By Michael Klebanov on February 19, 2019
Recently, a divided Supreme Court of Virginia, in a 4-3 decision, recognized an employer’s liability for “take home” exposure. In Quisenberry v. Huntington Ingalls Inc., 818 S.E.2d 805 (Va. 2018), the Supreme Court held that employers can be liable for their employees unknowingly bringing home asbestos dust and exposing cohabitating family members to asbestos (i.e., “take home” liability).
Key Background Facts
In Quisenberry, the plaintiff alleged that Wanda Quisenberry’s father worked at a shipyard for about 35 years, where he was routinely exposed to asbestos dust. The dust adhered to his clothing, contaminated his car, and came home with him. Wanda lived in the same home as her father for about 27 of those 35 years. From 1954 to 1969, she regularly laundered her father’s clothes, allegedly causing her to breathe in asbestos dust. Wanda was diagnosed with mesothelioma, allegedly caused by exposure to asbestos dust, and died from the disease.
Wanda’s son brought suit as administrator of her estate, alleging the defendant shipyard’s negligence, gross negligence, and wanton and willful conduct caused Wanda’s death. The complaint alleged the defendant knew or had reason to know of the asbestos dangers, and it was negligent in “choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines.” Id. at 808.
The Certified Question
After removing the case to federal court, the defendant moved to dismiss, arguing that the plaintiff’s theory relied on “take home” exposure liability. The Supreme Court of Virginia had not addressed the issue before, and some of the circuit courts in Virginia that had considered the issue had declined to recognize such a duty. The defendant moved to certify the issue to the Supreme Court of Virginia, which the federal district court granted as the following question of law:
Does an employer owe a duty of care to the family member of an employee who alleges exposure to asbestos from the work clothes of the employee, where such exposure takes place off of the employer’s premises and the employer has no relationship with the family member?
The Supreme Court of Virginia accepted the certified question, but restated it as follows:
Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?
The Supreme Court’s Holding and Analysis
The Supreme Court of Virginia answered the question in the affirmative. It explained that under its precedent, the only “relationship” which must exist for a duty to arise is a “sufficient juxtaposition of the parties in time and space to place the plaintiff in danger from the defendant’s acts” or “place plaintiff within reach of defendant’s conduct.” Id. at 811. This precedent “does not require actual interaction between the parties.” As the Court explained:
that harm in the present case occurred at a location removed from the employer’s business and after hours is a distinction without a difference. The artificial hazard created by the [defendant] Shipyard—asbestos dust—was allegedly released through the Shipyard’s course of conduct and moved to place Wanda in danger. The nature of the hazard allegedly created by the Shipyard’s conduct was that asbestos fibers, the inhalation of which could cause mesothelioma, regularly accumulated on the clothes of workers during the day and were released again when those workers returned home and had their clothes washed, thus placing Wanda and others similarly situated within reach of the Shipyard’s conduct and within the “zone of danger.” This created a “recognizable risk of harm” to those sharing living quarters with the workers, resulting in a duty of ordinary care to that class of persons.
The Court rejected the defendant’s argument that establishing a new duty falls to the legislature, explaining instead that Court was merely upholding a “long-standing duty,” and not proclaiming a new one. The Court noted a “firmly established” and “well-rooted” duty in Virginia creates liability to the “class of persons facing a recognizable risk of harm from one’s conduct,” and under the alleged facts, “the family members of asbestos workers are one such class of persons.” Id. at 813.
The Court, however, was careful to note that the defendant was not necessarily responsible in that case “for creating a dangerous condition in the home,” as that was “a question of proof rather than duty, depending on evidentiary matters not relevant to this certified question.” Id.
Two Vigorous Dissents
Chief Justice Lemons dissented – joined by two other justices – and had five main arguments about the majority’s opinion: it “(1) eviscerates the well-established tort concept of particularized duty; (2) conflates duty and proximate cause by relying on foreseeability to determine whether a duty exists; (3) undermines the Workers’ Compensation Act, Code § 65.2-100, et seq., a carefully balanced bargain defining how injuries arising from the workplace are to be compensated; (4) creates a new cause of action in territory that should be the domain of the legislature; and (5) creates a duty to a potentially limitless class of plaintiffs.” Id. at 814.
Justice McClanahan also dissented (joined by two justices). He disagreed with the majority’s reliance on Virginia cases premised on landowner liability, such RGR, LLC v. Settle, 288 Va. 260, 764 S.E.2d 8 (2014). Those cases were inapplicable, in his view, to a “duty to Wanda arising from the [defendant] Shipyard’s employment of her father.” Quisenberry, 818 S.E.2d at 819. Moreover, even if that case law did apply, it demanded a physical proximity between Wanda and the defendant that was absent. Id. Justice McClanahan also noted that the majority likening the case to a landowner’s duty arising from a farm animal escaping to a public highway and thus labeling an employee taking home asbestos dust to be a “mobile hazard” was “injudicious” and a “specious comparison.” Id. at 821, n.3.
Virginia is not the first state to recognize this duty for “take home” exposure. As the Supreme Court of Virginia observed, courts nationwide are split on this precise issue, and other jurisdictions have recognized a duty to cohabitants of employees in asbestos cases. See id. at 813, n.7 (collecting cases including law from Alabama, California, Louisiana, Indiana, Illinois, New Jersey, Tennessee, and Washington). Other states, however, have not recognized a duty for “take home exposure,” such as those in Arizona, Georgia, Iowa, New York, Pennsylvania, and Michigan. See id. at 817, n.1 (Lemons, J., dissenting).
Virginia employers should be aware that plaintiffs may use Quisenberry to sue for negligence or heightened negligence, id. at 814, n. 8, for allegedly causing asbestos-related diseases to their employees’ cohabitants. If facing a lawsuit for past conduct that relies on Quisenberry, employers should consider, in addition to other defenses, trying to limit Quisenberry to its facts, including that Wanda was a (i) cohabitating family member of the employee (ii) for a lengthy 27 years and (iii) laundered her father’s asbestos-laden clothes for well over a decade.