SALT LAKE CITY (Legal Newsline) - Companies can be liable for “take-home” asbestos exposure if they require their employees to work around asbestos or exert sufficient control over contractors who place their workers in harm’s way, the Utah Supreme Court ruled.
Issuing its first opinion addressing take-home liability for the operators of facilities where asbestos is present, the state’s highest court reversed a lower-court decision granting summary judgment to PacifiCorp and ConocoPhillips. The court also affirmed the denial of summary judgment for Kennecott Utah Copper.
Larry Boynton sued all three companies after his wife Barbara died of mesothelioma, a cancer of the chest lining often attributed to asbestos exposure. He said she was exposed to the deadly fibers on his clothing and sweeping the laundry room where they were washed.
Larry worked for Kennecott Utah Copper from 1961 to 1963. Starting in 1963 he was employed by Wasatch Electric, an independent contractor, but continued working at the Kennecott smelter, where other workers sawed and swept asbestos-containing materials nearby. In 1973, he moved to Jelco-Jacobsen, also an independent contractor, working on PacifiCorp’s Huntington Canyon Power Plant. Finally, from 1976 to 1978 he was an electrician with L.E. Myers at a Conoco/Phillips refinery.
All three companies moved for summary judgment based on arguments they didn’t owe a duty of care to Barbara, one of the essential elements of any tort claim. The trial court granted summary judgment to Conoco and PacifiCorp but denied it to Kennecott. In a Nov. 18 decision, the Utah Supreme Court reversed the dismissals, in the process clarifying when companies can be liable for take-home asbestos exposure and when they can be liable for the actions of independent contractors.
Courts have split over whether companies owe a duty of care to people exposed to “take-home” asbestos. Some reject the concept as unforeseeable, some limit it to cases where the exposures came after employers should have known the risk of asbestos fibers traveling home on workers’ clothing, and some require plaintiffs to prove the employer acted intentionally to expose others to asbestos.
The Utah Supreme Court started out by explaining that nonfeasance – omitting to do something – only exposes defendants to liability if they have a special legal relationship with the plaintiff, such as a hotel to its guests. Misfeasance, or an intentional act like prescribing the wrong medicine to a patient, opens the scope of liability to many other potential plaintiffs, the court said.
In this case, the court said, premises operators act affirmatively whenever they have “launched the instrument of harm,” in the words of Justice Benjamin Cardozo, by requiring workers to come in contact with asbestos. Kennecott and Conoco both directed Larry to work around asbestos dust and thus owed a duty of care to his wife, the court said. f
The risk of her contracting mesothelioma also was foreseeable, the court said. The dangers of exposure to contaminated clothing had been described as early as the 1700s, the court noted, and by the time Larry started working at Kennecott it was well known that asbestos dust was dangerous.
The defendants argued that extending their duty of care would create an unmanageably large class of plaintiffs.
“We understand these concerns,” the justices said. “But we do not think these concerns justify rejecting a duty wholesale, especially because we have only addressed a duty to prevent take-home exposure.”
The defendants can still try to disprove at trial claims they were responsible for Mary’s death, or that Larry could have been exposed to enough asbestos to bring deadly amounts to his home.
Larry didn’t provide enough evidence to determine whether PacifiCorp retained control over Jelco-Jacobsen, the court said. One standard is whether the defendant ordered the contractor to use specific materials, the court ruled.