Premises Owner Liability in Asbestos Cases

Decisions in our library in which the court ruled on premises owner liability to contractors' workers or visitors: 231 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

Many people were exposed at sites owned by someone other than their employer: contractors working in refineries, power plants and steel mills, or tradespeople in commercial buildings. Their claims against the property owner are premises liability claims.

The rules vary by state, but common questions are:

• Did the owner know or should it have known about the asbestos hazard?
• Where did the danger come from? Asbestos already in a building can be disturbed by a contractor's own work, so the line between a property condition and the contractor's work is often contested. Many states limit an owner's duty to contractors' workers injured by the work they were hired to do. Exceptions, such as an owner that kept control over the work or knew of a hidden hazard, are defined narrowly and differently from state to state.
• Who employed the injured person? A worker generally cannot sue their own employer (see employer liability and workers' compensation), and in some states an owner can be a statutory employer that shares that immunity.
• Does a state statute, such as a "contractor-owner" statute, limit the owner's liability?

Alabama

• Bobo v. Tennessee Valley Authority (2017). Predicting Alabama law, the court held that an employer has a duty to prevent take-home asbestos exposure of an employee's household members when the injury is foreseeable and public policy supports a duty. The court also held that medical charges written off by providers under insurer agreements are not recoverable as damages.
• Bobo v. Tennessee Valley Authority (2015). The court concluded that Alabama law has no controlling answer on whether a premises owner owes a duty to workers' family members for take-home asbestos exposure, or on whether but-for or substantial-factor causation applies to multiple asbestos exposures, so it certified both questions to the state supreme court.
• Patterson v. Consolidated Aluminum Corporation (2012). To use Rule 9(h) and 15(c) relation back to substitute a named defendant for a fictitious one after limitations has run, the plaintiff must have exercised due diligence and promptly amended once the defendant's identity was known or should have been known; failure of any one requirement defeats substitution.

Arizona

• Quiroz v. Alcoa Inc. (1st Division, 2016). Under Arizona law, which does not use foreseeability to decide whether a duty exists, an employer owes no duty of care, based on relationship or public policy, to an employee's child who was exposed to asbestos carried home on the employee's work clothes.

