A California Appellate Court recently denied a plaintiff’s claim in a “take home asbestos” case, calling into doubt the obligation of California businesses to protect the families of workers who may be exposed to known hazards on the workplace premises.
The plaintiff in Campbell v. Ford Motor Company, whose brother and father worked as insulators at a plant owned by Ford, alleged that the company failed to warn employees about the dangers of asbestos exposure. The plaintiff alleged that, as a result of Ford’s inaction, her brother and father unknowingly carried asbestos dust home on their clothes, which the plaintiff then laundered, causing her to inhale the asbestos and develop mesothelioma, a fatal form of cancer that is caused only by asbestos exposure.
A jury awarded the plaintiff $40,000, a mere five percent of her damages. Nonetheless, Ford appealed the verdict and argued that it did not have a duty to protect the plaintiff from asbestos toxins.
At the time the plaintiff’s family members were working at the Ford facility, there was significant scientific and medical data available regarding the health hazards associated with asbestos exposure and household risks associated with asbestos. Nonetheless, Ford failed to warn its employees about the dangers presented to family members.
The California appellate court ultimately determined, as a matter of law, that Ford had no duty to the plaintiff and reversed the judgment handed down by the jury. In reaching its decision, the appellate court relied on the fact that the plaintiff had never physically entered its facility and that the connection between Ford’s conduct and the plaintiff’s injury was lacking. Moreover, the court held that public policy considerations weighed in favor of refusing to find a duty of care to family members of former employees.
Other states, including Illinois, have dealt with similar issues. In 2010, the Fifth District of the Appellate Court of Illinois held in Simpkins v. CSX Corp., No 5-07-0346, that the defendant owed the plaintiff a duty to protect her from “take-home exposure” to asbestos, but noted that the finding of a duty does not amount to a finding of liability and that the plaintiff would still have to prove her case in court.
One year later, in 2011, the Fourth District of the Appellate Court of Illinois considered a similar issue in Rodarmel v. Pnuemo Abex L.L.C., No. 4-10-0463, and came to the opposite conclusion. One reason for the possibility disparity in conclusions is that, in Rodarmel, the exposure occurred from 1953-56, whereas in Simpkins the exposure occurred from 1958-64, when, presumably, more was known regarding the harmful effects of exposure to asbestos.
Earlier this year, the Illinois Supreme Court held in favor of the plaintiff in Simpkins v. CSX Corp., allowing plaintiff to replead its case to establish the foreseeability element of the duty by including specific facts as to what was known about the dangers of secondhand exposure at the time it occurred, between 1958 and 1964. Although the issue is still somewhat unresolved in Illinois since the plaintiff must replead her case, it appears that the Illinois courts are open to the viability of “take home exposure” claims.