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From Products Liability Law Daily, October 12, 2018

Shipyard owes duty of care to family members in ‘take-home’ asbestos exposure case

By Pamela C. Maloney, J.D.

A shipyard owed a duty of care to a family member of one of its employees who had alleged that exposure to asbestos from the employee’s work clothes caused her to develop mesothelioma, where the family member also alleged that the employer’s negligence had allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home, the Virginia Supreme Court ruled in response to a question certified to it by a federal district court (Quisenberry v. Huntington Ingalls Inc., October 11, 2018, Millette, L.).

The daughter of a shipyard worker developed malignant pleural mesothelioma, allegedly as a result of exposure to asbestos dust and fibers while laundering her father’s work clothes. After her death, her estate filed an action in a Virginia state court against Huntington Ingalls, Inc., the shipyard where her father had been employed and where he was routinely exposed to asbestos dust. The estate alleged that because the shipyard knew or had reason to know the dangers that asbestos posed to employees’ family members and members of the public during the time of the decedent’s exposure, the shipyard was negligent in failing to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines. This negligence, the estate asserted, was the proximate cause of the daughter’s death.

After removing the case to federal court, the shipyard moved to dismiss the action on the basis that the estate’s negligence theory relied on "take home" exposure liability, arguing that Virginia precedent did not support the imposition of a legal duty on an employer for injury to an employee’s family member that occurred outside the premises. The estate countered that the majority of the Virginia circuit courts which had considered the issue had recognized such a duty. The shipyard moved to certify the following question to the Virginia Supreme Court: "Does an employer owe a duty of care to the family member of an employee who alleges exposure to asbestos from the work clothes of the employee, where such exposure takes place off of the employer’s premises and the employer has no relationship with the family member?"

Rephrasing of the certified question. Noting that the certified question described the shipyard and the decedent as having "no relationship," the Virginia Supreme Court rephrased the certified question in order to recognize the circumstances surrounding the negligence duty at issue in the case and to prevent the use of the term "relationship" from creating assumptions as to the shipyard’s duty under the law. According to the court, the question to be resolved was whether the facts of the case established a relationship sufficient to create a legal duty on the part of the shipyard under general negligence law and whether the decedent was within a class of persons who were at a recognizable risk of harm from that negligence. Thus, the question, as rephrased by the Virginia high court, was as follows: "Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?"

Existence of a duty. General negligence principles require a person to exercise due care to avoid injuring others. This duty extended to specific persons, generally defined as those within reach of a defendant’s conduct. In other words, the defendant’s conduct must create a reasonable risk of harm to another individual or to a class of persons. Virginia precedent makes it clear that actual interaction between the parties is not required; instead there only needs to be a sufficient relationship to place the injured person within reach of the defendant’s conduct. Therefore, the fact that the harm in this case occurred at a location removed from the employer’s business was a "distinction without a difference," the high court explained. The nature of the hazard allegedly created by the shipyard’s conduct was that asbestos fibers, the inhalation of which could cause mesothelioma, regularly accumulated on the clothes of workers during the day and were released again when those workers returned home and had their clothes washed. These allegations placed the decedent and others similarly situated within reach of the shipyard’s conduct and within the "zone of danger." Thus, there was a "recognizable risk of harm" to those sharing living quarters with the workers, which resulted in a duty of ordinary care to that class of persons. Accordingly, a duty arose on the part of the shipyard to use ordinary care and skill to avoid such injury to the decedent, as well as other persons who were similarly situated.

The court rejected the shipyard’s argument that no duty could be imposed on it because asbestos dust travelled on the backs of employees. The concept of a mobile hazard that left a premise was not new to the Virginia Supreme Court, and asbestos—which predictably left the property—was not unlike any previously identified hazard that posed a risk of harm to persons outside the premises. As pled, the workers were not informed of the dangers of the asbestos dust. Absent knowledge, the workers were simply vehicles or carriers of the asbestos dust, i.e., they were a means of dispersal yielding various foreseeable and unforeseeable routes of exposure to the hazard created by the shipyard’s conduct in engaging in industrial practices that create asbestos dust.

Also rejected was the shipyard’s argument that it fell to the legislature to establish a duty in this area. The court explained that while the legislature was free to intervene in order to calibrate the scope of duty in either direction, default principles rooted in common law were enough to establish the existence of a duty under the circumstances presented. The court also found refusal to impose a duty in this case would result in the wholesale rejection of a duty to exercise ordinary care in similar circumstances and would absolve the shipyard of liability for negligence no matter how dangerous its conduct or foreseeable the injury. Concluding that the innocent cohabitator represented the quintessential class of persons "rightfully proceeding on their way" yet placed in a given zone of danger, the Virginia Supreme Court found that a duty did indeed lie in favor of the decedent and other persons similarly situated, thereby answering the question in the affirmative.

First dissent. Characterizing the majority opinion as relying on a featureless generality instead of articulating a specific duty owed by the shipyard to the decedent, Justice Lemons, joined by Justices McClanahan and Kelsey, dissented on the grounds that the majority opinion: (1) eviscerated the well-established tort concept of particularized duty; (2) conflated duty and proximate cause by relying on foreseeability to determine whether a duty exists; (3) undermined the Virginia Workers’ Compensation Act; (4) created a new cause of action in territory that should be the domain of the legislature; and (5) created a duty to a potentially limitless class of plaintiffs.

According to the dissent, employees constituted the class of persons to whom an employer owed a duty to provide a reasonably safe workplace. The Virginia courts had never extended this duty to those cohabitating with an employee. In addition, the state high court has exercised great restraint in recognizing a duty that did not exist at common law. Furthermore, in holding that the shipyard owed a duty to the decedent, the majority permitted a negligence action by a non-employee through the conduit of an employee who, under the Workers’ Compensation Act, had no right to bring a negligence action against his employer. Given the policy considerations presented by allowing such tort actions, the legislative, not judicial, branch of government should determine whether those who cohabitate with employees can recover in tort under these circumstances.

Justice Lemons also described the duty created by the majority as "limitless," adding that the majority failed to propose any framework for limiting an employer’s duty to those who shared living quarters with its employees. Lemons admonished that before the majority issued its opinion, no one could have predicted that an employer would owe a legal "take home" duty to a non-employee based solely on a tort committed by an employer against an employee that occurred at the work site and arose out of and in the course of the employer’s work.

Second dissent. Justice McClanahan wrote a separate dissent, joined again by Justices Lemons and Kelsey, in order to emphasize the obvious difficulty in applying principles of landowner and/or riparian owner liability, as well the principles governing liability for the maintenance of private nuisances, to the allegations in this case. Justice McClanahan also opined that the majority’s application of the principle of foreseeability of harm as the source of the shipyard’s duty allowed it to reach a decision that had no basis under state high court’s established law relating to duty. The estate’s alleged acts of negligence were based on duties purportedly arising from the shipyard’s employment relationship with the decedent’s father, not on the duties an owner or occupant of land, or a riparian land owner owed to others in the vicinity of the land. It was clear to Justine McClanahan that based on Virginia precedent, there was no duty on the part of the shipyard to protect a non-employee family member such as the decedent from conditions created by the shipyard’s business operations because the parties were not juxtaposed in time and space so as to place the decedent within a given area of danger.

The case is No. 171494.

Attorneys: Peter A. Kraus (Waters Kraus & Paul) for Wesley Quisenberry. Christopher J. Wiemken (TaylorWalker PC) for Huntington Ingalls Inc.

Companies: Huntington Ingalls Inc.

MainStory: TopStory SCLIssuesNews CausationNews WarningsNews AsbestosNews VirginiaNews

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