id. at 788.

[iii] Id. at 788-89.

[iv] 79 N.Y. 2d 289, 293, 297-98 (1992).

[v] 2016 WL 5780104, *4 (E.D. L.A. 2016).

[vi] 2011 WL 2225961 (1st Dept. 2011).

[vii] 601 A.2d 633 (1992), citing, Prosser and Keeton, Tort sec. 99, at 697 (5th ed. 1984).

[viii] 601 A.2d. at 641 n. 8.

[ix] 813 F. Supp. 414, 418 (E.D.N.C.1993).

[x] 495 A.D.2d 348, 355-56 (1985). Which discusses the burden of proof with respect to defenses in a duty to warn case.

[xi] 242 A.D. 2d 568, 569 (2nd Dept. 1997).

[xii] 91 A.D. 3d 930, 932 (2nd Dep’t 2012).

[xiii] 966 N.Y.S.2d 835 (2014).

[xiv] (In re N.Y.C. Asbestos Litig.), 840 N.E.2d 115 (N.Y. 2005).

[xv]  141 Cal. Rptr. 3d 390, 405 (Ct. App. 2012).

[xvi] 895 A.2d 1143 (N.J. 2006).