Nichols v. Allis Chalmers Product Liability Trust

          For Plaintiff: John Deaton, Esq.

          For Defendant: David A. Goldman, Esq., Andrew R. McConville, Esq.

          DECISION

          TAFT-CARTER, J.

         Before 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 § 8-2-14.

         I

         Facts and Travel

         In this 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.

         During 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, 54:19-24, 62:8-14.

         While 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, 62:15-63:15, 65:15-66:15.

         Ms. Jones was diagnosed with mesothelioma on May 13, 2005 and died from her illness on May 14, 2007^[1] at fifty-nine years old. (Report of Dr. James A. Strauchen at 2.) The Plaintiffs^[2] 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.

         Crane contends that summary judgment should be granted on all counts.^[3] 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.

         Alternatively, 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.

         II

         Standard of Review

         "Summary 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).

         '"The 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)).

         When 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).

         III

         Analysis

         A

         Duty

         Secondary 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 impression.

         Various 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);^[4] 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).^[5] Mindful of these approaches, this Court turns to the question of duty within the confines of these facts under Rhode Island law.

         1

         Rhode Island Law

         "It 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).

         Rhode 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 should consider

"'(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 ...