On April 16, 2018, a Rhode Island court addressed for the first time whether an entity owes a duty of care to protect non-employees from exposure to the asbestos-tainted work clothes of the entity’s employee.  In a decision denying the defendant Crane Co.’s motion for summary judgment in the matter of Carolyn Nichols, as Executrix of the Estate of Iva Pearl Jones, et al. v. Allis Chalmers Product Liability Trust, et al., C.A. No. PC-2008-1134, Judge Sarah Taft-Carter held that while the existence of such a duty is determined on a case-by-case basis, the plaintiffs had presented sufficient evidence to establish that Crane Co. had a duty to protect against such “secondary” or “take-home” exposure.  The decision is significant in that the Court demonstrated a willingness to impose such a broad duty upon an employer if certain factors are met through the plaintiff’s evidence.

 

In the Jones matter, the plaintiffs alleged that the decedent, Iva Pearl Jones (“Ms. Jones”) was exposed to asbestos from the clothing of her brother-in-law, Stanley Nichols (“Mr. Nichols”) while Mr. Nichols was employed by Crane Co. from 1979 to 1980 and resided in the same home as Ms. Jones and other family members.  The testimony also established that Ms. Jones “always” did the laundry, including Mr. Nichols’ work clothes.  Ms. Jones was diagnosed with mesothelioma in 2005 and passed away in 2007.  The plaintiffs alleged that Crane Co. failed to take adequate precautions to prevent asbestos fibers from leaving the work site and failed to warn employees of a foreseeable risk of take-home exposures to their cohabitants. Following discovery, Crane Co. moved for summary judgment on all counts asserting that it had no duty of care to Ms. Jones, its employee’s sister-in-law, and that the plaintiffs had failed to establish that the alleged exposure to asbestos from Mr. Nichols’ clothing caused Ms. Jones’ disease.

 

The Court, noting that an employer’s duty to protect against “take-home” exposures is an issue of first impression in Rhode Island, recognized the division of existing authority in other jurisdictions that have addressed the issue in NY, MD, GA, TN, NJ, IL, and ND. The Court held that it need not find a “special relationship” between Crane Co. and Ms. Jones to impose a duty because the plaintiffs allegations were based upon Crane Co.’s own alleged misfeasance in utilizing asbestos-containing products and not on an alleged failure of Crane Co. to protect against the actions of a third-party tortfeasor.  Instead, the Court held that under Rhode Island law, the existence of a duty of care is determined on a case-by-case basis considering the following factors: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of connection between the defendant’s conduct and the plaintiff’s injury; (4) the policy of preventing future harm; (5) the burden to the defendant and consequences to the community in imposing a legal duty; and (6) the relationship between the parties.

 

After considering the above-factors, the Court concluded that Crane Co. owed a duty of care to Ms. Jones. First, the Court found that it was foreseeable to Crane Co. that asbestos fibers could be transmitted on an employee’s clothing and posed a risk to individuals residing with the employee, based on the 1972 Occupational Safety and Health Administration (OSHA) regulation “emphasiz[ing] the importance of preventing asbestos from leaving the worksite on employees’ clothes” and advising employers of measures to prevent such risks including providing employees with protective clothing. (citing Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 110, 11318 (June 7, 1972), amending 29 C.F.R. § 1910, et seq.).  Second, the Court noted that the degree of certainty of injury, namely Ms. Jones’ diagnosis of malignant mesothelioma, was not contested.  Third, with regard to the closeness of the connection between Crane Co.’s conduct and the alleged injury, the Court listed several measures Crane Co. could have taken to prevent take-home exposure, such as providing uniforms, on-site showers and laundry services, and/or requiring employees to change their clothes before leaving the facility. Fourth, the Court  acknowledged that asbestos-related illnesses have a long latency period and therefore, the fact that Ms. Jones’ was not diagnosed until 25 years after the alleged exposures did not reduce the closeness of the connection.  Fifth, as to public policy considerations and the burden of imposing a legal duty on employers under the circumstances presented, the Court commented that asbestos poses a danger to public health and cumulative exposures can cause mesothelioma.  The Court rejected Crane Co.’s assertion that imposing a duty would subject it limitless liability and claims from “a seemingly immeasurable amount of people,” emphasizing that Rhode Island courts determine whether a duty exists on a case-by-case basis.  Moreover, it observed that measures Crane Co. could have undertaken to prevent household exposures were required by OSHA and not burdensome or onerous. Finally, the Court rejected Crane Co.’s argument that Ms. Jones’ relationship with Crane Co., as the sister-in-law of Crane Co.’s employee and household member, was too attenuated to support a duty.  The Court found that the plaintiffs had provided evidence of long-standing cohabitation between Ms. Jones and Mr. Nichols and that they acted as a single household unit during the relevant times with Ms. Jones regularly undertaking laundry duties for the household.

