New York Court Appeals Dismisses "Second Hand Asbestos" Claim
December, 2005
In Volume 4-2004, we reported on the New York Appellate Division’s opinion in Holdampf v. A.C.&S., Inc., et al. (In Re New York City Asbestos Litigation), 786 N.Y.S.2d 26 (N.Y. App. 2004), which allowed a personal injury action to proceed on a theory of “second hand” asbestos exposure. In Holdampf, the appellate court found that an employer has a duty to protect non-employees from “second hand” asbestos exposure where the employer knows or should know that such exposure is likely to occur. The Court of Appeals, New York’s highest court, has now reversed that decision and dismissed plaintiff’s complaint. Holdampf v. A.C.&S., Inc. (In Re New York City Asbestos Litigation), 2005 WL 2777559 (N.Y.).
Facts
In Holdampf, plaintiff’s husband was employed by the defendant Port Authority of New York and New Jersey for 30 years, during which time he was exposed to asbestos on the job. Although the Port Authority provided laundry services to its employees, plaintiff’s husband did not use them. Instead, he routinely took his work clothes home for plaintiff to wash. In 2001, plaintiff was diagnosed with mesothelioma, a fatal cancer that is known to be caused by exposure to asbestos dust.
Plaintiff filed suit seeking damages for her injuries on the theory that the Port Authority was negligent in failing to warn its employees and “other persons who were reasonably and foreseeably known to come into contact with the asbestos-containing products” against the dangers associated with exposure to asbestos. The trial court granted summary judgment to the Port Authority on the ground that it owed no duty of care vis-à-vis asbestos exposure to any non-employee, including plaintiff. The Appellate Division court reversed and reinstated plaintiff’s complaint, finding that the Port Authority owed the members of each employee’s household a duty of care because it was reasonably foreseeable that they would be exposed to asbestos through the employee’s clothing. “Assuming the Port Authority knew or should have known of the dangers of secondary exposure,” the appellate court wrote, “it is hardly a quantum leap to extend the duty of care owed to employees to members of the employee’s household who predictably come into routine contact with the employee’s clothing.”
Analysis
In a brief opinion, the Court of Appeals reversed the Appellate Division, finding its holding to be an unwarranted expansion of employer liability. The high court rejected plaintiff’s argument that the Port Authority could have either compelled her husband to wear clean clothes home from work or warned her about the dangers of washing his work clothes, finding that “the Port Authority was, in fact, entirely dependent upon John Holdampf’s willingness to comply with and carry out such risk-reduction measures.” The high court concluded that allowing plaintiff’s claim to go forward would create “limitless liability:”
In sum, plaintiffs are, in effect, asking us to upset our long-settled common-law notions of an employer’s and landowner’s duties. Plaintiffs assure us that this will not lead to ‘limitless liability’ because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises. This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short … the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. Here, there is no relationship between the Port Authority and [plaintiff].
Finally, we must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality.
Learning Point:
New York’s highest court has soundly rejected attempted expansion of the employer’s duty of care beyond employees in Holdampf. •
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