Introduction
"Take home" liability continues to generate new plaintiffs, cases, and case law. Such claims are asserted on behalf of claimants that have never set foot on the premises but allegedly were exposed to asbestos through their spouses or others who brought it home on their clothing. They are referenced as "take-home" liability asbestos exposure claims, though they are also commonly referenced as "household," "bystander," "secondary," or "second-hand" exposure claims. The claims are asserted against manufacturers of products allegedly utilized at such premises and against premises owners, and the number of both types of claims is increasing. It is the latter claims that are the subject of this article--the third yearly monograph by the authors on the topic-- which will provide a comprehensive overview and update of the status of such claims. [i]
As of the time this article was submitted for publication, courts construing the law of Delaware, Georgia, Iowa, Illinois, Kentucky, Maryland, Michigan, New York, Ohio, Texas, and Washington have held there is no duty owed by a premises owner to a "take-home" claimant. Such holdings constitute the emerging majority rule, with the Supreme Court of Ohio providing the most recent ruling state supreme court ruling on the issue. However, courts construing the law of California, Louisiana, New Jersey, and Tennessee have permitted such claims. There is also a recent Illinois appellate case that permits "take-home" claims under that state's law, but the case only references "employer" liability, not premises liability, and makes no reference to an earlier Illinois appellate case prohibiting "take-home" claims against premises owners.
Cases Denying Take-Home Premises Liability Exposure Claims
Ohio
In Boley, et al. v. Goodyear Tire & Rubber Company, et al., --- N.E.2d ---, 2010-Ohio-2550 (June 10, 2010), the Ohio Supreme Court affirmed the Eighth District Court of Appeals' decision in Adams v. Goodyear Tire and Rubber Co., 8th Dist. No. 91404, 2009-Ohio-491, which declined to find that an employer owed a duty to its employee's wife who was exposed to asbestos brought home by her husband on his work clothes from 1973 to 1983. The Ohio Supreme Court held that pursuant to O.R.C. 2307.941 – Ohio's statute barring tort liability for asbestos exposure not occurring at premises owner's property – "a premises owner is not liable in tort for claims arising from asbestos exposure originating from asbestos on the owner's property unless the exposure occurred at the owner's property." Boley, at ¶ 2. The Ohio Supreme Court was not persuaded by plaintiff's claims that O.R.C. 2307.941 did not apply because the employee's wife was never exposed to asbestos on the defendant's property.
O.R.C. 2307.941 provides:
(A) The following apply to all tort actions for asbestos claims brought against a premises owner to recover damages or other relief for exposure to asbestos on the premises owner's property: (1) A premises owner is not liable for any injury to any individual resulting from asbestos exposure unless that individual's alleged exposure occurred while the individual was at the premises owner's property.
The court reiterated Ohio's statutory construction law, which requires courts to look to the language of the statute and the purpose that is to be accomplished by the statute. Id. at ¶ 20. Based on those confines, the court found that when O.R.C. 2307.941 "is read in its entirety, the legislative intent behind R.C. 2307.941(A) is apparent–R.C. 2307.941(A)(1) bars tort liability for asbestos claims stemming from exposure that does not occur at the premises owner's property." Id. at ¶ 22.
The court also pointed out that "the term 'asbestos claim' as used in R.C. 2307.941(A) is defined as "any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos,' not just a premises-liability claim. (Emphasis added.) See R.C. 2307.91(C)." Id. In so finding, the court agreed with the defendants' position that applying plaintiff's interpretation of R.C. 2307.941(A) would give no meaning to subdivision (A)(1). Id. at ¶23. As the court explained, "[t]he only interpretation of R.C. 2307.941 that gives effect to the language employed by the General Assembly in subdivision (A)(1) is that which interprets the phrase 'on the premises owner's property' to modify the word 'asbestos.'" Id. The court further found that "when read together, R.C. 2307.941(A)(1), (2), and (3) further reveal the General Assembly's intent to limit the liability of a premises owner to instances in which the exposure occurred at its property [because] subdivisions (A)(1), (2), and (3) each restrict the owner's liability to exposure that occurred at the premises owner's property." Id. at ¶ 24. Accordingly, the Ohio Supreme Court held that "R.C. 2307.941(A) applies to all tort actions for asbestos claims brought against premises owners relating to exposure originating from asbestos on the premises owner's property, and R.C. 2307.941(A)(1) applies to preclude a premises owner's liability for any asbestos exposure that does not occur at the owner's property." Id. at ¶ 25.
