In the later-half of 2015 and the beginning of 2016, there have been some notable state court decisions on the issues of product and premises liability for secondary or “take-home” exposure to asbestos. Depending on the state, different tests for determining liability are applied, however, the recent decisions discussed below help shed light on how state courts are currently thinking about take-home asbestos exposure cases.
A Superior Court in Connecticut denied summary judgment in a claim against an automobile parts dealer that employed the plaintiff’s father and allegedly sold asbestos-containing products. Reed v. 3M Co., No. CV126034053S, 2015 WL 4380102 (Conn. Super. Ct. June 12, 2015). Defendant Stamford Motors argued that summary judgment ought to be granted on plaintiffs’ premises liability claim because it was not foreseeable that plaintiff would be injured by his father’s work at Stamford Motors. Id. at *6. The court denied summary judgment stating that contradictory articles and reports outlining when knowledge of the dangers of asbestos arose created a genuine issue of material fact regarding foreseeability. Id. at *6-8.
In November 2015, an appellate court in New Jersey determined that a child’s interaction with her father and limited washing of his clothes during the time he worked with defendant’s products was insufficient to meet the “frequency, regularity, and proximity test” required to prove exposure to asbestos. Estate of Brust v. ACF Industries, LLC, 443 N.J. Super. 103, 2015 WL 7288626, at *10 (N.J. Super. Ct. App. Div. Nov. 19, 2015). In contrast, the court stated that they had previously found the test met “where the plaintiff alleged she developed mesothelioma as a result of laundering her husband’s asbestos-laden work clothes over a forty-year period.” Id.
On January 14, 2016, the North Dakota Supreme Court affirmed a lower court’s grant of summary judgment to an employer defendant in a take-home asbestos exposure case. Palmer v. 999 Quebec, Inc., No. 20150031, 2016 WL 165709 (N.D. Jan. 14, 2016). Defendant A.W. Kuettel & Sons, Inc. supplied and installed asbestos-containing insulation products as an insulation contractor. Id. at *1. Decedent’s father was employed by Kuettel for a total of nine years throughout his career. Id. Plaintiff alleged Kuettel, among other defendants, was responsible for Decedent’s mesothelioma as he was exposed to asbestos from coming into contact with his father’s dusty work clothes. Id. Kuettel sought summary judgment on the grounds that it did not owe a duty to warn Decedent as there was no special relationship between Kuettel and Decedent. Id. Further, Kuettel asserted it was not liable for Decedent’s injury because it did not manufacture any of the asbestos-containing products it installed. Id. In opposition, Plaintiff argued that the lower court should have focused on the foreseeability of Decedent’s injury in determining Kuettel’s liability. Id. at *2.
In reviewing the grant of summary judgment de novo, the North Dakota high court acknowledged that “whether a duty of care is owed in a secondary or ‘take-home’ asbestos exposure case is an issue of first impression” for their court.Id. at *3. In analyzing other courts’ decisions, the court determined that liability is usually assessed based on the foreseeability of the injury or the nature of the relationship between the parties. Id. Notably, the court cited New York, Georgia, Michigan, and Delaware as states that have “focused on the lack of a relationship between the parties in holding [that] employers and premises owners do not owe a duty to secondary asbestos plaintiffs.” Id. The court deferred determination of whether foreseeability of the injury or nature of the relationship was the proper test for liability, stating that Plaintiff failed to raise a genuine issue of material fact under either test. Id. at *4. Specifically, the evidence submitted by the plaintiff failed “to establish a relationship between Kuettel and Palmer or Kuettel’s knowledge of the dangers of asbestos while Palmer’s father was employed by Kuettel.” Id.
Based on these recent state court decisions, it is apparent that state courts are wrestling with exactly how to apply the typical product and premises liability tests to cases involving secondary or take-home asbestos exposure. The difficulty in applying the typical liability tests to take-home asbestos exposure cases will likely lead to a non-uniform application of such tests in states across the country.