The NAM joined with six other organizations in an amicus letter urging the California Supreme Court to review a lower court ruling that landowners have a duty to protect against off-site injuries that could result from secondhand exposures to asbestos and other substances emitted in the workplace. Whether one person owes a legal duty, as opposed to a moral or ethical obligation, is a policy judgment that must balance providing a remedy with extending exposure to tort liability almost without limit. On Jan. 3, 2008, the court declined to review this appeal.
In this case, a woman sued two companies with New Jersey facilities where her father and brother worked as insulators. The men would bring home clothing with asbestos fibers, and she would wash the clothing and otherwise be exposed to the substance. She sued the companies for strict liability, negligence, fraud and misrepresentation, and premises liability. Only premises liability was at issue here.
The trial court dismissed the claim under a statute of repose, because it was brought more than 10 years after the completion of the insulation work.
The California Court of Appeal reversed, holding that California law shields its residents, like the plaintiff in this case, from out-of-state statutes of repose. Thus, the New Jersey statute of repose did not apply and the plaintiff could bring her claim. The court also held that a premises owner can be liable for secondhand asbestos exposure.
Our amicus letter, which focused on the issue of secondhand exposure liability, argued that 5 other states rejected such liability in recent cases, finding that the mere foreseeability of harm to third parties is not enough to extend the employer's duty of providing employees with a reasonably safe work environment to potential harm outside the workplace. The companies in this case did not spread the release of toxins among the general population.
In addition, this brand new duty requirement for landowners will bring about countless new lawsuits, potentially involving asbestos and other substances and involving a wide variety of people who might come in contact with an exposed worker.
This is another example of a case where courts have been asked to extend liability beyond that which is generally available in our tort system. If such a leap is to be made, it should be considered by state and federal legislatures considering all the policy implications, and not by individual judges.