Utah Work Site Owners Must Face ‘Take Home’ Asbestos Suit

The Utah Supreme Court has found that work site owners have a duty to care in a suit alleging the spouse of a worker contracted mesothelioma as a result of exposure to asbestos when she washed his clothes, sending ConocoPhillips Co., Kennecott Utah Copper LLC and PacifiCorp back to trial.

The court reversed summary judgments that freed ConocoPhillips and PacifiCorp from the suit by Larry Boynton, while affirming a trial court decision denying Kennecott’s bid to escape the suit.

Boynton worked at job sites owned by the three companies in the 1960s and 1970s and was exposed to asbestos on the job as he worked near other contractors who moved and worked with asbestos materials. Boynton alleges the asbestos fibers stuck to his clothes, where his wife was exposed to them when she did his laundry.

His wife was diagnosed with mesothelioma in February 2016 and died less than a month later, after which Boynton sued the three companies. Kennecott and ConocoPhillips moved for summary judgment, arguing they did not have a duty to Boynton’s wife, while PacifiCorp had argued its contractor owed the duty, not PacifiCorp itself. The trial court denied Kennecott’s motion but granted the other two, prompting Kennecott and Boynton to appeal.

The Utah justices first tackled the question of Kennecott’s and ConocoPhillips’ motions for summary judgment, finding that they both owed a duty to Boynton’s wife.

The justices wrote that by the time Boynton was working at the two companies’ job sites, it was common knowledge that asbestos was dangerous and that the spouses of workers could be exposed. In addition, they wrote that both companies made the affirmative action of deciding to use asbestos material, which means they “launched the instrument of harm.”

The companies could have taken steps to prevent exposure to spouses and family members, such as having a laundry service to clean Boynton and other workers’ clothes before they went home but didn’t, and the justices rejected the argument that it was solely on the workers’ shoulders to prevent exposure.

“It makes little sense to require every employee to individually implement personal safety practices, rather than require the employer to make a single determination that protects all employees and their families,” the justices wrote. 

PacifiCorp’s contract with Jelco-Jacobsen contains enough provisions to create the question, as the contract specifies the materials that Jelco-Jacobsen used — which included the asbestos materials — and that means PacifiCorp “actively participated” in the work.

In total, the contractual provisions show PacifiCorp retained at least some control over Jelco-Jacobsen, so the company must face the claims in court and the fact-finder must determine whether it retained control over the activities that allegedly caused Boynton’s wife to develop mesothelioma.

LAW 360: https://www.law360.com/employment-authority/articles/1410316/utah-work-site-owners-must-face-take-home-asbestos-suit

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