By Ketajh Brown on June 15, 2018
The State of Rhode Island and Providence Plantations—contemporarily nicknamed “the Ocean State” is known for famous clear-broth Quahog clam chowder, The Breakers Mansion, the International Tennis Hall of Fame, and its Napatree Point Conservation Area beaches covered in seashells. While tourists often take home Napatree’s brilliant and pristine shells, a recent Superior Court opinion of first impression addressed whether Rhode Island law imposes duty of care upon employers to protect third-party non-employees from take-home asbestos exposure.
In Nichols v. Allis Chalmers Prod. Liab. Trust, 2018 WL 1900246 (R.I. Super.), plaintiffs alleged the decedent “was repeatedly and regularly exposed to asbestos fibers and dust” emanating from the work clothing of her brother-in-law—a Crane Co. laborer, who performed metal pouring and furnace operations in Arkansas over the course of a calendar year during the late 1970s. Testimony revealed the decedent and her brother-in-law inhabited the same dwelling where she would regularly launder his work clothes. And although evidence showed that Crane Co. attempted to mitigate exposure by providing “asbestos aprons” to employees, family members testified that while shaking out clothes the decedent would regularly inhale dust disseminating from the solid garments.
Approximately twenty-five years later in May 2005 the decedent was diagnosed with mesothelioma, and subsequently succumbed to the cancer two-years later in 2007 at the age of fifty-nine. One year later, Plaintiff’s executors filed suit in Rhode Island Superior Court which prompted Crane Co.’s motion for summary judgment contending, inter alia, no duty of care was owed to the decedent; and further disputing—what in their view was—a lack of sufficient evidence as to: (a) whether work-clothing handled by the decedent definitively contained asbestos particles; and (b) the causal connection between the mysterious unidentified dust and the decedents impending diagnosis of mesothelioma.
But Plaintiffs fired back, aggressively maintaining Crane Co. failed to take adequate measures to confirm asbestos particles did not depart from the factory concealed in fabric of its own employees’ garments; and, that Crane Co. failed to warn employees of dangers of asbestos transmission to unsuspecting third-parties. Plaintiffs professed this combination of deficiencies created a perfect storm of foreseeable risk of harm, which in turn established a duty of care, and palpable evidence of causation.
Meanwhile, the court analyzed the dispute under the Rhode Island standard “case-by-case” determination on existence of legal duty. See Wells v. Smith, 102 A.3d 650, 653 (R.I. 2014) (“[b]ecause there is no set formula for finding [a] legal duty, such a determination must be made on a case-by-case basis.”). The judge determined the lack of special relationship between the decedent third-party and Crain Co. spawned an ad hoc duty of care determination.
First, the court analyzed foreseeability of risk and determined, inter alia, credible information confirming dangers of asbestos exposure was available to Crane Co. as far back as the early 20th century; and, in 1972—seven years before the decedent’s exposure—the Occupational Safety and Health Administration (“OSHA”) “emphasized the importance of preventing asbestos from leaving the worksite on employees’ clothes.” The court reasoned that prevailing scientific and medical facts generated a zone of foreseeable danger related to asbestos exposure with respect to individuals inhabiting the same residence as Crane Co. employees. Next, it was uncontested the decedent died of malignant mesothelioma which satisfied the degree of certainty an injury was suffered. The court then looked to closeness of connection between Crane Co.’s conduct, or lack thereof, and the decedent’s diagnosis of mesothelioma and found that overall, “this [was] not a case where intervening factors [such as the 25-year timeframe] dampen the closeness of the connection between the conduct and injury.”
Afterward, the court examined public policy and extent of duty considerations concerning the high number of deaths caused by asbestos exposure, and noted that Crane Co.’s knowledge of the perils of exposure suggest a strong public policy argument in favor of allowing Plaintiffs to recover. It further articulated that even Crane Co. could not dispute its burden/duty to conduct safe operations, ensure that toxic material did not leave its premises, and warn employees that asbestos could be transmitted to others. Finally, the decreed “evidence of long-standing cohabitation” between the decedent and her brother-in-law created a single household unit during the relevant time period which satisfied the “relationship between parties” query.
All in all, the amalgamation of the above analyses prompted the court to find that Crane Co. owed a duty to protect the decedent from exposure to asbestos particles, taken home unintentionally, by one of its employees. As a result, this holding sends a strong signal to defendants in asbestos related tort actions, in that, a trend in state law is developing. The duty of care requirement in negligent death cases is rapidly expanding to include responsibility for individuals outside the tangible zone of foreseeable danger.