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.

Indiana

• Psi Energy, Inc. v. Roberts (2005). A principal is not liable to an independent contractor's employee for the contractor's acts under the five exceptions to nonliability, absent negligent selection, and a landowner ordinarily owes no liability to a contractor's employees for a condition the contractor was hired to address when the landowner has no superior knowledge. A general verdict stands if the evidence supports any theory of liability that the jury was instructed on.
• Psi Energy, Inc. v. Roberts (2004). A landowner may be liable under Restatement (Second) of Torts §§ 343 and 343A to an independent contractor's employee when the evidence lets a jury find the danger was not known or obvious to him and the landowner should have anticipated the harm, including where it saw workers going unprotected. A general verdict stands if the evidence supports any one theory of liability.

Iowa

• Beverage v. Alcoa, Inc. (2024). A land possessor's duty of reasonable care to entrants under Restatement (Third) section 51 is not modified to the limited duty owed by employers of independent contractors under Restatement (Second) section 413, and a premises-liability claim by a contractor is assessed under the unmodified land possessor-entrant duty.
• Beverage v. Alcoa, Inc. (2022). Iowa Code section 686B.7(5) codifies a broad component-parts (bare-metal) defense that applies only to products liability claims, shielding manufacturers or sellers from liability for products or parts made or sold by third parties. It does not bar premises liability claims or claims against a seller of the offending product.
• Beverage v. Alcoa, Inc. (2021). Iowa Code section 686B.7(5), which says a defendant in an asbestos action is not liable for exposures from a product or component part made or sold by a third party, applies to any entity sued in an asbestos action, not only manufacturers, and is not merely a codification of the bare metal defense. Constitutional claims not raised and ruled on in the district court are not preserved for appeal.
• Van Fossen v. MidAmerican Energy Co. (2009). One who employs an independent contractor owes no general duty of reasonable care to a household member of the contractor's employee, and owes only the limited duties under Restatement (Second) of Torts sections 413, 416 and 427, which were not triggered here.
• Fossen v. Midamerican Energy Company (2008). Iowa courts weigh the relationship between the parties, foreseeability of harm and public policy; on that analysis a landowner owes no duty to the spouse of an independent contractor's employee who carried asbestos fibers home from the premises.

Kentucky

• Durham v. Ford Motor Company (2014). A premises owner has a duty to warn independent contractors' employees of asbestos only if it knew of the danger and the contractor lacked actual or constructive knowledge, and the plaintiff bears the burden of proving that. Under Kentucky's up-the-ladder immunity, an owner is immune for work that is regular or recurrent to its business.
• Rehm v. Ford Motor Company (2011). Evidence rulings are reviewed for abuse of discretion. The trial court properly admitted 28-year-old newspaper articles under the ancient-documents hearsay exception and let a qualified expert testify, because weaknesses in expert testimony go to weight and are tested on cross-examination. A loss of consortium claim accrues when the disease becomes manifest, not on exposure.
• Certainteed Corporation v. Dexter (2010). A participating defendant that wants fault apportioned to an empty-chair defendant must prove that defendant's liability, just as it would have to be proved against a participating defendant. A trial court's finding that a verdict is not sustained by sufficient evidence is reviewed for clear error, and its decision to grant a new trial is reviewed for abuse of discretion, with great deference to the trial court.
• Hunton v. City of Bowling Green (2006). Where a tenant has complete and unrestricted possession and control of leased premises, a landlord is liable only for failing to disclose known latent defects at the time of the lease. The court declined to expand this rule.
• Rehm v. Navistar International (2005). A property owner is a statutory contractor immune from tort suits by a subcontractor's employee if the subcontracted work is a regular or recurrent part of its business. Where the underlying facts are undisputed, whether work is regular or recurrent is a question of law, and the immunity is strictly construed.
• Capital Holding Corp. v. Bailey (1994). A negligence claim for asbestos exposure does not accrue, and no damages for increased risk or fear of cancer are available, until the plaintiff shows some harmful result from the exposure. The tort of outrageous conduct is intentional, needs no physical contact or injury, and a failure to comply strictly with the prehearing statement rule (CR 76.03) is not grounds to withdraw a decided issue.

