Defending the Premises Owner in Asbestos Litigation
by Meanith Huon
Asbestos litigation affects nearly every major industry nationwide and more than
8,000 companies now named as defendants.
More than 70 companies have filed for
bankruptcy protection, leading to a loss of 50–60 thousand jobs. A 2002 RAND study
reports that compensation for asbestos-related injuries has cost businesses more than $50
billion and estimates that the costs of future claims could reach $200 billion.
Defendants being sued are no longer limited to a core group of companies once
thought of as being part of the “asbestos industry”. They are blue chip companies, such
as vehicle manufacturers that allegedly used asbestos-lined brakes in their vehicles.
These peripheral defendants are in the automotive, farm equipment, home remodeling,
and other industries that form the fabric of the American economy. In plaintiffs’
attorneys’ search for more solvent companies to pay for the cost of the asbestos litigation,
they have now focused on owners and possessors of premises as a new class of potential
defendants.
This article is a primer on defending premises defendants in asbestos litigation. It
will discuss plaintiffs’ various theories of liability and recent court decisions granting
summary judgments for property owners.
No discussion would be complete, however, without addressing the impact of the
plaintiff’s choice of forum on the litigation. In forums favorable to plaintiffs, trial judges
rarely grant defendants’ motions for summary judgment or motions to transfer venue.
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Therefore, this article will suggest several fundamental questions that should be asked at
plaintiff’s and co-worker witness’s depositions to eliminate or minimize testimony
pertaining to exposure to asbestos-containing products at trial.
Finally, the article will provide comment on pending and new legislation that
could affect premises liability defendants in asbestos cases.
History and Recent Developments
In 1982, Johns-Manville Corporation (“Manville”), a manufacturer of asbestoscontaining insulation products, filed for bankruptcy protection as a result of thousands of
asbestos-related claims and lawsuits that had been filed against it. In 1986, the Manville
Personal Injury Settlement Trust was established. Manville later emerged from
bankruptcy protection as a Berkshire Hathaway company. The asbestos litigation crisis,
however, did not end with the establishment of the trust. On December 27, 2002, the
U.S. Bankruptcy Court for the Southern District of New York modified the Manville
Trust, citing unforeseen circumstances that were causing a proliferation of asbestos
litigation. In re Joint Eastern and Southern Districts Asbestos Litigation, 237 F.Supp.2d
297, 305 (E.D. and S.D. N.Y. 2002).
What are some of these unforeseen circumstances? Since 1995, a number of
factors have contributed to the rapidly rising number of asbestos-related lawsuits and
claims. New claims have been filed by plaintiffs with asymptomatic and less serious,
non-cancerous conditions. The 2002 Rand study states that in recent years, the number of
asbestos claims filed by plaintiffs who are not functionally impaired has risen from twothirds to almost 90 percent. Claimed injuries such as pleural plaques or pleural
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thickening, for example, do not generally affect a plaintiff’s ability to function. (Pleural
plaques are discrete lesions on the outer layer of the membrane surrounding the lungs;
pleural thickening is a more diffuse thickening of the pleural tissue or membrane
surrounding the lungs.)
Over-diagnosis of asbestos-related conditions has contributed to the problem, as
methods for screening and identifying asbestos-related diseases are still being debated.
Mass screening programs arranged by plaintiffs’ firms rely almost solely on chest x-rays
as opposed to a more reliable combination of chest x-rays, pulmonary function testing,
physical examinations, and a review of the medical and work history. Standards for
diagnosing less severe manifestations of an asbestos-related disease based solely on an xray can be far more subjective than for diagnosing more serious asbestos-related disease,
such as mesotheliomia (a form of lung cancer) or asbestosis. An audit of the Manville
Trust in the first quarter of 1998 found a failure rate of 59 percent for 10 doctors who
provided x-ray interpretations for 87 percent of the claims.
The class of plaintiffs in terms of exposure history filing claims has expanded,
even though asbestos has not been used in the industry for more than 30 years. The
typical plaintiff today is not necessarily an insulator who installed asbestos-containing
insulation. She can be the wife of an insulator claiming bystander exposure to asbestos,
as a result of washing her husband’s clothes. He can be a truck driver who never worked
directly with asbestos products but who claims that he made deliveries to oil refineries
where employees of independent contractors were allegedly using asbestos-containing
products.