Iowa
In Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689 (Nov. 13, 2009), the Iowa Supreme Court affirmed the granting summary judgment in favor of two companies that hired an independent contractor, an employee of which claimed that his wife was exposed to asbestos from his clothing, which she washed from 1973-1997. The court held that the "owners of the power plant owed no legal duty to give *** warnings [of the health hazards posed by asbestos] to the spouse of an independent contractor's employee." *2. Specifically, the court declined to impose a duty under: 1) Restatement (Second) Sections 413 and 416; 2) Restatement (Second) Section 427- inherently dangerous activity exception to no duty; or 3) the general duty to exercise reasonable care (holding that "[o]ne who employs an independent contactor owes no general duty of reasonable care to a member of the household of an employee of the independent contractor." *12.) The court recognized, and chose to follow, the no duty precedent of the Sixth Circuit, and courts in Delaware, Georgia, Illinois, Michigan, and Ohio. Conversely, the court distinguished the Louisiana, New Jersey, Tennessee, and Washington courts imposing a take-home duty because "[s]uch a dramatic expansion of liability would be incompatible with public policy." *16.
Illinois
In Nelson v. Aurora Equipment Company, 391 Ill.App.3d 1036, 909 N.E.2d 931 (2009), appeal denied 233 Ill.2d 564, 919 N.E.2d 355 (Sept. 30, 2009), an Illinois appellate court affirmed that a premises owner had no duty to its employees' wife/mother in an asbestos premises liability case. Affirming summary judgment in favor of the defendant, Aurora Equipment Company ("Aurora"), the court noted that take-home premises liability was an issue of first impression. The court framed the issue as follows: "plaintiffs ask us to extend a duty in a premises liability case to a person who did not have contact with the premises but who was allegedly injured by asbestos fibers and dust that escaped from the premises."
Plaintiffs, the husband and son of the decedent ("Mrs. Nelson"), alleged that Mrs. Nelson washed her husband's and son's work clothes when they returned from work at Aurora. As a result of this housework, Mrs. Nelson was allegedly exposed to the asbestos fibers and dust the men brought home from Aurora. At the trial court level, Aurora argued that it did not owe a duty to the decedent because it had no relationship with her and, absent a relationship, foreseeability of injury is not relevant. In response, plaintiffs argued that Aurora did owe a duty of ordinary care "to provide a reasonably safe place for persons lawfully on the property and to those who could foreseeably be harmed by dangerous conditions on [Aurora's] premises." Thus, the plaintiffs urged the trial court to impose a duty on Aurora to guard against off premises injury caused by airborne asbestos generated on the Aurora's premises because it was foreseeable that exposure would cause injury and death.
After reviewing the plaintiffs' arguments to the trial court and on appeal, the appellate court noted that it was restricted to the arguments presented to the trial court: a straight premises liability claim. That is, they were limited to considering whether a "duty arises within the context of the cause of action actually pleaded, not whether some other theory of liability not pleaded would dictate a different result."
The court found that the threshold question in a premises liability case is duty, which requires an analysis of the nature of the relationship between the parties. Thus, liability hinges on whether the plaintiff, or decedent in this case, was an entrant on the premises/present on the land. In that vein, the court noted that Mrs. Nelson was not an entrant on Aurora's land; thus, she was not an invitee, a licensee, or a trespasser. Accordingly, while Mrs. Nelson was alleged to have come into contact with the asbestos fibers and dust on her husband's and son's clothes, the court found that those fibers and dust were no longer a condition on Aurora's premises. With a relationship between the decedent and the defendant the key to a premises liability duty, and finding that Mrs. Nelson had no relationship with Aurora because she never encountered any condition on Aurora's premises or was in a position to enter the premises for any reason, the appellate court found no duty existed.
In sum, the court declined the plaintiffs' implicit requests to ignore the requirements of the cause of action they pleaded --- premises liability --- and rejected requests to hold "that a premises owner is liable to persons off the premises when it is foreseeable that a danger on the premises will cause injury to those persons." It, however, implicitly indicated that a different result may have been reached had the matter been pled differently. But, the case was pled as a straight premises liability action. (See, Simpkins v. CSX Corp. and CSX Transportation, Inc., 5th Appellate Dist. Ill. No. 5-07-0346, 2010 WL 2337778 (June 10, 2010), in next section for similar case pled as negligence and strict liability against employer.) Accordingly, the appellate court affirmed that no duty existed because premises liability requires "that a plaintiff either be an entrant onto the defendant's premises or otherwise have some special relationship with the defendant" --- neither of which existed in Nelson.
