New Law on Secondary Asbestos Exposure
A Decision From the Kentucky Court of Appeals Has Solidified the Law on Employers’ Legal Duty to People Exposed to Asbestos From Their Relatives Work Clothing
On July 7, 2023, the Kentucky Court of Appeals issued a decision that recognizes duties owed to people who contract mesothelioma due to secondary exposure from their parents’ or spouses’ work clothing.
The decision states that employers have a duty to protect their employees’ relatives from foreseeable harm. It says that in relation to secondary asbestos exposure from employees’ clothing, relatives are not mere bystanders.
The appellate decision also emphasized that pursuant to Kentucky’s strict liability laws, manufacturers are liable to anyone harmed by their products. Manufacturers cannot escape liability by labeling someone as a bystander or nonuser. Here’s a breakdown of the specifics.
The History of the Williams Case
In 2016, Vickie Williams was diagnosed with mesothelioma, and she filed a lawsuit against Schneider Electric (Square D) and Union Carbide in Fayette Circuit Court. Her father was employed by Square D from the late 1960s to 2003, and Ms. Williams was exposed to asbestos as a child from hugging her father after he came home from work in asbestos-covered clothing. She also assisted with washing his clothing as she got older. Union Carbide manufactured the asbestos-containing molding products that were used at Square D.
When Vickie died in 2017, her husband and her son carried on with the lawsuit. In 2023, the trial court granted summary judgment to Square D and Union Carbide holding that neither owed a duty to Ms. Williams because she was a “bystander of a bystander.” In July 2023, the appellate court reversed summary judgment concluding under Kentucky negligence and products liability law, both of companies owed a duty to the victim.
Strict Liability and Bystander Recovery
The Appellate Court’s decision highlighted Union Carbide’s duty to Ms. Williams based on Kentucky’s strict liability laws. When strict liability applies, bystander recovery is fait accompli. That means that it is an established fact.
The trial court claimed that denying the existence of Carbide’s duty was a matter of public policy. The Court of Appeals, however, pointed out that this was in direct conflict with the 1975 ruling of Embs Vs. Pepsi-Cola Bottling Co of Lexington, Kentucky, Inc, which stated that bystander recovery actually helps to promote public policy.
That ruling stated the following: “Our expressed public policy will be furthered if we minimize the risk of personal injury and property damage by charging the costs of injuries against the manufacturer who can procure liability insurance and distribute its expense among the public as a cost of doing business; and since the risk of harm from defective products exists for mere bystanders and passersby as well as for the purchaser or user, there is no substantial reason for protecting one class of persons and not the other.”
The Court of Appeals decision held the Embs duty applied to all manufacturers of products to product the public at large. Labels and job titles are meaningless. When a manufacturer makes a product and chooses to sell it, it owes a duty to everyone to make a safe product regardless of who is ultimately injured by any defects.
Duty to Relatives of Employees
In terms of Square D’s duty to Ms. Williams, the issue of public policy is more nuanced, but the Court of Appeal’s decision stated that public policy favors a duty to household members who “regularly and repeatedly” came into contact with an employee’s asbestos-related clothing over an extended period of time.
The trial court granted a summary judgment to Square D on the grounds that the company had no duty to a bystander of a bystander. In other words, the courts decided that Vickie’s father was a bystander at Square D due to its belief that he primarily worked in the office and infrequently came into contact with asbestos-containing molding compounds.
However, this characterization was inaccurate. Although Vickie’s father was an engineer stationed in the office, he was frequently in the molding department, and everyone in that area was exposed to asbestos. The Court of Appeals recognized that her father was not just a mere bystander. He was an employee exposed to asbestos in the course of employment. He brought asbestos dust home on his clothes, and his daughter Vickie regularly inhaled asbestos fibers when she hugged her father to welcome him home.
Foreseeability of Harm
Kentucky law does not define duty based on concepts such as bystander or nonuser. Rather, duty is based on foreseeability. A business has a duty of reasonable care if it can reasonably anticipate that its activities or products may harm someone else, and when Vickie’s father was bringing home asbestos on his clothing, Square D should have known that there was a significant risk of harm to both Vickie’s father and his family.
Medical experts in Kentucky have known about the risks of asbestos dust since at least 1963. This was close to the beginning of Vickie’s father’s four-decade employment with the company. The risks of secondary exposure have been documented for an even longer time period.
In 1913, W.H. Tolman and L.B. Kendall wrote, “The ordinary street-clothes should be taken off and replaced by special suits to be worn during working hours…. by removing the working-clothes before meals and before leaving the factory, the poison is not carried into lunchrooms or into the homes of workers.”
About 60 years later, while Vickie’s father was employed at Square D, a 1972 OSHA guideline outlined the steps employers should implement to prevent their employees from carrying asbestos dust outside of the workplace. These historic documents, which were presented by experts in the trial court, prove that the dangers were well known and that the harm was foreseeable.
Employers’ Duty to Employees’ Family Members
This decision does not just help the Williams family. It affects the legal landscape of mesothelioma lawsuits in Kentucky going forward. In the past, employers argued that they did not owe a duty to their employees’ families. This ruling, however, has upended this defense.
Now, there is a clear decision recognizing that the risks were foreseeable during the decades when asbestos use peaked in the United States and that employers have a duty to protect not only their employees but the families of their employees.
Get Help If You’ve Been Diagnosed With Mesothelioma
Mesothelioma is a terrible disease that steals years of people’s lives and destroys families. If you or a loved one has been diagnosed with mesothelioma, do not speculate with your doctor about where you may have come into contact with asbestos. Instead, work with your doctor on your treatment plan, and contact an experienced personal injury lawyer to talk about causes and recovery options.
You have a right to compensation and financial justice. However, you need to act quickly as the statute of limitations is short.
At Satterley & Kelley, we have extensive experience helping people who were exposed to asbestos at work, through a product, or from secondary exposure. To get help today, contact us now at 855-385-9532, or schedule a free consultation.