Since the 1970s, litigation concerning the dangers of asbestos in the workplace has transformed from a few workers’ compensation claims to hundreds of thousands of lawsuits against companies in nearly every industry. While the typical plaintiff in these claims is an employee injured while handling asbestos at the worksite, a new class of “peripheral plaintiffs” has recently emerged. These plaintiffs consist of family members who are exposed to asbestos after inhaling the dust that saturates an employee’s person and clothing. The family members then bring claims against the employers and the owners of the premises claiming that they were negligent in allowing the workers to carry asbestos home when the danger of asbestos was well known.
The highest courts of six states stand divided on whether an employer or premises owner owes a duty to these third-party plaintiffs to protect them from asbestos-related harm. Two states have relied heavily on the foreseeability of the harm to hold that landowners and employers do owe a duty to third-party plaintiffs. On the other hand, four states have focused on a range of factors, like the lack of a relationship between the parties and the need to constrain asbestos litigation, to hold that landowners and employers do not owe a duty to third-party plaintiffs.
This Note examines the interstate conflict and concludes that all six courts have engaged in an unclear and unnecessarily fact-specific analysis of duty. It argues that the Third Restatement’s method of determining duty represents a clearer approach, because it sends factual questions to the jury and encourages courts to take “no duty” decisions more seriously.