Delaware
In Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. Super 2009), the Delaware Supreme Court affirmed the trial court's decision granting summary judgment to an employer in an employee's wife's negligence action based on her asbestosis diagnosis allegedly caused by laundering her husband's asbestos contaminated work clothes during his employment from 1962-1990. The appellate court held that the employee's wife did not have a legally sufficient relationship with her husband's employer to establish a duty. While the court found no duty, it recognized that the Tennessee Supreme Court reached the opposite result in Satterfield v. Breeding Insulation Co., et al., 266 S.W.3d 347 (Supreme Tenn. 2008), which adopted the Restatement (Third) of Torts. Unlike Satterfield, the Delaware Appellate Court declined to adopt any sections of the Restatement (Third) of Torts, because it "redefined the concept of duty in a way that is inconsistent with [Delaware's] precedents and traditions." Riedel, at *2.
The court also found that it is the legislature's job, not the court's, to create a new duty. In declining to create a new duty, the court rejected the plaintiff's argument that the employer's act of publishing a newsletter regarding maintaining safe homes established a duty. Id. at *7. The court found, like the trial court, that the employer did not undertake a duty to warn its employees' families of all dangers. The court also agreed with the trial court that the plaintiff and her husband's employer were "legal strangers in the context of negligence." Id. at *8. Accordingly, the court declined to find a take-home duty.
Kentucky
In Martin v. Cincinnati Gas and Electric Co., et al., 561 F.3d 439 (6th Cir. 2009), the Sixth Circuit Court of Appeals affirmed the United States District Court for the Eastern District of Kentucky's decision, construing Kentucky law, that an employer/premises owner owed no duty to the son of an employee who brought asbestos particles home on his clothes during his employment from 1951-1963. Interestingly, the utility company did provide locker and shower facilities for use its employees, and at times, the father used them. The utility alleged there was insufficient knowledge about take-home exposure, thus, no foreseeability or duty owed to the son under Kentucky law.
The Sixth Circuit focused on the foreseeability of harm at the time of injury. Id. at *4. The court explained that the plaintiff must show that the employer knew or should have known the danger of take-home asbestos exposure during the time his father was employed there. Id. The court found that there was no evidence that the employer had actual knowledge of the danger of take-home exposure. Similarly, the court agreed with the District court's conclusion that the plaintiff failed to show that the risk of take-home asbestos exposure was foreseeable at the relevant times – the first studies regarding the dangers of take-home exposure were published in 1965. Id. at *5. Without evidence of any earlier "published studies or any evidence of industry knowledge of [take-home] exposure" there is "nothing that would justify charging CG&E [the employer] …with such knowledge[.]" Id. *6.
The court engaged in a brief analysis of the case law regarding imposition of such a duty, and noted that those finding a duty existed based on foreseeability failed to persuasively explain how the defendants could have known of the risk of secondary exposure. Id. at *6. The court also found that that other cases finding a duty were factually or legally distinguishable because the cases involved employers who knew of the danger of bystander exposure and failed to warn their employees of the danger. Id. at *6. The court concluded its case analysis by noting that while the decisions do not reach a uniform result, "we find the cases declining to find a duty to be more persuasive based on our reading of Kentucky law and the facts of this case." Id. at *6.
The court also rejected plaintiff's strict liability claim -- that the defendant was liable based on a proximity argument similar to injury to a customer from an exploding bottle on a store shelf -- because such claim still requires proof of foreseeability, and such proof was lacking for the exposure period. Id.
Washington
In Rochon v. Saberhagen Holdings Inc., 140 Wash. App. 1008 (Wash. Ct. App., Div. 1 2007), a Washington state appellate court upheld the trial court's dismissal of the take-home premises liability asbestos exposure claim of a wife against her husband's former employer that arose from alleged exposure during 1956-1966. However, the court reversed the trial court's holding that no duty of care was owed under ordinary negligence theory. The court held that there was a genuine issue of material fact regarding whether the company operated and maintained its plant in an unreasonably unsafe manner that caused foreseeable and proximate harm to the wife, and it remanded the case to determine those issues.
