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.

New York

• Nostrom v. AW Chesterton Co. (2010). Vicarious liability under Labor Law § 241 (6) cannot rest solely on violations of Industrial Code part 12 regulations; a part 12 rule can support the claim only where it is specifically incorporated into part 23, as in unventilated confined areas under 12 NYCRR 23-1.7 (g).
• Nostrom v. Chesterton (2008). In this Department, the general air-contaminant regulations in section 12 of the Industrial Code do not support Labor Law 241(6) liability. Even if they applied, asbestos fibers created by contractors' own work are not the kind of contaminant they address.
• Nostrom v. Chesterton (2008). General Industrial Code air-contaminant regulations (12 NYCRR 12-1.4 to 1.6) do not support Labor Law 241(6) liability in this Department, and a general authority to stop work is not the supervisory control over particular work needed for a Labor Law 200 claim.
• Nostrom v. Chesterton (2008). In the First Department, the Industrial Code air-contaminant sections (12 NYCRR 12-1.4 to 1.6) are general regulations that cannot support Labor Law 241(6) liability. Even if they applied, asbestos fibers created by contractors' own work are not the type of air contaminant they cover, and they are controlled by the contractors rather than the premises owner.
• Held v. AW Chesterton Co. (1st Dept., 2007). A theory raised for the first time on appeal is not properly before the court. In any event, insulation specifications that the site owner later superseded could not support a negligence or Labor Law § 200 claim against the engineer.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2007). Broad contractual indemnity clauses covering 'any and all liability' occasioned in whole or part by the contractor's act or omission can require indemnification even where the indemnitee was itself negligent. Failure to allocate the contractor's negligence among sites does not bar indemnity.
• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (1st Dept., 2007). A theory raised for the first time on appeal is not properly before the court. The record also showed the engineer's asbestos specifications had been superseded by the site owner's interim specifications before the decedent began work, which precluded the negligence and Labor Law § 200 claims against the engineer.
• Holdampf v. Port Authority of New York and New Jersey (Matter of Nyc Asbestos Litig) (2005). Under New York law, an employer or landowner owes no duty of care to an employee's household member allegedly injured by asbestos dust brought home on work clothes, because no relationship between the defendant and the plaintiff creates such a duty.
• Holdampf v. The Port Authority of New York and New Jersey (In re New York City Asbestos Litigation) (1st Dept., 2004). An employer that permits asbestos use at its work sites may owe a duty of care to members of an employee's household exposed at home to dust from the employee's work clothes, if it knew or should have known of that risk. The duty is limited to household members, and the Port Authority did not show a lack of duty as a matter of law.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1995). Daubert enlarged the court's gatekeeping role on admissibility but did not change the traditional standard for sufficiency of evidence; a court deciding judgment as a matter of law must view the evidence favorably to the non-movant and may not weigh competing expert and epidemiological evidence or credibility.
• Barnett v. City of Yonkers (1990). Under New York law a school board is liable like a private landowner only if it had actual or constructive notice of the hazard, an owner out of possession without control is not liable, and an architect is liable only for professional negligence judged by the standards of the time his services ended.

North Carolina

• Smith v. Schlage Lock Company, LLC (2021). Under North Carolina law an asbestos plaintiff must show actual exposure, and an expert opinion built on speculation cannot supply it. A landowner that hires an independent contractor and does not retain control over the work is not liable for dangers incident to that work.
• Hill v. Mallinckrodt LLC (2020). A party is not a required party under Rule 19(a) merely because it could help a defendant show that someone else controlled the worksite. Joint tortfeasors need not be sued together, and a settled party's interests are already protected.
• Smith v. 3M Company (2019). Under North Carolina law, a premises owner is liable only if it controlled the place and the work, and an asbestos plaintiff must show exposure to a specific product with frequency, regularity and proximity; vague testimony that insulation dust was inhaled does not suffice.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.

