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With fewer manufacturers and suppliers left solvent in the wake of the massive wave of asbestos suits, premises owners formerly considered “peripheral defendants” have become targets. In this newest front of the ever-changing litigation are “peripheral plaintiffs” � the family members of asbestos workers who claim secondhand exposure to dust carried home on work clothes � going after the companies employing the workers. Since early 2005, several courts have considered whether a premises liability duty exists in these cases where the claimant never set foot on the premises, with varied results. California has yet to publish an opinion on the issue. MAJORITY SAYS RELATIONSHIP KEY In January 2005, the Georgia Supreme Court found a trial court erred in denying a premises owner’s motions for summary judgment in a take-home asbestos exposure case involving multiple plaintiffs because no duty was owed in CSX Transportation, Inc. v. Williams, 608 S.E.2d 208 (Ga. 2005). Three of four plaintiffs claimed they had asbestos-related diseases caused by exposure to their fathers’ contaminated work clothes; the fourth plaintiff alleged his wife died of disease caused by exposure to his work clothes. Reasoning that duty rules should adhere to the policy of limiting liability to a controllable degree, and that recognizing a duty under these facts would create a “universe of potential plaintiffs,” the court discounted foreseeability and held that the premises owner owed no duty to third-party non-employees who have contact with its employee’s asbestos-tainted work clothes offsite. In October 2005, finding no duty was owed under similar facts, New York’s highest court stressed that under state law, foreseeability bears on the scope of a duty, not whether a duty exists in the first place in In re New York City Asbestos Litigation ( Holdampf v. A.C.& S., Inc.), 840 N.E.2d 115 (N.Y. 2005). In that case, a couple sued the husband’s employer claiming the wife developed mesothelioma from exposure to asbestos dust on his work clothes. There was evidence that the employer knew of the hazard of such secondhand exposure and provided work uniforms and a laundry service for its employees, and that the husband opted not to use the laundry service half the time. The court reasoned that because the wife had never been to the premises and no special relationship existed requiring the employer to protect the wife from contact with her husband or his work clothes, no duty of care arose as to the wife. The court also noted that the employer was not in the best position to protect against the risk because it depended on the willingness of its employees to comply with safety precautions. In July 2007, the Michigan Supreme Court considered foreseeability, but only as secondary to the relationship of the parties, and found no duty was owed for take-home exposure in In re Certified Question from the Fourteenth District Court of Appeals of Texas ( Miller v. Ford Motor Co.), 479 Mich. 498, 2007 WL 2126516 (Mich.). The plaintiff alleged she developed mesothelioma from exposure at home as a child to asbestos dust on the work clothes of her stepfather, who worked as an independent contractor at a Ford Motor plant in Michigan from 1954 to 1965. The court found that not only was take-home asbestos exposure not reasonably expected by Ford Motor during the time when the plaintiff’s stepfather was at the plant, but the harm to the plaintiff was not foreseeable because the she had never set foot near the plant and any relationship through the stepfather as a contractor who worked there was too tenuous. MINORITY SAYS FORESEEABILITY KEY In April 2006, the New Jersey Supreme Court in Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006), held that to the extent the premises owner had a duty to workers for the foreseeable risk of exposure to asbestos dust, it owed the same duty to spouses handling the workers’ dust-laden clothing because it was foreseeable that the dust would be borne home. In that case, a husband claimed his wife developed mesothelioma from repeated contact with his work clothes from his industrial jobsites from the 1940s to the 1980s, including Exxon Mobil’s refinery in New Jersey. Noting the existence of pre-1940s industrial hygiene reports specific to the oil refinery industry that mentioned the hazards of occupational exposure to asbestos � but with no discussion of whether fatal disease by secondhand non-occupational exposure was widely known � the court found that Exxon Mobil could easily have warned workers of the risks and could have taken precautionary measures such as providing changing rooms. The court reasoned that it required “no leap of imagination” that someone like the worker’s wife would handle the work clothes on a regular basis as part of laundering them, and that Exxon Mobil should have foreseen that whoever performed that task would be exposed to the asbestos that infiltrated the clothing while the worker performed his contracted tasks. Because these points raised material issues of fact about the extent of the duty Exxon Mobil owed to the plaintiffs and whether it satisfied that duty, the court remanded the case for further proceedings. In June 2005, with Zimko v. American Cyanamid, 905 So.2d 465 (La.Ct.App. 2005), writ denied, 925 So.2d 538 (La. 2006), a Louisiana appellate court found more broadly that a premises owner owed a duty to members of the worker’s household � not just persons who would likely do the worker’s laundry. In that case, a man sued his father’s employer for mesothelioma he allegedly developed from childhood secondhand exposure to dust on his father’s work clothes during the 1950s and 1960s. Plaintiffs submitted evidence of 1951 Safety and Health Standards which recognized the concept of household exposure and required employers to take measures to prevent it. The court conclude that the employer had a general duty to act reasonably in view of the foreseeable risks of danger to household members of its workers. Zimko’s holding has been questioned, however, because it was based on the New York appellate court’s decision in Holdampf v. A.C.