Michigan
In In re Certified Question from Fourteenth Dist. Court of Appeals of Texas (Miller et al. v. Ford Motor Company), 479 Mich. 498, 740 N.W.2d 206 (July 2007), reh'g denied, the Michigan Supreme Court, reviewing a certified question from a Texas state appellate court, denied the take-home exposure claim of the stepdaughter of an employee of an independent contractor who relined furnaces at a Ford plant from 1954-1965. The stepdaughter developed mesothelioma, allegedly as a result of washing her stepfather's work clothing during the years he worked at Ford.
In denying the claim, the court held that Ford owed the stepdaughter no duty to protect her from exposure to asbestos. It reached that conclusion after an analysis of the benefits of imposing such a duty against the social costs of doing so. That analysis required consideration of the relationship between the parties, the foreseeability of the harm, the burden on the defendants, and the nature of the risk prevented.
Most important of these considerations is the relationship of the parties — where none exists, no duty will be imposed. Here, the court characterized the stepdaughter's relationship to Ford as "highly tenuous," at best. Her alleged exposure consisted solely of off-site laundering of her stepfather's clothing.
The "burden on defendant" prong is also held in Ford's favor. Ford could not be reasonably expected to protect everyone who may come in contact with employees of an independent contractor.
As to the "foreseeability of the harm" prong, no duty should be imposed, the court held, because there were no OSHA rules in effect during the relevant period regarding potential exposure of that type. Such rules were not in effect until the 1972, when OSHA regulations first mandated that asbestos-contaminated clothing not leave the workplace. Further, the court noted, the first suggestion of a link between asbestos disease and exposure from washing clothing was not published until 1965. Thus, the take-home exposure was not foreseeable to Ford during the relevant time period (1954-1965).
The final prong was a consideration of the risks prevented. The court held that assuming Ford directed the independent contractor to work with asbestos-containing material, the "nature of the risk" was serious, which suggests a duty should be imposed.
However, all the prongs must be met, not just one, and even if all are met, the court must still ultimately balance social benefits of imposing a duty against the social costs of imposing one. That requires consideration of competing policy considerations, not just of logic and science. After noting the existence of a litigation crisis created by the existing asbestos docket, the court held that expanding a duty to "anybody" who may come in contact with someone who has simply been on the premises owner's property would expand traditional tort principals beyond manageable bounds.
Texas
A Texas appellate court, in Exxon Mobile Corp. v. Altimore, No. 14-04-0113-CV, 2007 WL 1174447 (April 19, 2007), also held no duty was owed by the premises owner to the take-home exposure plaintiff, who claimed asbestos exposure from washing her husband's work clothing during the 1942-1972 period. In so ruling, the court reversed the trial court's award of almost $2 million dollars to the wife. It did so because the wife's exposure was not foreseeable during the time it occurred. Mobil, the premises owner, had not been sufficiently put on notice prior to 1972 of the take- home exposure risk. That changed in 1972 with OSHA's contaminated clothing regulations (previously referenced). The court held that prior to the adoption of OSHA's regulations there had been no clear consensus in the scientific community as to the degree of the danger posed by take home exposure. While the court reversed the trial court, it agreed with the trial court's holding that, generally, a duty may be owed by a premises owner to a take-home claimant. However, the exposure would have to be after 1972. See also Alcoa Inc. v. Behringer, 235 S.W.3d 456 (Tex. Ct. App. 2007) (holding no legal duty based on 1950s take-home exposure), Texas Supreme Court declined review November 21, 2008.
New York
In In re New York City Asbestos Litigation (Holdampf, et al. v. A.C. & S. Inc., et al. and the Port Authority of New York and New Jersey), 5 N.Y.3d 486, 806 N.Y.S. 2d 146 (October, 2005), the Court of Appeals for New York (New York's highest court) denied the take-home asbestos exposure claim of a wife asserted against the owner of the premises where the husband worked. The court held that the initial analysis required a determination of whether any duty was owed by the premises owner to the wife, not whether the exposure/injury was foreseeable. Forseeability, the court noted, is only considered once a duty is determined to exist. Duties arise from a special relationship, such as master-servant, where the relationship limits the scope of the liability. No such duty, the court held, should extend to the wife or others not actually present at the workplace and over whom no control can be exercised by the premises owner.
