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A tenant who lived for 14 years in an apartment with asbestos-laden kitchen tiling had no claim against her landlord for negligence because she displayed no symptoms of the disease, the Rhode Island Supreme Court has ruled. The court went on to conclude in Loraine A. Kelley v. Cowesett Hills Associates, No. 99-419, that the mere fact that the woman’s risk of cancer may have increased was too tenuous to be a viable cause of action. “Exposure to a carcinogenic agent does not automatically result in the development of cancer. If mere exposure to a potential carcinogenic was actionable, the courts would be inundated with actions arising merely from an individual’s daily activities such as consuming a soft drink,” the court ruled. The court affirmed the state’s Superior Court’s grant of summary judgment for the defendant, concluding that no genuine issues of material fact existed for any of the tenant’s claims for negligence, assault and battery and deceptive trade practices. REPAIR JOB Kelley was a tenant at Cowesett Hills Apartments from May 1979 through December 1993 in an apartment owned by the defendant. In the spring of 1990, the landlord sent a worker to the apartment to repair the deteriorating kitchen floor. The worker informed the landlord that he did not want to repair it because it was “old.” About a week later, possibly as a result of phone call from the worker, the Department of Environmental Management (DEM) examined the floor and subfloor. Kelley never inquired about the DEM’s findings. Just before moving out of the apartment in 1993, Kelley contacted DEM about the inspection. Having watched a television program on asbestos, Kelley’s suspicions were raised about what was underneath the flooring. She personally gathered six samples of tile from the apartment and had them tested for asbestos. According to a footnote in the decision, an analysis conducted found that the mastic used to adhere the tiles to the floor consisted of 10 to 15 percent asbestos fibers, but did not contain any visible fibers. In August 1995, Kelley filed her three-count complaint. On the issue of negligence, the supreme court found that in accordance with the superior court judge, “in the absence of any physical manifestation of asbestos-related illness or disease, the plaintiff could not establish a prima facie case….” NO CAUSE OF ACTION Both the superior court and the supreme court relied on Plummer v. Abbott Laboratories, 568 F. Supp. 920 (D.R.I. 1983) in rejecting Kelley’s claims. In Plummer, the court said that the “possibility of contracting cancer because of an exposure to a carcinogenic, thereby giving someone an increased risk of contracting cancer, is essentially too tenuous to be a viable cause of action.” On the question of assault and battery, the supreme court found that Kelley had not filed her claim within the three-year statute of limitations. Both courts found that Kelley’s awareness of a possible presence of asbestos could have occurred at the time when the worker first inspected the floor in 1990. Instead, Kelley filed her suit five years later, two years after the statute of limitations had run out. Kelley failed on her claim for unfair trade practice, the supreme court reasoned, because she was not a “consumer” within the meaning of the Unfair Trade Practice and Consumer Act and because the act is pre-empted in this case by the Asbestos Abatement Act. Except for the lease, Kelley and the landlord did not enter into any contractual relationship concerning the repair of the floor. “A tenant’s request that his or her landlord make repairs to her apartment does not elevate the tenant to the status of a consumer entitled to remedy under the Act,” the court wrote. “Rather, a tenant may have an action for breach of a lease covenant if the work was negligently performed.”

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