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.

 

Overview

On March 30, 2018, Judge Rya Zobel of the United States District Court (District of Massachusetts) issued a memorandum of decision on two Defendants’ (NSTAR Electric, formerly Boston Edison, and General Electric) Motions for Summary Judgment in an asbestos personal injury and wrongful death matter, June Stearns and Clifford Stearns as Co-Executors of the Estate of Wayne Oliver v. Metropolitan Life Insurance Co., et al., that addresses multiple issues, including statute of repose, strict liability and liability of a premises owner.

Background

Plaintiff’s decedent, Wayne Oliver, worked on the construction of two power plants, Pilgrim Nuclear Power Station (Massachusetts) and Calvert Cliffs Nuclear Power Plant (Maryland), between 1971 and 1978 and his estate alleges that Mr. Oliver was exposed to asbestos-containing products present at those sites. Defendant NSTAR Electric (formerly Boston Edison)(“Boston Edison”) owned the Pilgrim premises.  Defendant General Electric (“GE”) allegedly designed, manufactured, and sold generators used at Pilgrim and at Calvert Cliffs.  Oliver worked as a pipe inspector for Bechtel, the architect-engineer on projects at both Pilgrim and Calvert Cliffs.

 

As the owner of Pilgrim, Boston Edison conducted safety audits while the construction proceeded, but primary responsibility for the site construction rested with GE and Bechtel: GE for the steam supply system, nuclear fuel system, and the generators themselves; and Bechtel for everything else. In that capacity, Bechtel hired and supervised all subcontractors on the project, including an insulation installer, New England Insulation (“NEI”). Although NEI reported to Bechtel, it installed the asbestos-containing insulation around the generators pursuant to directions from both Bechtel and GE, and pursuant to GE’s specifications that specifically required asbestos-containing insulation.  The Court also recognized that at both Pilgrim and at Calvert Cliffs, GE had rejected suggestions or proposals for an asbestos-free insulation alternative.

 

Oliver allegedly sustained exposure to asbestos at both sites while inspecting pipe near dusty thermal insulation as other subcontractors installed it around the generators. He was subsequently diagnosed with mesothelioma in 2015 and died in 2016.  In denying summary judgment to GE and granting summary judgment to Boston Edison, the Court found that:  (1) while the construction work performed by GE met the definition of an improvement to real property for purposes of the statute of repose, public policy considerations necessitated an exception to the application of the statute in cases involving alleged asbestos-related disease; (2) the installation of asbestos insulation was not an abnormally dangerous activity; (3) Boston Edison did not exercise sufficient control over the work at issue to be held negligent; and (4) a premises owner, such as Boston Edison, has no duty to warn where the subcontractor has knowledge of the hazard which is equal to or greater than that of the premises owner.

 

Application of Statute of Repose

GE argued protection from Plaintiffs’ claims under Massachusetts’s six-year statute of repose, which bars claims concerning “improvements to real property.” Under Massachusetts law, this involves a “permanent addition” versus “ordinary repair.” Whether this statute applied to asbestos claims against manufacturers posed an issue of first impression for the Court. GE argued that its generators were permanent improvements to the plant. Plaintiff disagreed, and further argued that public policy prevented the application of the statute to asbestos claims given their long latency.

 

Ultimately, the Court agreed with GE that the generators were permanent improvements, but found that public policy cut against the application of the statute of repose to GE’s benefit. Though the public policy behind statutes of repose is based on the policy judgment that a potential defendant should have no reasonable expectation of responsibility for injuries that occur after the passage of a number of years, the Court held that such a policy rationale does not apply to asbestos cases because: (1) the potential dangers associated with asbestos exposure were well known by 1971; and (2) the typical latency period from asbestos exposure to disease is much longer than the six-year window for filing personal injury claims under the statute of repose.  Accordingly, the Court found that an asbestos defendant should not have a reasonable expectation that an injury, if one should occur, would likely manifest itself within the six year statute of repose.

