IN THE SUPERIOR COURT OF THE STATE ()F DELAWARE
IN RE: ASBESTOS LITIGATION
ELIZABETH RAMSEY,

Administrator of the Estate of
DOROTHY RAMSEY, deceased,

V. C.A. No. N14C-01-287 ASB

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Plaintiff, )
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ATLAS TURNER LTD., et al., )
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Defendants.
Q_IZLN_I£N_

Submitted: December 8, 2016
Decided: February 2, 2017

Upon Defendam Georgz'a Southem Universz`ly Aa’vancea’ Development Center ’s
Motionfor Summary Jua’gment, GRANTED.

Thomas Crumplar, Esquire, and Raeann Warner, Esquire, of Jacobs & Crumplar,
P.A., Wilmington, Delaware. Atz‘orneysfor PlaintWElizabeth Ramsey.

Eileen M. Ford, Esquire, and Megan T. Mantzavinos, Esquire, of Marks, O’Neill,

O’Brien, Doherty & Kelly, P.C., Of Wilmington, Delaware. Attorneys for
Defena’am Georgz'a Southern Um'versily Aa'vanced Development Center.

MEDINILLA, J.

INTRODUCTION

Dorothy Ramsey (“Plaintiff’), through her estate, alleges Defendant Georgia
Southern University Advanced Development Center (“Herty”) negligently failed to
warn her of the risks of take-home exposure to its asbestos paper product used at
her husband’s workplace from 1976-1980.l She argues that Herty owed her a duty
to warn because it was foreseeable that her husband would transport home asbestos
debris that adhered to his uniform and unwittingly expose Plaintiff to this debris
when she laundered his clothes. She alleges that Herty’s failure to warn her of this
risk was the proximate cause of her lung cancer.

Herty moves for summary judgment and argues that it did not owe Plaintiff a
duty of care.z Defendant manufacturer argues that Plaintiff’ s allegations are claims
of nonfeasance and require Plaintiff to identify a “special relationship” before
liability may attach to its alleged failure to act. Further, Herty argues that Plaintiff
cannot identify a “special relationship” and no such special relationship exists.

Conversely, Plaintiff characterizes her claims as affirmative acts of negligent

 

l The terms “take-home” and “household” exposure are used colloquially and interchangeably to
describe the type of exposure alleged by Plaintiff: exposure brought into Plaintiff"s home as a
result of another household member’s external exposure to asbestos. See In re Asbestos Lz`lig.,
2007 WL 4571196, at *l n.l (Del. Super. Dec. 2l, 2007).

2 Herty also moves for summary judgment on product nexus and causation, strict liability, and
civil conspiracy Plaintiff does not contest summary judgment as to strict liability and civil
conspiracy. Since the Court finds that Herty did not owe a duty of care to Plaintiff, the issue of
product nexus and causation is moot.

conduct, i.e., misfeasance. As such, she argues against dismissal and contends that
Herty owed her a duty of care to warn her of the risks of take-home asbestos
exposure because it knew or should have known that its product would adhere to
the clothes of employees and expose household members.

The central issue in this Motion is whether Prz`ce v. E.I. DuPOnt de Nemours
& Co. and Riea’el v. IC] Americas lnc. apply to the facts of this case.3 Both Price
and Rz`edel dealt with claims of negligence asserted against the employer of the
plaintiff’s spouse. Herty contends that both cases are applicable to a spouse’s
claim of take-home asbestos exposure against a manufacturer who supplies an
asbestos product to the employer of the plaintiff’ s spouse. Plaintiff argues that
both cases are inapt because Herty was not Plaintiff s husband’s employer.

The Court finds that this case fits within the legal parameters and rationale
of Price and Rz`edel. Consistent with both cases, the Court finds that Plaintiff
alleges claims of nonfeasance. Thus, Herty does not owe Plaintiff a general duty
of care. Further, the Court finds that Plaintiff has not identified any evidence of a
special relationship between herself and Herty. Therefore, Herty has met its
burden of proving that no duty of care exists and Herty’s Motion for Summary

Judgment is GRANTED.

 

3 Prl'ce v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011) (3-2); Riedel v. ICIAmerl'cas
Irzc., 968 A.2d 17 (Del. 2009).

