Recently, a divided Supreme Court of Virginia, in a 4-3 decision, recognized an employer’s liability for “take home” exposure. In Quisenberry v. Huntington Ingalls Inc., 818 S.E.2d 805 (Va. 2018), the Supreme Court held that employers can be liable for their employees unknowingly bringing home asbestos dust and exposing cohabitating family members to asbestos (i.e., “take home” liability).
Key Background Facts
In Quisenberry, the plaintiff alleged that Wanda Quisenberry’s father worked at a shipyard for about 35 years, where he was routinely exposed to asbestos dust. The dust adhered to his clothing, contaminated his car, and came home with him. Wanda lived in the same home as her father for about 27 of those 35 years. From 1954 to 1969, she regularly laundered her father’s clothes, allegedly causing her to breathe in asbestos dust. Wanda was diagnosed with mesothelioma, allegedly caused by exposure to asbestos dust, and died from the disease.
Wanda’s son brought suit as administrator of her estate, alleging the defendant shipyard’s negligence, gross negligence, and wanton and willful conduct caused Wanda’s death. The complaint alleged the defendant knew or had reason to know of the asbestos dangers, and it was negligent in “choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines.” Id. at 808.
The Certified Question
After removing the case to federal court, the defendant moved to dismiss, arguing that the plaintiff’s theory relied on “take home” exposure liability. The Supreme Court of Virginia had not addressed the issue before, and some of the circuit courts in Virginia that had considered the issue had declined to recognize such a duty. The defendant moved to certify the issue to the Supreme Court of Virginia, which the federal district court granted as the following question of law:
Does an employer owe a duty of care to the family member of an employee who alleges exposure to asbestos from the work clothes of the employee, where such exposure takes place off of the employer’s premises and the employer has no relationship with the family member?
The Supreme Court of Virginia accepted the certified question, but restated it as follows:
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?
The Supreme Court’s Holding and Analysis
The Supreme Court of Virginia answered the question in the...