 

The Court further relied on what it called a “somewhat relaxed” burden of proof in asbestos cases, thereby minimizing the argument that evidence relied upon by the parties would become stale over the passage of time, another policy reason behind the application of statutes of repose. The Court also noted that GE’s responsibility was not typical of a manufacturer that releases its products to an end user without much retained control. In this case, GE directed the material selection and at least some of the work allegedly giving rise to the exposure.  In addition, GE continued to exercise some level of control for an extended period of time through on-site maintenance and inspections following completion of the project. On these grounds, the Court refused to bar Plaintiffs’ claims against GE on statute of repose grounds.

 

Although the decision purports to rely on a case-by-case factual approach to the application of the statute of repose, as evidenced by the Court’s statement that “although designers, engineers, and contractors like GE appear facially covered by the statute of repose, their protection is ultimately determined by reference to underlying acts.” the Court implicitly states that the statute of repose can never properly apply to asbestos claims, because such application would bestow upon asbestos defendants “absolute immunity” due to the typical latency period for asbestos-related diseases.

 

Strict Liability of Premises Owner

Plaintiff argued for the imposition of strict liability on Boston Edison based on the premise that the act of insulating equipment with asbestos-containing insulation amounted to an abnormally dangerous activity. Massachusetts imposes a balancing test on the application of strict liability in which the court evaluates: (a) whether an activity risks harm; (b) the magnitude of the harm; (c) whether the risk can be mitigated with reasonable care; (d) whether the activity is a common one; (e) whether the activity is appropriate where it is taking place; and (f) the activity’s value to the community. Here, the Court disagreed with Plaintiff’s argument and found that, despite the risk of significant harm posed by asbestos-containing insulation, the fact that asbestos insulation was commonly used during the time frame at issue, and the possibility of taking reasonable precautions to mitigate that harm weighed against the imposition of strict liability. Accordingly, the Court granted summary judgment in favor of Boston Edison on Plaintiffs’ strict liability claim. This decision suggests that, going forward, the Court will not be receptive to the blanket categorization that asbestos products are abnormally dangerous.

 

Negligence of Premises Owner

In addition, Plaintiffs argued that, to the extent Plaintiff’s employer, Bechtel, was negligent by exposing him to asbestos, Boston Edison bears vicarious responsibility. In Massachusetts, an employer of an independent contractor on their premises is not liable for harm caused by that independent contractor’s negligence, unless the employer retains control over performance of the work. Plaintiffs argued that Boston Edison’s authority to monitor the construction, coupled with the ability to shut down the project, rose to a sufficient level of control. The Court disagreed, and considered the right of inspection and the right to impose work stoppage insufficient levels of control to justify imposition of vicarious liability, and granted summary judgment. This decision supports the arguments of premises owners charged with responsibility for their independent contractors, and reaffirms the importance of clearly delineated responsibilities.

 

Plaintiffs further argue that, as premises owner, Boston Edison negligently failed to give Oliver’s employer a warning regarding the dangers of on-premises asbestos. Massachusetts landowners owe a duty of reasonable care to employees of independent contractors. However, courts distinguish pre-existing hazards with those created by the work the independent contractor undertakes to perform. With the latter, the independent contractor stands on equal footing with regard to the risk. The Court considered the insulation a case of the latter—where Boston Edison’s knowledge of the risks of asbestos was no greater than Bechtel’s, Boston Edison had no duty to warn, and therefore no liability, and granted summary judgment. This decision cuts against plaintiffs’ attempts to make premises owners the effective “insurers” for on-premises work, the nature of which subcontractors may be more or equally aware.

On August 30, 2016, a Miami-Dade jury awarded Richard Batchelor and his wife more than $21 million after finding that his mesothelioma arose, in part, from asbestos exposure during overhaul work at a Florida Power & Light Co. (FP+L) power plant. On December 27, 2017, the Third District Court of Appeal erased the verdict against defendant Bechtel Corporation (Bechtel), finding that the jury should never have considered claims against that defendant because of plaintiffs’ insufficient evidence.  The appellate court also found reversible error in an adverse inference instruction, and concluded that Bechtel’s efforts to locate discoverable information were reasonable under the circumstances.

