The Next Wave of Asbestos Litigation: Examining the Duty of Care in Take-Home/ Secondary Asbestos Exposure Claims

OACTA Quarterly Review

The Rise of Take-Home or Secondary Exposure Asbestos Claims

Take-home asbestos claims are asserted by or on behalf of individuals who claim an asbestos-related injury arising from exposure to asbestos fibers through others. Most commonly, these claims allege that a worker family member was exposed to asbestos in an occupational setting, who thereafter “took home” the asbestos fibers and transferred them to the household setting, thereby exposing family members and others to the toxic fibers. Though they have never set foot onto a property owner defendant’s premises, and have never been employed by a defendant employer, these claimants argue that the premises owner or employer should have known about the dangers posed by asbestos and exercised reasonable care for the claimant’s safety accordingly by preventing asbestos fibers from being transferred to the home environment, or otherwise warned those individuals about the risks posed by take-home exposures.

Take-home cases have considerably expanded asbestos litigation to a new generation and class of individuals, and represent a new method of significantly prolonging asbestos litigation. Furthermore, take-home claims represent one of the fastest growing types of asbestos actions filed today, resulting in significantly enhanced potential exposure and liability for asbestos defendants of all shapes and sizes. To make matters worse, looking ahead the trend of increased take-home claim filings is only set to continue, if not accelerate, as we move forward in time, especially as the population of industrial workers who were exposed to asbestos continues to age and shrink.

In recent years, the issue of whether an employer or premises owner owes a duty of care to the take-home plaintiff has been a subject of fierce litigation across the country in both state and federal courts. During this time, significant uncertainty has developed across different jurisdictions on this issue, as courts have failed to reach a consensus as to whether a duty is owed to the take-home asbestos plaintiff. Importantly, at the present time a clear divergence of opinions exists across jurisdictions as to how tort law principles should be used to determine whether an employer or premises owner owes a duty to individuals who develop asbestos-related illnesses after being secondarily exposed to asbestos fibers. The differing views across jurisdictions is attributable to the different approaches that the courts have taken to determine the existence of a legal duty in the take-home exposure context. In this regard, courts have analyzed this dispute by focusing on four primary issues: (1) foreseeability; (2) the relationship between the parties; (3) public policy concerns; and (4) statutory considerations. While the majority of courts that have tackled the issue have found that no duty exists, others have held that employers and premises owners maintain a duty to safeguard non-employee claimants from the dangers and hazards of asbestos.

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"The Next Wave of Asbestos Litigation: Examining the Duty of Care in Take-Home/ Secondary Asbestos Exposure Claims," by David J. Oberly was published in the Winter 2019 edition of OACTA Quarterly Review. Reprinted with permission.