 

The Court further concluded that the plaintiffs had presented sufficient evidence to prevail against Crane Co.’s motion for summary judgment on the issue of causation.  Crane Co. argued that plaintiffs’ evidence was insufficient to meet the “frequency, regularity, proximity” test set forth in Sweredoski v. Alfa Laval, Inc., No. PC 2011-1544, 2013 WL 3010419, *2 (R.I. Super. June 13, 2013) (Gibney, P.J.).  The Court stated, the “issue of proximate causation is usually a question for the trier of fact that cannot be determined on summary judgment” and found that the plaintiffs had provided sufficient evidence of product identification, regular and frequent use, and proximate exposure to asbestos.  Specifically, Mr. Nichols had testified that he regularly worked closely with asbestos-containing insulation for approximately seven months.  He further testified that Ms. Jones “always” laundered his work clothes, and that there was visible dust in the air when she performed this task.  The plaintiffs’ pathology expert, Dr. James A. Strauchen, also opined that Ms. Jones’ cumulative exposure to asbestos caused her mesothelioma.  The Court held that this evidence satisfied the frequency, regularity, proximity test and was sufficient for a jury to conclude that exposure to asbestos from Mr. Nichols’ clothing was a substantial factor in causing of Ms. Jones’ disease.

 

Judge Taft-Carter’s decision denying Crane Co.’s motion for summary judgment is notable as the first instance in which a Rhode Island court has addressed the scope of duty an employer owes for “secondary” or “take-home” exposures.  While the decision demonstrates a willingness of the Court to extend an employer’s duty to household members of employees that demonstrate exposure to asbestos at a worksite that is controlled by the employer, the Court conducted  a multi-factor analysis that it stated it would apply going forward on a case-by-case basis.

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.

 

Asbestos(Cropped)On Friday, June 2, 2017, the California Court of Appeal for the Second District, issued an unpublished opinion holding that Shell Oil Company owed a duty to protect from asbestos exposure the wife of a former machinist who worked at Shell facilities from approximately 1954 to 1992. Beckering v. Shell Oil Company (Cal. Ct. App., June 2, 2017, No. B256407), “Beckering II”). In this recent opinion, the Court of Appeal reversed its own earlier ruling from 2014 which initially held that a premises owner has no duty to protect a family member from secondary exposure to asbestos off the premises (Beckering v. Shell Oil Company (Cal. Ct. App., Nov. 21, 2014, No. B256407), “Beckering I”).

Beckering II, the latest appellate decision regarding the scope of duty owed in secondary asbestos exposure or “take home” cases, is the result of the trickledown effect of the California Supreme Court’s December 2016 decision Kesner v. Superior Court (2016) 1 Cal.5th 1132.

 

Kesner v. Superior Court

In Kesner, the California Supreme Court examined whether employers and landowners owe a duty of care to prevent secondary exposure to asbestos and held that “the 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.” Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140. In so holding, the Court found it was “reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members [and that, therefore] employers have a duty to take reasonable care to prevent this means of transmission.” Id. Notably, “[t]his duty also applies to premises owners who use asbestos on their property” regardless of whether the premises owner is the vector’s employer, although the Court recognized that premises liability includes a number of affirmative defenses and exceptions which may be applicable depending on the facts of the case. See Id., at 1140, 1160.

To arrive at this conclusion, the Supreme Court examined and applied the well-established “Rowland factors” which, when balanced together, can justify a departure from the general rule of ordinary care: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; (7) and the availability, cost, and prevalence of insurance for the risk involved. Kesner, 1 Cal.5th at 1145; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771; Rowland v. Christian (1968) 69 Cal.2d 105, 112; see also Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.

 

In finding that “[t]he most important [Rowland] factor” is whether the injury in question was foreseeable (although not wholly determinative), the Supreme Court concluded that “proper application of the Rowland factors supports the conclusion that defendants had a duty of ordinary care to prevent take-home asbestos exposure. Such exposure and its resulting harms to human health were reasonably foreseeable to large-scale users of asbestos by the 1970s, and the OSHA Standard affirmed the commonsense reality that asbestos fibers could be carried on the person or clothing of employees to their homes and could be inhaled there by household members.” Kesner, 1 Cal.5th at 1145, 1156. Notably, the Court attempted to put some boundaries on its holding limiting the class of potential plaintiffs solely to members of a worker’s household. Id., at 1140.

