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Wednesday, September 18, 2019

Del. SC shoots down take-home asbestos theory

By John O'Brien | Jul 14, 2011


DOVER, Del. (Legal Newsline) - Because DuPont had no "special relationship" with the wife of a former worker, it had no legal duty to protect her from asbestos carried home by her husband, the Delaware Supreme Court has ruled.

The court ruled Monday for DuPont in a lawsuit brought by Patricia Price, whose husband worked as a maintenance technician at the company from 1957-91. Price says the asbestos fibers brought home on his clothing and skin have caused bilateral interstitial fibrosis and bilateral pleural thickening of the lungs.

Her motion to amend her complaint, in the wake of a 2009 decision, was denied as futile. She was attempting to allege misfeasance on the part of DuPont.

The court said the case was nearly identical to the case Riedel v. ICI Americas, Inc., where the court ruled the alleged facts constituted a claim for nonfeasance, not misfeasance.

"Although Price recasts her amended complaint in an effort to allege misfeasance, the amendment is predicated on exactly the same underlying facts earlier claimed to be nonfeasance," Chief Justice Myron Steele wrote.

"Dupont's failures to prevent Mr. Price from taking asbestos fibers home or to warn the Prices about the dangers of asbestos do not rise to the level of affirmative misconduct required to allege a claim of misfeasance. No amount of semantics can turn nonfeasance into misfeasance or vice versa."

With an allegation of nonfeasance, Patricia Price was required to prove that she had a "special relationship" with DuPont. She did not allege any such relationship in her original complaint or proposed amended complaint.

"Before us, Price argues that she had a 'special relationship' with DuPont because her husband worked for DuPont for over 30 years, DuPont provided health insurance to her as Mr. Price's spouse, and DuPont sponsored company picnics and participated in programs promoting a family-friendly workplace," Steele wrote.

"These arguments are no different than from those Mrs. Riedel argued. Indeed, Mrs. Price stands in relation to DuPont almost squarely as Mrs. Riedel stood in relation to ICI. Because Mrs. Price and DuPont did not share a 'special relationship,' DuPont owed Price no legal duty."

Justice Carolyn Berger filed a dissenting opinion. She says the court never decided in the Riedel case whether the allegations stated a claim for nonfeasance or misfeasance.

"A classic example of conduct properly analyzed as nonfeasance arises when a passerby sees someone drowning but does nothing to aid the victim," Berger wrote. "Absent a special relationship, the law generally would not impose a duty on the passerby because he did not create a new risk of harm to the swimmer.

"Instead, the swimmer fell 'into peril through no conduct of the actor.' The passerby merely failed to act; he made the swimmer's situation no worse.

"DuPont's conduct is properly analyzed as malfeasance because, unlike the passerby, DuPont performed an 'affirmative act' that 'created a new risk of harm.' DuPont's affirmative act was the release of asbestos in the workplace."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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