We posted a blog about the recent Arizona Supreme Court ruling that in that state, an employer is not liable for this kind of harm to household members. As we noted, it varies among the states whether employers have the duty to warn employees of this kind of risk to prevent disease and death at home.
Delaware Changes Course
The June 27, 2018, Delaware Supreme Court decision in Ramsey v. Georgia Southern University Advanced Development Center considered the secondary-exposure case of a wife who had laundered her husband’s asbestos-laden work clothing for years. He had used asbestos-containing products in the manufacture of pipe fittings and pipes. The wife developed and died from lung cancer decades later (a common incubation period).
The high court said that the manufacturer of a product containing asbestos (or other toxic substance) has the legal duty to warn parties to whom it sells the product of risks of harm from secondary exposure when the manufacturer knows the buyer plans to use it in a “downstream industrial process.”
The court decided that the manufacturer does not have the duty to warn buyer’s family members directly of the risk of secondary exposure because determining who those people are over time would not be feasible. The manufacturer can reasonably rely on the employer to pass on appropriate laundering warnings or provide laundry services to prevent secondary exposure. If the manufacturer gave adequate warnings to the employer, it will not be liable for at-home harm to worker families.
Overruling earlier cases, the state Supreme Court held that a spouse like the Ramsey plaintiff “may sue her spouse’s employer for its failure to provide warnings and safe laundering instructions.” Previously, Delaware courts had said that in a case like this, the employer was not liable because it had engaged in “nonfeasance,” but the Supreme Court disagreed, saying that an employer in this situation engaged instead in “misfeasance.”
Nonfeasance describes a scenario where a party has no duty to take affirmative action to prevent harm to someone if the party had no part of creating the harm. For example, it would be nonfeasance if a chance passerby did not swim out into a lake to save someone from drowning, where the person had no part in the swimmer being in dangerous waters.
Misfeasance, on the other hand, means the potentially responsible party had a hand in creating the dangerous condition. The court concluded that the employer in this case used a work process that generated asbestos dust, creating misfeasance and the duty to warn of the danger of take-home exposure.