Posted on: 3/15/2012
Carter E. Strang, Karen E. Ross
View Latest Articles
Increasingly, plaintiff attorneys are asserting "take-home" claims against product manufacturers and premises owners. As one plaintiff's practitioner noted, "[t]he housewife is the number one occupation listed for those now contracting mesothelioma." Emerging Sources of New Plaintiffs Defined at Asbestos Litigation Conference, The Record, by Scott Sabatini, March 13, 2009, quoting Anne Kearse of Motley Rice LLC. The trend is expected to accelerate as more "traditional" defendants become bankrupt.
"Take-home" claims are those 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 also commonly referenced as "household," "bystander," "secondary," or "second-hand" exposure claims.
"Take-home" claims asserted against premises owners is the focus of this article, which is the most recent annual monograph by the authors analyzing decisions from all jurisdictions that have ruled on such claims. As is more fully discussed below, the "majority rule" continues to be that there is no duty owed by a premises owner to a "take-home" claimant. Courts in Delaware, Georgia, Iowa, Kentucky, Maryland, Michigan, New York, Texas, and Washington have so held. Statutes in Ohio and Kansas also prohibit such claims. Conversely, courts construing the law of California, Louisiana, New Jersey, and Tennessee have permitted such claims.
In Illinois, however, the viability of "take-home" claims is unresolved and currently under review by the Illinois Supreme Court, who heard oral argument on September 20, 2011.
Cases Denying "Take-Home" Premises Liability Exposure Claims
Like its 2009 decision in Riedel v. ICI America's Inc., 968 A.2d 17 (Del. Super. 2009), in Price v. E.I. Dupont DeNemorus & Company, the Delaware Supreme Court rejected a "take-home" asbestos claim because it found there was no special relationship between the worker's spouse and the worker's employer. Price v. E.I. Dupont DeNemorus & Company, 26 A.3d 162 (Del. Super. 2011). The Price facts mirrored Riedel's: wife allegedly developed asbestos-related disease after years of washing her spouse's asbestos-laden clothing. Plaintiff alleged nonfeasance. Under Delaware law, nonfeasance requires evidence demonstrating that the defendant has a "special relationship" to the plaintiff and that the defendant fails to protect her from an unreasonable risk.
Plaintiff moved to amend her Complaint to include a misfeasance claim, but her motion was denied because the court found the amendment was "predicated on exactly the same underlying facts earlier claimed to be nonfeasance." Price, 26 A.3d at 169. The court determined that a legal characterization cannot change the underlying conduct alleged. The court found Plaintiff's claims of wrongful failure to prevent Mr. Price from taking asbestos home or to warn the Prices of the dangers associated with wearing the work clothes home to be nonfeasance claims. Id. at 169-170.
The court recognized thesimilarity to Riedel and held that failure to prevent harm and failure to warn claimed by Mrs. Price typified nonfeasance. Like Riedel, the court found that there was no special relationship shown between the parties. Id. As such, the court rejected Mrs. Price's claims that the company's health benefits and her husband's long-term relationship with the company created a special relationship. Thus, the Delaware Supreme Court upheld Delaware's prohibition of "take-home" claims. Further, based on the court's denial of Plaintiff's claim to amend her Complaint to include malfeasance, the court implicitly indicated that a "malfeasance" "take-home" premises claim would likely suffer the same fate because the conduct alleged would actually be nonfeasance.
See, also Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. Super 2009), in which the Delaware Supreme Court affirmed the trial court's decision granting summary judgment to anemployer 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; declining to adopt anysections of the Restatement (Third) of Torts, because it "redefined theconcept of duty in a way that is inconsistent with [Delaware's] precedents andtraditions." Riedel, at *2.
In Boley, et al. v. Goodyear Tire & Rubber Company, et al., 125 Ohio St.3d 510, 929 N.E.2d 448, 2010-Ohio-2550, 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, declining 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 O.R.C.2307.941 barred the claim because under the statute "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. Instead, 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.
Under K.S.A. 60-4905, Kansas plaintiffs cannot maintain a silica or asbestos claim against a premises ownerbased on exposure to silica or asbestos on the premises owner's property if theexposure did not occur while the "individual was at or near the premises owner's property."
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 who were being sued by the wife of an employee of an independent contractor. 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 contractor owes no general duty of reasonable care to a member of the household of an employee of the independent contractor." *12.) The court recognized, andchose 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.
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. 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, and the court found that there was no evidence that the employer had actual knowledge of the danger of "take-home" exposure. Id.
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.
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.
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. 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. 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 expandtraditional tort principals beyond manageable bounds.
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. A duty was denied because the wife's exposure was not foreseeable during the time it occurred. 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.
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. Foreseeability, 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. 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 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.
The Georgia Supreme Court, in CSX Transp., Inc. v. Williams, 608 S.E. 2d 208 (Ga. January, 2005), refused to extend a duty to a wife and children of a worker who alleged off-site contact with asbestos-contaminated work clothing. 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 notwork at and were not exposed at the workplace.
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 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 who similarly had no relationship with the premises owner, such as those sharing a ride to work or other relatives of the employee.
