January 28, 2016

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