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.

Texas

• Carter v. Temple-Inland Forest Products (9th District, 1997). A plaintiff exposed to asbestos may recover mental anguish damages for fear of cancer even if the evidence shows he does not have and probably will not develop cancer, so long as the fear is reasonable; reasonableness is ordinarily a fact question for the jury.

Utah

• Boynton v. Kennecott Utah Copper, LLC (2021). Premises operators who take affirmative acts that bring workers into contact with asbestos owe a duty of care to prevent take-home exposure to the workers' co-habitants. A party that contractually requires use of a material, specifies means and methods of work, or takes responsibility for dust control can retain control over its contractor.

Virginia

• Contreras v. Thor Norfolk Hotel, LLC (2003). Under Virginia law, an asbestos exposure claim requires a diagnosed asbestos-related disease, and emotional distress damages generally require physical injury. A claim for intentional infliction of emotional distress fails where the alleged conduct was not directed specifically at the plaintiff.

Washington

• Buckholtz v. American Optical Corporation (2nd Division, 2023). A company that owns a ship being dismantled and retains the right to control the work can owe a duty to the dismantling contractor's employee, but guaranteeing the contractor's lease creates no such duty. Spoliation sanctions require a duty to preserve evidence and bad faith or conscious disregard, and destroying documents amid only a vague possibility of future litigation did not qualify.
• Wright v. 3M Co. (2023). Jury instructions on Restatement (Second) of Torts §§ 343 and 343A need not always be given together. A § 343A instruction is within the trial court's discretion and required only when supported by substantial evidence, and appellate courts defer to a reasonable decision on that question.
• Hickson v. Air & Liquid Systems Corporation (1st Division, 2022). To survive summary judgment, an asbestos plaintiff must show a genuine issue of fact on exposure to asbestos and on causation under the Lockwood factors; potential exposure and an expert's conditional hypothetical opinion, without evidence of actual exposure, require speculation and are not enough.
• Behrmann v. Abb, Inc. (2021). A subcontractor that did not make or supply asbestos-containing products cannot be liable in products liability, and evidence that its employees worked on asbestos-containing equipment near the plaintiff does not alone create a genuine issue on negligence breach or causation.
• Jack v. Dco, LLC (2021). Under Washington law, a take-home exposure claim fails without evidence of asbestos on the premises and without evidence that the risk to a worker's family was foreseeable at the relevant time. A post-sale failure-to-warn claim fails without specific evidence that an adequate warning would have led the plaintiff to avoid injury.
• Wright v. 3M Company (1st Division, 2021). An owner does not retain control over an independent contractor's work merely by requiring compliance with safety laws and general safety rules, but an erroneous retained-control instruction did not require reversal because the verdict also rested on premises liability. RCW 4.22.060 requires settling parties to provide a copy of the proposed settlement agreement, so a reasonableness ruling made without the full agreements is an abuse of discretion.
• Cameron v. Atlantic Richfield Company (1st Division, 2019). The date of substantial completion of construction determines which version of the construction statute of repose applies, and the 2004 amendment is not retroactive. The 1967 statute bars claims arising from covered construction activities but not claims based on a defendant's activities as a premises owner.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must show a reasonable connection between the injury, the product and the particular defendant's product, and general evidence of brake exposure that does not tie asbestos-containing brakes to the defendant is insufficient to reach a jury.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law a plaintiff must identify the particular manufacturer of the asbestos product that caused the injury, and the Lockwood factors require evidence from which a jury could find that the defendant's product caused the harm.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law and the Lockwood factors, a plaintiff must show a reasonable connection between the injury, the product, and the defendant that made or sold it. Evidence that the decedent shopped at the store, without proof he bought an asbestos-containing product there, was insufficient.
• McMann v. Air & Liquid Systems Corporation (2014). Asbestos exposure is treated as an indivisible injury, so a worker exposed both as the premises owner's employee and as a contractor's worker is barred by the Industrial Insurance Act from suing that owner. Under Washington law, exposure to a defendant's product may be shown by direct or circumstantial evidence.
• McMann v. Air & Liquid Systems Corporation (2014). A court need not credit a plaintiff's self-serving testimony that is uncorroborated and contradicted by objective records, so such testimony does not create a genuine issue of fact on exposure at the defendant's site.
• Arnold v. Saberhagen Holdings, Inc. (2nd Division, 2010). A general contractor with supervisory and coordinating authority over multiple subcontractors in common work areas may owe a duty to keep those areas safe, and a landowner owes invitees, including subcontractors' employees, a duty of reasonable care as to conditions on the land such as asbestos. The federal Walsh-Healey Act creates no duty enforceable by third parties in a negligence suit.
• Rochon v. Saberhagen Holdings, Inc. (1st Division, 2007). A defendant who takes affirmative action creating an unreasonable risk of harm has a duty to prevent foreseeable injury from that risk, and foreseeability is part of the duty inquiry. Employer and landowner duties do not extend to an employee's spouse who never entered the premises.
• Campbell v. Lockheed Shipbuilding Corp. (1st Division, 2002). An employer that exposed a worker to asbestos is liable under the Longshore Act for the resulting indivisible occupational disease, and that liability is exclusive. The worker cannot sue that employer in tort as a third party for exposure that occurred while he worked for a subcontractor on the employer's premises.