Between 1974 and 1980, Richard Batchelor worked for FP&L as an electrical technician at two power plants including the Turkey Point power plants. At that time, Turkey Point was a sprawling and complex facility – occupying over three thousand acres and containing 12 nuclear-fueled units and two oil and natural gas fueled units – and provided power for all of South Florida. On any given day, four hundred FP&L employees and numerous contractors worked at Turkey Point. Mr. Batchelor was responsible for repairing and maintaining gauges and equipment at the site, including four of the nuclear and gas units. Insulation, an indeterminate amount of which contained asbestos, covered the various pipes, wires, and equipment at the plant. Mr. Batchelor never removed insulation from any equipment and never worked on equipment while the insulation was being removed. Instead, insulation removal was performed by independent contractors who specialized in insulation removal, and other FP&L workers. Mr. Batchelor did work in the vicinity of other workers removing insulation, but it is unclear how close Mr. Batchelor worked to those removing asbestos, how often this occurred, or the duration of the occurrences. When asked by his attorney if the dust he breathed in was from insulation, Mr. Batchelor responded, “It could be from anywhere. It’s just dust.”

One of the contractors retained to provide ongoing maintenance services of the equipment on site was defendant Bechtel. The contracts provided that FP&L would issue work orders at its discretion to Bechtel, which would do the work requested on a cost-plus basis. FP&L decided whether FP&L or Bechtel would provide needed supplies, equipment, and ancillary services. During the relevant time period, Bechtel provided 1,050,070 man hours of services at Turkey Point.

FP&L periodically shut down the units for repair and maintenance. During these shutdowns, FP&L had Bechtel perform major overhauls on the units. FP&L also had another contractor, Foster Wheeler, perform maintenance on the unit’s giant boilers, which were lined with insulation. Although other contractors were present most of the time, Bechtel received work instructions only from FP&L.

In 2015, Mr. Batchelor was diagnosed with terminal mesothelioma caused by asbestos exposure. On January 2, 2016, he filed suit against twenty-six defendants, including Bechtel Corporation, for negligently causing his mesothelioma. Mr. Batchelor’s medical causation expert never examined Mr. Batchelor and never visited Turkey Point. He based his opinion solely on a review of Mr. Batchelor’s deposition and published medical studies.

Mr. Batchelor’s claim against defendant Bechtel was based on premises liability, and contended that Bechtel was liable for any asbestos exposure he sustained from any source at Turkey Point that was under Bechtel’s possession or control. More specifically, Mr. Batchelor alleged that Bechtel was liable for the dangers of asbestos dust created by Bechtel “or by others in the areas of Turkey Point that were being controlled by Bechtel while Bechtel performed its work at the time Mr. Batchelor was exposed.”

In early August 2016, Mr. Batchelor’s attorney deposed Bechtel’s corporate representatives. Immediately after the depositions, Mr. Batchelor moved for sanctions, arguing that Bechtel failed to adequately search for documents and information from thirty-six to forty-two years ago that might have been provided by retired former employees. In opposition, Bechtel argued that it had no obligation to find former employees from so long ago and that attempts to locate past employees in similar lawsuits had proved futile due to the passage of time. Ultimately, the trial court granted the motion for an adverse inference based on Bechtel’s failure to attempt to locate former employees.

Several weeks later, the jury entered a verdict for Mr. Batchelor for $15,381,724.12 and $6 million for his wife. It attributed fault as follows:  Foster Wheeler 5%, FP&L 35%, and Bechtel 60%. The Third District Court of Appeal considered two points on appeal:  (1) the trial court should have directed a verdict because there was insufficient proof of Bechtel’s possession and control of the premise, and (2) the trial court should have granted a new trial because the adverse inference jury instruction was reversible error.

