In Utah, Asbestos Take-Home Exposure Equates to Damages Exposure For Premises Operators and Contractors

Mark Morris and Tyson Prisbrey | Snell & Wilmer

In its decision Larry Boynton v. Kennecott Utah Copper, LLC, 2021 UT 40, the Utah Supreme Court found that premises operators owed a duty of care to prevent take-home exposure to asbestos dust not only its employees, but also to independent contractors on the premises. The Court found also that by directing a contractor on how to handle asbestos, a premises operator retained control over the contractor’s handling of the asbestos and thus retained the liability.

During the 1960s and 1970s, Larry Boynton was exposed on several job sites to asbestos while working as a laborer/electrician: as an employee of Kennecott Utah Copper, LLC (“Kennecott”) and later as an independent contractor working at Kennecott’s smelter; as an employee of L.E. Myers, an independent contractor at Phillips 66/ ConocoPhillips’s (“Conoco”) oil refinery; and as an employee of Jelco-Jacobsen, general contractor for PacifiCorp to build its Huntington Canyon Power Plant. While working at Kennecott’s and Conoco’s facilities, and while apparently not directly exposed to asbestos, he worked closely with Kennecott and Conoco employees who were working with asbestos-laden material, which allegedly created asbestos dust. While working at the PacifiCorp plant, PacifiCorp did not use its own employees to handle asbestos material, but instead contracted with Jelco-Jacobsen to build the plant and use asbestos-containing material. Larry alleged that during these years, he brought home asbestos dust in his clothes and car, exposing his wife Barbara to asbestos. Barbara was diagnosed with malignant mesothelioma in February of 2016 and died a few weeks thereafter.

Larry filed suit against Kennecott, Conoco, and PacifiCorp for strict premises liability and negligence. The trial court granted summary judgment in favor of two of the operators, finding no duty to protect against “take home” exposure. The Court analyzed the duties owed by Kennecott and Conoco to Barbara based on the take-home exposure of asbestos generated by Kennecott and Conoco employees. The Court then analyzed the duties owed by PacifiCorp to Barbara based on PacifiCorp’s retained control over Jelco-Jacobsen’s work with asbestos.

First, the Supreme Court found that premises operators like Kennecott and Conoco have a duty to exercise reasonable care to prevent take-home expose to asbestos. The Court analyzed the factors to establish a duty of care, concluding that: 1) Kennecott and Conoco caused its employees to handle asbestos, thereby causing asbestos dust to be released, which was an affirmative act; 2) the risk of take-home exposure to asbestos was unambiguously foreseeable at the time; and 3) premises operators are better suited to prevent injury from take-home exposure due to their greater control and knowledge.

Second, the Supreme Court analyzed whether PacifiCorp’s retained control over Jelco-Jacobsen’s work with asbestos would open PacifiCorp to liability for take-home exposure of asbestos. The traditional rule is that the party contracting with an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or its servants because the party who hires the independent contractor does not participate in the way in which the contractor’s work is performed, and therefore owes no duty of care concerning the safety of the independent contractor’s employees. But the Court found that the “retained control” doctrine is a common exception: for example, if the employers of a general contractor retains control over the operative details of doing the work of the subcontractors, the general contractor retains the liability.

The Court found that PacifiCorp’s contract with Jelco-Jacobsen demonstrated that PacifiCorp retained at least some control over Jelco-Jacobsen. The contract explicitly required Jelco-Jacobsen to use asbestos materials, and even required approval from PacifiCorp for any substitution of materials. The contract also provided PacifiCorp the general right to inspect the job and stop work if the job was deemed unsafe. The contract required certain means and methods of the work; PacifiCorp specified how to cut and install insulation, the thickness of the insulation, how to mix the asbestos cement, and how to lay the cement. Finally, the contract provided that PacifiCorp would direct Jelco-Jacobsen in dust control safety measures. These four contractual provisions demonstrated that PacifiCorp retained at least some control over Jelco-Jacobsen such that the Court reversed and remanded for the district court to define the injury-causing activity to determine whether PacifiCorp retained control over any injury-causing activities.

Some take-aways for owners and contractors: First, premises operators dealing with asbestos cleanup have a duty to exercise reasonable care to prevent take-home exposure of asbestos. Second, the duty is owed not only to their own employees, but to contractors present on the premises. Finally, to minimize exposure to liability, premises operators should not direct how contractors deal with asbestos cleanup.

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