Louisiana

• Ragusa v. Louisiana Guaranty Insurance Association (2023). To hold a premises owner strictly liable under former Louisiana Civil Code article 2317, the plaintiff must show the owner had care, custody or control of the asbestos-containing thing. A third party's cranes operated by the plaintiff's employer on the owner's premises did not meet that test absent evidence the owner required or knew of asbestos use.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). Under Louisiana law, a plaintiff opposing summary judgment need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers. A medical expert who weighs qualitative exposure factors, rather than just reciting an 'every exposure' theory, can raise a fact issue on causation. Contracts to sell custom-built turbines and boilers are sales contracts, not construction contracts, so the peremptive period for construction work does not apply.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). A premises owner is not strictly or directly liable for asbestos exposure from equipment owned by a contractor's employer absent evidence that it required the asbestos use. The independent contractor defense is an affirmative defense on which the owner bears the burden, so failure to produce the contract defeated summary judgment on vicarious liability.
• Gooding v. Liberty Mutual Ins. Co. (2022). Under Louisiana law a plaintiff must show significant exposure to the defendant's asbestos and that the exposure was a substantial factor in causing mesothelioma. Where evidence of significant exposure exists, the substantial-factor question is generally for the jury, and a shipyard owner that controlled the work environment may be directly liable for negligently exposing a worker.
• Hotard v. Avondale Industries, Inc. (2022). A vessel owner that required asbestos-containing materials in construction, and knew the risk without warning, may owe a duty to a contractor's employees. An owner of premises under construction can have custody under Louisiana Civil Code article 2317 if it authorizes unsafe practices.
• Sentilles v. Huntington Ingalls, Inc. (2022). A plaintiff who fails to oppose a summary judgment motion is treated as having admitted the facts it asserts, and summary judgment follows where the motion appears to have merit and he cannot show an essential element of his claim.
• Williams v. Boeing Company (2022). Under Louisiana law, a plaintiff need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, and a court may not draw inferences against the non-movant on summary judgment. Wrongful death and survival actions are separate causes of action, so a late wrongful death claim by new plaintiffs does not relate back to the decedent's original suit.
• Lege v. Union Carbide Corporation (4th Circuit, 2021). A jury's allocation of fault and general damages is reviewed for manifest error or abuse of discretion, and exposure need not be long if it was significant enough to be a substantial factor. A non-settling tortfeasor gets a credit for a released party's share only if it proves that party's fault at trial, even when solidary liability was already found.
• Steib v. Lamorak Insurance Company (4th Circuit, 2021). The mere presence of asbestos-containing materials at a job site does not defeat summary judgment for an employer or premises owner. The plaintiff must offer specific, non-speculative evidence linking those materials to the work the plaintiff did, and a witness's internally inconsistent or conjectural testimony cannot create a genuine issue of fact.
• Adams v. Ethyl Corporation (2020). Under Louisiana article 2317, a premises condition is a defect if it is relatively permanent, and routine, ongoing maintenance activity that disturbs asbestos is not categorically a temporary condition. A jury's reasonable inferences from the evidence, and a district court's remittitur applying the maximum recovery rule, receive deferential review.
• Gaddy v. Taylor Seidenbach, Inc. (2020). Under Louisiana article 2317 as it stood in 1955-1959, asbestos dust from constant, necessary refurbishment work in a plant is not a 'temporary condition' that bars strict liability. Under the maximum recovery rule, a general damages award above the range supported by comparable mesothelioma cases must be reduced to the highest amount a jury could properly award.
• Hernandez v. Huntington Ingalls Incorporated (2020). A Rule 12(e) motion for more definite statement is disfavored and is granted only if the pleading is so excessively vague as to be unintelligible and to seriously prejudice the defendant; additional facts should be sought through discovery.
• Hernandez v. Huntington Ingalls, Inc. (2020). Under Louisiana's duty-risk analysis, it is plausible at the pleading stage that a plant operator owed a duty to a non-household third party exposed to asbestos dust on its workers' clothing, and no Louisiana precedent limits such a duty to household members.
• Lopez v. McDERMOTT, Inc (2020). Under Louisiana law, a premises owner is not liable, directly or vicariously, for asbestos hazards inherent in an independent contractor's work absent operational control or authorization of unsafe practices. Strict liability under article 2317 also fails where the contractor, not the owner, had custody of the injurious material.
• Michel v. Ford Motor Company (2020). Where a scheduling order deadline has passed, Rule 16(b) good cause must be shown before Rule 15(a) applies. Newly discovered information acquired through discovery can be good cause, and an amendment is not futile if it alleges that the proposed defendant had custody (garde) of the asbestos-containing products.
• Michel v. Ford Motor Co. (2019). The Louisiana Workers' Compensation Act bars wrongful death tort claims against an employer for mesothelioma because such claims arise at death, after mesothelioma became a covered disease in 1975. Plaintiffs may plead employer and premises liability in the alternative under Rule 8(d)(3).
• Michel v. Ford Motor Co. (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b), and then Rule 15(a) leave is freely given. Prejudice to the opposing party can be cured by a continuance, and futility is judged by the Rule 12(b)(6) standard.
• Fagot v. Dow Chemical Company (1st Circuit, 2018). An indemnity clause covering "all claims" arising from the contractor's performance, excepting only the indemnitee's sole negligence, is unambiguous and expresses indemnity for the indemnitee's own partial negligence in unequivocal terms. Extrinsic evidence cannot be used to vary an unambiguous contract.
