U.S. District Court for the Western District of Pennsylvania, February 15, 2022

In this asbestos action, Carl Gay alleged that he developed mesothelioma after a forty-year career. From 1974 until 1976, Gay worked as a quality control supervisor for engineering company Stone & Webster at the Beaver Valley Nuclear Power Station, which was owned and operated by Duquesne Light. Duquesne Light filed a motion for summary judgment, arguing that they did not owe a duty to Gay as a landowner or as an employer of an independent contractor. The plaintiff opposed the motion.

Ultimately, the court granted Duquesne Light’s summary judgment motion. The court first held that the plaintiff failed to address the question of whether Duquesne Light owed a duty to Gay as a landowner, and as such, considered this issue abandoned. Had the plaintiff pursued this theory of liability, the court noted that Stone & Webster “was a sophisticated engineering company with significant experience in the nuclear power industry” and who knew of the hazards of asbestos at least three years before Gay began to work at Beaver Valley Nuclear Power Station. Further, Stone & Webster took steps to protect its employees through, among other things, obtaining personal protective equipment and alternate insulation materials. Therefore, “Duquesne Light should have expected that Stone & Webster would not discover or realize the danger of asbestos at Beaver Valley Nuclear Power Station or would fail to protect its employees from such danger.”

Moreover, the court also held that Duquesne Light did not owe a duty to Gay as an employer of an independent contractor. Under Pennsylvania law, there are two narrow exceptions to the general rule that “places responsibility for the protection of the contractor’s employees on the contractor and the employees themselves.” With regard to the first exception, “an employer owes a duty to an independent contractor’s employees if he or she exercise[s] . . . control over the means and methods of the contractor’s work.” The plaintiff argued that Duquesne Light quality control employees closely observed the work being performed at Beaver Valley Nuclear Power Station and would have weekly meetings with Stone & Webster employees to “make sure everybody was . . . in the same boat.” The court rejected this argument, finding that the record is devoid of evidence showing that Duquesne Light gave “specific commands or instructions” to Stone & Webster employees. Further, Stone & Webster obtained the insulation that Gay alleged exposed him to asbestos at Beaver Valley Nuclear Power Station.

Under the second exception, “an employer owes a duty of care to an independent contractor’s employees if the contracted work poses a peculiar risk” or “a special danger.” This exception “applies only if (1) a risk is foreseeable to the employer of an independent contractor at the time the contract is executed, and (2) the risk is different from the usual and ordinary risk associated with the general type of work done.” The plaintiff argued that Duquesne Light could have foreseen the risks of asbestos in 1974. The plaintiff also contended that Gay’s work constituted a peculiar risk. However, the court found that this exception did not apply. First, the plaintiff testified that he “observed dust at every construction site from everything you can think of” throughout his forty-year career. In addition, by the time Gay came to work at Beaver Valley, Gay already had twenty-five years of experience in the field. As such, “even though Mr. Gay . . . did not have a hands-on role, his alleged exposure . . . was a usual and ordinary risk of the general type of work done at a construction site during that period of time.” Therefore, there were no issues of material fact as to whether Duquesne Light owed a duty to the plaintiff. Thus, the court granted Duquesne Light’s summary judgment motion.

Read the full decision here.