Hoyt v. Lockheed Shipbuilding Co.

LORETTA HOYT, Plaintiff,

v.LOCKHEED SHIPBUILDING COMPANY, Defendant.

C12-1648 TSZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Dated: June 26, 2013

ORDER

THIS MATTER comes before the Court on Defendant Lockheed Shipbuilding Company's ("Lockheed") motion for summary judgment, docket no. 62. Having reviewed all papers filed in support of and in opposition to the motions, the Court enters the following order.

I. Background

Plaintiff Loretta Hoyt claims that she developed mesothelioma as a result of secondary or "take-home" exposure to asbestos. Her father, Victor Lodahl, was employed by Puget Sound Bridge and Dry Dock as a coppersmith from approximately 1948 to 1954. Id. at ¶¶ 6-7. During the course of his employment, Mr. Lodahl workedwith and around asbestos. Id. at ¶ 7. Plaintiff lived at home with her parents during this time period.

Plaintiff's ex-husband, Leroy Birkholz, was employed by Puget Sound Bridge and Dry Dock from approximately 1954 to 1958 as a pipefitter. Id. at ¶¶ 4-5. During the course of his employment, Mr. Birkholz worked with and around asbestos. Id. at ¶ 5. During this time period Plaintiff lived with Mr. Birkholz.

Plaintiff alleges that Mr. Lodahl and Mr. Birkholz brought home asbestos fibers on their hair, tools, and clothing at the end of the workday. Id. at ¶ 14. While she was living at home with her parents, Plaintiff's mother did the family's laundry in the basement. Hoyt Perpetuation Depo. at 14 (Couture Decl., Ex. 4). Plaintiff's bedroom was also in the basement and dust from her father's work clothes got into her bedroom. Id. at 15. During her marriage to Mr. Birkholz, Plaintiff did all of the couple's laundry. Birkholz Depo. at 20-21 (Couture Decl., Ex. 6). When she washed Mr. Birkholz's work clothes, she would shake them out before washing them because "they were dirty and dusty." Hoyt Perpetuation Depo. at 12 (Couture Decl., Ex. 4).

Plaintiff claims that her exposure to the asbestos that her father and ex-husband brought home on their clothes while they worked at Puget Sound Bridge and Dry Dock caused her to develop mesothelioma. She brings this action for damages for personal injuries against Lockheed Shipbuilding Company, the successor-in-interest to Puget Sound Bridge & Dredging Corporation. Id. at ¶ 15. She alleges that Defendant negligently failed to exercise its duty of care to provide its employees with a safe workenvironment and that it was reasonably foreseeable that Lockheed's negligence would result in its employee's family members being exposed to asbestos. Id. at ¶¶ 13-14.

Lockheed moves for summary judgment on the grounds that it did not owe Plaintiff a duty of care and that injury to Plaintiff was not foreseeable at the time of exposure.

II. Standard

The Court shall grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the adverse party must present affirmative evidence, which "is to be believed" and from which all "justifiable inferences" are to be favorably drawn. Id. at 255, 257. When the record, however, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, summary judgment is warranted. See Beard v. Banks, 548 U.S. 521, 529 (2006) ("Rule 56(c) 'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'")(quoting Celotex, 477 U.S. at 322)).

III. Discussion

In order to prevail in an action for negligence, a plaintiff must establish: (1) the existence of a duty, (2) breach of that duty, (3) proximate cause, and (4) resulting injury. Alhadeff v. Meridian on Bainbridge Island, LLC, 167 Wn.2d 601, 618, 220 P.3d 1214 (2009). The only element at issue in this motion for summary judgment is the existence of a duty.¹ Lockheed contends that it did not have a duty to the Plaintiff because (1) Washington Courts do not recognize a duty to prevent "take home" asbestos exposure, and (2) the harm to Plaintiff was not foreseeable because Lockheed did not have actual or constructive knowledge of the risk of cancer from "take-home" or "secondary" asbestos exposure during the time-frame that Plaintiff's father and ex-husband worked at Lockheed.

The existence of a legal duty is an issue of law to be decided by the court, Folsom v. Burger King, 135 Wn.2d 658, 671 (1998), and generally includes a determination of whether the harm was foreseeable. Rochon v. Saberhagen Holdings, Inc., 2007 WL 2325214, at *1 (Div. 1, 2007).

