Recent Developments and Emerging Trends in Asbestos Premises Liability

Recent Developments and Emerging
Trends in Asbestos Premises Liability
Michael D. Martinez, MATUSHEK NILLES LLC
mdmartinez@matushek.com

Landowner liability in asbestos cases:
How did we get here?
• English common law roots
• Status on property determinative of duty
• Modern premises liability dates back to
Rowland v. Christian, 443 P.2d 561 (Cal. 1968)
• Duty of Reasonable Care imposed,
regardless of status of entrant
• Most expansive of all tort law topics
• Many different paths to liability; various fact-specific defenses

Filings Against Premises Defendants
Are On The Rise
• “An increasing number of peripheral asbestos defendants (e.g.
those that are accused of . . . having asbestos on their premises)
have been sued in asbestos litigation.”
• American Academy of Actuaries’ Mass Torts Subcommittee, Overview of Asbestos Issues and Trends (August 2007)
• “Nearly every company that owned or maintained conventional
industrial plants constructed or renovated prior to the 1970s has
some degree of potential vulnerability to premises suits.”
• Covington & Burling (2003) Peripheral Defendants as Litigation Targets: Defense Strategies for the Next Wave
• In 2016, over 10,000 unique companies were named in asbestos
complaints. KCIC, Asbestos Litigation: 2016 In Review, available at https://www.kcic.com/asbestos
• It is rare for any of the new defendants named to be seen in more than 5 complaints

… And Will Continue to Increase
• Attenuated theories of liability
• Bystander Exposure
• Take-Home Exposure
• The New “Amosite” Defendants
• Fading memories of witnesses
• Easier to remember sites than products
• Union records, employment records
• Approved Site Lists for BK trusts
• Former testimony by “site witnesses”
• Potential for a sympathetic judiciary
• Concept of duty is ever-evolving
• Eroding protections under the law

Duties of Landowners in Asbestos Tort Litigation
• Duty arising from Landowners’ status as an:
• Employer
• Restatement § 414
• Focus is on Landowner control
• Owner or Possessor of Land
• Restatement § 343
• Control not relevant
• Focus on the parties’ respective knowledge
of the hazardous condition

To Whom is a Duty Owed?
• Employees
• Independent Contractors
• Group A “contractors who are exposed to asbestos on the landowner's
property not while working directly with asbestos, but while working
along side of others who are working directly with asbestos”
• Group B “employees of independent contractors hired to work directly
with asbestos from the hazards inherent in their own work”
• Families of Employees & Independent Contractors
• How far does the duty go?

Traditional Defenses Available to
Landowners in Asbestos Litigation
• “Exclusive Remedy”
• Arises out of & occurs in the course of employment
• Construction Statute of Repose
• Improvements to real property (not maintenance)
• Protected construction activity
• Assumption of the Risk / Open & Obvious Hazard
• General Rule of Non-liability for Negligence of Independent
Contractors

General Rule of Non-liability for Negligence of
Independent Contractors
• It is the general rule that an owner who employs an
independent contractor to do work is not liable for the
independent contractor’s acts or omissions
• Policy:
• Landowner generally does not supervise the work
• Independent contractors = More sophisticated invitees
• Delegation of control = Delegation of responsibility for injury

Exceptions to the General Rule of Non-liability
• Retained Control Exception
• Non-delegable Duty Doctrine
• Safe Workplace Doctrine

Retained Control Exception
• Restatement (Second) of Torts § 414
• “One who entrusts work to an independent contractor, but who retains the control of
any part of the work, is subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care, which is caused by his
failure to exercise his control with reasonable care.”
• The retention of control is key in imposing liability
• Control over the manners and methods in which the work is done
• Right to inspect progress, receive reports, make non-binding suggestions or recommendations is not
sufficient
• There must be such a retention of a right of supervision that the contractor is not
entirely free to do the work in his own way. Restatement (Second) of Torts § 414,
Comment c

Non-Delegable Duty Doctrine
• Relevant Exceptions in Asbestos Litigation:
• Inherently Dangerous Activity
• Due Precaution / Peculiar Risk Doctrine
• Policy Rationale:
• Responsibilities associated with these duties deemed “so important to the
community” that the employer should not be permitted to transfer to another
• Encourages employer of contractor to participate in the control of work in order to
minimize the risk of resulting injuries

