IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION

    SANDRA KIVELL, individually and as )
    Personal Representative of the Estate of )
    MILTON J. KIVELL, deceased,              )
                                             )
          Plaintiff,                         )
                                             )    C.A. No. N15C-07-093 ASB
                 v.                          )
                                             )
    UNION CARBIDE CORP. et al.,              )
                                             )
          Defendants.                        )
                                             )

                                  August 30, 2017
                           Upon Defendant Union Carbide’s
                            Motion for Summary Judgment
                                    GRANTED.

                                       ORDER

         Plaintiff Sandra Kivell (“Plaintiff”) cannot satisfy the summary judgment

criteria.1

         Plaintiff alleges that her husband, Milton Kivell (“Mr. Kivell”) contracted

mesothelioma which ultimately caused his death. Plaintiff alleges that Defendant

Union Carbide (“Defendant”) was the premises owner of a petrochemical facility in

Taft, Louisiana where Mr. Kivell worked. Between January 1967 and October 1969


1
 Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at
*3 (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del.
1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re
Asbestos Litigation (Helm), 2012 WL 3264925 (Del. Aug. 13, 2012).
Mr. Kivell worked as a union pipefitter and welder. Defendant’s Taft facility was a

large industrial plant, and Mr. Kivell was involved in initial construction. Mr. Kivell

did not work for Union Carbide directly, and he had no interaction with, and received

no direction from Union Carbide personnel while at the Taft facility. Rather, he was

employed by different third-party contractors, including Kiewitt Corporation and

Stearns Roger Corporation. Union Carbide hired these third-party contractors to

design and construct various process units. Mr. Kivell’s duties included running

pipe, and he stated that he worked “side-by-side” with insulators.

         Defendants contend that Union Carbide never employed Mr. Kivell directly,

and instead, he was employed by several different third-party engineering and

construction firms. Defendant contends that these firms exercised exclusive control

over Mr. Kivell’s work area, and Mr. Kivell had no interaction with, and received

no direction from Union Carbide personnel. Additionally, Defendant contends that

these employers supplied their own tools and materials, and Union Carbide was not

in custody or control of asbestos that Mr. Kivell was allegedly exposed to. Plaintiff

argues that Mr. Kivel needed permission from Union Carbide staff before

performing a “tie in” to an existing system,2 and Mr. Kivell “performed a fair bit of

maintenance at Union Carbide.”




2
    Plaintiff did not offer a citation to the record for this proposition.
      Plaintiff cites to Thomas v. A.P. Green Indus., Inc., a Louisiana case that dealt

with a similar scenario to the case at bar.3 In Thomas, the plaintiff’s employer signed

a contract with a company, ELI, to “design, engineer, and construct” two power

generation facilities.4 The plaintiff “never worked directly for ELI; rather, he worked

for three other companies involved in the construction of the [generation] facilities.”5

Thus, ELI raised the independent contractor defense to plaintiff’s claim. The court

stated:

      In resolving this issue, it is necessary to distinguish between the two
      ways in which a premises owner can be liable to employees of
      contractors who are injured while working on its premises: “(1)
      directly, for its own negligence; (2) vicariously, for the negligence of
      the independent contractor.”6


Here, Plaintiff concedes that Defendant is not vicariously liable for the negligence

of Mr. Kivell’s employer. “Although the independent contractor defense is a bar to

a vicarious liability claim, it is not a bar to direct liability claim arising out of a

premises-owner’s own negligence.”7 Generally, “a premises owner has a duty of

exercising reasonable care for the safety of persons on its premises and a duty of not

exposing such persons to unreasonable risks of injury or harm,” and “[t]his duty



3
  933 So.2d 843 (La.Ct.App. 2006).
4
  Id. at 848.
5
  Id.
6
  Id. at 852.
7
  Id.
extends to employees of independent contractors for whose benefit the owner must

take reasonable steps to ensure a safe working environment.”8 Plaintiff argues that

because the Thomas court relied heavily on the development of the evidence at trial

regarding ELI’s breach of duty, summary judgment is inappropriate in Mr. Kivell’s

case. Additionally, Plaintiff cites to Smith v. Union Carbide Corp., a 2014 decision

from the United States District Court for the Eastern District of Louisiana.9 In Smith,

Union Carbide argued that it was “entitled to summary judgment on [p]laintiff’s

survival and wrongful death claims because Union Carbide owed no duty to Mr.

Smith . . . under Louisiana law, ‘no legal duty exists between a premises owner and

the employee of a contractor, unless the premises owner exercised control over the

work of the contractor’.”10 Citing Thomas, the court stated that the duty of reasonable

care extends to employees of independent contractors, thus, it was clear that Union

Carbide owed a duty to the plaintiff, and the “question then becomes whether

[d]efendants are correct in arguing that there is insufficient evidence to prove any

breach of duty.”11 The Smith court cited Jefferson v. Cooper/T Smith Corp.,

demonstrating that the Jefferson trial court was reversed where it granted summary

judgment in favor of the premise owner when the “plaintiff presented a genuine



8
  Id.
9
  2014 WL 4930457 (E.D. La. Oct. 1, 2014).
10
   Id. at *2.
11
   Id. at *4.
issues of material fact as to whether the premises owner breached its independent

duty to its contractor’s workers on its premises.”12 In Jefferson, the plaintiff was a

longshoreman along a river, and he loaded, unloaded, transported, and handled

asbestos cargo on the owner’s premises for independent companies on the

premises.13 The Smith court analyzed Jefferson and stated:

      [T]he plaintiff presented no evidence showing that the premises owner
      ever handled, stored, or controlled the asbestos. Instead, the plaintiff
      provided evidence revealing that the workers on defendant’s property
      were exposed to asbestos during their work, suggesting that the
      premises owner was aware of the risks that asbestos posed, and
      indicating that the premises owner defendant had the authority to
      prevent asbestos-containing products from entering the premises. The
      court concluded that although it was clear that the defendant’s
      contractors maintained control and custody of the asbestos at all times,
      plaintiff had presented a genuine issue of material fact precluding
      summary judgment as to “whether [defendant] knew or should have
      known of the dangers posed by asbestos at the time [the deceased
      worked on defendant’s premises], whether [defendant] knew or should
      have known that its facilities were inadequate for the handling and
      storage of asbestos on or in its premises, and whether it could have
      refused such hazardous cargo.”14


In light of the Thomas, Smith, and Jefferson cases, it seems that a key issue the court

looks at in negligence actions against the premises owner under Louisiana law is

whether genuine issues of material fact exist as to defendant’s knowledge of the



12
   Id. at *5
13
   See Jefferson v. Cooper/T. Smith Corp., 858 So.2d 691, 695 (La.Ct.App. 2003).
14
   Smith, 2014 WL 4930457, at *5 (citing Jefferson v. Cooper/T Smith Corp., 858
So.2d 691 (La.Ct.App. 2003)).
dangers posed by asbestos at the time plaintiff was employed on the premises.

Plaintiff’s case is distinguishable from Thomas, Smith, and Jefferson. First, Roach

v.Air Liquide America, a United States District Court for the Western District of

Louisiana held that the Smtih court expanded the general land owner duty to include

that a land owner “had a duty to take reasonable steps to ensure a safe working

environment for the employees of an independent contractor.”15 In Roach, the court

held that Smtih was an “improper expansion of Louisiana law,” and “there is a

distinction between hazards that are inherent in a defendant’s premises (for which a

premises owner owes a duty) and hazards inherent in an independent contractor’s

job (for which a premises owner does not owe a duty).”16 The Roach court pointed

out that the hazard to the plaintiff in that case, silica, was “not inherent in defendant’s

premises; the airborne silica which was temporary in nature and transported to the

facility by the plaintiff’s employer and/or supplier. The hazard was inherent in the

performance of the sandblasting.”17 Thus, the court found that the it was “employer’s

duty to ensure plaintiff’s safety with respect to the specific hazards created by the

performance of [plaintiff’s] work.”18 Likewise, Plaintiff claims that her husband

was exposed to asbestos from products used while employed by an independent



15
   Roach v. Air Liquide America, 2016 WL 1453074, at *4 (W.D. La. Apr. 11, 2016).
16
   Id.
17
   Id.
18
   Id.
contractor at Defendant’s facility. Following the Roach decision, there is nothing in

the facts for a jury to infer that asbestos was inherent in Defendant’s premises.

        However, assuming that the Defendant owed Plaintiff a duty pursuant to

Smith, Plaintiff has not presented evidence that Defendant in this case knew of the

risks of asbestos, specified the use of asbestos in the construction, or that Mr. Kivell

used asbestos products in the construction of the building. For example, in Thomas,

the employer’s “construction manager, testified that in early 1970s [the company]

was constructing and engineering power plants on a world-wide basis and knew of

the hazards of asbestos exposure,” and there was evidence of contracts for asbestos

containing products to be used on the premises.19 Similarly, in Jefferson, the plaintiff

unloaded, handled, and transported asbestos on the defendant’s premises.

Additionally, in Smith, the plaintiff presented evidence that he was exposed to

asbestos while working on the defendant’s premises.           Here, Plaintiff has not

presented any evidence to create a genuine issue of material fact that Defendant

breached a duty owed to Mr. Kivell under Louisiana law. Therefore, Defendant

Union Carbide’s Motion for Summary Judgment on Plaintiff’s negligence claim is

granted.

        Likewise, summary judgment on Plaintiff’s strict liability claim is also

granted. In Louisiana, to hold a defendant strictly liable, “the plaintiff must prove:


19
     Thomas, 933 So.2d at 853.
(1) the thing which caused the damage was in the care, custody and control of the

defendant; (2) the thing had a vice or defect which created an unreasonable risk of

harm; and (3) the injuries were caused by the defect.”20 Additionally, custody, “for

the purposes of strict liability, does not depend upon ownership, but involves the

right of supervision, direction, and control as well as the right to benefit from the

thing controlled.”21 The “[m]ere physical presence of the thing on one’s premises

does not constitute custody.”22 Defendant is entitled to summary judgment on the

strict liability claim as well because there is nothing in the record indicating that

Defendant had any type of direction, control, or ownership of an asbestos product

used by Plaintiff.   Therefore, Defendant’s Motion for Summary Judgment is

GRANTED.

      IT IS SO ORDERED.

                                          /s/ Calvin L. Scott
                                          The Honorable Calvin L. Scott, Jr.




20
   Migliori v. Willows Apartments, 727 So.2d 1258, 1260 (La.Ct.App. 1999)(citing
Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990)).
21
   Haydel v. Hercules Transport, Inc., 654 So.2d 408, 414 (La.Ct.App. 1995).
22
   Id.
