Dust in the Wind: Revisiting Georgia's Refusal to Extend Liability to Employers in Take-home Asbestos Litigation
| Publication year | 2019 |
Dust in the Wind: Revisiting Georgia's Refusal to Extend Liability to Employers In Take-Home Asbestos Litigation
Phillips Workman
University of Georgia Law School
DUST IN THE WIND: REVISITING GEORGIA'S REFUSAL TO EXTEND LIABILITY TO EMPLOYERS IN TAKE-HOME ASBESTOS LITIGATION
Phillips Workman*
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I. Start Me Up: An Introduction to the Take-Home Asbestos Case and the Split of Authority Regarding Employer Take-Home Liability...............1170
II. One Way or Another: Williams, Bobo, and What Duty an Employer Owes.........................................................1173
A. MIDNIGHT TRAIN TO GEORGIA- WILLIAMS AND THE GEORGIA SUPREME COURT'S NARROW INTERPRETATION OF DUTY..........................................1173
B. SWEET TAKE-HOME ALABAMA: THE ELEVENTH CIRCUIT'S BROAD INTERPRETATION OF EMPLOYER DUTY IN BOBO.............................................................1176
III. Should I Stay or Should I Go: Evaluating Whether Georgia Courts Should Overturn Williams...........1179
A. CAN'T YOU (FORE)SEE: THE INAPPLICABILITY OF BOBOS FORESEEABILITY ANALYSIS.............................1179
B. OOH BABY, BABY, IT'S A WIDE WORLD (OF PLAINTIFFS): THE WILLIAMS DECISION PROTECTS EMPLOYERS FROM LIMITLESS LIABILITY.....................1181
IV. The Road Goes On Forever: Conclusion.......................1183
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"Have you or a loved one been diagnosed with mesothelioma?"1 These words should be familiar to anyone who has watched late-night television commercials over the past few decades. The culprit behind this seemingly-endless stream of advertisements is asbestos, a natural mineral historically used in a wide swath of manufacturing and industrial sectors2 that spurred the longest-running (and ongoing) mass tort litigation in legal history.3 Asbestos is most often and most famously linked to mesothelioma, a cancer of the thin layer of tissue that covers the internal organs.4 Since the first asbestos-related decision in 1973,5 asbestos liability has permeated the American psyche to the point that it has even become a part of internet meme culture.6
Early asbestos cases ("standard" cases) generally followed a common fact pattern: an employee who worked for most or all of his career around raw asbestos later developed mesothelioma or a similar disease years after his initial exposure.7 In recent years, though, the creativity of the plaintiffs' bar led to the formulation of the "secondhand" or "take-home" asbestos case as opposed to the
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standard case.8 The plaintiff in a take-home case is usually a member of the employee's family who alleges secondhand asbestos exposure through contact with the employee.9 Often, the plaintiff is an employee's wife who developed mesothelioma after years of washing her husband's asbestos-dusted work clothes.10 Other fact patterns are more unusual, and take-home claims run the gamut of possible exposure scenarios from alleged exposure as an infant to the work clothes of a visiting family member11 to alleged exposure resulting from wrestling with an uncle after his shift at a brake shoe plant.12
As any first-year law student can recite, the plaintiff in a negligence suit bears the burden of proving the four elements of negligence: duty, breach, causation, and damages.13 The rise of take-home asbestos litigation raised a difficult question regarding an employer's responsibility: to whom does an employer owe a duty of care regarding asbestos exposure?14 In standard asbestos cases against an employer, the employee-plaintiff can easily satisfy the first element—duty—because of the well-established duty of employers to provide employees a safe place to work.15 However, the
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line of duty in take-home cases is not so clearly demarcated.16 State and federal courts in over twenty states have addressed the question of whether employers owe a duty to employees' families in the context of take-home asbestos litigation.17 Two states, Kansas and Ohio, have gone so far as to statutorily prohibit take-home asbestos claims.18
In Georgia, the courts, rather than the legislature, have addressed the take-home question. The Supreme Court of Georgia held that employers are not liable for the asbestos injuries of employees' families in CSX Transportation, Inc. v. Williams.19 This 2005 decision, which answered a certified question from the Eleventh Circuit,20 was one of the first in the country to consider the take-home scenario. Twelve years later, the question arose under the laws of Georgia's westerly neighbor. In 2017, the Eleventh Circuit decided the duty question in a case of first impression under Alabama law in Bobo v. Tennessee Valley Authority.21 However, in Bobo, the Eleventh Circuit declined to follow the Williams decision and held that the employer owed a duty to an employee's wife who developed mesothelioma after years of exposure to her husband's work clothes.22 While Florida courts have not yet addressed the question, a split of authority now exists within the Eleventh Circuit. After the Bobo decision, a hypothetical employer in Eufala, Alabama, now owes a duty to employees' families in asbestos litigation that an identical employer in Georgetown, Georgia—just two and half miles away—never has to consider. In light of this new
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disparity and the avalanche of take-home litigation since 2005,23 it seems an appropriate time to revisit the Williams decision. Should the Georgia Supreme Court overturn Williams and align the state with the expansive scope of duty advocated by the Eleventh Circuit in Bobo?
