Expert Commentary

No Duty To Protect Worker Family Members from Secondary Asbestos Exposure

A property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business.


Environmental
November 2012

A woman sued Ford Motor Company to recover damages based on having been diagnosed with mesothelioma that she alleged she got as a result of exposure to asbestos from laundering her father's and brother's asbestos-covered clothing almost 40 years previously. The men worked with asbestos as independent contractors for Ford to install asbestos insulation at an automobile plant. A jury awarded her damages against Ford, but this was reversed on appeal because the court found that Ford owed no duty to the plaintiff. The court explained that:

While the overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible, the policy question is "whether that consideration is outweighed … by the undesirable consequences of allowing potential liability" and, in this case, the weight of the factors was such that Ford would have no duty of care to the plaintiff.

Campbell v. Ford Motor Co., 206 Cal. App. 4th 15 (2012).

Statute of Repose Does Not Bar Suit

In this case, a jury considered the evidence and determined that Ford was liable for 5 percent of the plaintiff's damages. Ford appealed, arguing that summary judgment should have been granted to it based on (1) the state's 10-year statute of repose applicable to construction projects and (2) the lack of any legal duty to the plaintiff.

On the issue of the statute of repose, the court found it inapplicable to bar actions against property owners such as Ford. This is because the statute states that it "shall not apply to actions against any person in actual possession and control as an owner, tenant, or otherwise, of the improvement." Since Ford owned the property on which the father and brother of the plaintiff performed work as construction laborers, the statute offered no protection to Ford.

No Duty of Care Owed to Plaintiff by Ford

Before a plaintiff—such as the woman here—can successfully claim for damages against another party to recover for her injuries, she must first prove the existence of a legal duty of care running from the defendant to her. As a general rule:

Everyone is responsible … for an injury occasioned to another by his or her want of ordinary care of skill in the management of his or her property or person…. (Cal. Civ. Code, sec. 1714 (a)). In other words, "each person has a duty to use ordinary care and [ ] is liable for injuries caused by his failure to exercise reasonable care in the circumstances…."

Several considerations are balanced together by the California courts (as courts in other states), however, to justify a departure from applying this fundamental principle of duty of care in particular cases. These considerations (first enunciated in a California decision of Rowland v. Christian) include:

  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, and
  7. the availability, cost, and prevalence of insurance for the risk involved.

When reviewing these considerations in the context of a specific case, the court explained that the factors are evaluated at a relatively broad level of "factual generality." For example, the court explained that, as to the factor of foreseeability:

the court's task in determining duty "is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed."

In other words, a duty could be found if it was foreseeable that someone within a protected class might be harmed by negligent actions even if it was not foreseeable that the particular individual, such as the plaintiff in this case, would be the specific person injured. Turning then to the question of whether this plaintiff was owed a duty, the court weighed not only the factor of foreseeability of her injury from the actions of the defendant but also the other factors above. The court explained:

In our view, the issue before us is whether a premise owner has a duty to protect family members of workers from secondary exposure to asbestos used during the course of the property owner's business....

The court explained that the duty:

is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct…. Even if it was foreseeable to Ford that workers on its premises could be exposed to asbestos dust as a result of the work performed on its premises, the "closeness of the connection" between Ford's conduct in having the work performed and the injury suffered by a worker's family member off of the premises is far more attenuated. The element of a legal duty of care generally acts to limit "the otherwise potentially infinite liability that would otherwise flow from every negligent act."

The court further concluded:

Here, even assuming a property owner can reasonably be expected to foresee the risk of latent disease to a worker's family members secondarily exposed to asbestos used on its premises, we must conclude strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure.

In addition, the court concluded that two additional Rowland factors weighed heavily against imposing a duty on Ford. These factors were "the extent of the burden to the defendant and the consequences to the community if the court imposes on a particular defendant a duty of care toward the plaintiff."

Similar Decisions by Other Courts in Other States

In analyzing the issues concerning duty of care in this instance, the court discussed similar cases decided by courts in other states. In Washington state, where family members of workers were exposed to asbestos off-site through contact with the worker's clothing:

Courts that have rejected a new duty rule for premises owners have recognized that tort law must draw a line between the compelling policy considerations of providing a remedy to everyone who is injured and of extending tort liability almost without limit.

Similarly, in Michigan, the courts have held that:

Imposing a duty on a landowner to anybody who comes into contact with somebody who has been on the landowner's property (and secondarily exposed to asbestos as a result) would create a potentially limitless pool of plaintiffs.

The courts will therefore assess the competing policy considerations similar to the Rowland factors discussed in the instant decision.

Citing a Georgia case, the court quoted:

Georgia's negligence law does not impose any duty of any employer to a third-party, non-employee, who comes into contact with its employee's asbestos-tainted work clothing at locations away from the workplace.

"There is a responsibility," said the Georgia Supreme Court, "to consider the larger social consequences of the notion of duty."

Conclusion

For the reasons explained herein, the California court concluded that a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business.


Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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