 

Premises Liability

The primary focus of the Third District Court of Appeal’s opinion was on whether Mr. Batchelor met his burden in proving a premises liability claim. Interestingly, Mr. Batchelor chose not to sue Defendant Bechtel under a products liability theory for manufacturing products containing asbestos. Nor did Mr. Batchelor sue Bechtel for removing asbestos in a manner that negligently exposed Mr. Batchelor to a dangerous level of asbestos.

Mr. Batchelor’s premises liability theory was that Bechtel, as the party in control of the premises, had a duty to warn Mr. Batchelor of the dangers of asbestos created by FP&L and by FP&L’s other contractors. To prove this theory, Mr. Batchelor was obligated to show that Bechtel had a right to control access to or exclude others from the Turkey Point power plant. In support, Mr. Batchelor offered no direct evidence that FP&L surrendered, and Bechtel took possession of, all or any part of Turkey Point. Instead, Mr. Batchelor relied on the following points:

(1)        Bechtel was a huge contractor at Turkey Point during the relevant time period and provided more than one million man hours of services during that time;

(2)        The service contracts provided that FP&L would issue future work orders and Bechtel would fill the work orders on a cost-plus basis;

(3)        The service contracts required Bechtel to maintain liability insurance “with respect to the scope of the Bechtel Services;” and

(4)        FP&L directed Bechtel to perform maintenance on the power units when they were down.

The Third District Court of Appeal was not persuaded by Mr. Batchelor’s arguments. Although Bechtel provided significant hours of services during the relevant time period, the plant itself was also serviced by four hundred FP&L employees per day, plus contractors – rendering Bechtel’s presence a “fraction of the presence of FPL’s own work force…” Mr. Batchelor also could not produce any language in the service contracts discussing Bechtel’s assumption of possession or control of all or any part of the plant, and a contractual provision requiring insurance coverage was not found to support an inference that FP&L surrendered possession. Finally, Bechtel was not the only entity performing maintenance on the power units, and therefore did not have the authority to exclude other contractors or FP&L employees from the areas. The appellate court concluded, “In the absence of direct or circumstantial evidence sufficient to support a logical inference, the conclusion that Bechtel exercised control and possession is no more than conjecture, speculation, and surmise.” Due to the lack of evidence, the court reversed the trial court’s ruling and held that the trial court should have granted Bechtel’s motion for directed verdict.

 

The Adverse Inference Jury Instruction

In granting Mr. Batchelor’s motion for sanctions against Bechtel for failing to properly prepare its corporate representatives, the trial judge instructed the jury as follows:

If you find that Bechtel’s failure to produce persons employed at Turkey Point between 1974 and 1980 to testify regarding Mr. Batchelor’s work at Turkey Point is unreasonable, and that their testimony would have been relevant to Mr. Batchelor’s work activities, you are permitted to infer that the evidence would have been unfavorable to Bechtel.

The trial court’s rationale for the sanction was that Bechtel failed to attempt to locate retired employees from 1974 to 1980 by mailing postcards to the last-known addresses of employees.

The Third District Court of Appeal thoroughly disagreed with the trial court’s decision, citing Rule 1.310(b)(6) of the Florida Rules of Civil Procedure. Under that rule, a corporation can be required to produce a representative to testify “about matters known or reasonably available to the organization.” The Court of Appeal explained that this rule places a duty on the corporation to affirmatively prepare its representative “to the extent matters are reasonably available, whether from documents, past employees, or other sources.”      The appellate court found that it was unreasonable to expect Bechtel to locate retirees who had worked at the plant over thirty years ago and then interview them to prepare a corporate witness with no guarantee of success. “Absent a specific court order to do so, we would not interpret a party’s responsibilities to prepare a representative to extend so far, particularly here, where the deposition is noticed to take place only a few weeks before trial when there is reduced time for such a large effort.” Without such a court order, the appellate court found that the trial court harmfully erred in imposing the sanction of an adverse inference jury instruction.  The appellate court cautioned that such an instruction should be rarely given as it is an extreme sanction, “reserved for circumstances where the normal discovery procedures have gone seriously awry.”