Non-delegable Duties:
Inherently Dangerous Activity
• Strict liability – does not require negligence on the part of the
contractor
• Activities must be dangerous by nature, not merely because they are
carried out in a risky manner
• If proper precautions can minimize the risk of injury, then the activity is
not intrinsically dangerous
• Even if the activity is intrinsically dangerous, a principal cannot be held
liable for an injury sustained as a result of an intrinsically dangerous
activity if the individual was injured by the very condition he was
employed to address.
• North Carolina – Question of Fact for Jury

Non-delegable Duties:
Due Precaution / Peculiar Risk Doctrine
•Where principal should have foreseen that the performance of the
work or the conditions under which it was to be performed would,
absent precautionary measures, probably cause injury
• Risk must be more than the routine and predictable hazards generally associated
with a given occupation; must be a risk unique to the circumstances of a given job
• Controlling Factors = Probability of Injury + Foreseeability
• No liability for contractor's failure to take normal precautions incident to the activity to be carried
out
•Did the worker encounter a risk unique or distinguishable from the general risks
they face on a daily basis in the normal course of their profession?

Safe Workplace Doctrine
• Duty as the owner/possessor of land
• An owner or possessor of land owes its invitees a common law duty of reasonable
care to maintain its premises in a reasonably safe condition
• Control of work not relevant
• Restatement (Second) of Torts § 343 (“Safe Workplace Doctrine”)
• A possessor of land is subject to liability for physical harm caused to his invitees by
a condition on the land if, but only if, he
• (a) knows or by the exercise of reasonable care would discover the condition, and should
realize that it involves an unreasonable risk of harm to such invitees, and
• (b) should expect that they will not discover or realize the danger, or will fail to protect
themselves against it, and
• (c) fails to exercise reasonable care to protect them against the danger

Illinois Law: Gregory v. Beazer East
• Facts: Pipefitter alleged exposure to asbestos blankets and gloves
while working at an oil refinery in the 1970s
• Holdings:
• (1) Insufficient control for Retained Control exception to apply (§ 414)
• (2) Injury not caused by a “condition on the land” (§ 343)
• The asbestos blankets and gloves were supplied by his employer
• No evidence premises owner knew or should have known the blankets and gloves
contained asbestos

Illinois Law: Ambiguous scope of Gregory
• The trial court limited its consideration to Gregory’s first stint working at the
refinery in 1970-71, where he only worked with asbestos blankets and gloves
supplied by his employer
• There was evidence he returned to work at the refinery in the 1980s and 1990s removing
insulation and gaskets from pipes
• FN5: “Regardless of this fact, and as per our discussion below, our decision that
Mobil owed no duty to Larry would be just as applicable to the alleged second
instance of exposure as to the first dealing with the blankets and gloves.”
• Are the insulation and gaskets Mr. Gregory removed from the refinery in the 1980s and
1990s not a “condition on the land”?

Indiana Precedent: PSI Energy, Inc. v. Roberts
• 829 N.E.2d 943 (Ind.), aff'd on reh'g, 834 N.E.2d 665 (Ind. 2005)
• Power Plant not liable for injuries sustained by insulator by reason of the condition
his independent contractor employer was hired to address
• Power Plant did not create unusual risks as applied to an insulator
• Wherever Mr. Roberts may have worked as an insulation contractor, the risk was the same
• Insulation work was not “intrinsically dangerous”
• Landowner can still be liable when an independent contractor is injured by the very
condition he was employed to address when it has superior knowledge of the
dangerous condition on the premises

Indiana’s Expansion of Premises Liability:
Myers v. Bremen Casting, Inc.
61 N.E.3d 1205, 1212 (Ind. Ct. App. 2016)
• Distinguishes Roberts based on difference in risks inherent in the
insulator and electrician trades
• Myers’ employer was hired to perform electrical work, not asbestos work
• Defendants’ failed to show that Myers’ “risk of being exposed to
asbestos was common among electricians or across workplaces,” and
not unique to the defendant’s premises

Indiana’s Expansion of Premises Liability:
Myers v. Bremen Casting, Inc.
• Roberts remains good law, but Myers substantially limits its reach
• Takeaway: To avoid liability to employees of independent contractors,
premises defendants must demonstrate:
• Risk of exposure was always the same, regardless of the location of the work
• Premises owner did not create any “peculiar” risk of asbestos exposure for the plaintiff
• Cannot be liable for failing to take different precautions other than those generally taken by
those in the plaintiff’s trade

Future of Illinois Premises
Asbestos Litigation
• Choice of Law:
• Indiana law less appealing for premises D’s
• Will Illinois embrace a more expansive exception to the general rule?
• Other trades (laborers, bricklayers, carpenters, painters, welders, etc.)
• The footnote in Gregory needs to be resolved
• What constitutes a “condition on the land”?
• Erosion of public policy reasons for general rule of non-liability?

