The Fourth Circuit recently held that a premises owner in an asbestos case was not liable to a pipefitter based on insufficient evidence of exposure and the independent contractor exception to landowner liability.
In Smith v. Schlage Lock Co., LLC, 986 F.3d 482 (4th Cir. 2021), the Smiths sued Schlage Lock on the theory that Mr. Smith developed mesothelioma as a result of exposure to asbestos while working as a pipefitter during the construction of a Schlage Lock plant in Rocky Mount, NC in 1972. Mr. Smith testified that every day during several months, insulators cut and applied insulation to the lines, however he did not know whether that insulation contained asbestos.
The district court granted summary judgment to Schlage Lock on two independent bases. First, the court concluded that there was no evidence in the record to support a finding that Mr. Smith was exposed to asbestos during his work at the Schlage Lock plant. Second, the court found that the record did not support a conclusion "that Schlage [Lock] exercised control over the job site or the work conducted by Mr. Smith during the facility's construction." Mrs. Smith timely appealed both conclusions.
On appeal, the Fourth Circuit affirmed the district court's finding that there was a lack of evidence that Mr. Smith was exposed to asbestos at the Schlage Lock site. The Fourth Circuit first underscored the significance of Mr. Smith's admission that he had no knowledge asbestos was ever used at the Rocky Mountain plant, which alone could be enough to discharge Schlage Lock's burden as the moving party. More importantly, the Court placed great emphasis on the affirmative evidence Schlage Lock proffered demonstrating there was no asbestos at the plant, including testimony from its corporate representative and an asbestos sampling summary indicating insulation from the plant tested negative for asbestos. Specifically, Schlage Lock's corporate representative testified that she spent "somewhere between 175 and 200 total hours" reaching out to former employees as well as searching for and reviewing documents relating to the plant, including those related to asbestos, industrial hygiene, construction, building specification, and contracts. Schlage Lock also cited the nonexistence of state-held asbestos records for the Rocky Mountain plant, such as those held by the North Carolina Department of Environmental Control, as evidence no asbestos was present there. The Court held that "Schlage Lock not only pointed to Mrs. Smith's lack of evidence of causation, but also put forth affirmative evidence that there had never been asbestos at the plant."
Independent Contractor Exception
However, even if Mr. Smith had been exposed to asbestos at the Schlage Lock site, the Fourth Circuit affirmed that Schlage Lock cannot be held liable for any related injuries because the exposure arose incident to his work for an independent contractor. The Court held that Schlage satisfied its burden that Mr. Smith's employer-contractor maintained control of the relevant portion of the worksite and therefore Schlage Lock cannot be held liable under North Carolina law. The Court noted that although there are two exceptions to North Carolina's independent contractor rule, neither exception applied because Schlage Lock maintained no control over the construction of the plant, and Mrs. Smith never contended that Mr. Smith was engaged in anything other than "ordinary building construction work," which is not inherently dangerous under North Carolina law.
This decision provides insight for toxic tort defendants in establishing factual and legal defenses under North Carolina law. First, it behooves defendants facing premises liability claims to perform due diligence regarding the materials used at the facility. This may be achieved through corporate representative testimony, affidavits of previous employees, and other records available. Second, the independent contractor exception to landowner liability applies to premises liability exposure claims under North Carolina law. As a result, demonstrating that no control was maintained over an on-site independent contractor's work is a viable defense for premises defendants facing toxic tort claims.
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