Take home, or secondary exposure, asbestos cases have increasingly become the norm in toxic tort asbestos litigation in the last 10 years. Secondary exposure occurs when a worker is exposed to asbestos at a job site and brings the asbestos-containing clothes home to be laundered by a family member. As a result, the family member handling the contaminated clothing becomes the victim of secondary exposure to asbestos.
In Illinois, the courts are split as to the viability of take home cases.
Courts in Illinois split on viability of claims
In Nelson v. Aurora Equipment, 909 N.E. 2d 931 (2009), the Illinois Appellate Court affirmed a lower court holding that premises owners did not owe a duty to take home plaintiffs. The court found that there was no duty owed to the wife of a worker who brought asbestos home as there was no relationship between the wife and the premises owner.
However, in Simpkins v CSX Transp., Inc., 965 N.E. 2d 1092 (2012), the Illinois Supreme Court suggested that a property owner could owe a duty to a take home plaintiff under the right factual situation. The court relied on a duty and foreseeability analysis in defining a relationship between the premises owner and the plaintiff. The plaintiff would have to allege specific facts showing her asbestos exposure from her husband’s work clothes was foreseeable. However, the Supreme Court did not expressly address the substantive question of whether a legal duty exists requiring a defendant to warn of “take-home” asbestos exposure.
Finding a claim in product liability laws
In Indiana, the court in Stegemoller v. A.C. &S, Inc., 767 N.E.2d 974 (Ind. 2002) held that the wife of a worker exposed to asbestos was a “consumer” under the Indiana Product Liability Act. The court defined “consumer” as any bystander injured by the product who would be reasonably expected to be in the vicinity of the product during its expected use. The court went on to opine that the clean-up of the product would be included in its expected use. As such, the wife had standing to sue for secondary exposure.
Current state of the law could open the door to take home claims
The most recent decision in the area of secondary exposure came from California on December 1, 2016. Two lower court cases addressed whether employers or landowners owed a duty to prevent secondary exposure to asbestos. The trial and appellate courts reached differing conclusions on the issue. In Kesner v. Superior Court, S219534, 2016 WL 7010174 (Cal. Dec. 1, 2016) the California Supreme Court determined that while employers and premises owners had a duty to prevent asbestos exposure carried home on the bodies and clothing of on-site workers, this duty extended only to members of a worker’s household.
In Kesner, the California Supreme Court concluded that an employer or property owner owes a duty to prevent take home exposure to members of the worker’s household regardless of their formal relationship. As the decision confirms, these take home exposure claims will now include any “persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time.” In its decision, the California Supreme Court emphasized that its ruling creates a bright-line distinction between “household members” and those with only a “casual” relationship, such as a carpool companion.
Toxic tort litigation defense counsel must be mindful of court decisions in their jurisdictions
These court decisions could signal an expansion of the possible victims in toxic tort cases involving asbestos exposure. Insurance defense counsel should research court decisions in the jurisdiction in which he or she is asked to provide litigation defense in asbestos cases. For more information about this topic and toxic tort litigation, contact Paul S. Steinhofer at McKenna Storer at 312-558-3900.