Independent Contractor Defense: National Spectrum
• Exercise of control will always result in liability
• Contractor’s knowledge of the hazard is paramount
• No claim if contactor knew or should have known (CA, DE, FL, KY, NC)
• FL & KY require landowner have actual knowledge
• Constructive knowledge not sufficient
• Superior Knowledge (PA)
• “Concealed, preexisting hazardous condition”
• CA, DE, FL, MD, NC
• “An abnormally dangerous condition does not include work product of the
contractor after he or she takes control of the premises or conditions which arise
after and as a result of the independent contract.”

Independent Contractor Defense: National Spectrum
• Distinction between hazard of the premises and hazard of the job
• LA, IN, NJ
• Defeated by retained control
• But see Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142 (Ky. 2009)
• Construction laborer’s removal of previously existing ACMs not sufficient where no
evidence of actual knowledge on part of landowner
• Statutory
• Texas (“Chapter 95”)
• Landowner exercises or retains control; and has actual knowledge of hazard
• Wisconsin Safe Place Statute, Wis. Stat. § 101.11
• Establishes a duty greater than that of ordinary care
• Precluded summary judgment for landowner vs. insulator (Viola v. Wisconsin Elec.
Power Co., 842 N.W.2d 515 (Wis. Ct. App. 2013))

Exclusive Remedy: National Landscape
• Exclusive remedy vs. employer is Workers’ Compensation
• Illinois - Folta v. Ferro Engineering (2015)
• Arkansas - Hendrix v. Alcoa (2017)
• Other state appellate courts’ finding asbestos-related injuries subject to WC
• CA, CT, IA, ID, IN, KY, LA, MD, ME, MI, MN, NJ, TX, WI
• Missouri law amended in 2014 to cover occupational diseases
• Exception for asbestos-related injuries:
• Pennsylvania: Tooey v. AK Steel Corp., 81 A. 3d 851 (Pa. 2013)
• Latent diseases excepted from WC system; 300 week statute of repose

Exclusive Remedy: Emerging Issues
• Attempts to Circumvent Exclusive Remedy Defense
• Melendrez v. Ameron International Corp., 240 Cal. App. 4th 632 (2015)
• Plant worker brought home scrap pipe; argued home exposure contributed to
mesothelioma
• Pecher v. Owens-Illinois, Inc., 859 F.3d 396 (7th Cir. June 6, 2017)
• 44-year employee claims he was exposed to asbestos in the ambient air while
working a side job hauling milk to and from a dairy several blocks away
• Swanson v. Simpson Timber Co., 78 Cal. Comp. Cases 1125 (Cal. Ct.
App. Oct. 2, 2013)
• Take-home exposure through coworker/family member

Take-Home Exposure: National Landscape

Take-Home Exposure: Emerging Issues
• Evolving Duties in Take-Home Exposure Cases
• California reverses Campbell (2005) in Kesner (2016); finds a duty owed
• Petitpas v. Ford Motor Co., 13 Cal. App. 5th 261 (Ct. App. 2017) (limits duty to household members)
• No duty owed to non-cohabitating significant other (despite subsequent marriage)
• How far does the duty extend?
• Spouses/Children?
• Non-cohabitating partners?
• Schwartz v. Accuratus Corp., 139 A.3d 84 (N.J. 2016) (in case alleging take-home beryllium exposure, duty
extended to non-spouse/non-cohabitating significant other)
• Non-cohabitating family members?
• Friends?
• Coworkers?
• Strangers/Acquaintances?

Emerging Issues: Specter of Limitless Liability
• Frieder v. Long Island R.R., 966 N.Y.S.2d 835 (2014)
• Former cashier at independently owned diner operated on premises of a railroad’s
maintenance facility brought premises liability claims against a railroad which owned
premises where diner was located.
• Plaintiff alleged he was exposed to asbestos through dust on hundreds of railroad
employee’s clothes who ate at the small diner.
• Railroad as premises owner controlled the circumstances of the diner and was in the
best position to remedy any dangerous condition; concern for limitless liability was
circumscribed by the unique circumstances of the case.
• Geier v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, 153 A.3d
1189 (Pa. Commw. Ct. 2017)
• School district could be liable for teacher’s exposure to asbestos dust if the condition
causing the exposure falls within one of the exceptions to governmental immunity
• Exceptions where dangerous condition causing the injury is “of the facilities of steam,
water, gas or electric” and “located with rights of way,” and where dangerous condition
causing injury is the real property itself or the negligent care, custody or control of it.