FACTUAL AND PROCEDURAL BACKGROUND
F actual Background

Robert Ramsey, Plaintiff s husband, began working at Haveg Industrial
Plant (“Haveg”) in Marshallton, Delaware in 1968.4 From 1973 to 1979, Mr.
Ramsey worked at Haveg’s Chemtite Department located on the Marshallton
campus.5 Working in the Chemtite Department, he manufactured pipe and pipe
fittings using resin-soaked asbestos paper.6

From 1976 until 1980, Herty manufactured and supplied asbestos paper to
Haveg.7 Haveg purchased tons of Herty’s asbestos paper during this period.8
Haveg also purchased asbestos paper and asbestos-containing products from other
manufacturers while Mr. Ramsey worked in the Chemtite Department.9

Plaintiff alleges that Mr. Ramsey’s clothes were laden with asbestos dust
emitted from Herty’s paper product during his work fashioning pipe and pipe

0

fittings at Haveg.l With his clothes caked in debris from Herty’s product, Mr.

 

4 See Plaintiff`s Response Brief at l [hereinafter Plaintiff s Br.].

5 S@e 1a ar 1-2.

6 See id.

7 See Defendant’s Opening Br. at 4-5 [hereinafter Defendant’s Br.].

8 See Plaintiff’s Br. at Exhibit E (reproducing product~order logs at Haveg during this period).
9 See Defendant’s Br. at 5.

10 See Plaintiff’s Br. at l.

l Gnce home, Plaintiff shook out his work uniform and

Ramsey returned home.l
washed it twice a week in their basement.12 She alleges that her household
exposure to asbestos from laundering her husband’s clothes was the proximate
cause of her lung cancer.13
Procedural Background

Plaintiff filed her Complaint against Herty and other manufacturers of
asbestos-containing products at Haveg during Mr. Ramsey’s employment14 The
Complaint alleges that Herty, among other manufactures: (l) “Chose not to
adequately warn” Plaintiff of the potential for household exposure to its product;
(2) “Chose not to adequately test, research and investigate” the effects of
household exposure; (3) “Chose not to adequately package, distribute and use

asbestos” so as to minimize the release of asbestos fibers; and (4) “Chose not to

take adequate steps to recall” its asbestos paper product or make it safer.15

 

“ see mt ar 1-2.
12 See id. at 2.
13 See id. at l. See Defendant’s Br. at l.

14 See Original Complaint, Ramsey v. Atlas Turner, Lla'., C.A. No. 14C-01-287 ASB (Del. Super.
Jan. 31, 2014) (emphasis added) [hereinafter Complaint]. See also D.l. #54929727.

15 Complaint at 11 16.

Plaintiff passed away during this litigation and Elizabeth Ramsey was
replaced as a personal representative of Plaintiff’ s estate.16 Herty then filed the
pending Motion for Summary Judgment.17 Having considered the arguments in the
parties’ filings and at oral argument on the Motion, the issue is ripe for decision.18

CONTENTIONS OF THE PARTIES

The salient issue in this Motion is whether manufacturer Herty owed a duty
of care to Plaintiff. On this issue, the parties argue two conceptually distinct bases
for the existence or nonexistence of a duty of care. Herty’s argument proceeds as
if this case represents a logical extension of Price and Rieclel. lt contends that
Plaintiff"s allegations are properly characterized as alleged failures to act, i.e.,

nonfeasance.19 As such, Herty would only owe a duty of care to Plaintiff if she

stood in a special relationship with Herty.20 Herty highlights the significance of

 

16 Plaintiff amended her Complaint on August 27, 2015 to reflect this substitution See D.I.
#57780529. She again amended the Complaint while this Opinion was pending, on January 4,
2017, amending the relevant years of Mrs. Ramsey’s alleged exposure. See D.l. #60030527.

17 See D.l. #57991399 (filed October 8, 2015). Plaintiff’ s Response Brief was filed on October
20, 2015. See D.l. #58095805. Defendant’s Reply Brief was filed on November 12, 2015. See
D.I. #58155944. The Motion was subsequently continued and then re-noticed on June 21, 2016.
See D.I. #59174296. The Court heard oral argument on the Motion on December 8, 2016 and
reserved decision. See D.l. #59955468.

18 Although the Court originally advised the parties that the Court would seek additional briefing
on the issues addressed in this Opinion, the Court subsequently determined that no additional
briefing was necessary to resolve Herty’s Motion.

