The Duty to Warn in Asbestos Cases

A recently decided asbestos cases in the California Appeals court serves as an excellent example of the legal considerations taken by a court when determining whether there was a duty to warn about hazardous substances such as asbestos. The California Appeals Court determined that the duty to warn of potential asbestos-containing exposure should be extended to the nephew of a man who who suffered from occupational asbestos exposure. In this case the nephew of a man who was diagnosed with peritoneal mesothelioma brought suit against his uncle’s employer.  Within the suit the nephew claimed that during his uncle’s employment from 1973 through 2007, he often stayed with his uncle who would come home in his dusty work garb, which the nephew believes contained asbestos fibers. The nephew, who was also diagnosed with peritoneal mesothelioma, regularly stayed with his uncle during some of this time period and would often come in-direct contact with his uncle when he would return home from work, his clothes full of asbestos-containing fibers. As a result of this contact the nephew submitted a suit, asserting that his mesothelioma was the result of second-hand asbestos exposure.

The Legal Issues in The Case

This case required the court to make the determination of whether liability could be extend to a manufacturer whose negligence caused injury to both an employee on the manufacturer’s premise, and also to another who came into contact with the originally injured employee while not on the manufacturer’s premises. Indeed the plaintiff in this case was looking to push beyond the traditional bounds of negligence liability, in order to receive damages for injuries caused by contact with a person injured by the defendant’s negligence. The court utilized the factors asserted in the important duty to warn case Rowland v. Christian, and discussed the following considerations, including:

• The degree of certainty that an injury was suffered by the plaintiff;
• The foreseeability of the plaintiff’s harm;
• Whether moral blame can be attributed to the defendant’s conduct;
• The court’s policy for future harm prevention;
• The proximity and connection between the injury and the defendant’s conduct;
• The prevalence, availability and cost of insurance that addresses the involved risk; AND
• The consequences to the greater community, and the degree of burden to the defendant for imposing a duty of care for the resulting injury liability.

Upon reviewing the Rowland case it was determined that though negligence could not be proven, the Rowland standards presented a good case for a finding that a duty to warn existed on the part of the defendant.

It was found that the factors addressing the foreseeability of the harm, the degree of certainty, and the proximity and connection between the defendant’s conduct and the injury all provided support for the theory that the manufacturer had a duty to warn the plaintiff of the risks of asbestos exposure even though the plaintiff was not an employee. The above three factors supported the extension of the duty to warn beyond employees to other non-employee bystanders because of “the harm to third parties that can arise from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” It was found that the Rowland factor addressing moral blame also allowed the extension of the duty to warn beyond just employees.

The California Appeals court determined that the extension of the duty to warn could not be completely unfettered. However, because the plaintiff spent so much time with his uncle, after he was regularly exposed to asbestos, it was determined to be a reasonable decision to extend the duty to warn to the nephew.

Are you concerned that your asbestos exposure-related illness was caused by exposure to a family member who was exposed to asbestos while on the job? Contact an asbestos exposure attorney today.