Emerging Issues: Construction Statute of Repose
• Almost all states have statutes of repose to bar lawsuits against
construction professionals and premises owners decades after the
completion of new construction
• Despite the long latency of asbestos disease, courts have refused to overturn
CSoR’s in asbestos cases:
• Illinois, Indiana, Pennsylvania, Washington, Michigan,
New Jersey, Tennessee, Iowa, Arizona, Georgia, Wisconsin
• Source: Slaughter, E. & Mears, L., Rest Easy: Latent Disease and the Construction Statute of Repose (June 2013),
available at www.hptylaw.com/media/news/102_FTD-1306-SlaughterMears.pdf
• Viability of Construction Statutes of Repose in Asbestos Cases
• Illinois: Constitutional Challenge to 2015 Amendment?
• Indiana: Defense restricted following Gill v. Evansville Sheet Metal Works
(Ind. 2012).
• Still viable after Myers v. Crouse-Hinds (Ind. 2016)?

Emerging Issues: Neighborhood Exposure Claims
• Boyer v. Weyerhaeuser Co., 2016 WL 705233 (W.D.
Wis. Feb. 19, 2016) (denying motion for summary
judgment on neighborhood exposure claim where
plaintiff lived within 1 mile of Weyerhaeuser door
plant in Marshfield, WI).
• Other plaintiffs dismissed based on insufficient proximity
of residence
• The experts rely on Valérie Bourdès et al., Environmental
Exposure to Asbestos and Risk of Pleural Mesothelioma: A
Review and Meta-Analysis, 16 European J. of
Epidemiology 411 (2000), which is a “study-of-studies,” in
this case a review of eight other studies of household
asbestos exposure and neighborhood or community
exposure.

Emerging Issues: Neighborhood Exposure Claims
• Gough v. Rogers Corp., (Conn. Super. Ct. March 17, 2017)
• Decedent lived 2 miles away; would sometimes drive by a couple blocks away to go fishing
• Rogers found negligent but not a proximate cause; defense verdict upheld
• Literature only supported 0.5 mile radius.
• Lagerberg v. Rogers Corporation, 2017 WL 2324625 (Conn. Super. Ct. Apr. 26, 2017)
• New evidence did not warrant new trial; harmless error. Industry group membership and air
sampling tests had little impact on environmental exposure claim
• Approx. 6 million fibers left Killingly plant per second from 1950 to 1972
• Found to be negligent, but not the proximate cause
• Beverly Trapp, et al. v. Asbestos Corp. Limited, et al., (Cal. App. Ct. – pending)
• Decedent lived between 5-7 miles from CertainTeed’s Santa Clara, CA facility
• Trial court denial based on Campbell (no duty owed to off-site individuals) which was subsequently
overturned in Kesner

Emerging Issues: Respondent in Discovery Statute
• Illinois Respondents in Discovery statute, 735 ILCS 5/2-402
• Enacted for the purpose of providing “plaintiffs in medical malpractice
actions with a means of filing suit without naming everyone in sight as a
defendant by permitting a plaintiff to obtain discovery against a person or
entity against whom he may have a claim.”
• Westwood Const. Group, Inc. v. IRUS Property, LLC, 2016 IL App (1st) 142490, ¶ 13
(emphasis added).
• Section 2-402 “allows plaintiffs to name as respondents in discovery those
persons or entities whose culpability cannot be determined at the time the
complaint is filed and is an innovative reform to help avoid the stigma,
costs, and burdens thrust upon individuals being named defendants to
litigation unnecessarily.” Id.

Emerging Issues: Respondent in Discovery Statute
• Permits a plaintiff to designate a respondent in discovery to
determine what role, if any, the respondent in discovery played in
the cause of action asserted, for the purpose of later naming the
respondent as a defendant if warranted by the discovery
ascertained.
• The purpose of section 2-402 is to provide plaintiff with the
procedural mechanism to collect discovery against a party against
whom he may have a claim in order to determine if the respondent
should be added as a defendant.”
• Section 2-402 is a “special statutory action” that creates rights
unknown to the common law and, because this procedure is unusual,
“plaintiffs intending to use it must ‘scrupulously observe’ its
requirements.”

Questions? Please contact me.
Michael D. Martinez
MDMartinez@matushek.com
(312) 750-1215

Recent Developments and Emerging Trends in Asbestos Premises Liability

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