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Technology and electronic filing have made it easier, cheaper, and more efficient
for plaintiffs’ firms to market to potential plaintiffs and file multiple claims. Plaintiffs’
lawyers have access to mass media, the Internet, and mass screenings. “Googling” the
word “mesothelioma” will result in the names of plaintiffs’ firms specializing in asbestos
litigation. Law firms have created websites listing properties and sites where asbestoscontaining products were allegedly used.
As previous discussed, the class of potential defendants being named has
extended beyond a core group of defendants. Many of the companies that mined,
processed, and sold raw asbestos, the manufacturers and distributors of asbestoscontaining insulation products, and the independent contractors that employed workers
who installed asbestos-containing products have gone out of business. Plaintiffs’ firms
started bringing claims against peripheral defendants, manufacturers of products that
allegedly used some component containing asbestos in their products—manufacturers of
boilers, vessels, tank cars, paints, automobiles, trucks, gaskets, brakes, flooring and tiles,
drywall, etc. The list of potential defendants appears endless, affecting nearly every
American industry.
Premises Owners
In addition to product manufacturers, plaintiffs’ firms are now focusing on
premises owners as part of a new trend in asbestos litigation. An asbestos lawsuit based
on premises liability generally involves an employee of an independent contractor hired
by the owner to perform work on the premises. Asbestos is usually brought onto the
premises by the independent contractor employing the plaintiff or by another contractor.
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The plaintiff or “contractor’s employee” works with the asbestos-containing
products or around asbestos-containing products being handled by other trades. The
contractor’s employee will allege that he was exposed to asbestos-containing products on
the premises and that the owner or “hirer” owed a duty to protect the contractor’s
employee from the dangers of asbestos. The contractor’s employee is usually an
insulator (often referred to as an “asbestos worker” by the unions) who worked with
asbestos-containing products or another contractor’s employee in a trade that historically
has worked around or near insulators using asbestos-containing insulation, such as
drywallers, pipefitters and boilermakers.
In recent years, the contractor’s employees have expanded to include truck drivers
and painters, people who you would not normally think of as being around workers using
asbestos-containing products.
Lawsuits have been filed by former office workers who worked near garages
where mechanics allegedly worked with asbestos-containing brakes, under a theory of
bystander or secondary exposure to asbestos. More common bystander exposure cases
are the lawsuits brought by a spouse, children, or family members of the contractor’s
employee who allege that they, too, were exposed to asbestos from coming into contact
with the clothing or person of the contractor’s employee.
Defendants named in these suits can be owners of any type of premises, including
power generating stations, steel mills, oil refineries, construction sites, automobile
manufacturing facilities, gas stations, trucking facilities, tank cars and railroad yards, gas
stations, office buildings, retail stores, warehouses, and mom and pop stores. Asbestos
litigation’s reach and economic impact on American businesses that never distributed,
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sold, supplied or manufactured asbestos-containing products—not to mention had no
knowledge of the dangers of asbestos—represent a disturbing trend.
Getting Summary Judgment on Plaintiff’s Theories of Liability
A majority of courts have granted summary judgment against plaintiffs’ diverse
theories of liability against premise owners. California and several other jurisdictions
have developed a substantial and well-reasoned body of case law on premises liability in
the context of asbestos litigation. Hopefully, as California goes in shaping American
jurisprudence, so follows the rest of the nation.
Unfortunately, plaintiffs have been able to file thousands of cases in forums
favorable to plaintiffs where many plaintiffs are non-residents and where trial judges
routinely deny motions to transfer venue based on forum non conveniens and rarely grant
motions for summary judgment. For the defense practitioner in these forums, the
following discussion may seem somewhat academic and meaningless. So let us pretend
for a moment that we are surfing the waves of the beaches in California, trekking the hills
of western Pennsylvania, or shopping along Baltimore’s fines harbors.
Plaintiffs have generally filed claims based on the common law of premises
liability as stated in sections 343 and 343a of the Restatement (Second) of Torts and
based on the various exceptions carved out of the general rule that a hirer or owner owes
no duty to an independent contractor and its employees.