Ohio

• Blakely v. Goodyear Tire & Rubber Co. (9th Appellate District, 2019). An unrebutted statutory presumption under R.C. 2307.941 that a premises owner complied with state safe exposure levels does not by itself defeat a premises claim built on a theory that the owner knew those levels were unsafe. A negligence-based supplier claim under R.C. 2307.78(A)(1) is not barred by DiCenzo or a privity requirement, and the product question is whether the component had left the manufacturer's control, not whether it was still in a manufacturing process.
• Boley v. Goodyear Tire & Rubber (2010). Under R.C. 2307.941(A), a premises owner is not liable in tort for claims arising from asbestos exposure originating from asbestos on the owner's property unless the exposure occurred at the owner's property. The phrase "on the premises owner's property" refers to where the asbestos was located, not where the exposure happened.
• Adams v. Goodyear Tire & Rubber Co. (8th Appellate District, 2009). Under R.C. 2307.941(A)(1), a premises owner is not liable for asbestos injury unless the individual's exposure occurred on the premises owner's property, and the statute's reference to asbestos on the owner's property refers to the origin of the asbestos. A premises owner owes no duty of care to a person not exposed on its premises, so take-home claims fail.
• Rettig v. Gen. Motors Corp. (8th Appellate District, 2006). The Wellman rule, under which a premises owner owes no duty to an independent contractor's employees doing inherently dangerous work, applies only if the contractor or its employee knew or appreciated the danger. A fact question on that knowledge precluded summary judgment for General Motors, and a premises owner is not liable merely because a contractor's employee used asbestos materials on its premises.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, duty of care depends on foreseeability and policy considerations; where the husband's exposure was intermittent and non-occupational, take-home harm to his wife was not foreseeable as a matter of law and no duty was owed.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, which governed because Oklahoma was the place of diagnosis and the plaintiffs' domicile, a non-asbestos-manufacturing employer owed no duty to a worker's wife for take-home exposure where the worker's own exposure was intermittent and nonoccupational and the risk to her was not foreseeable in the relevant period.
• Olsen v. Oklahoma Gas and Elec. Co. (4th Division, 2012). Oklahoma's 10-year statute of repose for improvements to real property (12 O.S. § 109) does not apply where the worker was exposed to asbestos insulation on pipes before they were installed, because the item was still personal property. Section 109 also does not bar premises liability or negligent-supply-without-warning claims.

Oregon

• Golik v. CBS Corp. (2020). A trial court may infer, from the circumstances, that counsel deliberately withheld responsive discovery. That is misconduct supporting a new trial under ORCP 64 B(2) if it materially affects the moving party's substantial rights. Under Washington law, a premises owner can be liable to an independent contractor's employee for a dangerous condition if the owner negligently directed the contractor to create it.
• Mason v. Mt. St. Joseph, Inc. (2009). A 'product liability civil action' under ORS 30.900 lies only against a manufacturer, distributor or seller of the defective product that caused the harm. A party that only directed or reused asbestos products occasionally and noncommercially is not such a defendant, so the asbestos-specific limitations period in ORS 30.907 does not apply.

Other federal courts

• Martin v. Cincinnati Gas and Electric Company (2009). Under Kentucky law, a negligence claim needs evidence that the defendant's product was a substantial factor in causing the harm, and a duty depends on whether the risk was foreseeable from what the defendant knew or should have known at the time. The record did not show that the danger of household exposure to asbestos on work clothes was known or knowable to the defendants in the 1950s and early 1960s, so they owed no duty.

Pennsylvania

• Shellenberger v. Kreider Farms (2023). An employer owes an employee, as a business invitee, a duty to protect against dangers that could be discovered with reasonable care, not just known dangers. Whether the employer should have known of asbestos hazards and breached that duty is a jury question when there is evidence the dangers were generally known.
• Gay v. AO Smith Corp. (2022). Under Pennsylvania law, a power station owner owed no duty to an independent contractor's employee as landowner, because the contractor knew of the asbestos danger. It owed none as employer of an independent contractor, because it did not retain control over the work and the asbestos exposure was an ordinary risk of the work, not a peculiar risk.
• Gay v. AO Smith Corporation (2022). Under Pennsylvania law, a landowner owes no duty to an independent contractor's employee for a danger the contractor knows of, and the retained-control and peculiar-risk exceptions did not apply because the owner did not control the contractor's methods and asbestos exposure was an ordinary risk of construction work.
• Gorton v. Air & Liquid Systems Corporation (2019). A foreign corporation registered to do business in Pennsylvania consented to general jurisdiction in Pennsylvania courts under 42 Pa. C.S. § 5301, and Daimler does not change that. A complaint with only conclusory allegations, or that does not say which corporate entity owned or made the product, fails the Rule 8 and 12(b)(6) pleading standard.
• Geier v. Board OF Public Education OF School District OF Pittsburgh (2017). A public employer has a common law duty to create reasonably safe conditions of employment, so a local agency can be liable to an employee for workplace asbestos exposure if the condition causing it falls within an exception to governmental immunity under the Tort Claims Act.
• Breedlove v. CSX Transportation (In re Liability Litigation) (2011). An expert may rely on exposure summaries and deposition excerpts prepared by plaintiff's counsel if they have a factual foundation in the record, and weaknesses go to cross-examination. HIPAA does not bar asking a non-covered-entity defendant about asbestos claims that non-parties have brought in litigation.
• Wagers v. Sgl Carbon, LLC (2011). Under North Carolina law, a premises owner owes an independent contractor's employees a general duty to warn of hidden dangers, but no breach occurs where the contractor already knew the danger. The owner also owes a nondelegable duty for inherently dangerous work, and whether the work was inherently dangerous is usually a jury question.
• In re Lindemann v. Edison (2010). Under Pennsylvania law, mere title to premises does not impose premises liability; the plaintiff must produce evidence that the owner had possession, meaning occupation of the land with intent to control it. Where a federal rule conflicts with a state procedural rule, the federal rule applies after removal.
• McGUFFIE v. Mead Corp. (2010). Under Alabama law, a shareholder or parent corporation is not liable for its subsidiary's acts absent alter-ego control or proof that it assumed a duty of workplace safety, and general safety oversight and correspondence do not show such an assumption.
• Breedlove v. CSX Transp. Corp. (2009). Under Georgia law, an insurance salesman who regularly came onto a railroad's shops with management's permission to sell insurance to its employees was not shown to be a licensee as a matter of law, because of the mutuality of interest. The strict Blackston product-identification standard for asbestos products cases does not apply to a premises liability claim.
• Chenot v. AP Green Services, Inc. (2006). A landowner that possesses superior knowledge of asbestos hazards owes a duty to warn an independent contractor's employees, and the landowner bears the burden of showing the contractor or employee knew as much or more. A peculiar-risk theory may also present a triable issue.
• Rudy v. A-Best Products Company (2005). A possessor of land is generally not liable to an independent contractor's employee unless the plaintiff meets the Gutteridge/Summers test or shows the peculiar risk or superior knowledge exception; a defendant that did not occupy the land with intent to control it is not a possessor.
• Gutteridge v. AP Green Services, Inc. (2002). A plaintiff can defeat a manufacturer's summary judgment motion with co-worker testimony that he worked close to where the defendant's asbestos products were used, and credibility cannot be decided at that stage. A landowner that has superior knowledge of a hazard owes a duty to warn an independent contractor's employees, even if it is out of possession.