 

It is with the Kesner framework that the California Court of Appeals reversed its prior decision in Beckering I.

 

Beckering I and II

 

In Beckering, a former Shell Oil Company’s employee’s[1] wife brought a lawsuit against Shell alleging she laundered her husband’s work clothes for 38 years and developed mesothelioma as a result. Against Shell, Plaintiff brought a cause of action for negligence arising out of premises liability. Shell filed a motion for summary judgment in January 2014 arguing that Plaintiff’s premises liability claim was barred as a matter of law because, under the then-current legal test (as this was prior to Kesner), a property owner had no duty to protect family members of workers from secondary or off-site exposure to asbestos carried home on the worker’s clothing even it was foreseeable. See Beckering I, at 3.

 

Although the Court of Appeal originally affirmed the trial court’s ruling granting summary judgment in favor of Shell, in Beckering II the Court applied Kesner and reversed and remanded the case. See Beckering II, at 10.

 

In a footnote, Beckering II cited Kesner and cautioned: “It must be remembered that a finding of duty is not a finding of liability. To obtain a judgment, a plaintiff must [still] prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff’s injury, and the defendant may assert defenses and submit contrary evidence on each of these elements.” Beckering II, at n.2 (quoting Kesner, 1 Cal.5th at 1157).

 

Despite the self-proclaimed limits both Kesner and Beckering II have attempted to define as integral components to their holdings, it appears that dispositive motions premised upon the legal issue of an employer’s or premises owner’s absence of duty in California are, and will be for the foreseeable future, futile.  Although unpublished, Beckering II will undoubtedly guide the lower courts on the application of Kesner going forward.

 

 

[1] The Court of Appeals’ opinion is not clear as to whether Decedent was actually employed by Shell; however, Plaintiff’s opening appellate brief indicates that Shell did employ Decedent during the putative time frame. Wanda L. Beckering, Plaintiff and Appellant, v. Shell Oil Company, Defendant and Respondent (Aug. 6, 2014) WL 4254334 (Cal.App. 2 Dist.), at *3.

 

The Maryland Court of Appeals unanimously ruled that Georgia-Pacific Corp. was not liable for illness involving a woman who was exposed to asbestos while doing her father’s laundry in the 1960s.

The Insurance Journal reported on the recent decision:

  • The Court of Appeals ruled that Georgia-Pacific Corp. was not obligated to warn relatives of the dangers of asbestos in the 1960s.
  • The hazard was not sufficiently known until federal regulations were issued in 1972 by the U.S. Occupational Safety and Health Administration.
  • The court’s ruling overturns a $5 million verdict.
  • Jocelyn Farrar had been exposed while doing laundry in the late 1960s and fell ill decades later.

In the decision, available on the website of the Maryland high court (pdf download), the Court explained that it rejected liability because:

  • There was no duty to warn persons such as Ms. Farrar, who was a “bystander of a bystander,” a person who never used the product and never directly came into contact with it.
  • The duty extends to those whom the supplier should expect to use the product or to third persons whom the supplier should expect to be endangered by its use.
  • Even if the danger was foreseeable, prior to 1972 OSHA regulations, it would have been difficult for the company to have provided a warning that could have avoided the danger.

The Maryland decision continues the recent trend in rejecting a duty in cases involving secondary exposure.  In 2012, California followed Ohio and joined the growing list of states which reject the defendant’s duty to an employee’s family member in “take home asbestos” cases. In an article featured in the DRI‘s Newsletter and published on May 9, 2014, co-authors Carter E. Strang and Karen E. Ross also noted the jurisdictions which have rejected secondary exposure claims.  Since their publication, California and Maryland have joined approximately nine other states in rejecting a duty in secondary exposure cases.  Another California court recently came to the same conclusion as the earlier California case in an unreported decision.

However, as Strang and Ross noted in their January 16, 2014 DRI article (pdf download), it is unclear how these cases will play out at the trial level, as a verdict of over $27 million was recently entered in California in a case involving take-home asbestos exposure.

As the National Association of Manufacturers noted, the Maryland Court of Appeals found:

“that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. “

Conclusion

Courts nationwide are increasingly rejecting the claims by plaintiffs and their attorneys that seek to impose duties far removed from the allegedly wrongful act.  Defense attorneys can and should seek to impose reasonable limits on the issue of duty to those instances in which harm is reasonably foreseeable to the alleged tortfeasor.  Raising appropriate defenses in cases involving “take home” claims “household” exposure, or secondary exposure is essential to the defense of toxic tort claims.