Common Law and Section 343
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At common law, a premises owner owes a duty to keep the property in a
reasonably safe condition for business invitees, including employees of independent
contractors. This is not the same thing as imposing a duty on the owner to provide a safe
place to work.
Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 656 (Pa. 2001).
Under section 343 of the Restatement (Second) of Torts, a possessor of land is subject to
liability for physical harm caused to his invitees by a condition on the land if, but only if,
he:
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Section 343 must be read together with section 343A, which provides that a possessor of
land is not liable to his or her invitees for physical harm caused to them by an activity or
condition on the land whose danger is known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge or obviousness.
Maryland courts refer to section 343 as the “safe workplace doctrine,” because a
hirer who employs an independent contractor there has a duty to provide the contractor’s
employees with a safe place to work at the beginning of the job. Wajer v. Baltimore Gas
and Electric Company, 157 Md.App. 228, 246 (2004). During the progress of the work,
however, the landowner owes no duty to the contractor’s employees, unless the plaintiff
can show that the owner controlled the details and manner of the work. Wajer,157
Md.App. at 246. In this respect, the necessary control under section 343 is analogous to
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the control required under section 414, as more full discussed in the next section. But a
landowner’s duty to provide a safe workplace ends after the contractor takes control of
the premises and, therefore, does not include the work product of the contractor and
conditions that arise after and as a result of the independent contract, i.e., asbestoscontaining products brought onto the jobsite by the contractor. Wajer,157 Md.App. at
246.
The Wajer court granted summary judgment in favor of the power plant
owner against an employee of an independent contractor, because the court found that
asbestos-containing products used at the work site were not latent conditions that existed
before the independent contractors took control of the premises.
A California appeals court has held that a contractor’s employee cannot recover
under section 343 unless he or she can prove that an owner of the premises: 1) had
control over the allegedly dangerous condition on its property; and 2) affirmatively
contributed to the injury, whether or not the dangerous condition was created primarily
by the contractor that employed the plaintiff or by another contractor. Kinsman v. Unocal
Corporation, 2 Cal.Rptr.3d 87, 100 (1st Dist. 2003). In Kinsman, plaintiff worked as a
carpenter in the 1950s for an independent contractor hired by Unocal to perform work at
its refinery. Plaintiff alleged that he was exposed to airborne asbestos that emanated
from work performed by insulators and other trades on the jobsite and later developed
mesothelioma. Plaintiff sued Unocal alleging premises liability under section 343; a jury
awarded plaintiff $3 million and assigned Unocal 15 percent of the fault. The remaining
85 percent of the fault was assigned to all others.
On appeal, the California appellate court reversed, because the trial court did not
instruct the jury on Unocal’s limited duty as a premises owner. The appellate court held
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that the jury should have been instructed that to recover under section 343, a contractor’s
employee must show that the landowner had control over the dangerous condition and
acted, or failed to act, in a manner that affirmatively contributed to the employee’s
injury.
The policy behind this holding is that it is unfair to impose liability on the hirer
when a contractor’s employee is injured from a dangerous condition created by his or her
own employer or by a neighboring contractor. Moreover, the injured employee is
guaranteed recovery from workers’ compensation and the hirer has indirectly paid the
cost of workers’ compensation coverage in the contract price. Thus, the hirer should not
face further liability when it did not affirmatively contribute to cause the employee’s
injury. It would be illogical to require a hirer to prove negligence by the independent
contractor when no such showing is required by the injured employee.
The Kinsman
court followed a long line of cases beginning with the California Supreme Court’s
decision in Privette v. Superior Court limiting a hirer’s vicarious or derivative liability to
a contractor’s employee. 5 Cal.Rptr.2d 72 (1993).
o The Importance of Challenging Jury Instructions
Remember to challenge plaintiff’s tendered jury instructions, tender your own
proposed jury instructions and make a record, renew your objections in your post-trial
motions, and raise these issues on appeal. Like the Kinsman court, the Indiana Supreme
Court recently held that asbestos is not inherently or intrinsically dangerous; that
exposure to asbestos is not a peculiar or unusual risk; and that a premises owner has no
liability to employees of the independent insulation contractor. PSI Energy, Inc. v.
Roberts, 829 N.E.2d 943, 2005 WL 151500 (Ind. 2005). Indiana’s high court did,
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however, affirm the jury’s verdict because, having just lost motions for directed verdicts