1. Does a corporation have a duty to prevent "take home" or secondary exposure to asbestos?

Plaintiff contends that under Washington law a corporation has a duty to prevent "take home" exposure to asbestos. She relies on Arnold v. Saberhagen Holdings, Inc., 157 Wn. App. 649 (Div. 2, 2010) and Rochon v. Saberhagen Holdings, Inc., 2007 WL2325214 (Div. 1, 2007). Lockheed argues that it did not owe Plaintiff a duty of care because she was not an employee or an invitee. Lockheed relies on cases from several other jurisdictions to support its position and argues that, to the extent Arnold suggests otherwise, the Court should conclude that Arnold was wrongly decided.

Because the existence of a common law duty is an issue of state law, the task of this Court is to predict how the Washington State Supreme Court would rule on this question. "'In the absence of [a decision from the Washington State Supreme Court], a federal court must predict how the highest state court would decide the issue, using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.'" Arizona Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995) (quoting In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990)). "However, where there is no convincing evidence that the state supreme court would decide differently, 'a federal court is obligated to follow the decisions of the state's intermediate appellate courts.'" Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996) (quoting Kirkland, 915 F.2d at 1239). For the following reasons, the Court concludes that the Washington State Supreme Court would recognize an employer's duty to take reasonable precautions to protect employee's family members from "take-home" exposure to asbestos.

The issue of whether a company may be liable for "take home" or secondary exposure to asbestos is not an issue of first impression in Washington. In Arnold v. Saberhagen Holdings, Inc., the plaintiffs sued Lockheed and others for asbestos-related injuries stemming from Ruben Arnold's work as an insulation contractor for Lockheed inthe 1960s. 157 Wn. App. 653. The claims were twofold. First, Ruben's estate asserted a primary liability claim for Ruben's exposure to asbestos at Lockheed after he passed away from mesothelioma. Second, Ruben's wife and son asserted injuries from "take home exposure" to asbestos, claiming that Ruben brought home asbestos fibers on his work clothing and exposed them to the dangerous substance.² Id. at 653. The plaintiffs asserted that Lockheed "owed common law and statutory or regulatory duties both to [Ruben] and to his family members at home to protect them from the hazards of exposure to asbestos on the premises." Id. at 654.

After the trial court granted summary judgment dismissing the plaintiffs' claims against Lockheed, the Court of Appeals reversed. The focus of the Court's analysis was on Lockheed's duty to Ruben as a landowner and as a general contractor. Id. at 661. However, the Court reversed the summary judgment dismissal of the wife and son's claims for "take-home exposure," concluding that there were material issues of fact for trial. Id. at 653 ("We affirm the trial court's grant of summary judgment to Lockheed with regard to Daniel's primary exposure claim, but reverse with regard to the Arnolds' other claims."), 671. In so holding, the Court concluded that Lockheed "owed common law and statutory or regulatory duties both to [Ruben] and to his family members athome to protect them from the hazards of exposure to asbestos on the premises." Id. at 654 (emphasis added).

The Washington State Court of Appeals also addressed the issue of liability for "take home" exposure to asbestos in Rochon v. Saberhagen Holdings. In that case, the Washington State Court of Appeals addressed the same issue raised in the present motion for summary judgment: whether Washington law recognizes an employer's duty of care to prevent secondary or "take home" exposure to asbestos. 2007 WL 2325214 (Div. 1, 2007). There, the plaintiff's husband was exposed to asbestos at work and the plaintiff allegedly inhaled asbestos fibers while laundering her husband's clothing and developed mesothelioma as a result. Id., at *1. The plaintiff brought a claim for personal injury against her husband's employer under a general negligence theory, arguing that the employer breached its duty of care by failing to prevent her "take home" exposure to asbestos. The trial court dismissed plaintiff's claim, concluding that the defendant did not owe her a duty of care. Id. The court of appeals reversed, concluding that the cause of the plaintiff's illness was the employer's own affirmative act of operating its factory in an unsafe manner. Id. at *3. Thus, the Court reasoned, the employer "had a duty to prevent injury from an unreasonable risk of harm that it itself...