Rhode Island

• Moore v. Crane Company (2021). A private contractor removing under the federal officer statute on a premises-liability failure-to-warn claim must show the government's control interfered with its ability to warn at the worksite itself; proof of Navy control over product specifications and labeling is not enough.
• Lepore v. AO Smith Corp. (2017). A court may limit discovery under Rule 26 to avoid undue burden, but evidence of later asbestos removal is discoverable and admissible as a subsequent remedial measure under Rule 407, with no knowledge requirement and allowing for the latency of asbestos disease.
• Reera v. AO Smith Corp. (2014). A plaintiff opposing summary judgment in a premises liability asbestos case must produce competent, admissible evidence that asbestos was present and that the plaintiff was exposed to it. A witness's later-acquired belief that insulation contained asbestos, and a promise of expert testimony at trial, do not meet that burden.

Texas

• Union Carbide Corporation v. Torres (13th District, 2019). A premises owner is liable to a contractor's employee under Chapter 95 when it controlled the manner of the work and had actual knowledge of the danger. A plaintiff suing a product maker in a multiple-exposure asbestos case must present reliable epidemiological or similar scientific proof that the defendant's product more than doubled the risk of disease.
• Jefferson County v. Farris (2018). Notice under the Tort Claims Act runs from the last incident essential to the claim, which in a latent asbestos disease case is the diagnosis or symptom manifestation. The Local Government Code presentment requirement is not a jurisdictional statutory prerequisite under Gov't Code section 311.034.
• Jefferson County v. Farris (1st District, 2018). Under the Texas Tort Claims Act, the six-month notice period runs from the incident giving rise to the claim, here the last asbestos exposure. Wrongful-death and survival claims are derivative of the decedent's own claim and are barred by immunity to the extent his claim would have been barred.
• Abutahoun v. Dow Chemical Company (2015). Chapter 95 of the Texas Civil Practice and Remedies Code applies to all independent contractor negligence claims against a property owner, including claims based on the owner's own contemporaneous negligent activity, when the claim arises from the condition or use of an improvement the contractor constructs, repairs, renovates, or modifies.
• In re EI DU Pont DE Nemours and Company (9th District, 2015). A trial court may set aside a jury's "no" finding as against the great weight of the evidence only if the record supports its stated reasons. An appellate court can check those reasons in mandamus, and conflicting evidence on a disputed issue does not justify overturning the verdict.
• Union Carbide Corporation v. Smith (1st District, 2009). A premises owner under Tex. Civ. Prac. & Rem. Code ch. 95 is liable only if it exercised or retained control over the manner of the contractor employee's work; supplying specifications and materials is not enough. The workers' compensation exclusive remedy bars claims against an employer for pre-merger exposure as the predecessor's employee, and the dual-persona doctrine does not avoid it.
• Ford Motor Company v. Miller (14th District, 2008). Under Michigan law, as answered by the Michigan Supreme Court, a property owner owed no duty to a household member of an independent contractor's employee for asbestos fibers carried home on clothing, and benign asymptomatic pleural plaques with only an increased future cancer risk is not a present compensable injury.
• Alcoa, Inc. v. Behringer (5th District, 2007). An employer owes no legal duty for take-home asbestos exposure unless the risk was foreseeable at the time; in the 1950s the danger of non-occupational exposure on workers' clothes was not known or reasonably foreseeable to Alcoa.
• Temple-Inland Forest Products Corp. v. Carter (1999). A person exposed to asbestos who has no present asbestos-related disease cannot recover mental anguish damages for fear of possibly developing such a disease in the future, even if the fear is reasonable and the exposure is assumed to be a physical injury.