On September 10, 2013, the Ninth Circuit Court of Appeals affirmed the dismissal of an asbestos lawsuit brought against the owner of a shipyard in Puget Sound on the basis that “no reasonable fact finder could conclude that harm from take-home exposure to asbestos should have been foreseeable” to the shipyard owner in 1958, when the plaintiff’s father and husband allegedly worked at the shipyard. Hoyt v. Lockheed Martin Corp., 2013 WL 4804408 (9th Cir. 2013).
The plaintiff, Loretta Hoyt, alleged that she developed cancer from her exposure to asbestos that was carried home, first by her father, and later by her husband, from 1948 to 1958. Hoyt, under Washington state law, sued the successor to the shipyard where Hoyt’s father and husband were allegedly exposed to asbestos during their employment. The shipyard owner moved for summary judgment, arguing that it did not owe Hoyt a duty of care, and even if it did, the harm was not foreseeable. Under Washington law, foreseeability is a required element in any negligence claim, and in order to prevail, the plaintiff must convince the fact finder that the alleged harm was within the “foreseeable range of danger.” Simonetta v. Viad Corp., 165 Wn.2d 341 (2008). In granting the motion for summary judgment, the trial court reasoned that while, in general, employers owe the family members of their employees a duty of care to prevent harm from take-home exposure to asbestos, Hoyt had not established a genuine issue of material fact that harm from such exposure was foreseeable to the shipyard owner during the relevant time period.
Affirming the dismissal of Hoyt’s claim against this shipyard owner, the Ninth Circuit noted that “Hoyt’s own scientific expert, Dr. Barry Castleman, stated that ‘[s]tudies on the occurrence of asbestos disease that included family members of asbestos-exposed workers were not published until the 1960s.’” The Ninth Circuit found that the risk was not foreseeable based on federal regulations that required separate facilities and lockers for employees, as well as other regulations that required employees to change clothes and shower after being exposed to hazardous materials, including asbestos. The court noted that these laws specifically target the protection of the health of workers, not their families, and thus, could not support a finding of foreseeability under the circumstances. The court also found that there was no evidence that the shipyard owner knew or should have known about the minutes from the 1945 Pacific Shipyard Safety Conference, which concerned “occupational hazards,” and precautions similar to those mandated by the regulations and safety standards taken by other companies.
Lastly, Hoyt argued that the alleged harm was foreseeable because it was within the “general field of danger” as recognized by Washington courts. See e.g., Travis v. Bohannon, 128 Wn. App. 231, 239 (2005). Essentially, Hoyt urged that because companies knew that exposure to asbestos was harmful to their employees, and because they knew that take-home exposure to some hazardous materials could be harmful to family members of their employees, harm to family members from take-home exposure to asbestos was within a foreseeable “general field of danger.” The Ninth Circuit rejected this argument on the basis that Washington courts assess foreseeability based on the risk posed by the particular hazardous material in question to the class of people in the plaintiff’s position – not the risks posed by all hazardous materials to all people. See Lockwood v. AC&S, Inc., 109 Wn.2d 235, 252-53 (1987).
Accordingly, the court held that Hoyt had not produced evidence sufficient to permit a reasonable jury to conclude that the shipyard owner should have foreseen harm from take-home exposure to asbestos by 1958.
The holding in Hoyt helps to clarify the boundaries of liability to premises owners in the take-home exposure context. It will be interesting to see if the reasoning of the Ninth Circuit is adopted by Washington appellate courts when (and if) this issue is presented.