Court RulingThe Georgia Supreme Court has weighed-in on the issue of manufacturers’ liability for take-home exposure cases. In the opinion recently issued in CertainTeed Corporation v. Fletcher, the Court drew an unexpected distinction between a manufacturer’s duty to issue warnings and its responsibility to keep harmful products out of the stream of commerce. Justice Carol Hunstein, writing for the Court, concludes that while manufacturers do not generally have a duty to warn third parties of the possible hazards of asbestos dust from its products, a manufacturer does bear the burden of proving that its product, as designed, is not defective. The opinion comes as a bit of surprise, as it seems to contradict a prior opinion issued by the Court, wherein it held that an employer owes no duty to third-party, non-employees, who come into contact with its employees’ asbestos-tainted work clothing at locations away from the work place.

Plaintiff Marcelle Fletcher filed suit in Georgia after being diagnosed with malignant pleural mesothelioma. In her complaint, Fletcher alleges that years of laundering her father’s asbestos-tainted clothing caused her to come into contact with asbestos from cement water pipe manufactured by CertainTeed, which eventually caused her mesothelioma. When the trial court granted CertainTeed’s motion for summary judgment on Fletcher’s failure-to-warn and product defect claims, Fletcher appealed. The appellate court reversed and the Georgia Supreme Court thereafter granted review of CertainTeed’s appeal.

On appeal, the Supreme Court held that CertainTeed, as a manufacturer, owed no duty to warn Fletcher of the possible hazards of asbestos dust from its products. In reaching its conclusion the Court cited public policy concerns that could result from an expansion of the class of individuals protected by a manufacturer’s duty to warn, stating that any such duty placed on the manufacturer would ultimately shift to the product user. Looking at the facts in the case before it, the Court determined that while “Fletcher would not have seen any warning label placed on CertainTeed’s products … a warning could have permitted her father to take steps to mitigate any danger posed by the asbestos dust on his clothing.” The Court nevertheless determined that such a conclusion would be “problematic” in that it effectively makes the product-user responsible for protecting those with whom he or she comes into contact, whether those individuals were members of the same household or members of the same community. The Court reasoned that imposing such an indefinite and imprecise duty on CertainTeed to warn all individuals in Fletcher’s position would be unreasonable, classifying the scope and mechanism of such warnings as “endless.”

Regarding Fletcher’s design defect claim, however, the Supreme Court upheld the appellate court’s reversal of summary judgment, finding that CertainTeed had failed to prove that its product was not defectively designed. The Court’s holding seems, at first, to contradict its 2005 decision in CSK Trans. v. Williams, 278 Ga. 888, 608 SE 2d 208 (2005), wherein the Court barred take-home exposure claims against employers, holding that employers did not owe a
Continue Reading Manufacturers Benefit from Georgia Supreme Court Ruling on Take-Home Exposure

california-160550_960_720Last month, the California Supreme Court issued a ruling on two coordinated “take-home” asbestos exposure cases, in which it held that employers using asbestos in the workplace have a duty of care to protect an employees’ household members from exposure to asbestos through off-site contact with employees who carry asbestos fibers on their work clothing and/or persons, also referred to as “take-home” exposure plaintiffs.  The Court noted that the duty of care existed regardless of whether the plaintiff states a claim for general negligence or premises liability.  This ruling helps clarify the law in California on the duty of care owed to “take-home” exposure plaintiffs, and in doing so further establishes California as a plaintiff-friendly state in asbestos litigation.

The Court’s opinion was premised on two “take-home” asbestos cases.  In one matter, the plaintiff filed suit against various defendants alleging that they exposed him to asbestos and caused his peritoneal mesothelioma.  Among the defendants was Pneumo Abex, LLC.  The plaintiff alleged that his uncle worked and was exposed to asbestos in a Pneumo Abex plant, which he then took home on his clothes and person and to which the plaintiff was subsequently exposed to during the 1970s.  In the other matter, the plaintiffs filed a wrongful death lawsuit against various defendants, alleging that their mother passed away from mesothelioma after also having been exposed to asbestos.  Among other defendants, the plaintiffs alleged that BNSF Railway Company employed and exposed the decedent’s husband to asbestos fibers, which he then brought home to the household he shared with the decedent, thereby exposing her to asbestos as well.

The Supreme Court set out to determine whether an employer or premises owner using asbestos has a duty to protect individuals secondarily exposed to asbestos through the clothing and persons of individuals either employed by the defendant or on the defendant’s premises.  After evaluating the facts and law, the Court held that “[w]here 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,” and that the duty applies to employers and “also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners.”  However, the Court noted that this duty  extends only to members of a worker’s household, regardless of whether they are a relative.

In reaching this holding, the California Supreme Court first noted that California Civil Code section 1714 “establishes a general duty to exercise ordinary care in one’s activities,” thereby meaning that the issue is not whether a new duty should be established, but rather whether the Court should create an exception such that employers and premises owners would not owe a duty of reasonable care towards a workers’ household members secondarily exposed to asbestos.  California law requires that courts consider the factors outlined in Rowland v. Christian, 69 Cal. 2d 108 (1968)
Continue Reading California Supreme Court Recognizes a Duty of Care to “Take-Home” Plaintiffs

ffonseca_articleCalifornia has become a hub for asbestos litigation.  Its plaintiff-friendly law and juries have attracted plaintiffs from both California and across the country.  A case currently pending in the Supreme Court of California concerning whether a duty is owed to a plaintiff who alleges “take-home” asbestos exposure could have a major impact on whether California becomes an even greater hotbed for asbestos litigation.  Should the Court impose a duty on an employer for “take home” exposures, this expansion of an employer’s duty is likely to lead to increased asbestos filings as plaintiffs seek out attractive jurisdictions based on substantive legal doctrine.

Recently, the Supreme Court of California heard oral arguments in coordinated “take-home” asbestos cases. In both cases, at issue is whether an employer owes a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing.

In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff, the nephew of a brake manufacturer’s employee, alleged that he developed mesothelioma as a result of exposure to asbestos from his uncle’s dirty and dusty clothing during frequent visits to his uncle’s home. In finding that the brake manufacturing company employer owed plaintiff a duty of care, the court found that “[a]s a general matter, harm to others from secondary exposure to asbestos dust is not unpredictable.” Kesner 226 Cal.App.4th at 259. Further, the harm “from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” Id.  As for employers, the court found that “extending the duty of care to [an employee’s household members or long term occupants of a residence] does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons.”  Id. at 261. Thus, the court not only imposed a duty on an employer for “take home” exposures, it extended a duty to any guest that frequents an employee’s home.  It is important to note, however, that despite the fact that plaintiff claimed that he was exposed to asbestos through his uncle’s clothing, plaintiff’s claim was premised on a theory of products, not premises, liability.

That distinction is important, as a month later a different appellate court ruled against extending a duty of care based on “take home” exposure in the context of a case alleging premises liability. In Haver v. BNSF Railway Co., 226 Cal.App.4th 1104 (2014), the heirs of an employee’s deceased wife claimed that she developed mesothelioma as a result of exposure to asbestos from the clothing her husband wore home while employed by the defendant company. Deciding not to follow the earlier Kesner decision, the Haver court distinguished the two cases by pointing out that Kesner was a products case while Haver involved allegations of premises liability. Importantly, though, the court noted that courts should be wary of the consequences of extending employers’ liability too far. Id. at 1110.

A decision by the California Supreme Court which
Continue Reading New Trend Emerging From Pending California Take-Home Exposure Decision?