California

• Marcus v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs can reach a jury on substantial-factor causation with testimony about the work done on a product, evidence the product contained asbestos, and expert estimates of exposure from that work, without relying on an "every exposure" theory. The government contractor defense does not apply to federal maritime claims, and loss of consortium and punitive damages are unavailable under maritime law.
• Irani v. Exxon Mobil Corporation (2nd Appellate District, 7th Division, 2021). A company has no tort duty to protect refinery workers from asbestos where it did not own, possess or control the premises or asbestos sources, and a contractual guarantee of an operating company's performance to the government creates neither a J'Aire duty nor a special relationship.
• Khosravan v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2021). A defendant owes no duty to protect workers from asbestos at premises it did not own, possess or control. A 1954 agreement guaranteeing the operating companies' performance did not create a duty to refinery workers, either through a special relationship or under the Biakanja/J'Aire factors.
• Pizarro v. National Steel and Shipbuilding Company (2021). A contractor asserting Yearsley or Boyle government contractor defenses must show it complied with the government's specifications, and a genuine dispute over that compliance requires a jury. Under California law, evidence that a retailer knew of asbestos dangers and sold asbestos-containing brakes without warning can create a jury question on malice for punitive damages.
• Viale v. Foster Wheeler, LLC (2021). Plaintiffs must present non-speculative evidence that the defendant's asbestos-containing product or conduct was a substantial factor in causing the disease; a hirer of an independent contractor is presumptively not liable absent affirmative contribution to the injury, such as supplying unsafe equipment or exercising retained control.
• Pizarro v. Astra Flooring Company (2020). A defendant may remove an entire action under 28 U.S.C. § 1442(a)(1) if it shows by a preponderance of the evidence a colorable government contractor defense to a failure-to-warn claim, and declarations from a retired Navy admiral can suffice at the removal stage under Leite v. Crane Co.
• Sabetian v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2020). A defendant that did not own, possess or control the premises owes no premises or negligence duty to workers there, and a guarantee in a contract not intended to benefit the workers does not create a duty under the J'Aire/Biakanja factors.
• Malek v. Chevron U.S.A. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A defendant that did not own, operate or control a premises, was not a joint venturer or principal of the operator, and did not undertake responsibility for worker safety owes no duty of care; workers who only incidentally benefit from a contract are not intended third party beneficiaries.
• Lopez v. the Hillshire Brands Company (1st Appellate District, 5th Division, 2019). CACI No. 435, the asbestos substantial-factor instruction based on Rutherford, applies to an asbestos claim against a premises owner that is not a manufacturer or supplier, and a 'but-for' causation instruction is not required where there may be multiple sources of exposure.
• Trapp v. CertainTEED Corporation (6th Appellate District, 2018). A defendant moving for summary judgment must produce admissible evidence negating an element of the claim, and an expert opinion built on case-specific data that is not in the record has no evidentiary value. Strict products liability can reach defendants in the stream of commerce when bystander injury is reasonably foreseeable.
• Beckering v. Shell Oil Company (2nd Appellate District, 3rd Division, 2017). Under Kesner, employers and premises owners that use asbestos owe a duty of ordinary care to prevent take-home exposure to members of a worker's household, and this duty extends no further than the household.
• Petitpas v. Ford Motor Company (2nd Appellate District, 4th Division, 2017). An employer's or premises owner's duty to prevent take-home asbestos exposure extends only to members of the worker's household, and a vehicle maker is not liable in design defect for asbestos in other makers' replacement brakes merely because its vehicles were compatible with them. A service provider that does not sell the asbestos parts it installs is not within the stream of commerce for strict liability.
• Kesner v. Superior Court and Haver (2016). Employers and premises owners that use asbestos owe a duty of ordinary care to prevent take-home exposure to asbestos carried on workers' bodies and clothing, but the duty extends only to members of the worker's household.
• Beckering v. Shell Oil Co. (2nd Appellate District, 3rd Division, 2014). Applying the Rowland factors and following Campbell v. Ford Motor Co., a premises owner owes no duty to protect a family member from secondary (take-home) asbestos exposure off the premises from asbestos-contaminated work clothes.
• Haver v. BNSF Railway Co. (2nd Appellate District, 5th Division, 2014). Following Campbell v. Ford Motor Co., a premises owner owes no duty of care to family members of workers who are secondarily exposed to asbestos off the premises, whether the worker was employed by the owner or by a contractor.
• Swanson v. Simpson Timber Company (2nd Appellate District, 3rd Division, 2013). Under the Rowland factors, a premises owner owes no duty to an employee secondarily exposed to asbestos off the premises through a family member and fellow employee's work clothes. An employee's secondary exposure from wearing his own work clothes home is a derivative injury barred by workers' compensation exclusivity.
• Campbell v. Ford Motor Company (2nd Appellate District, 7th Division, 2012). Under the Rowland factors as clarified in Cabral, an employer or premises owner has no duty to protect employees' family members from secondary (take-home) asbestos exposure. New Jersey's statute of repose did not bar the claim because it excludes persons in possession and control as owner.
• Flores v. Kmart Corporation (2nd Appellate District, 5th Division, 2012). A bankruptcy reorganization plan's discharge cannot be enforced against a claimant at the demurrer stage unless the record shows the claimant received constitutionally adequate notice. Publication notice suffices only if the claimant's identity was not reasonably ascertainable or the claim was conjectural; otherwise actual notice is required.
• Haver v. BNSF Railroad Co. (2nd Appellate District, 5th Division, 2012). Collateral estoppel requires that the issue be identical to one actually litigated in the prior case; a prior judgment on locomotive-exposure allegations does not bar a later wrongful death claim based on different, non-locomotive asbestos exposures that were never raised or decided.
• Fontes v. Interstate Brands Corporation (2nd Appellate District, 5th Division, 2011). A defendant can shift the burden on summary judgment by showing through discovery responses and deposition testimony that plaintiffs cannot prove asbestos was present at the work site. An expert declaration lacking foundation for that point is properly excluded, and a new trial motion based on excluded expert opinions fails because the evidence is not material.
• Webster v. Exxonmobil Oil Corp. (2nd Appellate District, 4th Division, 2011). Trial testimony that contradicts clear admissions in a party's deposition is not substantial evidence, so it cannot defeat a nonsuit; without evidence of exposure there is no causation.
• Haver v. BNSF Railway Company (2nd Appellate District, 4th Division, 2010). Pleadings delimit the issues on summary judgment, so a plaintiff cannot defeat the motion with a new unpleaded factual theory raised in opposition without seeking leave to amend the complaint. Claims based on asbestos in locomotives are preempted by the federal Locomotive Boiler Inspection Act.
• Honer v. Ford Motor Company (2nd Appellate District, 7th Division, 2007). Under Code of Civil Procedure section 361, a California-citizen plaintiff who held the cause of action from accrual is not barred by another state's statute of repose. A premises owner was not entitled to summary judgment where the record on its knowledge and control was disputed.
• Kinsman v. Unocal Corporation (1st Appellate District, 3rd Division, 2007). A premises owner that relies on an industry exposure limit (TLV) as a defense to negligence bears the burden of showing it knew of and complied with that standard. The plaintiff need not prove exposure above the limit, and substantial evidence that the owner knew or should have known of asbestos hazards supports a negligence verdict.
• Kinsman v. Unocal Corporation (2005). A landowner that hires an independent contractor may be liable to the contractor's employee, even without retained control, if it knew or should have known of a concealed preexisting hazard, the contractor did not know and could not reasonably discover it, and the landowner failed to warn.
• Kinsman v. Unocal Corp. (1st Appellate District, 3rd Division, 2003). A premises owner is not liable to an independent contractor's employee for a dangerous condition created by a contractor unless the owner controlled the condition and exercised that control in a way that affirmatively contributed to the employee's injury. This limit applies whether the condition was created by the plaintiff's employer or another contractor, and does not require proof that the contractor was negligent or that the employer carried workers' compensation insurance.
• Smith v. ACandS, Inc. (1st Appellate District, 1st Division, 1994). A plaintiff must prove the defendant's asbestos products or activities were present at his work site, and speculation will not do. A landowner is not vicariously liable under the peculiar risk doctrine for one contractor's negligence that injures employees of other hired contractors.

