CAROLYN MARIE NICHOLS, as Executrix of the Estate of IVA PEARL JONES and OSCAR ANDREW JONES, as Surviving Spouse of IVA PEARL JONES, Plaintiffs,
ALLIS CHALMERS PRODUCT LIABILITY TRUST, ET AL., Defendants.
Plaintiff: John Deaton, Esq.
Defendant: David A. Goldman, Esq., Andrew R. McConville, Esq.
this Court for decision is Defendant Crane Co.'s
(Defendant or Crane) motion for summary judgment on all
counts of the Plaintiffs' Second Amended Complaint
(Complaint) pursuant to Super. R. Civ. P. 56. In this motion,
the Court is asked to decide whether Rhode Island law imposes
a duty of care on Crane, an employer, to protect third party
non-employees who came into contact with its employee's
asbestos-tainted work clothes at the employee's home. The
Court exercises jurisdiction pursuant to G.L. 1956 §
case, the Plaintiffs allege multiple causes of action
including claims of failure to warn, negligence, strict
product liability, breach of warranty, conspiracy, loss of
consortium, and wrongful death. The Plaintiffs claim that Iva
Pearl Jones (Ms. Jones) was repeatedly and regularly exposed
to asbestos fibers and dust on the clothing of Stanley
Nichols (Mr. Nichols), her brother-in-law, while he was
employed by Crane and while they resided in the same home.
Plaintiffs contend this secondary exposure from Mr.
Nichols' clothes was a substantial contributing cause of
Ms. Jones' disease and death from mesothelioma.
discovery, Mr. Nichols was deposed and testified that he
worked for Crane in the state of Arkansas from 1979 to 1980.
(Dep. of Stanley Nichols at 22:9-19.) During his employment,
Mr. Nichols worked as a metal pourer and furnace operator.
Id. at 22:12-17, 39:18-44:16. In these capacities,
he was exposed to asbestos-containing products. Id.
at 25:21-23; 39:18-44:16. Crane did not provide uniforms to
its employees. Id. at 429:23-430:4. Crane provided
employees with an asbestos apron, and employees wore street
clothes under the asbestos apron. Id. at 40:15-41:4,
63:17-64:5, 429:18-430:17. Despite the asbestos apron, the
dust adhered to the clothes. Id. at 44:14-19,
employed by Crane, Mr. Nichols lived with his wife, Carolyn
Marie Nichols (Ms. Nichols); his sister-in-law, Ms. Jones,
and her husband, Oscar Andrew Jones (Mr. Jones); and his
mother-in-law, Wanda. Id. at 19:11-13. According to
Mr. Nichols' testimony, Ms. Jones "always" did
his laundry, including his work clothes. Id. at
44:20-24. Mr. Nichols further testified that when Ms. Jones
shook out his work clothes, dust was visible and that she
breathed in the dust. Id. at 45:1-23, 55:1-24,
Jones was diagnosed with mesothelioma on May 13, 2005 and
died from her illness on May 14, 2007 at fifty-nine years old.
(Report of Dr. James A. Strauchen at 2.) The
Plaintiffs filed this suit in Rhode Island Superior
Court on February 27, 2008. Crane filed the instant motion
for summary judgment and the memorandum in support thereof on
September 19, 2017. The Plaintiffs filed a response and
memorandum in opposition on October 6, 2017, and Crane filed
a reply memorandum on October 20, 2017. Oral arguments on the
motion for summary judgment were scheduled and heard on
November 15, 2017.
contends that summary judgment should be granted on all
counts. Crane asserts that there is no duty of
care owed to Ms. Jones. Crane also posits that the Plaintiffs
have not produced sufficient evidence to show that the
materials Mr. Nichols and Ms. Jones handled contained
asbestos or that there is a causal connection between that
material and Ms. Jones' mesothelioma. Accordingly, Crane
argues that the derivative claims as well as the primary
claims should be dismissed. Crane further claims that it is
entitled to summary judgment on the breach of warranty claim.
Plaintiffs argue that Crane failed to take adequate
precautions to ensure that asbestos fibers and dust did not
leave the worksite on employees, and also failed to warn
employees of the known risks of transmission. Plaintiffs aver
that Crane's actions created a foreseeable risk of harm
to Ms. Jones, thereby establishing a duty of care. The
Plaintiffs further assert that they have produced sufficient
evidence to show causation. The Plaintiffs finally assert
that the breach of warranty claim is applicable only to the
Defendant manufacturers and not to Crane.
judgment is 'a drastic remedy, ' and a motion for
summary judgment should be dealt with cautiously."
Estate of Giuliano v. Giuliano, 949 A.2d 386, 390-91
(R.I. 2008) (quoting Ardente v. Horan, 177 R.I. 254,
256-57, 366 A.2d 162, 164 (1976)). Pursuant to Rule 56(c) of
the Superior Court Rules of Civil Procedure, "[s]ummary
judgment is appropriate when, viewing the facts and all
reasonable inferences therefrom in the light most favorable
to the nonmoving party, the [C]ourt determines that there are
no issues of material fact in dispute, and the moving party
is entitled to judgment as a matter of law." Quest
Diagnostics, LLC. v. Pinnacle Consortium of Higher
Educ., 93 A.3d 949, 951 (R.I. 2014) (internal quotation
marks omitted) (alterations in original). Summary judgment is
properly granted when the plaintiff is unable to establish a
prima facie case as a matter of law. Kelley v.