To hold otherwise, the court further noted, would be unworkable in practice and unsound as a matter of public policy. The potential for open-ended liability would exist, because anyone (babysitter, renters, car pool members, taxi drivers, servants, delivery people, home repair people, etc.) who might come in contact with the worker may have a cause of action.
It should be noted that the court also found it significant that the husband did have the opportunity at work to have his laundry sent offsite for cleaning but did not avail himself of it, therefore leaving the premises owner entirely dependent on the husband's willingness to reduce the risk of take home exposure. See also In re Eighth Judicial District Asbestos Litigation (Rinfleisch v. AlliedSignal, Inc.), 12 Misc. 3d 936, 815 N.Y.S 2d 815 (N.Y. Sup. Ct. 2006), where a wife's take-home premises liability asbestos exposure claim based on exposure during the 1984-1990 period the was denied, despite the fact that the premises owner did not provide protective work clothing, laundry service, changing rooms or advice as to how to avoid exposure to asbestos.
Georgia
The Georgia Supreme Court, in CSX Transp., Inc. v. Williams, 608 S.E. 2d 208 (Ga. January, 2005), refused to extend a duty to those who allege off-site contact with asbestos-contaminated work clothing. The take-home claimants were the wife and children of the worker. The court held the initial inquiry in such claims is whether a duty exists, which question is a matter of public policy, not mere foreseeability. As a matter of public policy, the court held, no duty is owed to such claimants because they did not work at and were not exposed at the workplace.
Maryland
In Adams v. Owens-Illinois, Inc., 705 A. 2d 58 (Md. Ct. App. 1998), a Maryland appellate court held no duty should extend to a wife who was exposed to asbestos when her husband tracked it home on his clothing. It so held because the wife, who never set foot on the premises and had no relationship to or with the premises owner, was a mere stranger. Holding otherwise, the court explained, would impose a broad duty that would necessarily extend to other strangers with similarly had no relationship with the premises owner, such as those sharing a ride to work or other relatives of the employee.
Case Permitting Take-Home Exposure Premises Liability Claims
Illinois
In
Simpkins v. CSX Corp. and CSX Transportation, Inc., 5
th Appellate Dist. Ill. No. 5-07-0346, 2010 WL 2337778 (June 10, 2010), an Illinois appellate court, reviewing a circuit court's decision granting a motion to dismiss a wife's take-home claims based on exposure to asbestos from her husband's work clothes, found a take-home duty does exist. The plaintiff's claims had been dismissed because the lower court found that an employer has no duty to protect family members of its employee from the dangers of asbestos brought home on the work clothes of the employee. The Illinois Fifth Appellate District disagreed and found that such duty does exist.
In their ruling, the court explained that "[u]nder Illinois law, the existence of a duty depends on whether the parties stand in such a relationship to each other that the law imposes upon the defendant an obligation to act in a reasonable manner for the benefit of the plaintiff." To that end, the court considered four factors: 1) the foreseeability of harm – if the employer should have foreseen the risk; 2) the likelihood of the injury; 3) the magnitude of the burden involved in guarding against the harm; and 4) the consequences of placing on the defendant the duty to protect against the harm. In considering the factors, the court was persuaded by Olivo v. Owens-Illinois, Inc., 895 A. 2d 1143 (N.J. April, 2006) and Satterfield v. Breeding Insulation Co., et al., 266 S.W.3d 347 (Supreme Tenn. 2008) — two cases finding a similar take-home duty.
The court's decision focused on the foreseeability factor and found that it "would defy logic and lead to grossly unfair results" to base duty solely on the relationship of the parties. Rather, duty should be based on the foreseeability of harm. As such, the court concluded "that it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well." Thus, foreseeability exists. The court also found the likelihood of serious or fatal injury was substantial enough to warrant the imposition of a duty. Similarly, the court found that factors three and four weighed in favor of finding a duty — the burden of guarding against take-home asbestos exposure was not unduly burdensome when compared to the risk and the scope of liability (consequences to employer) would be inherently limited by the foreseeability of the harm.
In its finding that a duty existed, the court implicitly limited that duty to household members: "While we do not expressly limit the duty to immediate family members, we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure."
Despite the Fifth Appellate District's decision above, Nelson, supra, remains good law. As such, it is unclear if the cases were distinguished based on the claims presented (Nelson was premises liability, not employer negligence and strict liability), if Nelson was overlooked, or if the Simpkins' court declined to find Nelson authoritative. What is clear, however, is that Illinois law currently has contradictory holdings depending on the claims presented, not the facts of the underlying claims.
