Lack of Evidence Against Premise Defendants Leads to Grant of Summary Judgment in Mesothelioma Case United States District Court, M.D. North Carolina, March 11, 2019
NORTH CAROLINA — The plaintiff filed suit against multiple defendants including Farmers Chemical and Storage (Farmers) and Schlage alleging he developed mesothelioma from his occupational exposure to asbestos. Specifically, he claimed he was exposed to asbestos while working as a plumber and pipefitter from 1965-1982 for the local union. Farmers and Schlage moved for summary judgment.
The court began its analysis and stated that summary judgment is warranted “the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Farmers argued that it was entitled to summary judgment because it did not control the plaintiff’s worksite at the Farmers Chemical Plant in Tunis, North Carolina. Instead, DM Weatherly Company was in charge according to the defendant. The plaintiff opposed by taking the position that he was exposed at the Famers Chemical Site and that Farmers had failed to show it was not in control of that site. The court noted that the plaintiff’s argument misplaced his own burden. Relying on the Cray matter, the court stated that the burden shifts once the absence of evidence is established. Specifically, in a negligence case for premise liability the plaintiff is required to show control over where the injured party worked. Here, the plaintiff failed to show Farmers had such control. Consequently, judgment was appropriate for Farmers.
Schlage also moved for summary judgment claiming the plaintiff lacked evidence against it. First, Schlage argued that the plaintiff lacked evidence showing that the plaintiff was exposed to asbestos during the construction of the Schlage lock facility near Rocky Mount, NC. The plaintiff countered and stated that he previously testified as to breathing dust from cut pipe insulation while working at the Schlage facility. However, the court noted that is not enough under the Lohrmann standard to satisfy the specific product exposure test. Accordingly, the plaintiff failed to submit any evidence that would permit a jury to find the plaintiff satisfied his burden. Moreover, the record was absent evidence showing that Schlage controlled the worksite. Accordingly, Schlage’s motion for summary judgment was granted.