A recent articlein the BNA Toxics Law Reporter highlights the ever-shifting nature of reasonable foreseeability in the toxic tort context. Basic tort law provides that a defendant owes a duty of care only to a reasonably foreseeable plaintiff. Whether a plaintiff is reasonably foreseeable turns on the facts at issue, but generally speaking, courts have typically held that a duty of care is owed to a relatively narrow scope of plaintiffs who are directly exposed to an allegedly tortious act (direct exposure). Recent developments in asbestos litigation suggest who courts consider to be a reasonably foreseeable plaintiff could change significantly (recognize indirect exposure), with potentially significant ramifications for tort cases outside of the asbestos context.
Under the “take-home” theory of recovery, for example, a plaintiff alleges that they suffered asbestos-related harm because of indirect exposure outside of employment or the workplace. For example, in Simpkins v. CSX Corp., 929 N.E.2d 1257 (Ill. App. Ct. 5th Dist. 2010), appeal granted 942 N.E.2d 462 (Ill. 2010), the plaintiff alleged that she developed mesothelioma because she was exposed to asbestos fibers when washing clothing that her husband had worn on the job site. Applying a reasonable foreseeability analysis, the Simpkins court found that the defendant employer did owe a duty of care to the plaintiff, even though she was never employed by the defendant and had not worked on the job site where her husband came into contact with asbestos.
Not all jurisdictions, however, conduct a reasonable foreseeability analysis when determining whether a duty of care exists in this context. In CSX Transp., Inc., v. Williams, 608 S.E.2d 208 (Ga. 2005), plaintiffs sought recovery on facts analogous to those in Simpkins. The outcome, however, was very different. Applying a relationship analysis, the Williams court scrutinized the connection between the plaintiff (a third-party who was not and had never been an employee of the employer) and the employer. The court concluded that no duty of care was owed to the plaintiff because an employer’s duty to provide a safe workplace does not extend to individuals outside the workplace, and the plaintiff was never an employee of the employer. Thus, the plaintiff could not recover for injuries allegedly caused through exposure to asbestos on clothing worn by another person.
The key to the different outcomes in these cases may be attributed to the analysis that courts use to determine the existence of a duty of care. This is especially relevant given that “take-home” theories of recovery have appeared outside the asbestos litigation context. In Widera v. Ettco Wire & Cable Corp., 204 A.D.2d 306 (N.Y. App. 1994), the plaintiffs alleged that the husband’s clothing was contaminated at the workplace by lead dust and other chemicals and caused birth defects in the couple’s child. Applying a relationship analysis, the court found that the defendant owed no duty of care to a plaintiff who was not an employee and was not employed at the work site. Similarly, in Doe v. Pharmacia & Upjohn Co., 879 A.2d 1088 (Md. 2005), the plaintiff sought recovery under a “take-home” for her exposure to a virus that her husband contracted in the workplace. Addressing the existence of a duty between an employer and an employee’s spouse, the court held that foreseeability alone is insufficient to establish a duty, and because the plaintiff had no relationship with the defendant, no duty of care existed.
Plaintiffs are likely to continue pursuing “take-home” theories in non-asbestos toxic tort cases. Whether they make any head way, and thus whether theories previously limited to asbestos litigation can be “taken home” elsewhere in toxic torts, could turn in large part on whether the jurisdiction applies the “foreseeability” or “relationship” test. This is a very interesting area of the law that we will continue to follow and report on here.