Split Va. SC says employers owed 'duty of care' to family members of employees with asbestos claims

By Karen Kidd | Oct 16, 2018

RICHMOND, Va. (Legal Newsline) – Employers owe a duty of care when an employee's family members are exposed to asbestos the employee brings home from the job, a split Virginia Supreme Court ruled Oct. 11.

The Virginia high court handed down its 4-3 ruling in a 14-page opinion issued Oct. 11 answering a question previously certified by a federal court in Quisenberry v. Huntington Ingalls Inc. While admitting there is little court precedent or state legislative guidance to go on, the Supreme Court opined that employers do have a clear duty of care when they know their employees are returning home in clothing contaminated with asbestos.

"'Nobody is permitted by the law to create with impunity a stumbling block, a trap, a snare or a pitfall for the feet of those rightfully proceeding on their way,'" Virginia Supreme Court Senior Justice Leroy F. Millette Jr. wrote in the high court's opinion. 

"The innocent co-habitator represents the quintessential class of persons 'rightfully proceeding on their way' yet placed in a 'given area of danger.' Because we find a duty does indeed lie to such persons in the recognizable and foreseeable area of risk, we answer the certified question, as restated, in the affirmative."

Justices William C. Mims, Cleo E. Powell and Stephen R. McCullough concurred in the opinion while Chief Justice Donald W. Lemons and justices Elizabeth A. McClanahan and D. Arthur Kelsey dissented.

Millette retired as a Virginia Supreme Court Justice in 2015 but stayed on as a senior justice, which means he still will hear cases for the high court, usually in place of an active justice who recuses from a case.

The justices took up the case to consider a question of law that previously had been certified by the U.S. District Court for Virginia's Eastern District. The question certified by the federal court was, "Does an employer owe a duty of care to the family member of an employee who alleges exposure to asbestos from the work clothes of the employee, where such exposure takes place off of the employer's premises and the employer has no relationship with the family member?"

The federal court asked the state Supreme Court to exercise its jurisdiction under Virginia's Constitution to answer the question.

The state Supreme Court accepted the certified question and restated it as, "Does an employer owe a duty of care to an employee's family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer's negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee's home?"

"So stated, we answer in the affirmative," the Virginia Supreme Court's opinion said.

The question stems from a motion before the federal court in the case brought by plaintiff Wesley Quisenberry, as personal representative of the estate of his mother, Wanda Quisenberry. Wanda Quisenberry, diagnosed with mesothelioma in December 2013 and died three years later, allegedly was exposed to asbestos when she for handled and washed the asbestos-laden clothing of her father, Bennie Plessinger, for more than a decade, according to the background portion of the Supreme Court's opinion.

Plessinger was employed at Huntington Ingalls' Newport News Shipbuilding and Dry Dock from 1942 to 1977.

Huntington Ingalls asked the district court to dismiss the case, arguing that Virginia imposed no legal duty on an employer for injuries employees' family members when those injuries occurred off the worksite.

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