The Three Types of Liability in Asbestos Exposure Cases

If you have been diagnosed with mesothelioma,  your condition was likely caused by asbestos exposure. There’s also a good chance that a person or a company—or multiple people and companies—can be held legally responsible for exposing you to asbestos.

Most mesothelioma patients and their families are not attorneys or legal experts, and therefore may not know exactly who can be held accountable in these cases, and how. That’s why we put together a basic explainer to answer some of the most pressing questions about asbestos exposure liability and mesothelioma.

What is liability?

Liability refers to legal responsibility. If a person or company is found liable for asbestos exposure, it means that they are legally responsible for that exposure, and for any injuries it may have caused—including mesothelioma.

In asbestos exposure/mesothelioma cases, a party being sued for liability for asbestos exposure is referred to as “the defendant”. The injured party (i.e., the mesothelioma patient and their family) is referred to as “the plaintiff”. If the defendant is found liable, it can be compelled by a jury  to financially compensate the plaintiff for his or her physical and emotional pain and suffering and financial  losses that he or she  experienced due to their mesothelioma, which are referred to as “damages”.

What kinds of liability are there in asbestos exposure cases? 

When it comes to asbestos exposure, there are three main ways that a plaintiff (i.e., a mesothelioma patient and their family) can claim liability against a defendant (i.e., the party responsible for exposing the plaintiff to asbestos).

1. Negligence: Negligence is failure to act with the level of care that a reasonable person would apply to a given situation. In a mesothelioma case, the negligence approach argues that the defendant is responsible for exposing the plaintiff to asbestos, because a reasonable person would have been able to foresee the exposure and potential injury and would have been responsible for stopping it.

To illustrate negligence liability, we’ll use an example case. In this case, the defendant is a company that manufactured an asbestos-based product. The plaintiff is a neighbor who lived near the factory where the product was manufactured and was exposed to asbestos fibers as they walked past the factory on their way home each day. That asbestos exposure led them to develop mesothelioma. 

There are four elements, or things that must be proven, in a successful negligence argument. In order to claim negligence in an asbestos exposure case, your attorney must prove:

1. Duty: That the defendant had a duty to prevent any reasonably foreseeable injuries to the plaintiff.Example: Using our example case,  the company had a reasonable duty to protect the neighbor, an innocent bystander, from exposure to asbestos because such exposure and injuries were foreseeable .
2. Breach of Duty: That the defendant violated their established duty to the plaintiff.Example: The Plaintiff’s attorney must prove that the Defendant violated or failed to uphold (i.e., “breached”) that duty.  Primarily, the proof is that the Defendant knew or should have known that its conduct would result in an exposure to bystanders, passersby and members of the community, and knew or should have known that exposure could cause asbestos diseases, including mesothelioma
3. Causation: That the defendant’s breach of their duty to the plaintiff caused injury to the plaintiff, resulting in economic and/or emotional losses.Example: Once the neighbor’s attorney has proved that the company breached its duty to the Plaintiff, they must now prove that the company’s breach of that duty—their failure to properly protect the neighbor from the asbestos in their allegedly safe factory—exposed the neighbor to asbestos, which caused them to develop mesothelioma (which is legally referred to as “injury”).There is a large body of scientific and medical evidence demonstrating that asbestos exposure is the only known cause of mesothelioma., Thus, an experienced mesothelioma attorney should be able to prove that  the company’s breach  of its duty to the neighbor, caused the asbestos exposure and thus caused the neighbor’s mesothelioma.
4. Damages: That the plaintiff’s injury, which they developed as a result of the defendant’s negligent breach of duty, has caused the plaintiff to experience economic and emotional losses. Example: At this stage of the argument in our example case, the neighbor’s mesothelioma attorney has already proven the company’s  breach of its duty caused the  the neighbor’s exposure to asbestos, leading to the neighbor’s injury (mesothelioma).Having established these elements, the attorney will now argue that the neighbor’s injury (mesothelioma) caused them to experience losses (or, “damages”). They will further argue that the company has a responsibility to compensate the neighbor for their damages with a specific financial sum.In mesothelioma cases, damages are generally divided into two categories:

1. Economic or Specific Damages: Economic damages are numerically measurable, documented financial losses that the mesothelioma patient and/or their family incurred as a result of their injury (i.e., mesothelioma). This can include:

• Medical bills and expenses, past, present, and future
• Any costs reasonably associated with mesothelioma treatment or impairment
• Lost wages/income as well as lost business and earning opportunities

2. Non-Economic, or General Damages: Non-economic damages refer to physical and emotional losses caused by the plaintiff’s mesothelioma. They are not measurable in the same way that economic damages are measurable and are instead more abstract and subjective. A mesothelioma attorney should be familiar with the factors necessary to prove  these losses and suggest  specific financial compensation.  They may include losses represented by:

• The disease itself
• The patient’s shortened lifespan
• Disability or disfigurement
• Emotional distress
• Pain and suffering
• Physical impairment
• Loss of companionship (to the patient’s spouse or close family)
• Loss of enjoyment of life 

In our example case, proving the damages element means proving that the neighbor’s mesothelioma caused specific financial and/or emotional losses as a result of their exposure to the asbestos produced by the company at their factory, and demanding compensation commensurate with those losses.

