Jackson Otto | Husch Blackwell
Utah’s Supreme Court recently issued an opinion which dramatically expands premise owners’ liability for asbestos-related injuries. On August 5, 2021, the Court reversed Utah’s Court of Appeals and held that a lawsuit could proceed against two premises owners on the theory that asbestos dust from their facilities was brought home on the clothing of a non-employee contractor, causing his spouse to develop mesothelioma. For the first time, premises owners or operators may be liable for injuries alleged by anyone living under the same roof as one of their former contractors.
In Boynton v. Kennecott Utah Copper, et al., Larry Boynton alleged that he was exposed to asbestos while working as a laborer and electrician at several job sites in the 1960s and 1970s. He claimed that he brought some of this asbestos home on his clothing and that his wife, Barbara Boynton, was exposed when she did his laundry. Mrs. Boynton subsequently contracted mesothelioma and passed away from her disease.
Among the job sites that he worked were facilities controlled by defendants ConocoPhillips, Kennecott Utah Copper LLC, and PacifiCorp. All three defendants moved for summary judgment. ConocoPhillips and Kennecott argued that they had no duty to Mrs. Boynton – who never worked for either company and was never present on either work site – and that they had taken no action toward Mrs. Boynton that would give rise to such a duty. In contrast, PacifiCorp argued that it did not control the work of Jelco-Jacobson (Mr. Boynton’s direct employer on the job) and that under Utah law it therefore had no liability for the actions of the contractor.
The trial court denied Kennecott’s motion due to certain factual disputes regarding actions taken by the company, but granted the other two motions and held that neither ConocoPhillips nor PacifiCorp could be held liable for Mrs. Boynton’s medical condition. The Utah Supreme Court reversed the trial court’s rulings as to ConocoPhillips and PacifiCorp and affirmed the ruling against Kennecott, allowing the case to proceed against all three companies.
Premises Owners Have Duty to Take-Home Plaintiffs
The Court first addressed the motions of Kennecott and ConocoPhillips and held for the first time that premises owners have a duty to exercise reasonable care to prevent take-home exposures to asbestos. In its analysis, the Court broadly opined that risks associated with asbestos were foreseeable as early as 1961, and that premises operators “launched the instrument of harm” by choosing to use asbestos-containing materials and causing workers to come into contact with them. The Court stated that premises operators “will have engaged in misfeasance” against its workers when they:
1) Instruct workers to handle asbestos;
2) Have nearby workers handle asbestos (i.e., in the injured party’s vicinity);
3) Place asbestos on the premises;
4) Send employees to a workspace containing asbestos; or
5) Purchase a workspace containing asbestos and invite workers onto it.
The Court stated that it was “common sense” that take-home asbestos injuries were foreseeable by the early 1960s. The scope of this holding is surprising in that this exposure occurred more than a decade prior to the first OSHA regulation regarding asbestos in the workplace, and apparently disregards the state of scientific literature at the time. The Court suggested that premises owners should have taken affirmative actions to prevent take-home exposures. It specified that companies should have provided laundry services to clean workers’ clothes before they returned home. Because ConocoPhillips and Kennecott failed to do so, the Court held that they may be held liable for Mrs. Boynton’s injuries and denied summary judgment.
Premises Owners Are Liable for Subcontractors’ Conduct Where the Contract Grants Them Control
The Court next turned to PacifiCorp’s motion. It held that PacifiCorp retained sufficient control over contractor Jelco-Jacobson to be liable in its place for injuries to Mr. Boynton’s wife. Utah law traditionally held that a company employing an independent contractor is not liable for injuries caused to another due to the acts or omissions of that contractor (for a recent application of this rule, see our article discussing North Carolina’s independent contractor exception). However, in this case the Court found that PacifiCorp “retained control” over Jelco-Jacobson due to certain contractual provisions that specified materials to be used on the job, specified the methods by which certain work was to be performed, and gave PacifiCorp the right to test, inspect, and stop the work if it deemed necessary. The contract also explicitly reserved PacifiCorp the responsibility for directing certain safety and dust control measures.
Regardless of the actions ultimately taken by PacifiCorp under the contract, the Court found that the existence of these contractual provisions was per se sufficient to create a question of fact as to whether the company retained control over the contractor such that it could be said to have “actively participated” in directing Mr. Boynton’s work and subsequent exposure to asbestos. The Court remanded the case to the trial court to determine whether PacifiCorp retained control over the specific activities which caused the alleged harm to Mrs. Boynton.
The case is Boynton v. Kennecott Utah Copper LLC, et al., 2021 UT 40, Case No. 20190259. A copy of the opinion can be found here.