Louisiana
In Catania v. Anco Insulations, Inc., U.S. Dist. Ct. M.D. LA No. 05-1418-JJB, 2009 WL 3855468, a Louisiana federal court found that a duty of care was owed to the niece of several employees; the niece died due to mesothelioma allegedly caused by traces of asbestos brought home on her uncles' clothing. As such, the court denied the defendants' motion for summary judgment.
The court was not persuaded by the defendants' arguments that it did not owe a duty because the risk of an employee's family member contracting mesothelioma was not foreseeable at the time of the alleged exposures and that, regardless of foreseeability, the plaintiff was not a member of an employee's household. Regarding foreseeability, the court found that the risk of an employee carrying home asbestos and thereby cause injury to others, which did not require knowledge of causing mesothelioma, was foreseeable. In reaching that determination, the court relied on the Walsh-Healey Act of 1951, which addressed the hazards of asbestos and required that employers provide a change of clothing to employees to prevent them from carrying asbestos home. Id.at *2. The court also looked to the Louisiana Legislature's findings in 1952, which listed asbestosis as an occupational disease. Id. While declining to define "household member", the court found that the plaintiff – who predictably came into routine contact with the employer's workers – was owed a duty of care. Id.at *3, relying in part on Zimko v. American Cyanamid, 905 So. 2d 465 (La. Ct. App. 2005) (see below).
Louisiana state courts have also found a "take-home" duty. See Chaisson v. Avondale Industries, Inc., 947 So.2d 171 (La. App. 4 Cir. December, 2006) (holding that a duty does extend off-site to the wife of a man who wore asbestos-contaminated clothing home, which wife shook it out then washed it during the 1976-1978 period; citing Olivo with approval, the court noted that Louisiana, like New Jersey and unlike Georgia, relies heavily on foreseeability in its duty/risk analysis). See, also Zimko v. American Cyanamid, 905 So. 2d 465 (La. Ct. App. 2005) (finding that a duty exited, though it relied on a New York decision since reversed).
Tennessee
In Satterfield v. Breeding Insulation Co., et al., 266 S.W.3d 347 (Supreme Tenn. 2008), the Tennessee Supreme Court, affirming the appellate court, held that a duty existed to the daughter of a worker who wore asbestos-contaminated work clothes home from work when the employer knew of the danger at the relevant time (1970s – 1980s) and failed to abide by OSHA regulations regarding the danger and/or warn the employee of the danger. At issue was whether the daughter's claim could withstand a motion for judgment on the pleadings. The court held it could.
First, the court found that it was foreseeable that an employee's child would come into close contact with the employee's work clothes, which contained asbestos fibers, on an extended and repeated basis. Second, the court ruled that the employer had a duty to use reasonable care to prevent exposure to asbestos fibers not only to its employees, but also to those who came into close regular contact with its employees' contaminated work clothes over an extended period of time.
In reaching its conclusion, the court noted that inconsistent conclusions have been reached by courts across the country when deciding if a "take home" duty exists. The court explained that courts finding a duty focus on the forseeability of the harm resulting from the employer's failure to warn of or to take precautions to prevent the exposure. On the other hand, the courts finding no duty focus on the relationship/lack of relationship between the employer and the injured party. Id. at 361. Declining to follow the relationship method, the court found that Tennessee law has long recognized a duty of reasonable care wherever a defendant's conduct poses an unreasonable and foreseeable risk of harm to persons or property. Id. at 362. Agreeing with the Restatement (Third) of Torts § 37, the court found that privity does not define the line between duty and no duty. Rather, the court found that a duty existed based on a risk created through misfeasance --- the employer's "injurious affirmative act of operating its facility in such an unsafe manner that dangerous asbestos fibers were transmitted outside the facility to others who came in regular and extended close contact with the asbestos." Id. at 364. Next, the court reviewed public policy consideration. Id. at 365.
Finding that a foreseeable risk and duty existed, the court indicated that the duty extends to those "who regularly and repeatedly come into close contact with an employee's contaminated work clothes over an extended period of time, regardless of whether they live in the employee's home or are a family member." Id. at 374. This extension could lead to claims from neighbors, friends, and strangers that came into repeated contact with an employee's work clothes.
