October 29, 2020

Second-Hand Asbestos Exposure

By now, nearly everyone is aware of the risks of asbestos exposure, and certainly many workers exposed to asbestos in the course of their work have now been compensated. But because the illnesses associated with asbestos take many years to manifest themselves, courts will continue to deal with the question of damages for such injuries long after measures have been taken to limit workers’ exposure. Since asbestos is easily communicated to others, courts have recently begun to address the question of second-hand asbestos exposure. If you’re loved one was regularly exposed to asbestos in the past, is it possible you have also been exposed? And if so, should you also be entitled to compensation for that exposure from your loved one’s employer?

This question was recently addressed by the Illinois Appellate Court (5th District) in Simpkins v. CSX Transportation, in which the plaintiff alleging injuries resulting from her husband’s (work-related) asbestos exposure. Specifically, she alleged that she developed cancer from the asbestos transported by her husband’s body and clothes. The lower court had dismissed her claim against one defendant on the grounds that, as a matter of law, an employer owes no duty of care to the families of its employees.

In reversing the lower court’s decision, the appellate court considered four factors in finding the existence of a duty to the worker’s family: (1) Was the risk of harm foreseeable? (2) Was the injury likely to occur? (3) What type of burden was it for the employer to protect its employee against this injury? (4)What consequences are there of imposing this duty? The appellate court reversed the lower court’s decision and ruled that the husband’s employer did have a duty of care toward its employee’s immediate family. This decision directly opposes that of an earlier Second District Appellate Court case, where it was held that an employer has no duty to protect when it has no direct relationship with the plaintiff.

Apparently, the Fifth District broadly interprets the term “duty.” In the court’s analysis, particular attention was paid to the first factor, foreseeability.  In the present case, the court found that the harm to the plaintiff/wife was reasonably foreseeable because the employer should have anticipated that she would be exposed to the asbestos, and should have known the risks associated with second-hand asbestos exposure.

Even though the court limited its ruling in this case to immediate family members, it expressly left open the question of whether employers could be found to owe a duty of protection to anyone who regularly comes into contact with employees exposed to asbestos-containing products. If you believe you have suffered injury from second-hand asbestos exposure, from a family member, or from anyone else with whom you’ve had regular contact, be sure to consult with an attorney to fully understand the implications of this split on your potential claim.

 

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