Foreseeability of Injury Nor a Special Relationship Existed to Create a Duty in Secondary Exposure Case Supreme Court of North Dakota, January 14, 2016

The plaintiff contracted mesothelioma and sued various defendants for asbestos exposure allegedly sustained as a child. Kuettel performed industrial and commercial insulation contracting work;  the plaintiff’s father worked for Kuettel from 1961-65 and again from 1974-79. Kuettel moved for summary judgment, arguing it had no duty to warn the plaintiff because there was no special relationship between it and the plaintiff, and because it did not manufacture any of the asbestos-containing products it supplied and installed.  The district court granted the motion because there was no special relationship between the plaintiff and Kuettel. The supreme court affirmed.

The plaintiff argued the court erred in granting the motion because it should have focused on the foreseeability of injury in its analysis of whether Kuettel owed a duty to the plaintiff. In deciding whether a duty was owed to a plaintiff in a secondary exposure case, courts focus on either the foreseeability of injury or the nature of the relationship between the parties.  The plaintiff cited numerous cases holding a duty was owed to the plaintiff on the basis of foreseeability, which depended upon the employer’s knowledge of the risk that employees could carry asbestos home to cause injury to others. “Here, regardless of whether the focus is on foreseeability of injury, relationship of the parties or a combination of both, Palmer has not raised any genuine issues of material fact that would preclude summary judgment. The evidence submitted by Palmer fails to establish a special relationship between Kuettel and Palmer or Kuettel’s knowledge of the dangers of asbestos while Palmer’s father was employed by Kuettel.”

Read the full decision here.

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