On January 18, 2022, the Connecticut Court of Appeals affirmed a lower court’s opinion which struck claims of negligence, premises liability and recklessness predicated on increased risk of future harm from asbestos exposure.

Background

In Poce v. O & G Industries, Inc, 210 Conn. App. 82 (2022), plaintiffs had worked as mason laborers in a renovation project of a high school in Wethersfield, Connecticut, sued their project manager, O & G Industries, Inc (O & G), and the company that performed asbestos abatement on the jobsite, Southern Middlesex Industries, Inc. (SMI). Plaintiffs claimed that they were exposed to asbestos through the disturbance of insulation in floors, walls, and ceilings while working as mason laborers on the project. Plaintiffs alleged negligence, negligent infliction of emotional distress, premises liability, and recklessness against O & G, as well as negligence and negligent infliction of emotional destress against SMI.

None of the plaintiffs alleged that they suffered from present injury. The complaint did not allege any express physical manifestations of symptoms of any asbestos-related disease.  Rather, the complaint merely alleged an increased risk of future harm. Plaintiffs claimed that their exposure to asbestos, a known carcinogen, required medical evaluations and lifetime medical monitoring, and resulted in an increased risk of contracting asbestos-related pulmonary disease and/or cancer. In addition, Plaintiffs’ claims of negligent infliction of emotional distress alleged that in exposing plaintiffs to asbestos, defendants created an unreasonable risk of causing emotional distress to the plaintiffs severe enough that it might result in illness or bodily harm.

Physical Injury Required to Establish Negligence

O & G and SMI moved to strike all counts of plaintiffs’ complaint, arguing that all of plaintiffs’ claims failed to allege actual harm.  The Superior Court granted defendants’ motions to strike as to plaintiffs’ negligence, premises liability, and recklessness claims. In doing so, the Court emphasized “actual injury” as an essential element of a negligence action. The Court noted previous Connecticut opinions, such as Bowerman v. United Illuminating, a 1998 Connecticut Superior Court decision which held that asymptomatic scarring of lung tissue and the presence of asbestos fibers in the lung did not constitute “actual injury” to support a negligence cause of action, and Dougan v. Sikorsky Aircraft Corp., a 2017 Connecticut Superior Court decision which reaffirmed that Connecticut does not permit recover based on asbestos exposure alone, where plaintiffs did not allege any present clinical injury or physical symptoms of asbestos-related disease.

Plaintiffs had pointed to a 2017 Connecticut Court of Appeals decision, R.T. Vanderbilt Co. v. Hartford Accident and Indemnity Co., which had defined asbestos exposure itself as an injury. However, the Poce Court distinguished R.T. Vanderbilt, noting the question in that case was the definition of the contractual term “injury” in an insurance policy. In order to satisfy the “actual injury” element of a negligence cause of action, the Poce Court found, a plaintiff must demonstrate some evidence of actual physical harm. Because the Poce plaintiffs had failed to allege any physical manifestation of their exposure to asbestos, including presymptomatic or subclinical injuries, they failed to properly plead negligence, premises liability, or recklessness.

Physical Injury Not a Required Element of Negligent Infliction of Emotional Distress

The Superior Court denied the motion to strike as to plaintiffs’ claims for negligent infliction of emotional distress. The Court found that plaintiffs had successfully alleged the elements of that cause of action, noting that such a claim does not require the allegation or proof of a physical injury. Rather, it requires only an emotional injury that might result in bodily harm. Accordingly, the Superior Court allowed plaintiffs’ claims for negligent infliction of emotional distress against both defendants to proceed.

Superior Court’s Decisions Affirmed on Appeal

O & G and SMI filed motions for summary judgment on plaintiffs’ remaining claims for negligent infliction of emotional distress, each arguing that they owed no duty of care to the plaintiffs. The Superior Court granted summary judgment as to O & G based on a clause in O & G’s contract which specifically disclaimed any duty to discover or remove asbestos at plaintiffs’ worksite. The court denied summary judgment as to SMI.

Plaintiffs appealed the Superior Court’s decision to strike their negligence, recklessness, and premises liability claims, as well as the decision to grant summary judgment as to plaintiffs’ claims against O & G. The Court of Appeals affirmed the decisions of the Superior Court in all aspects, fully adopting the lower court’s two opinions as proper statements of the facts and applicable law as to all claims.

Insights

The Poce court’s decision reaffirms that present physical injury remains essential to sustain tort causes of action such as negligence, premises liability, and recklessness, which require proof of “actual injury.” The Appellate Court makes clear that a plaintiff may not bring an asbestos lawsuit predicated solely on an increased risk of future harm. This is consistent with other state court decisions on this issue.  For example, see our blog post on a similar ruling in Illinois here: https://www.toxictortmonitor.com/2021/02/increased-risk-of-future-harm-is-not-an-injury-illinois-supreme-court-dismisses-lead-exposure-class-action-against-city-of-chicago/.