as a matter of law, none of the defendants challenged the erroneous law in the jury
instructions at trial and made the instructions an issue on appeal.
In PSI Energy, Inc., plaintiff worked as an insulator for AC & S installing
asbestos-containing insulation at power generating facilities owned by PSI Energy, Inc.
(“PSI”). Plaintiff sued PSI alleging various theories of premise liability. During trial,
plaintiff tendered jury instructions that contained an inaccurate statement of the law to the
extent that the instructions imposed liability on a landowner when the contractor’s
employee was hired to address a condition, of which the landowner had no superior
knowledge. Having already unsuccessfully challenged plaintiffs’ legal theories through
multiple motions, PSI never challenged the instructions at trial or on appeal. The jury
found PSI 13 percent at fault.
On appeal, the Indiana Supreme Court held that: 1) PSI was not vicariously liable
for the negligence of its independent contractor, AC & S; and 2) a landowner or other
possessor of real estate harboring a potentially dangerous condition is not liable to an
independent contractor or its employees for injuries sustained by reason of the condition
the contractor is employed to address. Even if the contractor’s activity may be viewed as
either intrinsically dangerous or may require precautions, employees of the contractor
have no claim against the owner. The contractor is presumably best equipped to evaluate
the necessary precautions and determine the standard of ordinary care. Employees of the
contractor should have no claim against a principal for their own or the contractor’s
failure to use ordinary care in carrying out the contractor’s assignment. The premises
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owner should also not be liable to the contractor’s employees merely by hiring the
contractor to engage in a potentially dangerous activity.
However, the Supreme Court of Indiana stated that because PSI did not challenge
the erroneous jury instructions at trial or on appeal, there was sufficient evidence to
support the jury’s verdict under “these unusual facts.” The court significantly expanded
prior rulings and held that even erroneous instructions require affirmance if there was no
objection at trial and the facts support recovery under the instructions. PSI has petitioned
the court for rehearing on this issue.
o No Liability Whatsoever
Other jurisdictions, such as Pennsylvania and Kentucky, hold that property
owners owe no duty whatsoever to provide contractor’s employees with a safe place to
work in the context of asbestos litigation. Rudy v. A-Best Products Company, et. al., 870
A.2d 330, 334 (Pa. 2004); Rehm v. Navistar International, 2005 WL 458713 (Ky.
2005). Pennsylvania places responsibility for the protection of the contractor’s
employees on the contractor and the employees themselves. Gutteridge v. A.P. Green
Services, Inc., 804 A.2d 643, 656 (Pa. 2001). The Kentucky Supreme Court held in
Rehm that the worker’s compensation act provided immunity to premises defendants
from a suit brought by a plaintiff, who alleged exposure to asbestos while working as an
employee of an independent contractor at various premises.
o Landowners’ Employees Who Allegedly Blow Asbestos Dust
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Clever and intelligent plaintiffs and co-worker witnesses may testify that
employees of the premises owners contributed to or exacerbated the hazards. For
instance, such a witness may say that maintenance workers of the premises owners stirred
up the asbestos fibers while removing or replacing pumps and valves. This does not
create a genuine issue of material fact, however, because there must be some evidence
that the pumps and valves handled by the employees of the premises owner contained
asbestos and that these products were removed in plaintiff’s presence, causing plaintiff to
be exposed to asbestos fibers.
(Cal. App. September 8, 2004).
Yeager v. Chevron U.S.A., Inc., 2004 WL 1987163, *4
Plaintiff must also show that the landowner controlled
the work that allegedly exposed plaintiff to asbestos. Id. Being defeated on these points
will only encourage the persistent plaintiff or co-worker witness to testify in more detail.
The plaintiff may testify that he or she worked “elbow to elbow” with employees of the
landowner at the premises who were changing and removing gaskets, which created
dusty conditions. The more poetic plaintiff may say that the landowner employees were
witnessed removing insulation, which would “fall like snow.” These statements do not
establish that the gasket or insulation products more likely than not contained asbestos
and, thus, do not create a genuine issue of material fact. Bell v. Chevron, U.S.A., Inc.,
2005 WL 466221, *11 (Cal. App. Dist. 1 2005). Such testimony is not specific to any
incident or exposure and is too general. Id. Plaintiff must identify the materials that the
employees of the landowner allegedly were handling that contained asbestos. Id.
In some sense, these decisions give plaintiffs and co-worker witnesses a roadmap
to what kind of testimony will fly with the courts. Defense counsel should be prepared to
cross-examine the intelligent co-worker witnesses or plaintiffs who testify that the
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landowner’s employees blew asbestos dust into the area where plaintiff worked. In Biles
v. Exxon Mobil Corporation, the California appellate court held that there was a genuine
