Placeholder canvas
Date: January 28, 2016

Foley & Mansfield Wins Take-Home Asbestos Case at North Dakota Supreme Court Court Rules No Legal Duty Owed Without Evidence of Special Relationship, Foreseeability

by foleyandmansfield
Date: January 28, 2016
by foleyandmansfield

Foley & Mansfield Wins Take-Home Asbestos Case at North Dakota Supreme Court Court Rules No Legal Duty Owed Without Evidence of Special Relationship, Foreseeability

Placeholder canvas

In a recent decision, the North Dakota Supreme Court ruled that an insulation contractor owed no legal duty to a former employee’s son in a take-home asbestos case. Foley & Mansfield Minneapolis represented the contractor, A.W. Kuettel & Sons, Inc., at the district court and on appeal.

Plaintiff’s father worked as an insulator for Kuettel in the 1960s and 1970s. Plaintiff alleged that he contracted mesothelioma from childhood exposure to asbestos fibers on his father’s work clothes, and claimed that Kuettel had a duty to warn him about the dangers of asbestos and asbestos-containing products.

The district court granted Kuettel summary judgment, finding that Kuettel did not owe a duty to plaintiff because no special relationship existed between them.  

Plaintiff appealed to the North Dakota Supreme Court. There, plaintiff argued that the district court should have focused on the foreseeability of the injury in determining whether the defendant owed plaintiff a duty of care, rather than the relationship between the parties. Foley & Mansfield argued that most courts look to the relationship between the parties to determine whether a duty exists in take-home asbestos cases, rather than, or at least in addition to, foreseeability.

The North Dakota Supreme Court acknowledged it has used both analyses to determine the existence of a legal duty in negligence cases. The Court then found that under either analysis – foreseeability or the relationship between the parties – plaintiff failed to create a genuine issue of material fact to survive summary judgment and affirmed the district court’s ruling.

Nationally, an increasing number of asbestos cases involve take-home exposure – also known as bystander exposure or secondary exposure – where a family member of a person that worked with asbestos develops an asbestos-related disease. Courts across the country have disagreed as to whether employers and premise owners should be liable for the asbestos-related injury of an employee’s family member. 

While the decision in North Dakota does not outright preclude take-home asbestos cases, it is a step in the right direction from the defense perspective in that the Court will permit such cases only if the plaintiff can produce evidence that the injury was foreseeable to the defendant and that there was a special relationship between the parties.

Thomas Stieber and Joanna Salmen of Foley & Mansfield’s Minneapolis office represented A.W. Kuettel & Sons, Inc. in the case.

To read the full opinion, click here. 

Thomas Stieber

A Tidal Wave of Regulations: How New Federal Regulations on Drinking Water May Affect U.S. Businesses

New regulations from the Environmental Protection Agency and the White House will not be watering down toxic tort litigation any time soon. On April 10, 2024, the Biden-Harris administration issued a national first —a federal standard that seeks to regulate per-and polyfluoroalkyl substances (PFAS), also known as “forever chemicals”, in […]

LEARN MORE

Redefining The Workforce: Implementation of the DOL’s Independent Contractor Rule

On March 11, 2024, the U.S. Department of Labor’s much anticipated rule under the Fair Labor Standards Act regarding the classification of workers as either employees or independent contractors officially came into effect. However, there are several pending lawsuits in different states seeking to prohibit the implementation of the new […]

LEARN MORE

Amended FRE 702 Creates Path for Expert Challenges in Talc Litigation

A recent update to the federal rules governing the use of expert testimony/evidence in federal court will widely impact how scientific and medical evidence is presented to juries in federal matters, including talcum powder litigation. With the change to Rule 702 of the Federal Rules of Evidence (“FRE 702”), defendants […]

LEARN MORE