May 31, 2017 Practice Points

Eleventh Circuit: Alabama Law Applies Minority Rule in Toxic Tort Take-Home Exposure Cases against Employers

By W. Clay Massey

On April 26, 2017, the Eleventh Circuit Court of Appeals affirmed a district court’s determination that Alabama law imposes a duty on employers to protect employees’ household relatives from exposures to toxic substances brought home from the workplace. Bobo v. Tennessee Valley Authority, No. 15-15271, 2017 WL 1488237 (11th Cir. Apr. 16, 2017). In so holding, the Eleventh Circuit determined that Alabama would side with the minority view on this issue, holding that under Alabama law the foreseeability of harm, and not the relationship of the parties or public policy, controls whether an employer has a duty to protect others. Id. at **7–8.

In Bobo, the plaintiff’s husband worked as a laborer at the Tennessee Valley Authority (TVA) from 1975 until 1997. Id. at *3. As part of his job, the plaintiff’s husband cleaned up asbestos-containing insulation in a TVA nuclear power plant in Athens, Alabama. That activity generated asbestos-containing dust that accumulated on his clothing. He returned home wearing those clothes, which were handled and laundered by the plaintiff during her husband’s 22 years working at the TVA facility. After years of exposure to asbestos dust from her husband’s clothes, the plaintiff was diagnosed with pleural mesothelioma, a cancer of the lining of the lung. She sued TVA for her disease, from which she died during the litigation. Id.

After a three-day bench trial, the district court held that TVA was liable for the plaintiff’s disease. The district court held that TVA had a duty to protect the plaintiff from asbestos at TVA’s facility, even though she was not an employee and did not work there. Notably, the district court certified the question to the Alabama Supreme Court of whether Alabama law imposed such a duty, but that court declined to answer without explanation. Id. at *2.

On appeal, the Eleventh Circuit affirmed. Id. at *9. Based on its examination of Alabama law, the court determined that the Alabama Supreme Court would find that TVA had a duty to protect the non-employee plaintiff from asbestos her employee husband brought home on his clothes. Id. at **5–9. The court recognized that this determination would put Alabama in the “minority” of states addressing this issue, finding that the majority of states that have addressed the issue imposed no duty on an employer to protect non-employee household members from the hazards of toxic substances brought home on an employee’s clothes. Id. at *5. The court also acknowledged that it would generally presume Alabama courts would adopt the majority rule on a legal issue. However, the court determined that Alabama law’s strong focus on foreseeability as the controlling factor in whether a duty of care exists indicated that Alabama courts would not follow the majority rule. Id. at *5–6. Rather, the court determined, Alabama law would impose a duty to a non-employee where the general risk of harm to the nonemployee was foreseeable.

Adopting the minority rule for Alabama, the court determined that the risk of disease to the plaintiff from her husband’s work with asbestos at the nuclear power facility was foreseeable to TVA. Id. at *7–9. The court principally focused on the evidence that OSHA regulations and TVA’s own policies illustrated that this risk was foreseeable. Accordingly, the court held that TVA owed the plaintiff a duty of care and was liable for not following its own procedures to protect the plaintiff from being exposed to asbestos from its facility brought home on her husband’s clothes.

The Bobo decision is significant because it expands an Alabama employer’s duty of care in its workplace conditions and activities to non-employees outside of the workplace who could foreseeably be harmed by those conditions and activities. This decision also indicates that the Eleventh Circuit could reach the same result in states that have not addressed this issue but have law focusing on foreseeability of harm as the primary factor controlling whether a duty of care exists. Whether the court would extend the scope of an employer’s workplace duty of care to persons outside of an employee’s household is unclear, but that appears at least possible if the risk of harm to the person is reasonably foreseeable to the employer. That issue is certain to be litigated in the district courts within the Eleventh Circuit based on the Bobo decision.  

W. Clay Massey is a partner at Alston & Bird LLP in Atlanta, Georgia.

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