issue of material fact as to whether the actions of the landowner’s oil employees
contributed to the worker’s asbestos-related injuries. 124 Cal.App.4th 1315 (2004).
There, a coworker witness testified at his deposition that the employees of the premises
owner used compressed air hoses to blow asbestos dust throughout the worksite,
including the area where plaintiff and the worker were performing the work. The
premises owner argued that the statements should not have not been considered because
plaintiff had never identified the co-worker as a witness, plaintiff had testified at his
deposition that he did not see or have any contact with any employees of the landowner,
and the co-worker testified that the employees of the landowner wore hardhats with the
name “Exxon” when, at the time, the company was called “Humble Oil.”
The appellate court said these inconsistencies go to the credibility and weight of
the co-worker’s statements, not to their admissibility, and held that a triable issue of fact
was raised by the statements.
On remand, at the second trial, because counsel for the
premises owner did such an excellent job of examining the plaintiff and co-worker
witness, the jury will at least have an opportunity to see the contradictions and
inconsistencies in the co-worker witness’s statements and in plaintiff’s testimony.
Jurors may find it hard to believe the co-worker who insists that he saw Exxon employees
blowing asbestos dust when the company was called “Humble Oil” and when plaintiff
already admitted that he saw no oil employees working on the jobsite.
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
A Property Owner Cannot Be Liable for the Acts or Omissions of an
Independent Contractor and the Contractor’s Employees
At common law, the general rule is that a possessor or owner of land who hires an
independent contractor cannot be held liable to third parties for physical injuries caused
by the contractor’s negligence in performing the work. The rationale behind this rule is
that a person who hires an independent contractor has no right to control the method or
mode of how the work contracted for will be performed. The contractor performing the
work, as a matter of business convenience, is better able than the person employing the
contractor to absorb accident losses incurred in the course of the contracted work by
including this in the contract price.
o Section 414 “Retained Control” Exception to the General Rule
Courts in some jurisdictions have created a number of exceptions to this general
rule for public policy reasons. A hirer who retains some degree over the control of how
the work is performed by independent contractor can be subject to liability. Section 414
of the Restatement (Second) of Torts provides that “[o]ne who entrusts work to an
independent contractor, but who retains the control of any part of the work, is subject to
liability for physical harm to others for whose safety the employer owes a duty to
exercise reasonable care, which is caused by the failure to exercise the retained control
with reasonable care.” Restatement (Second) of Torts §414, at 387 (1965). Comment c to
section 414 explains that the “retained control” concept only applies when the hirer
retains control over the operative details of the work. It is not enough that he or she has
merely a general right to order the work stopped or resumed, to inspect its progress or to
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receive reports, to make suggestions or recommendations that need not necessarily be
followed, or to prescribe alterations and deviations. The retention of a right of
supervision must rise to the point that the contractor is not entirely free to do the work in
his own way. Restatement (Second) of Torts § 414, Comment c, at 388 (1965). A
tentative draft to the Restatement states that the term “another,” “others,” or “third
persons” was not intended to encompass the employees of the contractor or of the
defendant hirer. Restatement (Second) of Torts, Tentative Draft No. 7, Apr. 16, 1962,
chapter 15, special note, p. 18.
For section 414 to apply in an asbestos case, a plaintiff must establish that the
owner had the right to control the details of the movements of the contract employees
using asbestos during the performance of their work and concerning what and how
asbestos-containing products were to be applied during construction. Wajer v. Baltimore
Gas and Electric Company, 157 Md. App. 228, 242–45, 850 A.2d 394, 402–04 (2004).
There must be evidence that the premises owner controlled the installation or handling of
the asbestos-containing products that plaintiff alleges was the source of his or her
exposure and injury. Id. In Wajer, the Maryland appellate court affirmed summary
judgment for the premises owner because there was no evidence that the premises owner
controlled the installation of asbestos products. Further, the independent contractor
agreements stated that the several contractors were responsible for the supervision and
labor associated with the asbestos installation.
The following contract provisions between the premises owner and independent
contractor, reserving to the owner certain rights, do not establish sufficient control over
the operative details of the contractor’s work under section 414. These provisions do not
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prevent the contractor or its employees from choosing the methods, techniques or
sequences of the work to be performed:

To control coordination of safety efforts;

To make inspections during the progress of the work;

To bar negligent contractors from the property;

To require conformity with specifications and construction plans of the
contract;

To mediate internal disputes;

To control the quality of work to be performed at the site;

To modify insulation application methods.
Wajer, 157 Md.App. at 245, 850 A.2d at 404; In re Baltimore City Asbestos
Litigation, Mackenzie v. AC&S, Inc., 2001 WL 1757153, at *7 (Md. Cir. Ct.
December 14, 2001).

Contract Specifications Calling for the Use of AsbestosContaining Products
Creative plaintiffs will argue that the contract specifications between the owner
and contractor called for the use of asbestos in products installed at the premises.
Plaintiff must still prove, however, that these specific asbestos-containing products were
present at the premises when plaintiff was doing work. Purcell v. Varian Medical
Systems, Inc., 2004 WL 639852, at *3 (Cal. App. March 30, 2004). There must be
evidence that the asbestos-containing materials listed in the contract specifications were
used on or near plaintiff when he or she was on the jobsite. Id.
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
“Yes” and “No” to Non-Liability of Independent
Contractors
State courts are split on the question as to whether an employee of a contractor
may sue the hirer of the contractor for negligent exercise of retained control. The courts
answering the question “yes” include North Dakota, Utah and New Mexico. See Fleck v.
ANG Coal Gasification Co., 522 N.W.2d 445, 447 (N.D.1994); Thompson v. Jess, 979
P.2d 322 (Utah 1999); Valdez v. Cillessen & Son, Inc., 105 N.M. 575 , 734 P.2d 1258,
1262 (1987).
The courts answering “no” include Kentucky, Minnesota and Maryland. See King
v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659 (Ky.1974); Sutherland v.
Barton, 570 N.W.2d 1 (Minn.1997); In re Baltimore City Asbestos Litigation, Mackenzie
v. AC&S, Inc., 2001 WL 1757153 (Md. Cir. Ct. 2001). In these jurisdictions, an asbestos
suit based on premises liability against a premises owner under section 414 may not be
brought. In re Baltimore City Asbestos Litigation, Mackenzie, (owner of a power
generating station owed no duty to the plaintiff, an employee of an independent
contractor hired by landowner, in a suit involving alleged exposure to asbestos, because
to hold otherwise would effectively constitute an end run around the workers’
compensation law and undermine its core policy).
.
o “Peculiar Risk” Doctrine Exception to the General Rule under
Sections 413 and 416
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“Peculiar risk” doctrine is another exception to the general rule that an owner of
land who hires an independent contractor cannot be held liable to third parties for
physical injuries caused by the contractor’s negligence in performing the work. The
doctrine permits liability when the contracted work poses a “peculiar risk” of injury to
others, under either sections 413 or 416 of the Restatement (Second) of Torts. But is
asbestos exposure a “peculiar risk” to contractor’s employees who routinely work with
asbestos-containing products, know what asbestos is, and in many instances even brought
the asbestos with them onto the premises? The courts have answered with a resounding
“no.” California courts hold that the “peculiar risk” exception should not be extended to
employees of independent contractors, because the policy concern creating the doctrine,
that a contractor may not have adequate insurance coverage for a third party, does not
exist with respect to a contractor’s employee covered by workers’ compensation.
Kinsman v. Unocal Corporation, 2 Cal.Rptr.3d 87, 93 (1st Dist. 2003). As previously
stated, it is illogical and unfair that an owner of property or other person who hires an
independent contractor should have greater liability to the employees of the independent
contractor for the contractor’s negligence than the contractor whose liability is limited to
providing workers’ compensation coverage. Id.
Pennsylvania, where the “peculiar risk” doctrine is recognized in some form,
construes the doctrine very narrowly in recognition of the fact that most construction
work involves some element of risk. Rudy v. A-Best Products Company, 870 A.2d 330,
335 (Pa. 2004). The fact that asbestos is inherently dangerous does not, in and of itself,
establish a “peculiar risk” to someone who routinely worked with or around asbestoscontaining products. Rudy, 870 A.2d at 335. The term “peculiar risk” has been defined
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as not including those risks that are ordinary or customary to the construction industry.
Rudy, 870 A.2d at 335. There is no aspect of a job of a contractor’s employee working
with or around asbestos-containing products that can be characterized as a “peculiar
risk,” because contractors’ employees knew they were using or working around asbestos
as part of their jobs. Rudy, 870 A.2d at 335 ( there was no evidence that installing and
removing asbestos-containing materials was substantially out of the ordinary, since
asbestos exposure was a common risk of plaintiff’s job).
As mentioned previously, the Indiana Supreme Court in PSI Energy, Inc., reached
the same conclusion that asbestos is not inherently or intrinsically dangerous. The
Indiana Supreme explained that although working with asbestos can be perilous, this is
not enough to render the activity intrinsically dangerous as the term is used in
establishing liability for actions of an independent contractor. The same can be said for
electricity and other substances that can become dangerous if mishandled. In addition,
plaintiff argued that the premises owner was liable because it could have taken
precautions to minimize the exposure of asbestos. This position assumes that the injury
can be significantly reduced and is inconsistent with the claim that the work is inherently
dangerous.
o Section 411 “Negligent Hiring” Exception to the General Rule
Occasionally, plaintiffs will try to make a claim under section 411 of the
Restatement (Second) of Torts, which provides that an employer is subject to liability for
physical harm to third persons caused by his or her failure to exercise reasonable care to
employ a competent and careful contractor. The majority of courts have held that an
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employee of a contractor is not a third person for purposes of section 411. Monk v.
Virgin Islands Water & Power Authority, 53 F.3d 1381, 1391; Hess v. Mississippi
Towing Corporation, 559 F.2d 1030, 1033–35 (5th Cir. 1977); Castro v. Serrata, 145
F.Supp.2d 835 (S.D. Tx. 2001); Camargo v. Tjaarda Dairy, 25 P.3d 1096 (Ca. 2001);
Chapman v. Black, 741 P.2d 998, 1003–05 (Wa. Ct. App. 1987). Thus, this section
cannot serve as a basis for imposing a duty on landowners.
o Contractor’s Conduct in Obedience to Employer’s Directions
under Section 410.
Some plaintiffs may attempt to file suit alleging a violation of section 410 of the
Restatement (Second) of Torts, which provides that a hirer can be liable to other persons
if the hirer negligently directs the contractor. Comment b to this section uses the term
“other person.” The drafters intended that this section only apply to third parties, not to
employees of contractors. In re Baltimore City Asbestos Litigation, Mackenzie v. AC&S,
Inc., 2001 WL 1757153, at *6 (Md. Cir. Ct. 2001). Even if the section applies, as is often
the case, the premises owner relies on the contractor for its expertise in selecting the
materials to be used and in how to install the materials. Plaintiff argued in In re
Baltimore City Asbestos Litigation, Mackenzie, that the premises owner was liable under
section 410 because it participated in drafting the specifications, which outlined the
installation of asbestos-containing thermal insulation. In granting summary judgment for
the premises owner, PEPCO, the Maryland circuit court held that there was no evidence
in the contract to indicate that PEPCO possessed any special knowledge of the dangers of
asbestos products, that PEPCO had reasonably relied on the design and construction
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expertise of the general contractor, and that it was the general contractor who was
directly responsible for the supervision of the installation work.

