North Dakota Supreme Court Finds No Duty in Secondary Exposure to Asbestos Case

Cases arising from secondary exposure to asbestos involve different issues from those arising from direct exposure. Secondary exposure generally occurs when a person who is exposed to asbestos fibers “takes home” those fibers on his or her clothes, exposing his or her family to the fibers. A significant issue in these “take-home” asbestos cases is the lack of a special relationship between the victim and the employer. The employer generally argues that it had no duty of care as to the victim. While some courts have found the existence of a duty, others have not.

The North Dakota Supreme Court recently addressed this issue in Palmer v. 999 Quebec, Inc. This suit was filed by a man who was diagnosed with mesothelioma in 2011 against a number of defendants, including his father’s former employer. The plaintiff’s wife continued with the case after his death in March 2015. The father’s employer had supplied and installed insulation products that contained asbestos through industrial and commercial insulation contract work. The plaintiff’s father had worked for the employer from 1961 through 1965 and again in 1974.

The plaintiff alleged he was exposed to asbestos fibers on his father’s work clothes. He testified in a deposition that he came in contact with his father’s clothes when he hugged his father and when he played near the laundry area in his home. He alleged the employer should have warned him or his father of the hazards of asbestos.

In its motion for summary judgment, the employer argued that it had no special relationship with the plaintiff and therefore did not owe him a duty to warn. The employer also argued that it was not liable because it was not the manufacturer of the products. The trial court granted the motion for summary judgment.

The North Dakota Supreme Court noted that, since negligence cases are so dependent upon facts, summary judgment is generally not appropriate. Whether a duty exists, however, is a preliminary legal question. If the existence of a duty can only be determined by resolving factual issues, the trier of fact must resolve those factual issues, but if there is only one reasonable conclusion from the facts, the court may resolve the legal question.

The North Dakota Supreme Court noted that this was its first “take-home” asbestos case. Examining the cases of other jurisdictions, the court found that other courts had focused either on the foreseeability of the injury or the relationship between the parties. The court found that in those cases, foreseeability was dependent upon the employer’s knowledge of the risk of asbestos being transmitted through the employees’ clothes and causing injury to others. The cases focusing on the relationship between the parties generally found that employers did not owe a duty to victims of secondary exposure to asbestos.

The North Dakota Supreme Court had focused on both foreseeability and the parties’ relationship in determining the existence of a duty in negligence cases, with foreseeability generally being a question of fact. The court found, however, that it did not matter whether this case was analyzed under foreseeability, the parties’ relationship, or both. The court found that summary judgment was appropriate because the plaintiff had not presented any genuine issues of material fact. There was no evidence of the employer having knowledge of the hazards of asbestos during the plaintiff’s father’s employment, nor was there evidence of a special relationship between the plaintiff and his father’s employer.

The plaintiff had submitted a 1943 Minnesota workers’ compensation statute that had since been repealed, the employer’s answers to interrogatories in a previous case, and a 1973 Minnesota statute prohibiting the use of powdered asbestos. The interrogatories indicated that the employer had become aware of the potential risks of asbestos exposure in the early 1970s. The employer had also stated that it thought asbestos had been removed from the products it used in the early 1970s. The court noted that this evidence was relevant to show the employer’s knowledge, but it did not indicate that the employer kept using asbestos after Minnesota law prohibited it.

The North Dakota Supreme Court further found that the determination of the existence of a duty was not dependent on facts to be decided by the fact finder. The court found the plaintiff had not presented any evidence opposing the motion from which a reasonable person could conclude the defendant owed him a duty.

This case shows that different states are analyzing secondary exposure cases differently. Additionally, the timing of exposure matters in these cases. If evidence shows the employer’s knowledge of the hazard occurred after exposure, the plaintiff may not be able to show foreseeability.

Our mesothelioma attorneys understand the importance of understanding state products liability law to identify all the potential defendants.

Additional Resources:

Palmer v. 999 Quebec, Inc., Supreme Court of North Dakota

More Blog Entries:

Bobo v. AGCO Corp. et al. – Secondary Asbestos Exposure Litigation, July, 2015, Miami Asbestos Injury Lawyer Blog