May 8, 2018
There are perhaps few legal principles as widely debated as the principle of duty. In order to establish negligence, the plaintiff must show that the defendant owed him a duty of care. If there is no legal duty, then a case will usually meet its end through a motion for summary judgment.
In asbestos litigation, there is disagreement from jurisdiction to jurisdiction concerning when a defendant owes a duty of care in “secondary exposure” scenarios. In a case of first impression, the Rhode Island Superior Court, Taft-Carter, J., in Nichols v. Allis Chalmers Product Liability, found that an employer owed a duty of care in a case involving “secondary exposure” to asbestos.
In Nichols, the plaintiff alleged that the decedent, Iva Pearl Jones, lived with her brother-in-law, Stanley Nichols, who worked as a furnace operator for the Crane Company from 1979 to 1980. The plaintiff alleged that Ms. Jones “always” washed the clothes that Mr. Nichols wore when he worked at the Crane Company which contained asbestos fibers and asbestos dust. In 2005, Ms. Jones was diagnosed with mesothelioma and died in May, 2007. The plaintiff then brought an action against the Crane Company claiming that Ms. Jones sustained personal injuries from “secondary exposure” to asbestos fibers and asbestos dust from the clothes Mr. Nichols wore and she washed. The Crane Company filed a motion for summary judgment arguing that it did not owe Ms. Jones a duty of care.
The Court denied the motion for summary judgment and found that the Crane Company owed Ms. Jones a duty of care. In doing so, the Court noted that Rhode Island has an ad hoc approach to determining the existence of a duty of care. As such, the Court is not bound by any “set formula.” Relying on factors articulated in Flynn v. Nickerson Community Center, 177 A.3d 468 (R.I. 2018), the Court considered the foreseeability of the harm, the degree of certainty that Ms. Jones suffered an injury, the closeness of connection between the defendant’s conduct and the injury suffered, and the policy in preventing future harm. In applying these factors to the facts of this particular case, the Court concluded that the Crane Company owed Ms. Jones a duty of care to protect her from asbestos exposure.
For defense counsel, it is important to recognize that Nichols did not conclude that a duty of care always exists in “secondary exposure” cases involving asbestos. Rather, the Court must consider the existence of a legal duty on a case-by-case basis. Furthermore, the fact that Rhode Island does not recognize a single test for determining the existence of a legal duty leaves the door open for skilled and creative arguments for defense counsel. While Nichols may mark the beginning of “secondary exposure” litigation in Rhode Island, it does not make establishing the existence of a legal duty in this context easy for plaintiffs.