By Pamela C. Maloney, J.D.
A spouse who was harmed allegedly by exposure to asbestos while laundering her husband’s work clothes could sue the companies that had supplied asbestos products to her husband’s employer for their failure to provide the employer with sufficient warnings about the dangers of those products and with instructions for how those clothes should be laundered, the Delaware Supreme Court ruled, overruling long-standing precedent that disallowed take-home asbestos exposure claims by third parties against manufacturers of these products. Reversing and remanding summary judgment in favor of the manufacturers, the state high court took into account legitimate concerns about exposing asbestos products manufacturers to unrestricted liability in take-home asbestos exposure cases and the right of foreseeable family members to recover for serious injuries caused by take-home asbestos exposure. (Ramsey v. Georgia Southern University Advanced Development Center, June 27, 2018, Strine, E.).
The employee, who had been employed by Haveg Industries, Inc. as a maintenance worker, had regularly handled asbestos products manufactured by Georgia Southern University Advanced Development Center (Herty) and by Hollingsworth and Vose Company in his role as a pipe maker and fitter. The dust from that work settled on the employee’s uniforms, which were laundered by his wife. Before her death from lung cancer, the employee’s wife sued the asbestos products manufacturers alleging that their negligence caused her illness because they (1) knew of the dangers of asbestos exposure but failed to adequately warn her of those risks; (2) did not adequately package, distribute, and use asbestos in a manner that would minimize the escape of asbestos fibers; and (3) did not take adequate steps to remedy those failures.
The manufacturers moved for summary judgment arguing that they did not owe the wife a duty of care, and that her allegations were claims of nonfeasance, which required her to identify a “special relationship” with the manufacturers before liability could attach to their alleged failure to act. According to the manufacturers, the wife could not identify such a “special relationship” and, moreover, that no such relationship existed.
The superior court granted the motion based on the Delaware Supreme Court’s decisions in Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011), and Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009), in which the state high court had determined that the employers of workers who handled asbestos products did not engage in affirmative conduct that worked positive injury on the spouses of their employees. Instead, the employers merely had failed to act to protect a distant third party who had never entered onto their property. Further, in both cases, the state supreme court found that on their claims of nonfeasance, the plaintiff-spouses failed to show a special relationship between themselves and their husbands’ employers. The superior court extended the reasoning in Price and Riedel to manufacturers of asbestos products, holding that because the wife in this case had alleged nonfeasance claims, she was required to identify the existence of a special relationship between herself and the asbestos products manufacturers before liability could be imposed. Her failure to do so was detrimental to her take-home asbestos exposure claims.
Warning duty under §388. On appeal, the wife’s estate argued that the superior court had erred in finding that the asbestos products manufacturers did not have a duty to warn her of the dangers of their asbestos under §388, which provides that an asbestos products manufacturer has a duty to warn foreseeable users of the dangers of its products to the extent the manufacturer has actual or constructive knowledge of that danger and when it is unlikely that the user will discover the dangerous condition. The state high court pointed out, however, that it was well established under Delaware law that manufacturers whose asbestos products were later used in a facility could discharge this duty to warn by giving adequate warnings to employers, who in turn have a duty to provide their employees with a safe workplace and to warn them of any dangers associated with their job responsibilities.
In light of these principles, the asbestos products manufacturers did not dispute that they had a duty to warn the employer in this case of the dangers of the asbestos products, including the dangers that could ensue if clothes exposed to those products were not laundered in a manner that protected the person who did the laundering. Instead, the manufacturers argued that if they provided adequate warnings to the employer, they were entitled to rely on the employer’s duty to share those warnings with employees as a defense in any suit against them.
In considering this argument, the high court acknowledged that the manufacturers’ warning duty was complicated by the fact that in Delaware, as in other states, an employer has no exposure in tort to employees for workplace injuries. Instead, the employer provides worker’s compensation for those injuries, regardless of fault. Hence, the court pointed out that the crux of manufacturer’s argument was that it did not make sense in take-home asbestos exposure cases to immunize the employer from liability to the employee’s spouse but to still hold the asbestos products manufacturers responsible, especially given that it was the employer who shaped the conditions under which an employee worked with asbestos products, failed to ensure that the employee’s clothes were laundered safely on-site, and failed to provide the employee with safe laundering instructions when washing his close at home.
Reconsidering Price and Riedel. In response to the manufacturers’ argument, the estate argued that if the conduct of manufacturers and employers caused asbestos to go home on an employee’s clothes without any warning or safe laundering instructions, it was foreseeable that people like the spouse in the case at bar not only would be injured, but also would be denied any remedy.