• Gomez v. Aardvark Contractors, Inc. (2018). A plaintiff may plead asbestos exposure on information and belief when the facts, such as the composition of pipe insulation, are within the defendant's control. A premises owner owes a duty of reasonable care to an independent contractor's employees, and a strict liability claim is plausibly pleaded when it alleges custody of defective asbestos products that caused the plaintiff's disease.
• Leech v. 3M Company (2018). When a Rule 12(b)(2) motion raises factual questions about jurisdiction and the requested discovery could add significant facts, the court may allow jurisdictional discovery instead of dismissing at once.
• Lopez v. McDERMOTT, Inc. (2018). Summary judgment is proper where the plaintiff's own testimony shows he was not exposed to asbestos at the defendant's facility or through the defendant's employees' actions, and there is no genuine issue of material fact.
• Williams v. Placid Oil Company (3rd Circuit, 2017). A plaintiff need not prove an exact asbestos dose, only significant exposure to the defendant's product that was a substantial factor in causing the disease. The survival action is governed by the pre-comparative-fault law in force at the time of exposure, while the wrongful death action is governed by the law in force at the time of death.
• Boudreaux v. Bollinger Shipyard (4th Circuit, 2016). A trial court does not abuse its discretion in excluding an expert's causation opinion under Daubert-Foret when the proponent offers no independent evidence that the methodology is generally accepted. Without that expert, plaintiffs cannot prove cause-in-fact and summary judgment is proper.
• Sutherland v. Alma Plantation, LLC (4th Circuit, 2016). Summary judgment on duty is proper only where no duty exists as a matter of law and no factual disputes exist. Louisiana recognizes that employers may owe a duty to household members exposed to asbestos carried home on work clothes, and factual issues on foreseeability required a trial.
• Weis v. Dsm Copolymer, Inc. (2016). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under a federal officer's direction and the plaintiff's claims, and for failure-to-warn and premises claims this requires evidence that the government controlled warnings or required the asbestos use, plus a colorable federal defense.
• Jordan v. Thatcher Street, LLC (2nd Circuit, 2015). A premises owner is entitled to summary judgment on negligence and custody-based strict liability claims when the plaintiff offers no evidence that the owner knew of or specified the asbestos, directed the work, or had garde over the asbestos. A defendant may seek summary judgment early, and the court need not delay it for discovery where the plaintiffs had a fair opportunity and show no probable injustice.
• Oddo v. Asbestos Corporation Ltd. (4th Circuit, 2015). When a jury's special-verdict answers are irreconcilably inconsistent and the trial court neither sends the jury back nor orders a new trial, that is legal error, and the appellate court reviews the affected findings de novo. In asbestos cases a plaintiff must show exposure to the defendant's product was significant and a substantial factor in causing the disease.
• Smith v. Union Carbide Corporation (2015). Dose reconstruction methodology was sufficiently established and accepted to pass Daubert analysis, and concerns about applying it to one person's dose rather than a population's could be addressed through cross-examination.
• Wilde v. Huntington Ingalls Inc. (2015). Under the federal officer removal statute, a contractor must show the government directed or controlled the acts alleged to cause the injury; building vessels to Navy specifications, without government control over warnings or how asbestos was handled, does not satisfy the causal nexus requirement.
• Comardelle v. Pennsylvania General Insurance Company (2014). A genuine issue of fact on exposure defeats summary judgment, and challenges to an expert's factual basis and exposure history go to weight rather than admissibility. An expert need not know the dose of asbestos from each defendant to give a causation opinion.
• Comardelle v. Pennsylvania General Insurance Company (2014). Under Louisiana Civil Code Article 2317 (as it applied before 1996), a plaintiff must show the defendant had care, custody and control (garde) of the harmful thing; evidence of responsibility for employee safety and knowledge of asbestos risk does not show control of the asbestos itself.
• Smith v. Union Carbide Corp. (2014). Under Louisiana law, a premises owner owes a direct duty of reasonable care to a contractor's employees, and a fact issue on breach can exist without proof the owner handled the asbestos. Strict liability under Article 2317 failed because the owners lacked custody of the asbestos during installation and the dusty construction conditions were a temporary hazard, not a defect.
• Whatley v. Eagle, Inc. (2014). Under the derivative jurisdiction doctrine, a federal court on removal under § 1442 acquires only the jurisdiction the state court had, and a tort claim against the United States or its agencies may be brought only in federal court, so the court lacked jurisdiction over the claim against the VAMC. When removal jurisdiction is doubtful, remand is appropriate.
• White v. Entergy Gulf States Louisiana (1st Circuit, 2014). A survival action permits recovery only for the victim's own damages from injury to death, and a trial court's general damage award is disturbed only for clear abuse of its vast discretion. Here the award was high but not an abuse of discretion.
• Phillips v. Abb Combustion Engineering, Inc. (2013). After removal, the sufficiency of a complaint is judged under the federal Rule 8 plausibility standard rather than Louisiana's fact-pleading standard, and a Rule 12(e) motion is disfavored where the complaint gives fair notice of the claim.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2009). A lost or destroyed written contract containing an indemnity agreement may be proven by secondary evidence under Civil Code art. 1832 and Evidence Code art. 1004, but the party claiming indemnity must still produce evidence of sufficient quality to show the contract existed and what it said.
• Spillman v. Anco Insulations, Inc. (1st Circuit, 2008). A cause of action for a long-latency occupational disease accrues once there has been a significant tortious exposure, not at diagnosis. Under this circuit's precedent, mesothelioma was not covered by workers' compensation before the 1975 amendment, so the employer's immunity defense, on which the employer bears the burden, failed for a claim that accrued before 1952.