This Note examines Williams and Bobo, discusses the legal frameworks and theories on which both decisions rest, and provides an answer that best navigates the take-home policy minefield. Part II presents an in-depth look at the two decisions and the competing conclusions drawn by the Georgia Supreme Court and the Eleventh Circuit. Next, Part III argues that Georgia should hold fast to the Williams decision, as it best fits within the unique contours of Georgia negligence law and protects employers from the specter of unlimited asbestos liability. Finally, Part IV concludes the discussion and suggests the future direction of take-home litigation.
Part II outlines the origins of the two competing views presented in the Williams and Bobo decisions. Part II.A details the Georgia Supreme Court's discussion that led it to decline to extend an employer's duty of care beyond that owed to an employee. Part II.B discusses the Eleventh Circuit's reasoning in eschewing the majority rule that no duty is owed and holding that an employer is liable to an employee's family member in take-home litigation.
A. MIDNIGHT TRAIN TO GEORGIA: WILLIAMS AND THE GEORGIA SUPREME COURT'S NARROW INTERPRETATION OF DUTY
Felton Williams came from a railroading family in a railroading town.24 In 1990, he and two other plaintiffs filed suit against CSX, a major railroad company, after developing lung disease that they
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alleged was partially caused by exposure to asbestos in CSX's railyard in Waycross, Georgia.25 In addition, these plaintiffs alleged secondary exposure to asbestos from contact with their fathers'—all former CSX employees—work clothes.26 After the federal district court denied CSX's motion for summary judgment on the issue of whether it owed a duty to its employees' family members, CSX appealed to the Eleventh Circuit, which then certified the question to the Georgia Supreme Court.27
The Georgia Supreme Court first noted the duty of ordinary care that CSX owed its employees.28 However, since the plaintiffs' take-home claim rested on alleged exposure as children from their fathers' clothes—and not from their employment with CSX—the court held this duty inapplicable.29 In determining whether CSX owed a duty beyond the duty to its employees, the court considered several factors but centered its focus on policy considerations.
The court first discussed the role that location plays in determining whether a duty is owed under Georgia law. A previous federal case from Georgia had established a duty of employers to protect third parties from exposure to hazardous substances, independent of the location of exposure.30 The Georgia Supreme Court distinguished that federal decision by explaining that liability in the case on which the federal court relied had been ultimately predicated on worksite, not off-premises, exposure.31 Thus, the court established that location is a factor in determining whether an employer owes a duty.32
Next, the court briefly considered the role that foreseeability plays in determining when a duty is owed under Georgia law. While
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other states place a weighty emphasis on foreseeability in deciding the existence of a duty,33 the court explained that mere foreseeability is sometimes insufficient to trigger a duty of care in Georgia.34
The court then abruptly shifted its focus to the crux of its short opinion—the policy concerns behind extending an employer's duty to non-employees. First, the court noted the important role that policy plays in determining a duty.35 The Georgia Supreme Court quoted extensively from a 1994 New York case, Widera v. Ettco Wire and Cable Corp., which declined to extend an employer's duty to an infant who was exposed in utero to toxic chemicals on her father's work clothes.36 That decision explained that expanding an employer's duty to those who come into contact with an employee would "expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs."37 Even when an actor commits a wrong, courts have a responsibility to "tailor [a duty] so that the illegal consequences of [the wrong are] limited to a controllable degree."38 In recognition...
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