Premises Defendants Liable for Take-Home Asbestos Exposure

Supreme Court of Utah, August 5, 2021

Larry Boynton brought this suit on behalf of his deceased wife, Barbara Boynton, alleging that her indirect exposure to asbestos from Larry’s job sites in the 1960s and 1970s, through asbestos dust left in the family car and Barbara’s laundering of Larry’s work clothes, caused her mesothelioma and resulting death. The three job site operator defendants each moved for summary judgment, arguing that they did not owe a duty of care to Barbara. The district court denied the motion of defendant Kennecott Utah Copper, LLC, finding that there were remaining issues of fact regarding whether Kennecott owed a legal duty to Barbara because Larry Boynton alleged affirmative acts exposing him to asbestos. However, the district court granted the motions of defendants PacifiCorp and ConocoPhillips, finding that these premises defendants did not engage in any misfeasance that would have created a duty to Barbara, and that these defendants did not interfere with the work of their general contractors.

PacifiCorp argued that it did not retain control over Jelco-Jacobson, a general contractor that constructed a PacifiCorp plant, and that it therefore did not assume Jelco-Jacobsen’s liability under the common law rule that parties are not liable for the acts of their independent contractors.

The appellate court reviewed the standard for summary judgment and the Utah standard for establishing a duty of care, and examined the record in the light most favorable to the nonmoving party. Before the court was the question of whether premises operators owe a duty to employees’ co-habitants for “take-home exposure” to asbestos, and the court considered decisions from other jurisdictions on this subject. Such decisions are split, depending on whether the deciding court focused on the relationship between the parties or the foreseeability of injury.

Utah courts have not established that a duty exists for premises operators to exercise reasonable care with respect to take-home exposure to asbestos. The appellate court therefore first considered whether a duty of care exists for that category of cases and, if so, whether this case falls within the ambit of the duty of care. The court examined the distinction between acts and omissions in the context of the creation of a duty of care. For the purposes of determining whether a duty of care exists in take-home exposure cases, the court concluded that premises operators act affirmatively whenever they have “launched [the] instrument of harm” by directing, requiring, or otherwise causing workers to come in contact with asbestos. Specifically, the court held that a premises operator will have engaged in ‘misfeasance’ at least when they (1) instruct workers to handle asbestos, (2) have nearby workers handle asbestos, (3) place asbestos on the premises, (4) send employees to a workspace containing asbestos, or (5) purchase a workspace containing asbestos and invite workers onto it.

Given that, the court found that the plaintiff sufficiently established misfeasance on the part of Kennecott and Conoco that triggered a duty of care. These job site operators allegedly directed Larry and/or nearby employees to handle asbestos, and therefore affirmatively “launched the instrument of harm” by exposing Larry to asbestos dust. Further, the court considered the question of foreseeability, and determined that there were circumstances in which premises operators would foresee injury from take-home exposure to asbestos during the relevant time period. The court next considered which party in this category of cases in best situated to take reasonable precautions to avoid injury, and noted that premises operators typically have greater control of workplace activities than employees. Finally, the court took into account public policy concerns regarding indeterminate classes of plaintiffs, but ultimately rejected the argument that such concerns justify rejecting a duty of job site operators to prevent take-home exposure.

Because Kennecott and Conoco took affirmative acts that introduced asbestos into the workplace, acts that created a foreseeable risk of harm to the co-habitants of a worker exposed to asbestos dust, these job site operator defendants owed a duty of care to the worker’s wife to prevent her take-home exposure to asbestos. The court therefore affirmed the district court’s denial of Kennecott’s motion for summary judgment and reversed the district court’s grant of summary judgment for Conoco.

With respect to PacifiCorp, the court examined the contract with Jelco-Jacobsen and considered the plaintiff’s argument that PacifiCorp retained control over Jelco-Jacobsen and therefore assumed its liability. Utah follows the traditional common-law rule that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322 (quoting Restatement (Second) of Torts § 409 (1965)). “This general rule recognizes that one who hires an independent contractor and does not participate in or control the manner in which the contractor’s work is performed owes no duty of care concerning the safety of the manner or method of performance implemented.” Id.

The plaintiff maintains that an exception to this rule applies, because PacifiCorp retained control by virtue of its contractual obligations with Jelco-Jacobsen. While the court assumed in Thompson that a party would usually “retain control” by actually exercising control, we left for another day the question now before the court: whether retained control might also exist in a contract that stipulates which party will control the manner or method of work or the safety measures to be taken, such as in contracts between general contractors and subcontractors involved in construction projects.

The appellate court thereby held that contractual provisions may create sufficient control for a contracting party to retain control over the other party. Taking the record in light of the nonmoving party, the court therefore held that the premises operator retained control over its contractor. Through the contract, PacifiCorp required Jelco-Jacobsen to use asbestos materials, specified how Jelco-Jacobsen must handle the asbestos materials, and took responsibility for a dust removal program. Because those contractual provisions are enough to show that PacifiCorp retained some control over Jelco-Jacobsen, there is a genuine issue of fact about whether PacifiCorp actively participated in the relevant work of its contractor, Jelco-Jacobsen, and whether that retained control was the injury-causing activity in this case. As such, the court reversed the district court’s grant of summary judgment for PacifiCorp and remanded for further proceedings.

Read the full decision here.