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Delaware Superior Court Finds That No Duty Extends To Spouse/Household Members of Employees Exposed To Asbestos




by:
Ana M. McCann
Marshall, Dennehey, Warner, Coleman & Goggin - Wilmington Office

 
February 13, 2009

Previously published on March 2008

On December 21, 2007, Judge Joseph R. Slights, III, who administers the asbestos litigation in the Superior Court of Delaware, issued an important decision with regard to asbestos litigation. Judge Slights granted a motion for summary judgment filed by ICI Americas, Inc. (previously known as Atlas Powder Company and now known as AstraZeneca, L.P.) on the ground that ICI owed no duty to the plaintiff, Mrs. Lillian Riedel, who was allegedly exposed to asbestos while laundering her husband's work clothes.

Since May 2005, Delaware has been the jurisdiction of choice for many plaintiffs firms filing asbestos matters. There are currently in excess of 650 asbestos matters pending in the Superior Court of Delaware in and for New Castle County. Several of these cases are based on, or contain, claims of "take home," "household" or "spousal" exposure, all of which are synonymous and refer to the situation whereby a family member is exposed to asbestos brought home from work on the clothing of another family member.

The plaintiff, Mrs. Riedel, stated that her husband worked for ICI for almost 30 years and, while he was employed with ICI, he was exposed to asbestos on various ICI work sites. She alleged that asbestos would accumulate on her husband's work clothes while he was working and he would carry them home and expose members of his household to the asbestos. Mrs. Riedel further alleged that ICI was negligent in that they failed to take reasonable measures to prevent its employees from leaving the workplace with asbestos covered clothing, or to warn her or her husband of the hazards of "take home" asbestos exposure, which she maintains was the proximate cause of her asbestosis.

ICI moved for summary judgment on the ground that it owned no duty to Mrs. Riedel. The court opined that the relationship between Mrs. Riedel and ICI was too tenuous to support a legal duty of care running from ICI to Mrs. Riedel or other members of her household. The question presented in this matter was one of first impression for Delaware. However, it is not the first jurisdiction to confront the question of whether a defendant/employer owes a duty to the spouse/other household member of an employee who has been injured as a result of take home exposure to asbestos. New Jersey, Tennessee, Louisiana, California and Maryland have all found that a duty does exist. The States of Texas, Michigan, Georgia and New York have found no duty.

In Delaware, the law is settled that when determining whether a defendant owes a duty of care to the plaintiff, the court must determine whether a relationship exists between the parties that would impose a legal obligation upon one for the benefit of the other. The notion that a defendant owes a duty to everyone that his conduct may foreseeably harm has been rejected in Delaware. The court must consider the relationship of the parties based on the facts of each particular case and then decide whether a plaintiff's interest in a negligence action is entitled to legal protection as a matter of public policy.

In rendering his opinion, Judge Slights determined that several factors must be considered: the foreseeability of harm to the plaintiff; the burden that would be imposed on the defendant; the nature of the risk presented; and, most importantly, the relationship of the parties.

In determining whether a relationship exists, Delaware courts will frequently refer to the Restatement (Second) of Torts ("the Restatement"). The court's review of the Restatement revealed no provision that would support the notion of a duty upon an employer or landowner to the spouse of an employee when the spouse has never stepped foot on the employer's property.

The court also found no relationship between ICI and Mrs. Riedel when it analyzed the issue of foreseeability. The court noted that ICI clearly owed a duty to Mr. Riedel as the employee but that duty does not pass on to Mrs. Riedel in the absence of some independent relationship between ICI and Mrs. Riedel. Mrs. Riedel was far removed from ICI's property at the time of the alleged wrongful act and, therefore, cannot be considered a reasonably foreseeable victim of the alleged breach of the duty ICI owed to her husband.

Finally, the court performed a "risk-benefit" analysis to determine whether a duty existed and ultimately concluded that none existed. The court stated that there was no distinction between the claim of a spouse/household member who has been exposed to asbestos while laundering a family member's clothing from the claim of a housekeeper or laundromat operator who is exposed while laundering the clothing, or a co-worker/car pool passenger or bus driver exposed during the commute home, or a visiting neighbor prior to the employee changing out of his work clothes. All of these individuals have foreseeably intersected with the asbestos covered employee. However, none were exposed while employed with the defendant or while on the employer's property, and, therefore, the burden upon the defendant to undertake to warn or protect every potentially foreseeable victim of off-premises exposure to asbestos is too great a burden.

The plaintiffs will have 30 days to appeal Judge Slights' decision. Should the decision not be appealed or should the decision be affirmed on appeal, it is likely that other defendants, such as "contractor" defendants and perhaps even "product" defendants, will attempt to stretch this legal analysis to encompass them.

 



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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