Cases Permitting "Take-Home" Exposure Premises Liability Claims
In Anderson v. A.J. Friedman Supply Co., Inc., et al., 416 N.J. Super. 46, 3 A.3d 545 (2010), a New Jersey appellate court followed New Jersey precedent and held that an employer owed a duty to an employee's wife with regard to asbestos exposure from laundering her husband's asbestos-laden work clothes from 1969-2003. Anderson relied heavily on the most-oft cited case for the existence of a duty owing to one asserting a "take-home" premises liability claimant —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.
The Olivo 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 should consider 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.
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 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. 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).
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. The court found that the risk was foreseeable and that a duty to use reasonable care to prevent exposure to asbestos extended to those who came into close regular contact with its employees' contaminated workclothes over an extended period of time.
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 at 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. 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.
"Take-Home" Claims Currently Under Review
Appellate courts in Illinois have reached different conclusions on the viability of "take-home" claims. The difference, it appears, stems from whether the court considered the claim a premises-liability claim or a negligence claim; based on the similarly of the facts at issue, however, such a distinction seems to be one without a difference. As noted above, the Illinois Supreme Court is currently considering whether an appellate court's decision to allow a "take-home" claim was correct. Their decision could clarify the issue in Illinois or further muddy the waters. The precedent for "take-home" claims in Illinois is set forth below.
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. 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. But, the court also implicitly indicated that a different result may have been reached had the matter been pled differently.
Similarly, in Holmes v. Pneumo Abex, L.L.C., an Illinois appellate court reversed liability for a "take-home" exposure claim finding that the manufacturers of asbestos-containing products owed no duty of care to the wife of a factory worker exposed to asbestos fibers carried home on her husband's clothes. In re Estate of Holmes, et al. v. Pneumo Abex, L.L.C., et al., 955 N.E.2d 1173 (Ill. App.Ct., 4th Dist. 2011). The Fourth Circuit found that the imposition of a duty depends on the relationship of the parties to each other and that Honeywell and Abex owed no duty to Mrs. Holmes because there was a lack of foreseeability of harm. Id. at ¶27. The court's foreseeability decision was based on the fact that the studies and evidence presented by the plaintiff did not show a connection between asbestos fibers and "take-home" exposure until 1974 and Mrs. Holmes' claims were based on laundry she did in 1962 and 1963. Id. at ¶¶25-26.
Following Holmes, the Fourth Circuit also found no duty in Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100, 463, 2011 WL 4336923. Rodarmel involved the standard facts for a "take-home" claim (wife washed husband's asbestos-laden clothes), but the only defendants remaining for trial were not employers of wife's husband or suppliers of asbestos at issue. Rather, the defendants were named as conspirators with the employer and suppliers in a scheme to falsely assert that it was safe for people to be exposed to asbestos and to withhold information about the harmful effects of asbestos. Finding that the employer owed no duty because, like in Holmes, the risk was not foreseeable, the court found that there was no basis of liability for the alleged co-conspirators. Id. at ¶90.
Conversely, in Simpkins v. CSX Corp. and CSX Transportation, Inc., 5th Appellate Dist. Ill. No. 5-07-0346, 2010 WL 2337778 (June 10, 2010), the Fifth District Illinois Appellate Court found that a duty did exist when it reviewed a circuit court's decision granting a motion to dismiss a wife's "take-home" negligence-based claims stemming from exposure to asbestos from her husband's work clothes. 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." In considering the duty 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).
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. Likely recognizing this issue, during oral argument to the Illinois Supreme Court, Simpkins' attorney made clear that his case was based on negligence, not premises liability. The Illinois Supreme Court's decision, however, may find that the same grounds to prohibit a premises liability "take-home" claim also prohibit negligence claims against employers when the facts and claims argued mirror those of a premises case. Accordingly, the Illinois Supreme Court's review of this matter provides a vehicle for the Court to determine the viability of "take-home" claims in Illinois.
The majority of jurisdictions that have considered "take-home" liability consistently hold that no duty is owed by a premises owner to a "take-home" claimant. But, regardless of the claim raised, duty based on foreseeability continues to be a key issue courts consider. Further, as courts continue to prohibit premises-liability "take-home" claims, plaintiffs' counsel will likely turn to artful pleading to maintain their cases. Accordingly, "take-home" suits against premises owners will likely increase as more traditional exposure cases decline and as plaintiffs' counsel use artful pleading to avoid unfavorable precedent.
Carter Strang is a partner with Tucker Ellis & West. His primary focus is mass tort and environmental litigation. He is President-Elect of the Cleveland Metropolitan Bar Association and Past President of the Federal Bar Association, Northern District of Ohio Chapter. He is co-chair of TEW's Pipeline Diversity Program.
Karen E. Ross is an attorney in the Cleveland office of Tucker Ellis & West LLP. She is a member of the Trial Department and practices in the areas of mass tort, product liability, medical malpractice, and pharmaceutical liability, including serving as national and local counsel for her clients. Karen is also dedicated to the students of the Cleveland Metropolitan School District where she coaches Cleveland Early College's Mock Trial Teams, participates in The Cleveland Metropolitan Bar Association's 3Rs Program, and mentors students during their transition from high school to college.