Connecticut

• Poce v. O & G Industries, Inc. (2021). The court adopted the trial court's reasoning. Negligence requires an actual injury with some physical component, so claims resting only on asbestos exposure, increased risk and medical monitoring fail. A construction manager whose contract excluded responsibility for hazardous materials and safety control owed no duty to the workers.

Delaware

• Gilstrap v. CBS Corporation (2021). Under maritime law, a plaintiff must show for each defendant exposure to its product and that the product was a substantial factor in causing the injury. A failure to respond to a summary judgment motion does not alone justify judgment, but here the undisputed record showed no such evidence.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable for an independent contractor's negligence absent inherently dangerous work or control over the contractor's methods, and strict liability requires custody of the defective thing, which mere presence on the premises does not establish.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner is not liable to a contractor's worker without evidence that it knew of the asbestos risks, specified asbestos use, or had custody or control of the asbestos product. Strict liability also requires custody of the thing that caused the harm.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (2017). Under Louisiana law, a premises owner owes no duty for hazards inherent in an independent contractor's work, and strict liability requires custody, meaning direction, control or ownership, of the defective thing. The plaintiff offered no record evidence of either.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (2012). Applying Pennsylvania law, the court predicted that the Pennsylvania Supreme Court would hold that an employer or premises owner owes no duty to an employee's spouse for take-home asbestos exposure, based on a weighing of the relationship, social utility, foreseeability, consequences and public interest factors.
• Hudson v. Delmarva Power & Light Co. (In re Asbestos Litigation Hudson Trial Group) (2006). A landowner is not liable for hazards faced by an independent contractor's employee unless it actively controlled the manner and method of the work, and general superintendence is not enough. DP&L did not actively control the work at Edgemoor, but the record on control at Delaware City was too undeveloped to decide.
• Roca v. EI du Pont de Nemours and Co. (2004). An issue not identified in the summary of argument and argued in the body of the opening brief is waived on appeal, even if it was preserved below; raising it for the first time at oral argument is insufficient.