 

Speculative Nature of Asbestos Claims

Batchelor v. Bechtel Corp. underscores the broader problems of proof that tend to be inherent in asbestos claims as a result of the creeping nature of asbestos-related diseases. Plaintiffs typically do not develop symptoms of an asbestos-related disease until ten to forty years after asbestos exposure. After the extensive passage of time, documentary evidence is difficult to obtain and witnesses are difficult to locate. More importantly, basic memories from so long ago are vague and highly prone to inaccuracies. This situation can make it very difficult for defendants to defend themselves, but very simple for plaintiffs to get their cases to a jury.

The generally asymmetric nature of asbestos litigation can be explained as follows. In nearly every asbestos lawsuit, the plaintiff sues scores of defendants, sometimes a hundred, alleging that they manufactured asbestos-related products that exposed the plaintiff to asbestos many years ago and caused asbestos-related disease. As long as the plaintiff testifies that he used a specific manufacturer’s product, even in conclusory fashion and without any documentary support, that manufacturer often is unable to escape summary judgment. In other words, although the plaintiff has a very limited memory of his exposure many years ago, and no documentary evidence that he was exposed to a specific manufacturer’s product, that the product contained asbestos, or that he was exposed to a particular amount of asbestos from that specific product, the plaintiff still can maintain an action against that manufacturer and force it to defend itself against millions of dollars in exposure. Although plaintiffs are entitled to compensation for asbestos-related diseases, defendants should not be forced to incur these expenses without greater certainty that they manufactured the products the plaintiff was exposed to and that those products likely caused the plaintiff’s asbestos-related disease.

According to the Supreme Court of Illinois, merely conducting business within that state is insufficient to satisfy the standards for personal jurisdiction established by the U.S. Supreme Court in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  The Illinois Supreme Court recently explored that issue in Aspen American Insurance Company v. Interstate Warehousing, Inc., where a plaintiff headquarted in Indiana attempted to bring an action in Illinois for damages allegedly caused by the collapse of a warehouse in Michigan.  Plaintiff Aspen brought a subrogation action in Cook County, Illinois seeking to recover damages allegedly caused by the collapse of a warehouse near Grand Rapids, Michigan, which was owned by Defendant Interstate Warehousing. The Defendant, which is headquartered in Indiana, operates eight warehouses across the country, one of which is in Joliet, Illinois.

 

In its pleadings, the Plaintiff sought to rely upon the Defendant’s Joliet warehouse to establish personal jurisdiction in Illinois. In its motion to dismiss for lack of personal jurisdiction, the Defendant did not dispute that it was doing business in Illinois. Instead, the Defendant argued that the business it was conducting in Illinois was insufficient to subject it to general personal jurisdiction under the U.S. Supreme Court’s decision in Daimler AG v. Bauman. Relying on Daimler, the Defendant explained that the Plaintiff failed to establish that the Defendant was either domiciled or “at home” in Illinois. The circuit court disagreed, and denied the Defendant’s motion. A divided appellate court affirmed the dismissal denial of the motion to dismiss.

                                                                                                                                                                                   

Writing on behalf of a unanimous Court, Justice Burke reversed the lower court decisions, holding that the Plaintiff failed to make a prima facie showing that the Defendant was “essentially at home” in Illinois, as required by Daimler. More specifically, the Court determined that the Plaintiff’s burden was to show that the Defendant was incorporated or had its principal place of business in Illinois, or in the alternative, that the Defendant’s contacts with Illinois were so substantial that an exception was warranted. In making its determination, the Court looked at Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), in which the defendant, a Philippines company, was forced to relocate from the Philippines to Ohio during World War II. In that case, the Supreme Court found that Ohio was “the center of the corporation’s wartime activities” and, effectively, a “surrogate for the place of incorporation or head office.” Perkins, 342 U.S. at 448.

