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Posted on Tuesday, October 23, 2018

Negligence, Duty Of Care, Recognizable Risk Of Harm And Asbestos Dust

Quisenberry v. Huntington Ingalls Incorporated, ___ Va. ___, No. 171494 (11 October 2018)

Negligence, duty of care, recognizable risk of harm, asbestos dust

From 1942 to 1977, Bennie Quisenberry worked for Newport News Shipbuilding and Dry Dock, now known as Huntington Ingalls Incorporated (“the Shipyard”).  During his work he was routinely exposed to asbestos dust, and asbestos dust adhered to his clothing.  He brought home asbestos fibers and his car was contaminated with those fibers.  His daughter Wanda lived in his home and was exposed to asbestos beginning in 1942. Beginning in 1954, she regularly helped launder her father’s clothes, shaking off and breathing asbestos dust in the process.  She moved out of his home in 1969.

In December 2013, Wanda was diagnosed with malignant mesothelioma caused by exposure to asbestos dust and fibers.  She died from the disease three years later.  Her son, administrator of her estate, sued in State court.  The complaint alleges that Wanda was exposed to asbestos, and the Shipyard had reason to know of the dangers that asbestos posed to workers and their families.  The complaint further alleges that the Shipyard was negligent in failing to exercise reasonable care, including warning workers not to wear work clothes home, not providing a locker room, showers and laundry service, and not adhering to various statutes, regulations and guidelines.  The complaint also alleged gross negligence and wanton and willful conduct.

The Shipyard removed the action to federal court and moved to dismiss on the grounds that the Shipyard was not liable on the plaintiff’s theory of “take home” exposure liability. The theory of “take home” liability had not been clearly decided by the Virginia courts, and the federal court certified the issue to the Virginia Supreme Court. 

The Virginia Supreme Court reformulated the question as follows:

Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from 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 finding of a legal duty is a prerequisite to a finding of negligence. Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 149, 501 S.E.2d 393, 397 (1998).  Without a legal duty there can be no cause of action for an injury.  

The complaint does not allege a relationship, in the traditional sense, between Wanda and the Shipyard.  There was no contractual, familial, employer-employee, or agency-agent relationship.  Wanda and the Shipyard are “strangers under the law,” but the absence of a traditional relationship is not dispositive as to the existence of a duty.  The question is whether the alleged circumstances created a sufficient relation between Wanda and the Shipyard such that the Shipyard owed a duty of care to Wanda.  The inquiry depends on whether the plaintiff has pled facts showing that the Shipyard placed Wanda within the reach of the Shipyard’s conduct, within a class of persons at recognizable risk of harm. 

The principles of duty in general negligence claims in Virginia are familiar and established.  General negligence requires a person to exercise due care to avoid injuring others. RGR, LLC v. Settle, 288 Va.260, 275, 764 S.E.2d 8, 16 (2012); Overstreet v. Security Storage & Safe Deposit Co., 148 Va. 306, 317, 138 S.E. 552, 555 (1927).  The common law requires that every person must exercise ordinary care in the use and maintenance of his own property to prevent injury to others. Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957).  This duty is not abstract: a specific course of conduct gives rise to a specific duty extending to specific persons. Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va. 270, 278, 401 S.E.2d 878, 883 (1991).  This general duty is owed to those within reach of the defendant’s conduct. RGR, 288 Va. at 276, 764 S.E.2d at 17; Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928).

The existence of a duty does not depend on proving a particular relationship, but arises from the basic and necessary regulation of civilization which forbids any person to heedlessly or carelessly injure another. RGR, 288 Va. at 279-80, 764 S.E.2d at 19.  In the vast majority of negligence actions, the parties were strangers at the time of the incident, and the action is based upon the broad duty not to injure others by acts of omission or commission. 

In order for the actor to be negligent with respect to another person, the conduct must create a recognizable risk of harm to another person, for example, a person within the area of danger.  The Court said that the only relationship that must exist for a duty to arise is a sufficient juxtaposition of the parties in time and space to place the plaintiff in danger from the defendant’s acts. The juxtaposition of time and space does not require actual interaction between the parties, but sufficient relation to place the plaintiff within reach of defendant’s conduct.

The Court said that Wanda is alleged to be one such person within the area of danger. The hazard created by the Shipyard – asbestos dust – was allegedly released through the Shipyard’s course of conduct and moved to place Wanda in danger.  This created a recognizable risk of harm to those sharing living quarters with the workers, resulting in a duty of ordinary care to that class of persons. 

Foreseeability of harm is a necessary consideration in establishing the reach of defendant’s conduct or recognizable risk of harm.  The class to whom a duty is owed is established by determining who is directly and foreseeably exposed to the risk of bodily harm.  Here, the pleadings support a foreseeable and recognizable risk of harm to a class of persons within the area of danger, including Wanda. 

The Court answered the certified question, as restated, in the affirmative.

This is a four-to-three decision.  Senior Justice Millette, wrote the majority opinion, joined by Justices Mims, Powell, and McCullough.  Chief Justice Lemons and Justices McClanahan and Kelsey dissented.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.