New York Casualty Update: Appellate Division Allows "Second Hand Asbestos" Case to Proceed
December, 2004
The New York Appellate Division – Second Department has allowed a personal injury action to proceed on a theory of “second hand” asbestos exposure. In Holdampf v. A.C.&S., Inc., et al., 2004 WL 2749487, the court held 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.
Facts
Plaintff’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 there. In 2001, plaintiff was diagnosed with mesothelioma, a fatal cancer 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 a vis asbestos exposure to any non-employee, including plaintiff.
Analysis
The Appellate Division reversed and reinstated plaintiff’s complaint, finding that the Port Authority in fact owed plaintiff a duty of care. In so doing, the court rejected the Port Authority’s sole basis for summary judgment – its opinion in Widera v. Ettco Wire and Cable Corp., 204 A.D.2d 306 (2d Dep’t 1994). In Widera, the plaintiff was injured in utero when she was exposed to toxic chemicals as her pregnant mother washed her father’s work clothes that had become contaminated at his place of employment. The Widera court found that the father’s employer owed no duty of care to plaintiff because plaintiff was neither an employee nor employed in any other capacity at the worksite at which the initial contamination occurred. The Holdampf court found that Widera was not controlling because “it involved the unique question of a tortfeasor’s liability to an infant for injuries occurring while in utero:”
This added wrinkle altered the duty analysis in a fundamental way since the Widera court was required to determine whether a defendant owed a duty of care to a plaintiff who was not even born at the time of its negligent conduct. While current precedent permits surviving infants to recover for injuries occurring while in utero, the Widera court clearly was concerned about the potential extension of a duty to a limitless class of plaintiffs, born or unborn, in determining that no duty existed in that case (Widera, at 307 [“[n]or does our research reveal a reported case from any jurisdiction where an employer’s duty has been interpreted to extend to a person, such the infant plaintiff, who is injured in the manner alleged herein”]). Because Widera considered the duty question in the context of liability for injuries occurring in utero, and that issue is not present in this case, Widera does not control the outcome here.
The court characterized any contrary reading of Widera as “a narrow view of common-law negligence principles.”
The court then found that employers, such as the Port Authority, owe a duty of care to protect non-employees from exposure to dangerous substances where it is reasonably foreseeable that such exposure could occur. The court based its finding upon several decisions from the federal courts and other state appellate courts which hold employees have such a duty in circumstances similar to those here. See, e.g.: Kowalski v. Goodyear Tire & Rubber Co., 841 F. Supp. 104 (W.D.N.Y. 1994) (plaintiff’s cancer caused by exposure to chemicals on husband’s work clothes); Fuller-Austin Insulation Co., Inc. v. Bilder, 960 S.W.2d 914 (Texas Ct. App. 1998) (plaintiff exposed to asbestos dust brought home on stepfather’s work clothes); Anchor Packing Co. v. Grimshaw, 692 A.2d 5 (Ct. Spec. App. Md. 1997) (risk of plaintiff’s household exposure to manufacturer’s asbestos product was not unforeseeable as a matter of law). As further support for its decision, the court noted that it has long been established in New York that a landowner may be subject to liability for the negligent discharge of dangerous substances which injure third parties regardless of any employer-employee relationship.
Finally, the court found that plaintiff had presented sufficient evidence to create a triable question of fact as to whether the Port Authority had actual or constructive notice of the risk of “second hand” exposure to asbestos:
Plaintiffs have alleged that the Port Authority’s provision of laundry service for its employees’ dirty work clothes creates a strong inference that it was aware of the risk of employees bringing home asbestos-contaminated clothing. In addition, the Port Authority documents revealing discussions of the dangers of airborne asbestos to the area surrounding the World Trade Center raise an issue as to defendant’s contemporaneous knowledge of the risk of off-premises exposure to bystanders. Finally, plaintiffs note that the precise manner in which the harm occurred need not be foreseeable, so long as the harm which occurs is within the reasonably foreseeable hazards that the duty exists to prevent. . . .[I]t was sufficient in this case for plaintiff[] to have raised an issue of fact as to whether the Port Authority knew or should have known of the danger of asbestos exposure through clothing, and in our opinions [she has] achieved that.
Learning Point:
In concluding that the Port Authority owed plaintiff a duty of care, the Second Department was careful to note that such a duty running from an employer to non-employees is very narrow, specifically limited only to members of each employee’s household:
Assuming the Port Authority knew or should have known of the dangers of secondary exposure, 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. . . .[E]xtending the duty to others who might foreseeably come into contact with the employee’s clothing but whose contact with the employee is unpredictable and generally outside the scope of an employer’s knowledge, such as car pool participants, bus drivers, elevator operators, etc., would stretch the concept of duty beyond any reasonable parameters. Accordingly, the scope of the Port Authority’s duty should be limited to members of each employee’s household who were exposed at home to asbestos dust from an employee’s workplace clothes, by washing the clothes or otherwise. This limitation is both rational and sufficiently circumscribed by the principle of foreseeability. While this limitation is also arbitrary in a sense, and may in fact exclude otherwise viable negligence claims, such is the unavoidable result of balancing the competing interests of recognizing a duty where one ought to be imposed and limiting any liability to a controllable degree.
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