2. Strict Liability, or Strict Product Liability: The second argument commonly used to prove liability in asbestos exposure cases is “strict liability”, sometimes referred to as “strict product liability.” In some cases, especially where duty and breach of duty are harder to prove, mesothelioma attorneys can argue for strict liability. 

According to this argument, the defendant is liable for exposing the plaintiff to asbestos even if they did not act negligently (or without the duty of care that a reasonable person would apply in their place), because asbestos is inherently dangerous.

Some products are dangerous even if handled and used with reasonable care. Those responsible for selling or employing others to handle such products are accountable for the harm those products cause, even if handled “responsibly”.

To explain strict liability/strict product liability, we will use another example case. In this case, the defendant is a company that produced and sold a product, which contained asbestos as a component part, and the plaintiff is a mesothelioma patient who was exposed to asbestos via that product.

Many of the elements necessary to prove a strict liability case are the same as those necessary to prove a negligence case, with a few key differences. To prove a strict liability asbestos case, you must prove:

1. Strict Duty: That the defendant had a strict duty to design, manufacture, and sell safe products, including to the plaintiff.Example: Using our new example, this “strict duty” would be the duty of the company not to manufacture products that dangerously expose consumers to asbestos.
2. Breach of Duty: That the defendant breached their strict duty by producing, utilizing, and exposing the public to an inherently dangerous product.Example: The plaintiff’s attorney could argue this point by showing that the company breached their strict duty to the consumer by exposing them to asbestos, an inherently dangerous substance, through their allegedly safe product. Under Kentucky law, product manufacturers can be held liable for:

• Manufacturing Defect: A manufacturing defect occurs when there is a flaw in the product that makes it more dangerous than intended. To prove a manufacturing defect, the plaintiff must show that the product deviated from its intended design or specifications, and that the defect caused the plaintiff’s injury.
• Design Defect: A design defect occurs when the product’s design makes it unreasonably dangerous. To prove a design defect, the plaintiff must show that a safer alternative design was available, and that the risk of harm posed by the product outweighed its utility or benefits.
• Failure to Warn: A failure to warn occurs when the product lacks adequate warning labels or instructions, and the failure to provide such warnings makes the product unreasonably dangerous. To prove a failure to warn, the plaintiff must show that the defendant knew or should have known of the risk of harm posed by the product, and that the failure to provide warnings caused the plaintiff’s injury.

3. Causation: That the product resulted in the plaintiff’s injury, despite the plaintiff handling the material as directed by the defendant.Example: The plaintiff’s attorney in our example case would explain exactly how the consumer was exposed to asbestos fibers by using the product as instructed. They would then prove  medical causality between that asbestos exposure and the consumer’s mesothelioma, based on the large body of scientific research showing that asbestos exposure is the only known cause of mesothelioma.
4. Damages: That the plaintiff’s injury resulted in economic or emotional losses that are quantifiable and should be compensated for by the defendant.Example: This element would look much the same as the “damages” element from the “breach of duty” argument.

3. Breach of Warranty: Another argument that is commonly used to prove liability in asbestos exposure cases is referred to as a “breach of warranty.” Under a breach of warranty theory,a

In order to successfully argue for liability through breach of warranty, the plaintiff’s attorney would have to prove:

1. Express or Implied Guarantee: That there was an explicit or implicit guarantee that the product would be safe to use as directed.Example: Using our example, the plaintiff’s attorney could argue that by selling their product on the market, the manufacturer implied that the product is safe for consumers. This is enough to make the argument for an implied warranty of safety.

   If the company specifically advertised their product as safe, or specifically suggested or offered warnings against unsafe uses of the product (which the plaintiff heeded), the plaintiff’s attorney could argue for express breach of warranty.

2. False Guarantee: That the guarantee of safety was actually false, since the product was not safe to use as directed.Example: Returning to our example case, by this point, the plaintiff’s attorney will have already proven the implicit and/or explicit guarantee of safety issued by the company. They will now have to show that the product was not safe for use as directed, since it exposed the consumer to asbestos and caused their mesothelioma, which is proven in the same manner as proving a product is defective under Kentucky strict liability law.

No matter how liability for asbestos exposure is argued, it is an essential legal tool for mesothelioma patients and their families. An experienced mesothelioma attorney will know which approach is best for your case.

Are you or a loved one looking for more information about mesothelioma or asbestos exposure liability lawsuits? We can help. Call us toll-free at 855-385-9532 or fill out our contact form to schedule a free consultation.