Expansion of Employer Take-Home Asbestos Exposure Duty Reaches Nine States Supreme Court of Virginia, February 21, 2019
VIRGINIA — The State of Virginia recently expanded the potential duty to warn owed for take-home asbestos exposures in the Quisenberry case.
The plaintiff Wesley Quisenberry filed suit on behalf of his decedent mother, alleging that her exposure to asbestos while laundering her father’s clothes caused her mesothelioma. The plaintiff’s decedent’s father worked at a shipyard for 35 years, and the plaintiffs allege that asbestos dust adhered to his clothing, contaminated his car, and came home with him.
The defendant removed the case to federal court, then filed a motion to dismiss, arguing that the plaintiff’s theory relied on take home exposure liability. The Supreme Court of Virginia had not addressed the issue before, and various circuit courts in Virginia that had considered the issue declined to recognize such a duty. The defendant moved to certify the issue to the Supreme Court of Virginia, which the federal district court granted as the following question of law:
Does an employer owe a duty of care to the family member of an employee who alleges exposure to asbestos from the work clothes of the employee, where such exposure takes place off of the employer’s premises and the employer has no relationship with the family member?
The Supreme Court of Virginia accepted the question, but restated it as follows:
Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?
The court responded in the affirmative, stating that under its precedent, the only relationship which must exist for a duty to arise is a “sufficient juxtaposition of the parties in time and space to place plaintiff in danger from the defendant’s acts or place plaintiff within reach of defendant’s conduct.” The court further opined that the precedent “does not require actual interaction between the parties.”
The court noted that the defendant was not necessarily responsible in the instant matter for “creating a dangerous condition in the home” because that is a question of proof, not duty.
Presently, there are nine states that recognize that a duty is owed in take-home exposure based on the concept of foreseeability: Alabama, California, Delaware, Indiana, Louisiana, New Jersey, Tennessee, Virginia, and Washington. As previously reported in the Asbestos Case Tracker Blog, Delaware also recently recognized the duty.
Stay tuned for a potential influx of take-home cases in Virginia and Delaware.