The NAM joined with ten other organizations in an amicus brief on August 1, 2008, urging the Delaware Supreme Court to affirm a trial court ruling that landowners in Delaware have no new duty to protect against off-site injuries that could result from secondhand exposures to asbestos and other substances emitted in the workplace. Delaware law does not impose a duty of the owner of property to protect against injuries to people whose relationship is too remote. Imposing such a duty would create potentially limitless tort liability.
In this case, the plaintiff alleged that she was exposed to asbestos that was brought home on her husband's work clothes, which she laundered. The trial court assumed that she was injured by the asbestos, but rejected the claim anyway.
Our amicus brief argued 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. In addition, imposing a new duty on landowners will bring about countless new lawsuits involving many substances and third parties.
On March 4, 2009, the court agreed with us, ruling that an employer is not liable for secondhand asbestos exposure. It held that the employer shared no legally significant relationship with the spouse of its employee which would give rise to a duty to act. It decided not to accept language in the latest Restatement (Third) of Torts that would redefine the concept of duty in a way that is inconsistent with Delaware precedents and which the legislature has not adopted. There is a difference between the duty of a manufacturer that does an affirmative act and one that merely "omits to act." Failing to act only produces liability when there is some special relationship between the parties that gives rise to a duty to act.