June 2018

In a recent case, a Rhode Island Jury awarded $31.3 million to Brett and Stacie Smith after a 2014 swimming accident in a pond at the University of Rhode Island left Mr. Smith paralyzed from the chest down.  The jury found that the University of Rhode Island was negligent in its failure to post warning signs and to inform its guests that swimming was prohibited.

 

The Smiths were attending a wedding during the weekend of July 25, 2014, at the Whispering Pines Conference Center.  After the rehearsal dinner, several members of the wedding party decided to go swimming in Louttit Pond.  After twenty or so minutes in the water, Mr. Smith and some others swam to, and climbed atop, a large rock in the middle of the pond.  They dove off and began to swim away from the rock.  While swimming underwater, Mr. Smith struck his head on a submerged rock, causing his paralysis.

 

The case focused on whether the defendants owed Mr. Smith a duty of care.  The plaintiffs argued that a duty existed for the defendants to post warning signs indicating that swimming was not allowed or describing the potential danger.  Conversely, the defendants argued that no duty existed as Mr. Smith assumed the risk of his injuries and that the potential dangers were open and obvious.

 

At trial, the major issue primarily focused on whether it was reasonably foreseeable that individuals would swim and be injured in the subject pond.  The plaintiffs put forth evidence that the management of the property had outlawed swimming in the pond due to potentially dangerous conditions, but did not install signs that forbade swimming on the property or warned of the dangers that the pond possessed.   The plaintiffs argued that this failure constituted negligence, as it was foreseeable that: 1) people would swim in the pond; 2) the very nature of the property lent itself to swimming as it promoted access to the outdoors, specifically, the water as well as numerous outdoor activities; and 3) the pond had a dock and a canoe launching point which encouraged people to use the water.

 

The defendants asserted two main defenses: 1) Mr. Smith assumed the risk of his injuries; 2) the condition was open and obvious. In Rhode Island, assumption of the risk is an affirmative defense that absolves a defendant of liability regardless of the defendant’s own negligence.  Loffredo v. Merrimack Mutual Fire Ins. Co., 669 A.2d 1162 (R.I. 1996).  To prevail on the assumption of the risk defense, defendants need to show that a plaintiff voluntarily encountered an unreasonable risk and appreciated its unreasonable character.  Id.  In examining this subjective standard, one must look at what the particular plaintiff saw, knew, understood, and appreciated.  Id.  As for the open-and-obvious defense, a property owner in Rhode Island is not liable for injuries that a guest suffered while on an owner’s premises when that guest was engaging in an open and obvious danger. Bucki v. Hawkins, 914 A.2d 491, 496 (R.I. 2007).

 

In an attempt to establish these defenses, the defendants endeavored to elicit testimony from Mr. Smith that he was aware of the potential dangers associated with swimming in an unfamiliar body of water.  The goal was to demonstrate that he assumed the risk of his injuries, as he knew it was possible that he might strike his head on an underwater obstacle.  Additionally, the defendants argued that the dangers associated with swimming in an unknown body of water should be open and obvious to the reasonable person.  In particular, they asserted that a reasonable person is well aware of the dangers associated with diving into shallow water or with swimming in an unfamiliar body of water.

 

At the conclusion of a three-week trial, the jury rejected both defenses.  In particular, the jury found Mr. Smith did not assume the risk of his injuries as the pond was deep, the submerged rocks were not visible, and he saw other swimmers in the group safely emerge after traversing the water. For similar reasons, the jury concluded that the dangers, as described, were not open and obvious.

 

This case once again reinforces an important reminder to property owners in Rhode Island: it is imperative to warn of known dangers, no matter how unlikely they are to be encountered or how open or obvious the condition may seem to be.

 

Ramsey v. Georgia Southern University Advanced Development Center, et al., No. 305, 2017, C.A. No. N14C-01-287 ASB (Del. June 27, 2018).

 

On June 27, 2018, the Supreme Court of the State of Delaware issued a fifty-seven-page opinion in the above-mentioned case, creating new precedent for Delaware employer liability in secondary or “take-home” asbestos cases. Below is a summary of both the relevant factual and procedural background, as well as Chief Justice Strine’s opinion.

 

The plaintiff’s spouse, Robert Ramsey, worked for Haveg Industries, Inc. at its industrial plant for twenty-four years. From 1967 to 1979, Mr. Ramsey regularly handled asbestos-containing products manufactured by Georgia Southern University Advanced Development Center and Hollingsworth and Vose Company as part of his job as a maintenance worker at Haveg. Throughout this period his wife, Plaintiff, Dorothy Ramsey, washed Mr. Ramsey’s asbestos-covered clothing. Mrs. Ramsey eventually developed lung cancer, from which she subsequently died in 2015. Her estate sued the manufacturers of the asbestos products, alleging that the cancer was caused by Mrs. Ramsey’s exposure to her husband’s asbestos-riddled clothing. In granting the appellee manufacturers’ motions for summary judgment and dismissing the claims, the Delaware Superior Court relied primarily on two previous Delaware Supreme Court cases, Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009), and Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011), in which the Delaware Supreme Court held that an employer owed no duty to non-employees, including their spouses, for failure to adequately warn of the dangers of handling clothing exposed to asbestos, minus a special relationship between the employer and the non-employee, because the failure to warn was nonfeasance rather than misfeasance. Mrs. Ramsey appealed, arguing that in distinguishing an employer from a manufacturer: 1) a manufacturer of asbestos products creates the danger of asbestos-related harm and therefore commits misfeasance by failing to warn foreseeable victims; and 2) to the extent the holdings in Riedel and Price would block recovery on take-home claims against manufacturers, those holdings should be overruled. The appellant defendants argued that Riedel and Price controlled, and prevented Mrs. Ramsey from recovering from manufacturers because they are even further removed from an employer’s spouse than the employer itself. Additionally, they argued that allowing such claims would impose upon manufacturers an essentially limitless duty to warn that would be both impractical and unfair.