 

In the Aspen case, the Defendant Interstate Warehousing was an Indiana corporation with its principal place of business in Indiana, which was registered to conduct business in Illinois and employed the general manager of a warehouse in Joliet. The Plaintiff pointed both to the Defendant’s registration with the Illinois Secretary of State and the business it carried out at its Joliet warehouse as establishing jurisdiction; however, the Illinois Supreme Court ultimately concluded that those facts were insufficient either to render the Defendant at home in the state or to establish that the Defendant’s contacts constituted the type of exceptional connection to the forum that was recognized by the Perkins Court. The Aspen Court reasoned that “if the operation of the warehouse was sufficient, in itself, to establish general jurisdiction, then the defendant would also be at home in all the other states where its warehouses are located.” That kind of reasoning already was expressly rejected by the U.S. Supreme Court in Daimler.

 

Therefore, the Illinois Supreme Court reversed the lower court rulings and remanded the case to be dismissed for lack of personal jurisdiction. The Aspen decision is consistent with the Delaware Supreme Court’s decision last year that merely registering to do business in that state is insufficient to establish personal jurisdiction.  See Genuine Parts Co v. Cepec (137 A.3d 123 (Del. 2016). Earlier this year the U.S. Supreme Court left open the question of whether registration to do business may constitute consent to personal jurisdiction.  See BNSF Railway Co. v. Tyrrell (May 30, 2017), slip op. at 12.  Accordingly, the issue remains unsettled.  However, the Aspen and Genuine Parts decisions suggest that until the U.S. Supreme Court weighs in, momentum currently runs against the use of business registration statutes to establish personal jurisdiction.

The Second District Court of Appeal, Division Four in Los Angeles handed down a decision in an asbestos case that involved appellate issues pertaining to causes of action for strict products liability and premises liability, primary and secondary (“take-home”) exposure, liability for replacement component parts, and proper jury instructions to be given in asbestos cases on the issue of substantial factor.  Joseph Petitpas v. Ford Motor Company, et al. (Cal. Ct. App., July 5, 2017, No. B245037), an opinion certified for publication on July 5, 2017, presents several factual scenarios to test a number of the decisions in the past decade that continue to shape asbestos litigation in California.   Motions for summary adjudication and defense jury verdicts were affirmed for Ford Motor Company and Exxon Mobile Corporation, while the trial court’s granting of a nonsuit for defendant Rossmoor Corporation was also affirmed.

Background

Plaintiffs  Marline and Joseph Petitpas filed suit against over 30 defendants, alleging Marline’s mesothelioma was caused by exposure to asbestos from sources including, but not limited to, direct exposure from being in the presence of automotive maintenance work, secondary exposure by coming into contact  with Joseph’s clothes and person after he performed automotive maintenance work, primary exposure by visiting Joseph at construction sites while he was employed as an architectural drafter for Rossmoor, and secondary exposure through contact with Joseph’s clothes and person after he  visited construction sites in the course of his employment with Rossmoor.  Marline passed away during the appeal.

Issue One

Prior to trial, Exxon was granted summary adjudication of Plaintiffs’ strict products liability claim.  Exxon, a premises defendant, demonstrated that in the course of Joseph’s work at a service station for which Exxon assumed liabilities, Joseph used replacement clutches and gaskets that came from a local independent auto parts store.  Exxon also showed that Joseph used brakes obtained from a mobile brake service company that not only provided brakes but also performed brake work at the service station.  Exxon’s evidence was sufficient to support an inference that the service station was not primarily in the business of supplying asbestos-containing vehicle parts.  In distinguishing this case from its decision in Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, the Court found the service station was a provider of services rather than a seller or distributor of asbestos-containing parts.  The Court also found no relationship existed between the service station and parts manufacturers in which the station could exert any influence on product safety on the manufacturers.  Exxon was not in the stream of commerce for asbestos-containing vehicle parts to the extent strict liability was warranted.