Florida

• Bechtel Corporation v. Batchelor (3rd District, 2018). Premises liability requires control of the premises amounting to the ability to control access or exclude others, and a contractor's size, service contracts and insurance terms did not support an inference of such control. An adverse-inference instruction is unavailable as a discovery sanction without a prior court order that was violated.
• Bechtel Corporation v. Batchelor (3rd District, 2017). Premises liability requires proof that the defendant possessed or controlled the premises, meaning the ability to control access or exclude others; a contractor's large presence and service contracts silent on possession do not support that inference. A discovery sanction such as an adverse inference instruction is unavailable where the party never violated an order compelling the discovery.

Georgia

• Sinyard v. Georgia Power Company (2022). A premises owner that contracts to build for co-owners is a statutory employer immune from tort suit for that construction work. Otherwise, whether a premises owner had superior knowledge of the specific asbestos hazard, and whether it relinquished possession and control to the worker's contractor, are jury questions unless the worker's own employer had equal knowledge.
• Georgia Power Company v. Campbell (2021). An owner owes no duty to a contractor's employees only if it relinquished possession and did not control the work, and contract terms showing retained control raise fact questions. A trial court must act as gatekeeper and rule on a challenge to an expert's qualifications; an appellate court will not decide an argument the trial court did not address.
• Scapa Dryer Fabrics, Inc. v. Knight (2015). Where a plaintiff has multiple asbestos exposures involving multiple defendants, each defendant's conduct need only be a contributing cause, not a substantial one. Expert testimony that Scapa's exposures were substantial causes was reliable enough to be admitted, and a pretrial reliability hearing is discretionary, not mandatory.
• Adamson v. General Elec. Co. (2010). To survive summary judgment, a plaintiff must present evidence that the defendant's asbestos-containing product was used at the plaintiff's work location and that the plaintiff was in proximity to it while it was being used; generalized or speculative testimony is not enough.

Illinois

• Daniels v. Venta Corp. (2nd District, 2022). An employer's directive to a worker to do work that violates a licensing statute makes the employment contract unenforceable, so the workers' compensation exclusive remedy does not bar the claim. An allegation that the employer deliberately directed the worker to remove asbestos, knowing it would injure him, pleads an intentional tort, and a landowner who knows of a dangerous condition may owe a duty to a business invitee.
• Stanley v. Ameren Illinois Co. (2013). An owner or general contractor owes a duty to a subcontractor's worker under the retained-control doctrine only if it controls the manner and methods of the work, not mere general oversight. Asbestos-containing thermal insulation installed in a new power plant is an improvement to real property, so the Illinois 10-year construction statute of repose bars claims over its installation.
• Nelson v. Aurora Equipment Company (2nd District, 2009). A premises-liability claim requires that the plaintiff be an entrant on the defendant's land or have some special relationship with the defendant; a person off the premises who was exposed to fibers carried home on a worker's clothes was owed no such duty.
• Gregory v. Beazer East (1st District, 5th Division, 2008). An owner who hires an independent contractor owes a duty to the contractor's employee only if it retained control over how the work was done; general rights to inspect, stop work and control access are not enough. Under the Restatement (Second) of Conflict of Laws, choice-of-law analysis (depecage) applies to issues, not to individual defendants in a single-injury case.

Indiana

• Myers v. Bremen Casting, Inc. (2016). Working with asbestos is not intrinsically dangerous as a matter of law, but a premises owner may be liable under the due precaution exception, and as a premises owner, unless the worker was injured by the very condition he was hired to address, which the owners failed to show. Because the owners did not designate evidence negating the claims, summary judgment was improper.