While hesitant to revisit its prior decisions, the state high court agreed that in this case it was necessary to do so in order to avoid denying recovery to third parties who had been exposed to serious harm when the responsible parties—the manufacturers and the employers—had failed to take reasonable care to prevent that harm. To that end, the court found that despite its earlier rulings, a fair and efficient accountability system could be established by limiting the duty of asbestos products manufacturers and employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. In other words, manufacturers could discharge their duty by warning employers and employers could discharge their duty by warning the employees. However, if the manufacturers and employers failed in their warning duties and that failure left the employee without the information needed to protect his spouse, the spouse should be permitted to recover if she could prove the other elements of her claim. This duty scheme, the court explained was consistent with long-standing principles of law that supported liability for harm to others caused by a failure to exercise a minimal level of care in preventing a risk of harm.
This conclusion raised two related issues in this case: (1) whether the employee’s spouse was a reasonably foreseeable plaintiff, and, if so, (2) what duty of care could be fairly expected of an asbestos products manufacturer in addressing the potential harm to persons like her.
Foreseeable user. The state high court noted that Delaware recognized that an employee’s exposure to asbestos in the workplace was a reasonably foreseeable harm that gave rise to a duty of care. It was also foreseeable that an employee who wore his uniform home might not be the person who did the family laundry, thus making the most natural class of persons to be exposed to harmful asbestos dust, other than the employee, those in the household who laundered the asbestos-covered uniform. As such, because the risk of harm from take-home asbestos exposure when laundering asbestos-covered clothing was reasonably foreseeable, the spouse in this case—as well as other plaintiffs in the spouse’s position—had a viable claim against an asbestos products manufacturer who failed to warn and provide safe laundering instructions to an employer that exposed its employees to that manufacturer’s asbestos products.
Duty of care and sophisticated purchaser defense. By adhering to the principles set out in sophisticated purchaser defense, pursuant to which a manufacturer could satisfy its duty to warn an employee by relying on the warnings given by the manufacturer to the employer, the Delaware high court opined that the asbestos products manufacturers’ legitimate concerns about the feasibility of their duty to warn in take-home asbestos exposure cases was addressed. The defense encouraged conduct that feasibly could be performed without placing an unreasonable burden on manufacturers and provided a safe harbor from liability for an asbestos products manufacturer that conveyed warnings to the employer, who was in the best position to convey those warnings to its employees.
Applying the defense in this case, the court explained that the spouse had a viable claim against the asbestos products manufacturers if they failed to give warnings and safe laundering instructions to her husband’s employer. If the manufacturers had failed to do so, and therefore, the employer also had failed to do so, the manufacturers should be accountable for any harm she could prove was caused by exposure to their products.
Employers’ conduct as misfeasance v. nonfeasance. The court expressed its belief that the sophisticated purchaser defense also addressed the concern that asbestos products manufacturers could face liability in circumstances in which the employers would not. Instead of accepting the manufacturers’ suggestion that the court adopt a fundamental change in the principles of law applicable to asbestos products manufacturers, the court determined that the answer to the manufacturers’ concerns was to revisit Riedel and Price and their characterization of the employer’s conduct in take-home asbestos exposure cases as nonfeasance.
A case of nonfeasance involved a situation in which a bystander, seeing another person suffering from harm, did nothing to stop or ameliorate the harm. In those cases, the bystander owed the victim a duty of care under the law only if the bystander had a special relationship with the victim that imposed on the bystander a corresponding duty to act. In the case of misfeasance, the defendant, by interfering with a plaintiff or his affairs, creates a new risk of harm to the plaintiff and creates a minus quantity or a positive loss.
Applying these concepts in take-home asbestos exposure cases, the court concluded that an employer engaged in misfeasance when it caused an employee to work with asbestos products under conditions that caused asbestos dust to cover the clothes he wore at work and had laundered at home. Even in Riedel, the state high court acknowledged that this active course of conduct amounted to misfeasance by the employer as to the employee, and the court in the case at bar failed to comprehend why that logic should not extend further to include spouses, given that it was the employer’s active conduct of causing the employee’s clothes to become covered with dust that resulted in the spouse’s exposure. According to the court, this was not a case in which the employer did nothing; instead, the employer’s affirmative actions caused the exposure.
The fact that exposure to both the employee and his spouse could have been limited by proper warnings and laundering instructions did not turn the employer’s action into nonfeasance. The nonfeasance in this case—the failure to warn—was culpable precisely because a duty to warn arose when the employer engaged in the misfeasance of exposing its employees to dangerous asbestos products. The court concluded that once the employer engaged in misfeasance, recognized principles of tort law imposed on it a duty to act reasonably, including protecting against reasonably foreseeable events, like the exposure to asbestos dust by family members who laundered the work clothes of employees.
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