West Virginia

• Amick v. Ohio Power Company (2014). Discovery relevance is broad, but a party may be protected from burdensome inquiry when the anticipated benefit is outweighed by the burden; a topic calling for a legal conclusion about foreseeability is improper, though factual questions on the same subject are allowed.

Wisconsin

• Lorbiecki v. Pabst Brewing Co. (2024). Under Wisconsin's safe place statute, a property owner's duty is non-delegable, so a contractor's negligence is imputed to the owner. The punitive damages cap in Wis. Stat. § 895.043(6) is twice the plaintiff's total recoverable compensatory damages from all liable parties after statutory caps, not twice the defendant's apportioned share.
• Nooyen v. Wisconsin Elec. Power Co. (2020). Under Mair, the construction statute of repose bars safe place claims resulting from structural defects, including airborne asbestos released during original construction. The statute applied to a mesothelioma claim that arose on diagnosis after 1994 without improper retroactivity, and it did not violate the constitutional right to a remedy.
• Ahnert v. Employers Insurance Company OF Wausau (2017). The Wisconsin Safe Place Statute duty is nondelegable and extends to employees of independent contractors. A defendant claiming the construction statute of repose must prove the work was an improvement to real property rather than maintenance, and here that was a disputed fact question.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wisconsin's safe place statute, a jury must decide whether asbestos dust released during outage work was an unsafe condition and whether the owner kept supervision or control; the owner's duty to those on its premises cannot be delegated to a contractor. The construction statute of repose does not bar the claim as a matter of law when it is unclear whether the work was an improvement or maintenance and repair.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Airborne asbestos released during regular pipe repair and insulation work can be an unsafe condition associated with the structure under Wisconsin's safe place statute, and the statute of repose does not bar the claim unless the defendant shows the work was an improvement to real property.
• Calewarts v. CR Meyer & Sons Company (3rd District, 2015). A circuit court's evidentiary rulings in limine are reviewed for erroneous exercise of discretion. Lay witnesses cannot give opinions that insulation contained asbestos, but a party-opponent's employees' statements are not hearsay, and a prior appellate ruling that direct evidence of specific exposures is unnecessary is law of the case.
• Anderson v. Proctor & Gamble Paper Products Co. (2013). Under Wisconsin's safe place statute, a premises owner owes a heightened statutory duty to employees of independent contractors, separate from the common-law rule in Tatera. The construction statute of repose does not apply to damages sustained before April 29, 2004, and that date turns on when the injury was sustained, not when the claim accrued.
• Anderson v. the Proctor & Gamble Paper Products Company (2013). Wisconsin's safe place statute imposes a heightened duty on premises owners toward frequenters, including an independent contractor's employees, which does not require proof of an affirmative act of negligence. The construction statute of repose does not bar the claim where the damages were sustained before April 29, 2004.
• Viola v. Wisconsin Elec. Power Co. (2013). Airborne asbestos dust released during regular maintenance and repair work at a premises can be an unsafe condition associated with the structure under the Safe Place statute, not merely a negligent act of operation, when the injured worker did not negligently cause it.
• Calewarts v. CR Meyer and Sons Company (3rd District, 2012). A merged successor to a nonemployer building owner can be sued for the owner's pre-merger safe-place liability under the dual persona doctrine despite workers' compensation exclusivity. A plaintiff opposing summary judgment need only present evidence of potential asbestos exposure, from which a jury may infer exposure.

Wyoming

• Johnson v. Allis-Chalmers Corp. Prod. Liab. Trust (2014). In an asbestos case, a plaintiff must offer competent evidence that the defendant's product or conduct was a substantial factor in causing the harm. Witnesses who admit in deposition that they lack personal knowledge of what the insulation contained, or who made it, cannot supply that evidence. The court also applied Pennsylvania's 12-year construction statute of repose, in the alternative, to Bechtel, CBS and GE.
• Johnson v. Allis-Chalmers Corporation Product Liability Trust (2014). Under the substantial-factor causation test, a plaintiff must have admissible, personal-knowledge evidence linking a particular defendant's asbestos to the plaintiff's exposure. Witnesses' deposition testimony that contradicts their earlier affidavits is treated as more reliable at summary judgment, and a real-property-improvement statute of repose can bar claims over permanent improvements.