United States: Products Liaiblity & Mass Torts - New York High Court: Tort Defendants May Be Entitled to Broad Protection from Liability to Bystanders in Cases of Second-Hand Exposure to Toxic Substances

A recent opinion from New York State’s highest court calls into question the extent to which premises owners, and possibly even manufacturers and sellers of products, can be held liable for injuries to bystanders alleging second-hand or "take-home" exposure to potentially harmful products. In Holdampf v. A.C. & S, Inc., et al. (In re New York City Asbestos Litigation), the New York Court of Appeals held that an employer-landowner, a so-called "premises defendant," does not owe a duty of care to the spouse of an employee who is harmed as a result of second-hand exposure to asbestos dust carried home on the employee’s work clothes. The court explained that, as there was no relationship between the defendant and the employee’s spouse that might trigger culpability, allowing the claim would open a Pandora’s box of "limitless liability."

The persuasive force of the New York decision in other jurisdictions will soon be tested: in a case currently pending before the New Jersey Supreme Court, litigants’ arguments have focused in part on Holdampf. Similar consideration of Holdampf’s logic in other states appears likely.

Although the New York decision did not address itself to other contexts, the logic and rationale of the court’s holding suggest that manufacturers and sellers of products may also be entitled to protection from liability to bystanders who receive incidental exposure to asbestos, silica and other potentially harmful products.

The plaintiff, Elizabeth Holdampf, brought suit against the Port Authority of New York and New Jersey, alleging that the defendant had been negligent in allowing asbestos dust to leave its premises. Holdampf’s husband, John, had handled asbestoscontaining products as part of his job duties in over 30 years’ work at the Port Authority. Although the Port Authority offered a laundry service, for reasons of convenience John Holdampf would frequently bring his work clothes home for cleaning. Elizabeth Holdampf testified that she was exposed to asbestos when she washed her husband’s uniforms. In 2001, Mrs. Holdampf was diagnosed with mesothelioma, a fatal cancer often linked to asbestos exposure.

The critical question was whether the Port Authority owed a legally recognized duty of care to Mrs. Holdampf. Counsel for the plaintiff argued that, because the Port Authority had employed Mr. Holdampf, and because Mr. Holdampf had brought asbestos dust home from the Port Authority’s premises, the Port Authority owed a duty of care to his wife, despite the fact that it had never employed her, and that her exposure to asbestos dust had not occurred on or near the Port Authority’s premises.

The New York Court of Appeals ordered judgment for the defendant, holding that the Port Authority did not owe a duty to Mrs. Holdampf, either as her husband’s employer or as a landowner. Citing its 1928 opinion in the often-cited Palsgraf case, the court explained that whether a duty of care exists does not turn on whether Mrs. Holdampf’s injuries were foreseeable; thus, "foreseeability, alone, does not define duty – it merely determines the scope of the duty once it is determined to exist." Instead, the court held, the determination of duty turns on the relationship between the plaintiff and the alleged tortfeasor. Under New York law, a legal duty will be found only where the relationship places the defendant in the best position to protect against the risk of harm, and also cabins the class of potential plaintiffs to guard sufficiently against "the specter of limitless liability." Neither circumstance was present here, the court concluded.

The Port Authority was not in the best position to protect Mrs. Holdampf against the risk of harm, the court explained, because any additional measures that it might have taken – such as requiring her husband to wear clean clothes home, or warning her about the dangers involved in washing the uniforms – were entirely dependent upon her husband’s willingness to carry them out.

Moreover, because there was no relationship whatsoever between Mrs. Holdampf and the Port Authority, imposing a duty in this case would open the door to "limitless liability." The court rejected plaintiff’s arguments that the scope of a legal duty could logically be confined to members of the household of the defendant’s employee, or to members of the household of those who come onto the landowner’s premises. A babysitter, or a laundry employee, the court reasoned, could have just as much exposure from washing clothes as a household member. Thus, the court concluded, the only way to rationally limit liability in these circumstances is to extend the landowner’s duty only to those, such as employees, to whom the landowner has some relationship.

While the New York court’s decision in Holdampf does not govern the outcome in other states, there are several reasons to believe that the decision may prove influential.

First, the law concerning the liability of premises owners for "second-hand" or "takehome" exposure is currently unsettled, with only a handful of courts having weighed in on the issue, and those decisions pointing in conflicting directions. For example, while Georgia’s highest court has held that an employer-landowner does not owe a duty to household members alleging "take-home" exposure, the intermediate appellate courts of New Jersey and Louisiana have reached the opposite result.¹ Given the paucity of decisional law in this area, each additional opinion is necessarily significant.

Holdampf is likely to carry additional weight because – unlike some rather conclusory opinions in this area – it takes great care to articulate its rationale. As such, Holdampf can already be considered the leading case rejecting a duty owed to bystanders with "take-home" exposure. Moreover, the decisions of the New Jersey and Louisiana courts rely in part on a New York decision that was explicitly reversed by Holdampf. Thus, the foundations of these contrary opinions are directly weakened by the result here. Indeed, the decision of the New Jersey intermediate appellate court is before the New Jersey Supreme Court; litigants seeking to overturn the intermediate appellate court’s decision have prominently featured the Holdampf opinion in their briefs. See "Amici Tell New Jersey Court to Reject Asbestos Plaintiffs’ ‘Next Wave,’" Mealey’s Litig. Rep. Asbestos 8 (Dec. 21, 2005). Further review in the Louisiana Supreme Court has also been sought in the Louisiana case.

Beyond this, Holdampf may lead to a rethinking of whether manufacturers or suppliers of products can be held liable in "take-home" or "secondary" exposure cases. Section 402A of the Restatement of Torts – which forms the basis in most states for strict liability claims against product suppliers – expressly did not decide whether liability was appropriate in secondary exposure cases. See Restatement (Second) of Torts § 402A cmt. o (1965) ("The Institute expresses neither approval nor disapproval of expansion" of strict products liability to cover "[c]asual bystanders, and others who may come in contact with the product, as in the case of employees of the retailer, or a passer-by injured by an exploding bottle . . . ."). But most courts to have considered the issue have held, without much analysis, that product suppliers may be liable in secondary exposure cases because the potential injury to the household member or similar type of plaintiff is "foreseeable" by the product supplier.²

What Holdampf brings to this analysis, then, is the New York Court of Appeals’ very clear statement that whether there is a duty should not be determined by foreseeability. And the factors identified by Holdampf as important to the duty analysis – whether there is a relationship between the injured party and the alleged tortfeasor, and whether there is any way to limit the alleged tortfeasor’s overall liability – indicate that product suppliers, like premises owners, should not have a duty in "secondary exposure" cases. Thus, the manufacturer or supplier of the asbestos products used by Mr. Holdampf had no more of a relationship with Mrs. Holdampf than the Port Authority, and it is hard to understand why a product supplier would owe a greater duty to Mrs. Holdampf than her husband’s employer. Indeed, the Holdampf court took pains to point out – two separate times – that New York has not addressed the liability of product suppliers in second-hand exposure cases, obviously inviting a challenge on that basis.

Finally, there is nothing in the rationale of Holdampf to limit its application to asbestos. Accordingly, defendants should consider Holdampf-based challenges to bystander liability claims involving other potentially harmful products, such as silica, lead and benzene.

Daniel O. Hanks contributed to the preparation of this article.

Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.