Landlord and Tenant Law
Lessors and franchisors have been sued by the plaintiff tenant or plaintiff
franchisee based on premises liability in asbestos litigation. In Doval v. Shell Oil
Company, a tenant and franchisee of Shell Oil Company sued Shell alleging that he was
exposed to asbestos dust from brakes being serviced at his service station and that Shell
should have warned the plaintiff of the dangers of asbestos before leasing the service
station to him. 2002 WL 436989 (Cal. App. March 20, 2002). The courts wisely
dismissed the case, holding that a commercial landlord’s duties do not extend to the
prevention of a dangerous condition that arises after the property has been transferred to
its tenants. In this case, the premises were reasonably safe at the time the tenant took
possession and the landlord, Shell, had no control over the conditions of the tenant’s
work doing brake jobs after the lease was entered.
Plaintiff in Doval was essentially asking Shell to police and monitor everything its
lessees did with its service stations after the lease had been signed. Imposing liability on
the lessor or franchisor is unfair and illogical, and would make the lessor/franchisor an
insurer of all of its lessees’/franchisees’ activities, dramatically increasing the cost of
doing business. The contract between the parties reflecting what each side had agreed to
should be controlling.
Impact of Forum Favorable to Plaintiffs on the Case
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Plaintiff’s chosen forum has a significant impact on the litigation, especially if the
forum is favorable to the plaintiff, because the trial or motion judge will decide
dispositive motions, such as motions for summary judgment, and act as the gatekeeper at
trial, deciding what evidence goes before the jury.
Furthermore, the potential jury pool
and its demographics and liberal or conservative leanings in the chosen forum will affect
the verdict and influence the direction of settlement talks. In some jurisdictions, a
majority of plaintiffs may be non-residents, and judges in these forums may be reluctant
to grant defendant’s motions to transfer venue, believing that asbestos is a national
problem and that the forum is open to plaintiffs from other states. Trial judges in these
venues may rarely grant summary judgment motions, or will wait until the eve of trial to
hear motions for summary judgments. At trial, the court may rule on motions in limine
that make it difficult for defendants to defend themselves. Defendants may be barred
from introducing evidence that plaintiff was exposed to asbestos while working for
another company; that plaintiff was exposed to an asbestos containing product made by a
different manufacturer or seller; or that plaintiff’s injury was caused by something
besides asbestos.
Plaintiff may add a co-defendant doing business in the chosen forum to establish
venue and later present no evidence against this co-defendant at trial, allowing the codefendant to successfully move for a directed verdict. The same co-defendant may move
to strike jurors favorable to the defense. The number of challenges allotted to each side
during jury selection now favors the plaintiff 2 to 1 when this particular co-defendant
aligns its interests with the plaintiff. During trial, the same co-defendant may present
evidence of the steps its company took to prevent asbestos exposure to contractors’
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employees on its premises. Jurors may become angry with your client, believing that
your client should have acted in the same manner as the co-defendant. Jurors will assess
the conduct of your client in light of the conduct of this particular co-defendant, who will
eventually be let out of the case on a motion for a directed verdict, because no evidence
will be presented against it.
Examining Plaintiffs and Co-Worker Witnesses
On a more practical note, then, if you find yourself defending a client in a forum
favorable to plaintiff, examining the plaintiff and co-worker witness becomes all the
more critical. You should ask questions to eliminate or minimize the plaintiff’s exposure
to asbestos-containing products on the premises.
You should also try to establish that
plaintiff and his employer were independent contractors. Keep in mind that in some
forums the standing order may give each party a minimum of 10 minutes to ask its
questions. Under these conditions, it is always a good idea to keep your questions direct
and short.
For the practitioner unaccustomed to asbestos litigation, the following is a list of
suggested questions that should be asked of the plaintiff contractor’s employee. These
questions can easily be modified for deposing a plaintiff claiming bystander exposure or
a co-worker witness. (The generic terms “owner” and “contractor” will be used in lieu of
the names of real parties.)

