U.S. District Court for the Eastern District of Louisiana, May 8, 2020
The plaintiff, Jesse Hernandez, alleged he was exposed to asbestos from, among other things, working at a family grocery store and deli from 1957 to 1966. Specifically, Mr. Hernandez alleged that plant workers from a nearby Allied Chemical plant came into the grocery store and deli for lunch with asbestos on their clothing, and he frequently had to clean surfaces where they ate lunch. Defendant Honeywell International, Inc. sued as the successor to Allied Chemical and moved to dismiss the complaint on the grounds it did not have a duty to protect third parties, like Mr. Hernandez, from asbestos that may have been on its employees’ clothing.
Honeywell’s motion argued that the instant case was distinguishable from the Louisiana Fourth Circuit Court of Appeals case of Zimko v. American Cyanamid, which held that a premises owner owes a duty to third parties who contract asbestos-related diseases from household exposures. 905 So.2d 465, 483 (La. App. 4th Cir. 2005). Honeywell argued that here, Mr. Hernandez was not a household member of an Allied Chemical employee, but rather a convenience store worker who periodically came into contact with plant workers during their lunch breaks. Honeywell argued that the relationships between store clerks and unidentified plant workers was “too incidental, sporadic, or transitory to impose a duty of care.”
The court, however, rejected Honeywell’s arguments, finding that it was “plausible that Honeywell owed a duty to Mr. Hernandez.” As the plaintiff’s claims against Honeywell sounded in negligence, the court, citing Zimko, opined that the “resolution of a negligence case based on a finding that a defendant has ‘no duty’ should be reserved for the exceptional situation in which there is a ‘rule of law of enough breadth and clarity to permit the trial judge…to dismiss the complaint or award summary judgment for defendant on the basis of the rile.’” 905 So.2d at 483. The court found that there was no Louisiana precedent to indicate that this case presented one of those exceptional situations where no duty should be found, and Honeywell’s attempt to portray Zimko as limiting the class of plaintiffs to only an employee’s household members was erroneous. Because Mr. Hernandez had established that the damage was foreseeable and that the danger from asbestos dust on the Honeywell’s employees’ clothing was probable, he had established enough facts to support a claim for negligence. As such, Honeywell’s motion to dismiss the complaint was denied. Citing Louisiana Supreme Court and Fifth Circuit precedent, the court noted that while the law does not endeavor to protect every potential plaintiff from every potential risk, a plaintiff’s burden on a motion to dismiss is minimal, in that the plaintiff must only prove a plausible set of facts to support her claims.