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Asbestos-R.I. Superior Court Holds Major Hospital May Be Liable To Contractor's Employee For Presence Of Asbestos

The Rhode Island Superior Court has held that the state's largest hospital may be liable to the widow of a deceased HVAC worker who was allegedly exposed to asbestos while performing ductwork at the hospital in the 1960s and 1970s. The court said if the hospital knew or should have known of the presence of the asbestos and the worker did not know of its presence, the hospital would have a duty to warn the employee. The court denied without prejudice the hospital's motion for summary judgment subject to discovery of the hospital's records.

The court reviewed Rhode Island law with respect to the potential liability of property owners. It said owners have a duty of care to protect persons reasonably expected to be on their premises against the risk of a dangerous condition provided the landowner knows or by the exercise of reasonable care would have discovered the dangerous condition. With respect to independent contractors, the property owner would have a duty to warn the contractor when the owners knows or should know of a hidden danger and the contractor has no such knowledge. Accordingly, the court said the hospital had a duty of care only with respect to asbestos on its property of which it was aware or should have been aware and of which the worker did not know.

The court rejected the hospital's argument that because the worker's employer was an independent contractor, the hospital could not be liable to the worker. There are exceptions to the rule including when there is a "peculiar risk" of physical injury on the property. On the other hand, the court rejected plaintiff's argument that the hospital must have known of the presence of asbestos simply because it was a ubiquitous building material when the worker was at the hospital. However, the court said plaintiff was entitled to conduct discovery of the contracts between the hospital and its contractors to see if the contracts refer to asbestos. Accordingly, the court denied the hospital's summary judgment motion without prejudice.

It seems that the next legal skirmish in this dispute may address the "sophisticated intermediary" defense upon which the Rhode Island Supreme Court has never ruled. If the contracts between the hospital and its contractors, including the worker's employer, refer to asbestos, then obviously, the employer was aware of its presence. Would the employer be deemed a sophisticated entity such that its knowledge of the presence of asbestos -and, its apparent failure to warn its own employees-excuse the hospital from having to warn the contractor's employees directly?

Lepore v A.O. Smith Corp., P.C. No. 12-1469, slip decision (R.I. Super. Jan 15, 2014)

For information about our asbestos and toxic tort defense practice, please see: http://www.sfandllaw.com/Practice-Areas/Toxic-Tort-Asbestos-Defense.shtml

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