 

The Supreme Court acknowledged the compelling arguments on each side, but ultimately agreed with Mrs. Ramsey. First, the Court held that manufacturers owe a duty to warn to reasonably foreseeable users of their products, stating that “[b]ecause the risk of harm from take-home asbestos exposure when laundering asbestos-covered clothing is reasonably foreseeable, a plaintiff in Mrs. Ramsey’s position has a viable claim against a manufacturer . . . . Ramsey. at p. 44 of 57. However, the Court limited this duty by stating that the “sophisticated purchaser” defense would cut off a manufacturer’s liability to ultimate end users once the manufacturer has warned the employer of the risk of harm, stating that such an approach would establish “a fair and efficient accountability system . . . by limiting the duty of asbestos product manufacturers and employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. Manufacturers may discharge their duty by warning employers, and employers may discharge their duty by warning employees.” Ramsey, p. 39 of 57.

 

The Court did not end its analysis there, however, recognizing that, without “further alteration to [Delaware’s] jurisprudence, manufacturers would face liability in circumstances when employers would not.” Id. at p. 50 of 57. Thus, the Court overruled, to the extent necessary, its holdings in Riedel and Price, finding that employers commit misfeasance, rather than nonfeasance, when exposing their employees to dangerous asbestos products. The Court differentiated between the classic case of nonfeasance – a passerby failing to save a person from harm not of the passerby’s making – from employers who have created the risk of harm to both the employee and the launderer of the employee’s clothes by putting them in contact with asbestos. In such a case, the Court stated that “[o]nce an employer has engaged in misfeasance, recognized principles of tort law impose upon it a duty to ‘act reasonably, as a reasonably prudent man (or entity) would,’ which ‘encompasses protecting against reasonably foreseeable events.’”  Id. at p. 55 of 57 (citation omitted).  In other words, the Court held that a household member who claims exposure to asbestos through laundering the clothing of an employee, may sue the household member’s employer for a failure to warn, though recovery may be denied if the employer can demonstrate that it took steps to warn the employee, protect the employee and address potential harms associated with asbestos exposure.

 

While the Court clarified that “plaintiffs in cases like this will be of the most foreseeable kind: those who for many years laundered the dirty clothes of the employee with whom they shared a household,” it also acknowledged Defendants’ concern that “claims from plaintiffs with more momentary exposure to and tenuous relationship to an exposed employee [may be] filed in the future.” Id. at p. 56 of 57. The Supreme Court’s holding in Ramsey, although attempting to limit the scope of its impact, has likely opened the door to a new array of take-home asbestos claims against manufacturers and employers, which were previously unavailable under Delaware law. However, it is important to note that this holding will not affect asbestos claims filed in Delaware where the alleged asbestos exposure took place outside of the state and Delaware substantive law does not apply.

 

If you have questions regarding the Delaware Supreme Court’s opinion in Ramsey or litigation in general, we invite you to contact The MG+M Law Firm’s Wilmington, Delaware office.

MG+M obtained on June 1, 2018, an order granting summary judgment and dismissal of its client, a nationwide distributor of Asian food products in the 24th Judicial District Court for the Parish of Jefferson in the state of Louisiana. The plaintiff consumed sushi at a New Orleans area sushi restaurant and within days became violently ill, followed by 9 days of hospitalization caused by salmonella poisoning.  The Centers for Disease Control eventually traced the plaintiff’s poisoning to contaminated ground tuna that had been imported into the United States from India.  Some of the ground tuna that originated from India had been distributed by MG+M’s client to the New Orleans sushi restaurant chain.  Other defendants in the case included Little Tokyo Restaurant, and Moon Marine (settled manufacturer). Over 400 cases of the poisoning were reported nationwide, with many lawsuits brought in several jurisdictions.  The plaintiff’s alleged medical conditions resulting from the poisoning episode were: autoimmune thyroid disease, Cushing’s Syndrome, gastrointestinal problems, kidney tumors, lifetime vitamin B-12 deficiency, and Stargardt’s disease (early onset macular degeneration leading to blindness). MG+M persuaded the court, following ample discovery, that its client notified the New Orleans restaurant chain customer of the nationwide recall of the tuna product in a timely manner, and otherwise met its legal duty to the plaintiff and consuming public in this food-provider poisoning case.

MG+M’s Lake Charles Partner, David R. Frohn, was lead counsel, and he received excellent support from the firm’s New Orleans Associate, Helen M. Buckley.