Employer Found to Have Duty to Prevent Reasonably Foreseeable Injuries in Take-Home Exposure Case U.S. Court of Appeals for the Eleventh Circuit, April 26, 2017
Barbara Bobo was diagnosed with malignant pleural mesothelioma in 2011. Her husband, James Bobo, worked for the Tennessee Valley Authority (TVA) from 1975-1997 as a laborer and labor foreman, primarily at the Browns Ferry Nuclear Plant in Athens, Alabama. Mr. Bobo was previously diagnosed with asbestos-induced lung cancer but passed away from a heart attack in 1997. Mrs. Bobo passed away in 2013 from mesothelioma, and prior to her death, she filed a lawsuit against TVA and eight other defendants alleging “take-home” asbestos exposure, from when she washed her husband’s work clothes over the years, caused her illness.
After Mrs. Bobo passed away, the court substituted her two daughters, serving as personal representatives of the estate, as plaintiffs. The case ultimately went to trial against TVA only on a negligence claim. Following a three-day bench trial, the court held TVA liable based on three assertions: (1) Under Alabama law, TVA owed Mrs. Bobo a duty of care to prevent take-home asbestos exposure because, among other reasons, the risk of harm was reasonably foreseeable; (2) the court found that TVA breached that duty by failing to enforce mandatory safety protocols that were designed to prevent asbestos from leaving Browns Ferry; and (3) it concluded that exposure to asbestos attributable to TVA was a “substantial factor” that contributed to Mrs. Bobo’s development of mesothelioma.
The court, after considering post-trial settlements, awarded a total damages award of $3.3M. TVA challenged the district court’s judgment on multiple grounds, including that the court erred in determining that, under Alabama law, TVA had a duty to avoid exposing Mrs. Bobo to take-home exposure. The court noted in determining whether a duty exists, a number of factors should be considered including “public policy, social considerations, and foreseeability.” The key factor is whether the injury was foreseeable by the defendant. For an injury to be foreseeable, “it is not necessary to anticipate the specific injury that occurred, but only that some general injury or consequence would follow.” [Citation Omitted].
The record in this case shows that TVA allegedly knew about OSHA regulations that were adopted to protect not only workers but also their families; that the TVA knew that for health reasons it should prevent asbestos fibers from settling on employees’ clothes; and showed that the TVA had adopted policies requiring employees exposed to certain levels of asbestos to use two separate lockers in order to keep their street clothes free from asbestos but did not enforce those policies.
The Alabama Supreme Court has held that when a defendant is involved in “an affirmative act which creates the risk that unidentifiable third parties might be injured,” there is most certainly a duty to unidentifiable third parties who may be injured as a result. Therefore, TVA acted by using asbestos-containing products and it failed to act to prevent take-home asbestos exposure, and that, coupled with its knowledge of the risk of injury from the asbestos being taken home on employees’ clothes, warrants the conclusion that TVA violated its duty to prevent injury to Mrs. Bobo and others like her. [Citation Omitted].
The United States Court of Appeals for the Eleventh Circuit ultimately found, that given Alabama’s focus on foreseeability as the key to its duty analysis, its recognition of a duty in cases where a defendant creates the risk of harm through its own activities, and its consideration of public policy in determining whether a duty exists, they agreed with the district court’s ruling that TVA did have a duty not to exposure Mrs. Bobo of take-home asbestos, and it violated that duty.
Accordingly, for the part of the judgment finding TVA liable in this matter, the judgment was affirmed. Note that for reasons not discussed, the part awarding damages was vacated; and the case was remanded to the district court with instructions to revisit the portion of the damages award involving medical expenses.