An employer owes a duty of care to an employee's family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer's negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee's home.Holding: "In response to a certified question of Virginia law from the United States District Court for the Eastern District of Virginia requesting that this Court exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, the question as restated being: Does an employer owe a duty of care to a family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer's negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee's home? The restated question is answered in the affirmative.
Facts: "In December 2013, Wanda Quisenberry was diagnosed with malignant pleural mesothelioma, caused by exposure to asbestos dust and fibers. She died from the disease three years later. Her son, Wesley Quisenberry, administrator of her estate, brought this action in the Circuit Court of the City of Newport News. As is relevant to this certified question, the complaint alleges that in the years Wanda was exposed to asbestos, particularly between 1950 and 1969, the Shipyard knew or had reason to know of the dangers that asbestos posed to workers' family members and members of the public, including Wanda. The complaint alleges 3 the Shipyard was negligent in choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines. The complaint further alleges that this negligence proximately resulted in Wanda's death. A separate count alleges gross negligence and wanton and willful conduct on the part of the Shipyard.
"As pled, workers accumulated asbestos dust on their clothes. As pled, in the absence of on-site laundry, lockers, or warning to the contrary, these individuals would regularly wear those clothes into their home environment and have them laundered there. As pled, the fibers traveled on the clothes of persons who worked with asbestos, and the fibers posed a danger to individuals who breathed in the asbestos dust in the home environment. The pleadings support a “recognizable risk of harm” to a class of persons “within a given area of danger” of defendant's conduct, including Wanda and the class of persons similarly situated.
Analysis: “Nobody is permitted by the law to create with impunity a stumbling block, a trap, a snare or a pitfall for the feet of those rightfully proceeding on their way.” RGR, 288 Va. at 279- 80, 764 S.E.2d at 19 (quoting Louisville & Nashville R.R. Co., 119 Va. at 627, 89 S.E. at 866). The innocent cohabitator represents the quintessential class of persons “rightfully proceeding on their way” yet placed in a “given area of danger.” Id. Because we find a duty does indeed lie to such persons in the recognizable and foreseeable area of risk, we answer the certified question, as restated, in the affirmative.
Jon L. Gelman is nationally recognized as an author, lecturer and skilled trial attorney in the field of workers' compensation law and occupational/environmental disease litigation. Over a career spanning more than four decades, he has been involved in complex litigation involving thousands of clients challenging the mega-industries of asbestos, tobacco, lead paint and burn pits. He is the author of the 3-volume treatise entitled Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise of Modern Workers' Compensation Law (West-Thomson-Reuters).
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