Although most would consider asbestos to be an old problem,
limited to mainly the manufacturing and construction industries,
asbestos has been incorporated into a myriad of products that had
many and varied uses. Because asbestos was so pervasive, claims
such as the one described below, occurring many years after the
last occasions on which asbestos was used and arising from the use
of sophisticated equipment in a laboratory, are still
prevalent.
Dinsmore attorneys recently handled a premises liability case for a
major minerals supply company. The case was unusual in that the
plaintiff worked as a technician servicing laboratory equipment and
the alleged asbestos exposures occurred into the 1990's. This
is in contrast to the typical asbestos case that usually involves
exposure in heavy industry prior to 1980.
The plaintiff in this case initially worked as a technician for a
manufacturer of laboratory instruments including thermoanalyzers. A
thermoanalyzer is an instrument that allows the user to determine
the amount of water in the sample being tested as well as certain
other characteristics of the sample as the result of heating the
sample to high temperatures. The thermoanalyzer at our client's
premises contained an asbestos paper separator between the
"hot" portion of the instrument and the unheated side.
The plaintiff testified that whenever he installed or performed
service work on the thermoanalyzers, including the one at our
client's laboratory, he was exposed to friable asbestos from
the paper separator as well as component insulation on vapor lines
contained in the thermoanalyser. The plaintiff also contended that
he was exposed to friable asbestos from an asbestos glove and
asbestos pad that were provided with the thermoanalyzer. The
plaintiff ultimately left his employment with the
thermoanalyzer's manufacturer and started his own business
doing the same type of work, namely servicing various laboratory
instruments, including thermoanalyzers. Significantly, the
plaintiff alleged exposures at our client's premises into the
1990's. The plaintiff was diagnosed with mesothelioma, a rare
type of cancer which is uniformly fatal and is, except in rare
circumstances, a signature disease for asbestos exposure.
The plaintiff's theory of liability as to our client was that
because the thermoanlayzer in our client's laboratory had
asbestos in it, and further because the client had not provided a
warning to the plaintiff regarding asbestos in the thermoanalyzers,
that our client had breached its obligation to provide a safe
workplace for tradesmen at its premises. As is typical in asbestos
cases, it was not initially clear what theory of liability the
plaintiff was pursuing. It was not until the plaintiff was deposed
and additional discovery undertaken that it became apparent that
the plaintiff was focusing on the alleged failure to provide a safe
work place because of the asbestos containing components in the
thermoanalyzer. The case was further complicated because it was
filed in New Jersey, where the plaintiff lived, but our
client's premises were located in Pennsylvania. Thus, there was
a question as to whether New Jersey or Pennsylvania law would
apply. We argued that regardless of which state's law was
applied, as the premises owner, our client did not owe a duty of
care to the plaintiff, an independent contractor, who was allegedly
injured by the very piece of equipment on which he was hired to
work.
The Plaintiff argued that the Olivo v. Owens –
Illinois case, a New Jersey Supreme Court Case, required a
premises owner to provide a reasonably safe place to work for
tradesmen coming on to the owner's premises, including an
obligation to inspect for defective or dangerous conditions. The
Olivo case was one in a series of cases in which the New
Jersey courts were attempting to address premises liability in
terms of a reasonableness standard as opposed to the traditional
categories of trespasser, licensee, and invitee, all of which deal
with the person's status while on the premises. In
Olivo, the New Jersey trial court granted summary
judgment. The New Jersey appellate court reversed and held there
were issues of fact regarding the degree of control the premises
owner retained over the work, what safety information the premises
owner provided, and what the premises owner told the contractor
regarding the presence of asbestos on the premises. The Plaintiff
argued that these were exactly the same issues in our case.
Dinsmore argued that Pennsylvania law applied (because the premises
in question was in Pennsylvania) and in any event, Pennsylvania law
was similar to that of New Jersey, namely, that a premises owner
does not owe a duty of care to an independent contractor for
dangers inherent in the work the independent contractor was hired
to perform. Although the court did not overtly address the choice
of law issue, it held that our client, the premises owner, did not
owe a duty of care to plaintiff because the plaintiff was
responsible for his safety on the equipment on which he was
working. In granting our motion for summary judgment, the court
focused on the premises owner's lack of any supervision or
control over the worked performed by the independent contractor. We
also emphasized the independent contractor's superior knowledge
regarding the thermoanalyzer and its components.
Our Advice
Facilities and equipment managers need to be alert that
in facilities built or remodeled prior to the mid-1970's, or
equipment, even laboratory equipment, assembled prior to 1980 and
where there was a need for thermal insulation, asbestos may still
be present and care should be used in dealing with such equipment.
Additionally, although waivers of liability, obtained from the
tradesmen coming on the property may provide some legal protection,
the facilities and equipment managers should make clear with the
tradesmen, or the tradesmen's employers, that they are being
hired for their expertise and knowledge regarding the proposed work
and that they are being relied upon to perform the work in a safe
manner.
ARTICLE
6 July 2011
Asbestos Litigation Case Questions Safety In The Workplace
Although most would consider asbestos to be an old problem, limited to mainly the manufacturing and construction industries, asbestos has been incorporated into a myriad of products that had many and varied uses