Issue Two

Exxon had also been granted summary adjudication relating to Plaintiffs’ claims of secondary exposure to asbestos.  The trial court applied Campbell v. Ford Motor Co.  (2012) 206 Cal.App.4th 15 and found that Exxon was a property owner that had no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the court of the property owner’s business.  During the pendency of the Petitpas appeal, the California Supreme Court disapproved Campbell in Kesner v. Superior Court (2016) 1 Cal.5th 1132.  Kesner holds that “[T]he duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.  Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.”  (Kesner, 1 Cal.5th at p. 1140.)  The Court in Petitpas strictly construed the holding in Kesner with the regard to the requirement that the injured person be a household member.  Marline and Joseph were not married and did not live together at the time Joseph worked at the Exxon station.  Although Joseph argued he still came into contact with Marline, the Court declined to create a new class of secondary exposure plaintiffs.

Issue Three

Rossmoor was granted a nonsuit after Plaintiffs rested.  The trial court granted the nonsuit as to secondary exposures based on a Campbell theory that there is no duty to protect family members of workers on premises, as Plaintiffs contended Marline was exposed to asbestos through laundering Joseph’s clothes, riding in the car they shared, and through physical contact with Joseph at the conclusion of his workday.  As such, Plaintiffs failed to satisfy the requirements under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 to show Marline was actually exposed to asbestos-containing materials by Rossmoor with enough frequency and regularity to show a reasonable medical probability that the exposure was a factor in causing her injury.  Even though Kesner had displaced Campbell, Rossmoor’s nonsuit was affirmed on appeal because of the insufficient evidence of causation.  The Court ruled Plaintiffs were unable to bridge the gap between the possibility Marline was exposed via asbestos dust on Joseph’s person and clothes and the necessary showing of frequency, regularity, and proximity of exposure to rise to a level that would increase one’s risk of the development of an illness.

Additionally, Rossmoor moved for nonsuit as to the claim of primary exposure from Marline’s visits to the Rossmoor constructions sites, on the basis that Marline always visited after work had concluded for the day.  Plaintiffs provided no evidence that dust was present when Marline visited a Rossmoor site.  Citing Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246, 252 for the premise that mere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure, the Court held Plaintiffs presented no evidence there were respirable asbestos fibers present at a site when Marline visited.

Issue Four

Joseph Petitpas claimed error by the trial court with respect to jury instructions.  One alleged error was that the Court gave a special instruction requested by Ford that stated “Ford Motor Company is not liable for Marline Petitpas’ exposure to asbestos that comes from other companies’ brakes, clutches or gasket products installed on Ford vehicles by parties other than Ford.”  The basis for this instruction is the O’Neil v. Crane Co. (2012) 53 Cal.4th 335 case that held “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”  The Court held no design defect existed because the Ford vehicle did not require the use of asbestos-containing components in the brakes and Ford had no control of replacement brakes placed into the stream of commerce by other manufacturers.

Joseph Petitpas also argued the trial court erred in reading CACI jury instruction numbers 430 and 435, as opposed to just 435.  The Court of Appeals held that because 435 states “unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430”, and Exxon as a premises defendant was neither a manufacturer nor a supplier, it was proper to instruct with 430.  The primary difference between 430 and 435 is that 430 focuses on the harm resultant from defendant’s conduct while 435 focuses on the risk of harm from defendants’ conduct.

Issue Five

The Court of Appeals affirmed the verdict in favor of Exxon after Joseph argued the evidence did not support the verdict.  The jury found that Exxon controlled the service station that Marline was exposed to asbestos at, and that Marline’s exposure at the station was a substantial factor in contributing to her risk of developing mesothelioma.  The jury did not find, however, that Exxon knew, or through the exercise of reasonable care should have known, that there was a condition at the station that created unreasonable risk to Marline.  Joseph claimed it was uncontroverted Exxon knew of the risks attendant to such an environment.  The Court of Appeals, however, agreed with Exxon that the evidence presented at trial did not show that Exxon had such knowledge or could have even come to know as such, as in the relevant time period—and even today—there are no studies documenting that performing brake work increases one’s risk for the development of mesothelioma.

Although the Petitpas decision did not create new law, it is a good example of how the courts will interpret, at least for now, increasingly common issues in California asbestos litigation with respect to causation and duty.