In Quisenberry v. Huntington Ingalls Inc., the Virginia Supreme Court answered certified questions of law from the United States District Court for the Eastern District of Virginia, and, in doing so, found that there is a legal duty in Virginia, imposed upon employers, owed to family members of its employees in take-home asbestos exposure cases. The decision was a split decision with four Justices voting with the majority, and three Justices dissenting. The majority found the existence of a duty despite acknowledging that the employer and the family member of the employee were, “generally speaking, strangers under the law.”
In Quisenberry, a suit for wrongful death was brought by the Estate of Wanda Quisenberry, alleging that Ms. Quisenberry (“decedent”) died of mesothelioma caused by exposure to asbestos. The Estate alleged that decedent’s father was employed by Newport News Shipyard and Dry Dock (now known as Huntington Ingalls Inc., hereinafter, “the Shipyard”) in various capacities from 1942 to 1977. Decedent assisted in the laundering of her father’s clothing starting when she was 12 years old in 1954 and she regularly shook off and breathed dust from her father’s clothing from 1954 until she moved out of the home in 1969. The Estate brought suit against the Shipyard, alleging that it “was negligent in choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines. ”
The case was pending in federal court in the United States District Court for the Eastern District of Virginia. Because Virginia case law was unsettled on whether a duty was owed by employers in take home cases, the federal trial court sent a certified question to the Virginia Supreme Court, seeking an answer to the question of whether a duty existed.
In finding a duty exists under Virginia law, the Supreme Court first acknowledged the general duty that applies in tort law in Virginia that there is a “general duty not to injure others [that] arises whenever [a] defendant’s conduct creates a risk of harm to others.” Moreover, the Court stated that this general duty is owed to “those within reach of a defendant’s conduct.”
After discussing general principles of duty in Virginia, the Court then turned to the present case and indicated:
“[H]arm in the present case occurred at a location removed from the employer’s business and after hours is a distinction without a difference. The artificial hazard created by the Shipyard – asbestos dust – was allegedly released through the Shipyard’s course of conduct and moved to place Wanda in danger. The nature of the hazard allegedly created by the Shipyard’s conduct was that asbestos fibers, the inhalation of which could cause mesothelioma, regularly accumulated on the clothes of workers during the day and were released again when those workers returned home and had their clothes washed, thus placing Wanda and others similarly situated within reach of the Shipyard’s conduct and within the “zone of danger.” This created a “recognizable risk of harm” to those sharing living quarters with the workers, resulting in a duty of ordinary care to that class of persons.”
Consequently, the majority of the Court found that a duty does exist and is owed by an employer to family members of employees in asbestos take-home cases.
In addition to the majority opinion, there were two separate dissenting opinions, each joined by the same three dissenting Justices. Chief Justice Lemon charged that the majority “eviscerates the well-established tort concept of particularized duty” and conflated “duty and proximate causation” with its reliance on the concept of foreseeability. Chief Justice Lemon further chastised the majority for undermining the Workers’ Compensation Act, creating a new cause of action “in territory that should be the domain of the legislature” and in creating a duty to a “potentially limitless class of plaintiffs” which is “unprecedented in Virginia.” In a separate dissent, Justice McClanahan concluded, “the take-home duty recognized today by the majority is a newly created duty imposed as the basis for a newly created cause of action that is wholly unsupported by our precedent.”
Despite the sharp dissents of three Justices, the majority of the Court answered the certified question of the federal trial court and held that the law in Virginia is that the Shipyard owed a duty to the decedent in this case. The case will now proceed in the federal district court. Prior to this decision, while there have been some claims against employers in asbestos take-home cases, there has always been a pall over the claims because of the dubious question of whether a tort duty existed under the circumstances. Given the Virginia Supreme Court’s decision finding such a duty now exists in Virginia, we anticipate additional employer claims will be filed and these will be pressed with renewed vigor by the plaintiffs’ bar.
At MacDonald Law Group, LLC, we regularly handle the defense of toxic tort and asbestos claims throughout the courts of Maryland, Virginia and the District of Columbia. Should you have any questions on toxic tort or asbestos-related matters, please contact us using the email or phone contacts found on our website at www.macdonaldlawgroup.com.