Law Bars Tort Claim Based on ‘Take Home’ Exposure to Asbestos from Workplace

Where Exposure Takes Place Away from Property Owner’s Premises

Boley v. Goodyear Tire & Rubber Co., Slip Opinion No. 2010-Ohio-2550.
Cuyahoga App. No. 91404, 2009-Ohio-491. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2550.pdf

(June 10, 2010) The Supreme Court of Ohio ruled today that a premises owner is not liable for tort claims arising from exposure to asbestos located on the owner’s property, unless the exposure occurred at the owner’s property. The Court’s 5-1 decision, which affirmed a judgment of the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.

Clayton Adams of Cleveland was exposed to workplace asbestos while he was employed by the Goodyear Tire & Rubber company between 1973 and 1983. During that period Clayton’s wife, Mary Adams, routinely shook asbestos-bearing dust from his work clothes in the course of doing her husband’s laundry. In March 2007, Mary was diagnosed with malignant mesothelioma, a lung disease linked to inhalation of asbestos fibers. She died of the disease four months later.

Clayton Adams and the administratrix of Mary’s estate, Cheryl Boley, filed a lawsuit against multiple defendants including Goodyear in the Cuyahoga County Court of Common Pleas, asserting among other claims that Goodyear had been negligent in exposing its workers’ family members to the risk of asbestos-related illness arising from asbestos dust the workers brought home on their persons and clothing.

Goodyear moved for summary judgment dismissing Boley and Adams’ claims against the company. They cited R.C. 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005, which exempts property owners from liability “for any injury to any individual resulting from asbestos exposure unless that individual’s alleged exposure occurred while the individual was at the premises owner’s property.” The trial court granted summary judgment in favor of Goodyear, ruling that claims based on “second-hand” exposure of workers’ family members to asbestos the employee brought home from the workplace were explicitly barred by R.C. 2307.941(A)(1). On review, the 8th District Court of Appeals affirmed the trial court’s judgment. Clayton Adams and Boley sought and were granted Supreme Court review of the 8th District’s decision.

In today’s lead opinion, Justice O’Donnell wrote: “Clayton and Boley contend that R.C. 2307.941(A), which provides that subdivisions (A)(1), (2), and (3) are applicable only to tort actions for asbestos claims against a premises owner for ‘exposure to asbestos on the premises owner’s property’ (emphasis added), does not apply to their claims because Mary’s ‘exposure to asbestos’ occurred at her home rather than on Goodyear’s property. Therefore, they assert that R.C. 2307.941(A)(1) does not bar Goodyear’s liability, and they urge that a contrary interpretation would violate their rights to due process.”

“When the statute is read in its entirety, the legislative intent behind R.C. 2307.941(A) is apparent – R.C. 2307.941(A)(1) bars tort liability for asbestos claims stemming from exposure that does not occur at the premises owner’s property. ... Were we to apply the interpretation offered by Clayton and Boley, which is to read the phrase ‘exposure to asbestos’ in R.C. 2307.941(A) as modifying ‘on the premises owner’s property,’ we would be giving no meaning to subdivision (A)(1). Specifically, the event that would prohibit liability pursuant to subdivision (A)(1) – asbestos exposure away from the premises owner’s property – would also preclude R.C. 2307.941(A)(1) from barring such claims.”

“The better view is to read the statute to give effect to all of its parts. ... The only interpretation of R.C. 2307.941 that gives effect to the language employed by the General Assembly in subdivision (A)(1) is that which interprets the phrase ‘on the premises owner’s property’ to modify the word ‘asbestos.’ Moreover, when read together, R.C. 2307.941(A)(1), (2), and (3) further reveal the General Assembly’s intent to limit the liability of a premises owner to instances where the exposure occurred at its property. Specifically, subdivisions (A)(1), (2), and (3) each restrict the owner’s liability to exposure that occurred at the premises owner’s property. Subdivision (A)(1) provides a general exception from liability for a premises owner when the asbestos exposure does not occur at the owner’s property; subdivisions (2) and (3) further limit that liability by precluding liability in certain circumstances where exposure occurred at the owner’s property.”

“Thus, the General Assembly has manifested its intent to preclude liability for premises owners from claims for asbestos exposure that occurs away from the owner’s premises. ... Because Mary’s exposure did not occur at Goodyear’s property, R.C. 2307.941(A)(1) precludes Goodyear’s liability as to this claim.”

Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.

Justice O’Connor also entered a separate opinion, joined by Justice Lanzinger, in which she responded to the appellants’ argument that the statute’s preclusion of employer liability for “take home” asbestos exposure of employees’ family members left them without legal recourse for Mary Adams’ asbestos-related illness and death.

Justice O’Connor observed that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. She also noted that Clayton Adams and Boley had named more than 200 defendants other than Goodyear in their complaint, and that their attorneys had indicated during oral argument that they had proceeded to trial against at least one other defendant and had resolved and/or settled claims against others. While acknowledging the plaintiffs’ dissatisfaction with a statutory scheme that bars any recovery from Goodyear for Mary’s asbestos-related illness and death, Justice O’Connor wrote that the Ohio Constitution precludes courts and judges from usurping the power of the legislative branch to adopt or amend statutes that set the public policy of the state.

Justice Paul E. Pfeifer entered a dissent noting that the plain language of R.C. 2307.941 limits the application of that statute to claims brought against a premises owner “for exposure to asbestos on the premises owner’s property.” He wrote: “Boley does not claim that Adams was exposed to asbestos on Goodyear's property, and yet she is being told by this court that she can’t bring a claim for ‘exposure to asbestos on [Goodyear's] property.’ ... Boley has a completely different claim. She claims that Adams was exposed to asbestos in Adams’s own home, not on Goodyear’s property. She claims that the asbestos Adams was exposed to was brought to the home by Adams’s husband, who worked at Goodyear. Boley is not seeking relief pursuant to R.C 2307.941. She cannot because she never entered upon Goodyear's property. It seems mean-spirited to deny her claim while so obviously misconstruing it.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.

Contacts
Thomas W. Bevan, 330.467.8571, for Clayton Adams and Cheryl Boley, Administratrix of Estate of Mary Adams.

Richard D. Schuster, 614.464.5475, for Goodyear Tire and Rubber Company.

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