New Jersey
The most-oft cited case for the existence of a duty owing to one asserting a take-home premises liability claimant is Olivo v. Owens-Illinois, Inc., 895 A. 2d 1143 (N.J. April, 2006). In Olivo, the New Jersey Supreme Court upheld the appellate court's reversal of the summary judgment granted in favor of a premises owner, holding that it was foreseeable that asbestos might be brought home on the clothing of one working in the vicinity of it.
Plaintiff was the wife of a steamfitter/welder who from 1947-1984 worked at a number of job sites, including at defendant Exxon Mobil's facility in Paulsboro, New Jersey. The court held that the proper standard to apply to determine whether any duty extends from the premises owner to the wife "devolves to a question of foreseeability of the risk of harm to that individual [the wife] or identifiable class of individuals," as the "risk reasonably to be perceived defines the duty to be obeyed." Once it is determined that the risk is foreseeable, the court considers whether imposition of a duty is fair by weighing and balancing factors, including the relationship of the parties, nature of the risk, opportunity and ability to exercise care, and the public interest. The plaintiff's status as someone who was never actually at the work site is one consideration in a fairness analysis, but not the primary one in determining whether liability can attach. It simply becomes a factor in that analysis. Evidence demonstrating Mobil's knowledge of the hazards of asbestos caused the court to hold that the risk that asbestos may be carried home on a worker's clothing was foreseeable. The Olivo court distinguished Holdampf and Williams, by noting that those jurisdictions do not consider foreseeability when determining whether a duty exists.
California
In Condon v. Union Oil Company, Case No. A 102069, 2004 Ca. App. Unpub.LEXIS 7975 (Cal App., August, 2004), the court upheld a jury verdict in favor of the wife (ex-wife as of the time of trial) of an employee who allegedly brought asbestos home on his work clothing, which the wife washed during the 1948-1963 time period. Change rooms were provided at the plant, but no showers or laundry facilities. The court found that there was substantial evidence, including expert testimony, to support a finding that during the relevant time period, it was known that worker clothing could be the source of contamination to others; thus, it was foreseeable that the husband's contaminated clothing could lead to contamination of his wife. In the face of such knowledge, the premises owner did not provide adequate protection against it. See also Honer v. Ford Motor Co., Case No. B18916, 2007 WL 298271 (Cal. App., October, 2007), where the court overruled the grant of summary judgment based on take-home exposure during the 1940s.
Conclusion
The majority of jurisdictions that have considered "take-home" liability continue to hold that no duty is owed by a premises owner to a "take-home" claimant, with the Ohio Supreme Court being the most recent state supreme court to rule on the issue. Key in many rulings is the time-period of the exposure and whether the exposure would was foreseeable within such period.
"Take-home" claims against premises owners will likely increase as more traditional exposure cases decline. Thus, we can expect to see more rulings in states where the law is presently unsettled, which will be addressed by the authors in future monographs on this topic.
Authors
Carter E. Strang is a partner with Tucker Ellis & West LLP. His focus is environmental, mass tort and products liability litigation. He is President of the Federal Bar Association Northern District of Ohio Chapter, Vice President of the Cleveland Metropolitan Bar Association, and Chair of the CMBA's Green Committee. Carter is the recipient of the CMBA's 2010 Justice for All Volunteer of the Year Award and the 2009 Distinguished Contributions to the Community Award presented by the Ohio Civil Trial Attorneys Association. He is TEW's Pipeline Initiative Coordinator, overseeing TEW's partnership with Cleveland's John Hay High School and the expansion of similar partnerships to TEW's Los Angeles, San Francisco, and Denver offices. He is a graduate of Kent State University (B.S. and Master of Education) and Cleveland-Marshall College of Law.
Karen E. Ross is an associate with Tucker Ellis & West LLP. Her focus is mass tort, products liability, and medical malpractice litigation. She is a member of the Cleveland Metropolitan Bar Association, and she co-chairs TEW's preparation of the John Hay High School Mock Trial teams for the Cleveland Municipal Court Mock Trial Competition. She also is a 3Rs teacher at John Hay HS and assists with the TEW/John Hay HS Summer Internship program. She is a graduate of Kenyon College and Case Western Reserve University School of Law.
[i] "Take-home" is the utilized by the authors in reference to all cases discussed in this article, even where a court may have used "secondary," "second-hand," or other similar term in its opinion.
[ii] In reaching its decision, the court noted that its consideration of whether such a duty existed for an employer was a matter of first impression in Illinois. (But, see Nelson, supra.)
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