Have you told us about all of the occasions when you worked at any jobsites
on the premises?

When were you on the premises?
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
You were never employed by the owner, were you?

You were employed by the contractor?

The owner never told you how to perform your job?

You decided how to do your job?

What was your job title and duties? Were you a working foreman?

Where on the premises did you work?

What was the scope of your duties?

Describe the structure you worked on or around?

Was this new construction or remodeling? Was the work done outdoors or
indoors?

Did you handle, work with or use any asbestos-containing products?

Can you name the brand name, trade name or manufacturer of the products?

How do you know these products contained asbestos?

Did you work around anyone who handled, worked with or used any asbestoscontaining products? What were they trades doing?

Can you name the brand name, trade name or manufacturer of the products?

How do you know that these products contained asbestos?

How far were you working from these other tradesmen? How much time did
you spend there?

As part of your job duties as a boilermaker, etc., what did you do on a daily
basis?

How much time did you spend working with asbestos-containing products?
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
Are you aware of any non-asbestos substitutes for the products that you have
identified that were available at the time?

Did you see the contract between the owner and the contractor?

Do you know the terms and specifications contained in the contract?
New and Pending Legislation
Finally, as this article is going to press, the Fairness in Asbestos Injury Resolution
Act (S. 852) was narrowly voted out of the Judiciary Committee on July 10, 2005, by a
partisan vote of 10–8. If passed by Congress, the Act will create a $140 billion trust fund
to compensate workers who were exposed to asbestos. With the establishment of the
fund, the legislation will bar all lawsuits alleging injury to asbestos exposure unless the
fund runs out of money. Businesses and insurers will pay into the fund for approximately
30 years. Workers exposed to asbestos will be paid under a no-fault system based on the
severity of their injuries, with the highest award of $1.1 million for mesothelioma, a form
of lung cancer.
Ohio and Mississippi recently passed legislation making it more difficult to sue a
premises owner in an asbestos case. In 2004, Ohio passed an asbestos bill that bars any
bystander exposure claims against a premises owner, because the individual’s exposure
must occur at the premises. 2307.94(A)(1). The legislation also provides that if the
exposure occurred before January 1, 1972, it is presumed that the premises owner knew
that the state adopted safe levels of exposure for asbestos and that products containing
asbestos were used at the premises only at levels below those safe levels of exposure.
Thus, the statute in effect requires plaintiff to prove that the premises owner knew or
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should have known that the levels of asbestos in the immediate breathing zone of the
plaintiff regularly exceeded the threshold limit values adopted by the state. Section
2307.941(A)(3)(a) of the statute further provides that a premises owner “is presumed not
to be liable for any injury to an invitee who was engaged to work with, install or remove
asbestos products on the premises owner’s property if the invitee’s employer held itself
out as qualified to perform the work.” To rebut the presumption, plaintiff has to prove
that the owner has actual knowledge of the potential dangers of the asbestos products
superior to the contractor and its employees.
Mississippi amended its section 11-1-66 of its code to provide that “No owner,
occupant, lessee or managing agent of property shall be . . .liable for the death or injury
of an independent contractor or the independent contractor’s employee resulting from the
dangers of which the contractor knew or reasonably should have known.” Thus, if a
contractor knew or should have known of the dangers of asbestos, the contractor’s
employee cannot recover against a premises owner who has knowledge or who was
allegedly negligent. It also abolished joint and several liability in cases based on fault.
Now peripheral defendants such as premises owner can add other defendants and others
on the verdict form for the jury to apportion fault.
Conclusion
A premises owner owes no duty to protect a contractor’s employee, absent some
proof that the owner affirmatively contributed to the employee’s injuries or controlled the
operative details of the work that exposed the employee to asbestos. In forums favorable
to plaintiffs, where judges generally deny summary judgment motions, it is difficult to
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obtain summary judgment. Therefore, you should ask questions at the deposition of
plaintiff’s or the co-worker’s witness deposition to minimize or eliminate any exposure to
asbestos-containing products and to establish that plaintiff was an independent
contractor.
Meanith Huon is an attorney with the law firm of Johnson & Bell, Ltd. in Chicago,
specializing in products liability and commercial litigation. He has tried more than 30 first chair
jury trials and has defended premises owners and vehicle manufacturers in asbestos litigation.
He is a member of DRI and its Industrywide Litigation Subcommittee.
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