& S., Inc., 840 N.E.2d 115 (N.Y. 2005) which was overturned by New York’s highest court after Zimko was decided. In December 2006, in Chaisson v. Avondale Industries, Inc., 947 So.2d 171 (La. Ct.App. 2006), writ denied, 954 So.2d 145 (La. 2007), the same Louisiana appellate court found a duty was owed to the wife of a pipefitter by the contractor who employed him from 1976 to 1978. Though the holding involved the question of a contractor-employer’s duty instead of a premises owner, the court found the facts analogous to Zimko and Olivo, both of which dealt with premises liability. The ruling however was tailored to the particular facts that a company aware of the 1972 OSHA standards regarding the hazards of household exposure to asbestos had a duty to protect third-party household members from exposure to asbestos from a jobsite it knew contained asbestos. In October 2007, a Texas appellate court treated the foreseeability factor as crucial in determining whether a duty was owed in Alcoa, Inc. v. Behringer, 2007 WL 2949524 (Tex.App.-Dallas). It applied a two-prong test asking whether the harm and the particular plaintiff, or one similarly situated, were foreseeable at the time of the exposure. The court noted that though there was evidence the plant owner knew by the 1950s that occupational exposure could cause disease, there was no evidence it was aware that household secondhand exposure could do the same. It accordingly held no duty was owed because the ex-wife was essentially an unforeseeable plaintiff. Similarly, in April 2007, with Exxon Mobil Corp. v. Altimore, 2007 WL 1174447 (Tex.App.-Houston), a Texas appellate court using the same foreseeability analysis held that the premises owner owed no duty to protect household members of its workers prior to 1972 when OSHA regulations first prohibited employers from allowing workers to take their asbestos-laden work clothes home to be laundered. In an unpublished opinion, a Kentucky federal district trial court refused to find a duty was owed by a premises owner for secondhand exposure offsite and granted summary judgment in Martin v. General Electric Co., 2007 WL 2682064 (E.D.Ky.). It was alleged that the son of the defendant’s employee contracted mesothelioma from being exposed to asbestos from his father’s work clothes while playing in the basement of the family home where his mother did the laundry. Persuaded by the defendant’s argument that in the absence of medical evidence or published materials during the relevant time periods linking household exposure to asbestos-related disease, the court found the harm unforeseeable and thus no legal duty was owed. In April 2007, a Tennessee appellate decision paved the way to impose liability against a premises owner for take-home exposure with Satterfield v. Breeding Insulation Co., Inc. and Alcoa Inc., 2007 WL 1159416 (Tenn.Ct.App.). The plaintiff claimed exposure to her father’s clothing that was contaminated with asbestos from his employment at an Alcoa plant from the time she was born in 1979. She also claimed that the premises owner knew asbestos dust could cause disease in people secondarily exposed offsite but never warned its employees to take precautions, did not provide protective clothing and even discouraged the use of onsite showering facilities. The trial court had granted Alcoa’s motion to dismiss for failure to state a cause of action because no duty was owed. In reversing and reinstating the case, the appellate court said the premises owner could be liable for actively inflicting the harm on plaintiff by “releasing asbestos toxins into her house” with the worker being “merely a vehicle for the transmission of a toxic substance.” Alcoa argued that no duty was owed because plaintiff’s exposure did not occur on its property and did not involve its chattel and therefore there was no special relationship with the father that would require Alcoa to control his actions. The court rejected this argument finding that a premises liability theory based on negligent affirmative conduct did not require the special relationship analysis. Relying on the New Jersey Supreme Court decision in Olivo because it utilized a balancing test similar to that used in Tennessee, the court recognized a duty limited to the foreseeability of harm to members of employees’ households who routinely came into contact with employees’ contaminated clothing over an extended period of time. The Tennessee Supreme Court granted permission to appeal this decision in September 2007. HOW CALIFORNIA IS LIKELY TO RULE Like many states, California looks at the totality of the circumstances facing the defendant at the time of the alleged act or omission in determining whether a duty is owed. The defendant’s duty will largely be defined by foreseeability of the injury. Accordingly, we can anticipate that California courts will assess duty as to a premises owner for take-home asbestos exposure the same way states like Texas and Louisiana have: by asking what the premises owner knew or should have known about the risk during the relevant time period. Since the answer will often raise triable issues of fact, a premises owner defendant faces substantial challenges to prevail on dispositive motions in such cases. Angela Fiorentino- Rios is an attorney in the San Francisco office of Sedgwick, Detert, Moran & Arnold. She represents energy companies, chemical, food and electronics manufacturers, and construction companies in toxic tort, general liability and serious personal injury matters and can be reached at 415-781-7900 or via e-mail at [email protected]. Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at skama[email protected].

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