Legal News

Recent Decision Holds Premises Owner Not Liable for “Take-Home” Asbestos Exposure Claimed by Contractor Employee’s Family Member

On May 21, 2012, the Court of Appeal for the Second Appellate District, issued its opinion in Campbell v. Ford Motor Company (2012 WL 1820919), holding Ford Motor Company was not liable for the plaintiff’s decedent’s asbestos-related illness (mesothelioma) that was allegedly caused by her inhalation of asbestos fibers carried home on her father and brother’s clothing.

In the mid-1940s Ford Motor Company entered into contracts for construction of a new Lincoln-Mercury assembly plant in Metuchen, New Jersey. Those contracts included insulation work on pipes, ducts, and spray paint drying booths. Ford knew its contractors were installing asbestos on the premises.

The father and brother of the decedent, Eileen Horner, worked as insulators for a sub-subcontractor installing asbestos insulation at the new Ford plant during its construction in 1947 and 1948. Ms. Horner laundered her father and brother’s work clothes, which were contaminated with great quantities of asbestos. Before washing the clothes, she had to shake them out because they were “dirty,” “dusty,” and “nasty.” According to plaintiff’s expert, this resulted in Ms. Horner experiencing substantial exposure to respirable asbestos. Some 56 years later, in 2004, Ms. Horner was diagnosed with mesothelioma.

At trial the jury found Ford was negligent and that its negligence was a legal cause of Ms. Horner’s illness. The jury found several other parties were also responsible for Ms. Horner’s illness, and allocated 5% responsibility to Ford. Ford appealed.

After holding the claim against Ford was not barred by the New Jersey statute of repose, the court addressed the question whether Ford owed a duty to Ms. Horner that would subject it to liability for negligence. The court framed the issue before it as follows: “[W]hether an employer has a duty to protect family members of employees from secondary exposure to asbestos used in the course of the employer’s business.” The court held no such duty is owed.

In arriving at its conclusion regarding the duty issue the court relied heavily on and quoted extensively from the California Supreme Court’s recent decision in Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, and its discussion of the considerations originally listed in the Rowland v. Christian decision ((1968) 69 Cal.2d 108). It also relied on the Court of Appeal decision in Oddone v. Superior Court (2009) 179 Cal.App.4th 813.

In discussing the Rowland v. Christian factors, the court also quoted from the California Supreme Court’s decision in O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 364, as follows: “Foreseeability alone is not sufficient to create an independent tort duty. [cites omitted] Instead, the recognition of a legal duty of care “depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. [cite omitted] . . . ‘In short, foreseeability is not synonymous with duty; nor is it a substitute.’ [cite omitted.]”

The court continued: “. . . even assuming a property owner can reasonably be expected to foresee the risk of latent disease to employees’ family members secondarily exposed to asbestos used on its premises, we must conclude strong public policy considerations counsel against imposing a duty of care on property owners for such second exposure. [cite omitted] The Rowland factors do not support a finding of duty in this case.” The court then set forth the reasons for that conclusion, including the large number of potentially exposed plaintiffs, and the uncertain but potentially very large scope of the burden that would be imposed on employers and premises owners.

The court also cited some decisions from other jurisdictions that have ruled against the imposition of such a duty. In particular, the court quoted the decision in Miller v. Ford Motor Company (In re Certified Question (Mich. 2007) 479 Mich. 498, 521, in which the Michigan Supreme Court concluded: “[I]mposing a duty on a landowner to anybody who comes in contact with somebody who has been on the landowner’s property [and secondarily exposed to asbestos as a result] would create a potentially limitless pool of plaintiffs.”

Ultimately, the court summarized its decision as follows: “[A]fter considering the Rowland factors, as further clarified in Cabral, we conclude that an employer has no duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business.”

This decision is likely not the last word on this issue from the courts in California. Among other things, the plaintiff will probably ask the California Supreme Court to review, or at least depublish, the decision. In addition, despite the breadth of its conclusion, the decision may be factually distinguishable in many cases based on the fact that Ford Motor Company was the owner of a newly-constructed facility on which the decedent’s father and brother worked as a sub-subcontractor’s employees. A claim against the father and brother’s employer (to whom the jury allocated the majority of responsibility for the decedent’s illness) was not at issue on the appeal. Furthermore, the decision appears to be limited to claims of negligence. As a result, the extent to which, if at all, it may be applied to strict product liability claims is unclear.