Breaking News: Supreme Court of Virginia Recognizes Cause of Action for Take Home Exposure 

James F. Humphreys & Associates, L.C. has represented victims of asbestos exposure for almost 30 years. In most cases, people are exposed through their work, but family members can also be exposed to asbestos when workers bring asbestos fibers home on their clothing. When the work clothes are washed and dried at home, asbestos fibers can be released into the air, exposing family members, including spouses and children. This is known as take home exposure, and courts across America have reached different rulings as to whether an employer can be held liable when a family member develops as asbestos related disease because of asbestos that was carried home on a worker’s clothing, body and personal effects.

EGLIN AIR FORCE BASE, Fla. -- Base housing officials are growing increasingly concerned with vandalism in demolition areas of base housing. The vacant houses pose a health hazard due to electrical, gas and asbestos exposure dangers.
Photo via the U.S. Army

On October 11, 2018, the Supreme Court of Virginia joined those courts recognizing that employers can be held responsible for take home exposures when they fail to take reasonable measures to educate their workers about the dangers of carrying asbestos home on their clothes and to prevent such exposures by providing their workers with showers to wash up before going home, locker rooms to change clothing and/or laundry services for work clothes.  In Wesley Quisenberry, Personal Representative of the Estate of Wanda Quisenberry, v. Huntington Ingalls Incorporated, 2018 Va. LEXIS 137 October 11, 2018 (Supreme Court of Virginia), a 4-3 majority of the court answered the following question in the affirmative: “Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?”

Wanda Quisenberry died from pleural mesothelioma, a cancer of the linings of the lungs that is almost always caused by exposure to asbestos. Her father worked for many years at a shipyard owned by Newport News Shipbuilding and Dry Dock,  now known as Huntington Ingalls Incorporated. He regularly brought asbestos home on his clothes, where his daughter Wanda lived with him from 1942 to 1969. In 1954, she began helping to wash her father’s clothes, “shaking off and breathing asbestos dust in the process.”

In holding that an employer could be responsible for asbestos injuries to family members, the court looked at other kinds of cases where a person could be liable when dangerous things escape from his property. For example, a farmer can  incur liability when one of his cows wanders onto a road and causes a motor vehicle accident. Similarly, a company can be liable under riparian law (the law governing water use) when it pollutes a waterway and someone downstream is injured, or noxious substances escape by air or water and cause a nuisance that prevents neighbors from enjoying the use of their property.   As the court observed, “[j]ust as water or air is the force that disperses toxins in a nuisance case, so did the work clothes covered with dust on the back of an uninformed worker disperse the asbestos hazard here when the worker foreseeably travels home at the end of the day and has his clothes laundered.” The court also looked to cases from other jurisdictions which recognized take home liability under the laws of Alabama, California, Louisiana, Indiana, New Jersey, Tennessee, and Washington.

gray pillars
Photo via Unsplash

Three judges dissented, finding the court’s analogies to livestock, water use and nuisance to be unpersuasive, and citing to various cases from Georgia, New York, Pennsylvania, Michigan and Iowa which refused to recognize a duty to protect family members from take home exposures.   The dissenting judges were concerned that the liability of employers would become too open ended and unpredictable if they could be held responsible for injuries to family members. They also argued that the legislature, rather than the court, should be the one to expand liability in this way, noting that two states, Kansas and Ohio,  had actually enacted laws to protect employers from liability for take home exposures. 

The fact that asbestos law is still developing underscores the need to retain experienced counsel. If you or a family member have been seriously injured by exposure to asbestos, please call us for a free initial consultation on 304-881-0652 (local) or 877-341-2595 (toll free). You can also reach us through our website, www.jfhumphreys.com

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