Cowesett Hills Assocs., 768 A.2d 425, 430 (R.I. 2001).
moving party bears the initial burden of establishing the
absence of a genuine issue of fact."' McGovern
v. Bank of Am., N.A., 91 A.3d 853, 858 (R.I. 2014)
(quoting Robert B. Kent et al., Rhode Island Civil
Procedure § 56:5, VII-28 (West 2006)). Once the
moving party meets this burden, "'[t]he burden then
shifts and the nonmoving party has an affirmative duty to
demonstrate a genuine issue of fact.'" Id.
(alteration in original) (internal ellipses omitted) (quoting
Kent, supra § 56:5, VII-28). The nonmoving
party then must prove by "'competent evidence the
existence of a disputed issue of material fact and cannot
rest upon mere allegations or denials in the pleadings, mere
conclusions or mere legal opinions.'"
D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I.
2004) (quoting Santucci v. Citizens Bank of R.I.,
799 A.2d 254, 257 (R.I. 2002) (per curiam)).
considering a motion for summary judgment, a judge "must
refrain from weighing the evidence or passing upon issues of
credibility." DeMaio v. Ciccone, 59 A.3d 125,
130 (R.I. 2013) (internal quotation marks and citation
omitted). The function of the judge "is not to cull out
the weak cases from the herd of lawsuits waiting to be tried.
Rather, only if the case is legally dead on arrival should
the court take the drastic step of administering last rites
by granting summary judgment." Mitchell v.
Mitchell, 756 A.2d 179, 185 (R.I. 2000). This Court is
mindful that the "purpose of the summary judgment
procedure is issue finding, not issue determination."
Estate of Giuliano, 949 A.2d at 391 (internal
quotation marks and citation omitted).
exposure to asbestos occurs when a person comes into contact
with the toxin and subsequently carries the asbestos fibers
and dust home on his or her person or clothes, exposing the
individuals with whom he or she lives to the asbestos. Rhode
Island has not addressed the question of duty in a secondary
exposure case. The issue in this case is one of first
jurisdictions have addressed the issue of duty in this
regard. There is a division of authority among the courts. In
some jurisdictions, the outcome turns on the lack of a
special relationship between the parties. See, e.g.,
In re New York City Asbestos Litig., 840 N.E.2d 115
(N.Y.App.Div. 2005); Price v. E.I. DuPont de Nemours
& Co., 26 A.3d 162 (Del. 2011); CSX Transp.,
Inc. v. Williams, 608 S.E.2d 208 (Ga. 2005); Adams
v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. Spec. App.
1998). Other jurisdictions focus on whether the risk of
injury was foreseeable. See, e.g., Satterfield
v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008);
Simpkins v. CSX Corp., 929 N.E.2d 1257 (Ill.App.Ct.
2010), affirmed and remanded 965 N.E.2d 1092 (Ill.
2012); Olivo v. Owens-Illinois, Inc.,
895 A.2d 1143 (N.J. 2006); Schwartz v. Accuratus
Corp., 139 A.3d 84 (N.J. 2016); Kesner v. Superior
Court, 384 P.3d 283 (Cal. 2016); CertainTeed Corp.
v. Fletcher, 794 S.E.2d 641 (Ga. 2016),
reconsideration denied (Dec. 8, 2016); Palmer v.
999 Quebec, Inc., 874 N.W.2d 303 (N.D.
2016). Mindful of these approaches, this Court
turns to the question of duty within the confines of these
facts under Rhode Island law.
is well settled that '[a] defendant cannot be liable
under a negligence theory unless the defendant owes a duty to
the plaintiff.'" Santucci, 799 A.2d at 256
(alteration in original) (quoting Ferreira v.
Strack, 636 A.2d 682, 685 (R.I. 1994)). "[I]n the
absence of a duty, 'the trier of fact has nothing to
consider and a motion for summary judgment must be
granted.'" Holley v. Argonaut Holdings,
Inc., 968 A.2d 271, 274 (R.I. 2009) (quoting Banks
v. Bowen's Landing Corp., 522 A.2d 1222, 1225 (R.I.
1987)). Whether a duty exists is a question of law for the
Court to determine. Santucci, 799 A.2d at 256;
Volpe v. Gallagher, 821 A.2d 699, 705 (R.I. 2003).
Island has no "set formula for finding a legal
duty." Wells v. Smith, 102 A.3d 650, 653 (R.I.
2014); Flynn v. Nickerson Cmty. Ctr., 177 A.3d 468,
477 (R.I. 2018); Banks, 522 A.2d at 1225 ("No
clear-cut rule exists to determine whether a duty is in fact
present in a particular case[.]"). The courts are to
employ a case-by-case determination in deciding whether there
is a legal duty. Flynn, 177 A.3d at 477. Thus, an
ad hoc approach is utilized. The approach
"turns on the particular facts and circumstances of a
given case." Id.; Gushlaw v. Milner,
42 A.3d 1245, 1256 (R.I. 2012). In this analysis, the Court
"'(1) the foreseeability of harm to the plaintiff,
(2) the degree of certainty that the plaintiff suffered an
injury, (3) the closeness of connection between the
defendant's conduct and the injury suffered, (4) the
policy of preventing future harm, and (5) the extent of the
burden to the defendant and the consequences to the community
for imposing a duty to exercise care with resulting ...