19 Defendant’s Br. at 6. See also Defendant’s Reply Brief at 3.

20 Defendant’s Br. at 6.

the parties’ relationship as even more removed than in the employer-employee’s
spouse context: “Logic, therefore, suggest[s] that, due to the even further
attenuated relationship between Herty and Mrs. Ramsey, no liability should
exist.”zl

Plaintiff argues that this case is distinguishable from Price and Riedel and
should be analyzed under general principles of tort law. Casting Herty’s argument
as a “radical expansion” of Prz`ce and Rieclel, she identifies Herty’s affirmative act
as that of all manufacturers: making and releasing an asbestos-containing product
into the stream of commerce22 Accordingly, Plaintiff argues that Herty owed a
duty of reasonable care to all foreseeable plaintiffs of its negligence Thus,
Plaintiff contends that Herty’s duty was automatic: to exercise care as a reasonably
prudent manufacturer under the circumstances23

STANDARD OF REVIEW
The burden of proof on a motion for summary judgment under Rule 56 falls

on the moving party to demonstrate that “there is no genuine issues as to any

material fact and that the moving party is entitled to judgment as a matter of

 

2‘1¢1. at 6.
22 see Plaintier Br. at 9.

22 see zd. wiring Price v. E.I_ DuP@m de Nem@urs & Co., 26 A.sd 162, 167 (Del. 201 i)).

law.”24 If the moving party satisfies its initial burden, the non-moving party must
sufficiently establish the “existence of one or more genuine issues of material
fact.”25 Summary judgment will not be granted if there is a material fact in dispute
or if “it seems desirable to inquire thoroughly into [the facts] in order to clarify the
application of the law to the circumstances.”26 “All facts and reasonable inferences
must be considered in a light most favorable to the non-moving party.”27
DISCUSSION

A plaintiff claiming another negligently caused her harm must prove: the
defendant owed her a duty of care; the defendant breached this duty; and the
breach proximately caused her injuries.28 While issues of breach and causation are

often left to a jury to decide, the issue of whether the defendant owed the plaintiff a

duty rests with the Court.29 Delaware courts generally look to the Restatement

 

24 DEL. SUPER. CT. Clv. R. 56(c).

25 Qualizy Ezec. Co., lnc. v. E. smzes Consr. serv., lnc., 663 A.2d 488, 1995 WL 379125, at *3-4
(Del. 1995) (TABLE). See also Rule 56(e); Moore v. Sz`zemore, 405 A.2d 679, 681 (Del. 1979).

26 Ebersole v. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962).

22 ivan v. A.C. & s. Co., lnc., 517 A.2d 690, 692 (r)ei. super 1986) reitng Mechezl v. Palmer,
343 A.2d 620, 621 (1)61. 1975);A11S¢6¢e Aum raising Co. v. caldwell 394 A.2d 748, 752 (Der
Super. 1978)).

28 See Doe 30 ’s Mother v. Braa'ley, 58 A.3d 429, 447 (Del. Super. 2012) (citing Prl`ce, 26 A.3d at
166).

22 see Price, 26 A.3d 61 166 (citing Rzedel v. 1C1 Amerzcas lnc., 968 A.2d 17, 20 (Del. 2009)).
See also Naia'u v. Lal`ra’, 539 A.2d 1064, 1070 (Del. 1988) (holding breach and causation issues

8

(Second) of Torts (“Restatement”) to determine whether a duty exists between the
parties.30

The parties disagree on the proper approach to duty of care. Herty proceeds
to analyze duty of care as the Supreme Court did in Price and Riea’el, asking
whether Plaintiff` s allegations are based in misfeasance or nonfeasance. Plaintiff
argues that this approach is inapposite because it would unnecessarily expand the
holdings of those cases to all claims of take-home asbestos exposure arising out of
the employment context. Contending that this broader conclusion was not
intended in Price, Plaintiff analyzes the issue of duty pursuant to traditional
product liability and negligence jurisprudence

The present issue appears to be a novel one following the Court’s decision in
Price: are Prz`ce and Riedel limited to take-home asbestos cases where the plaintiff-
spouse alleges the employer failed to take adequate steps to protect the plaintiff?
Or are they equally applicable to cases where a manufacturer supplies an asbestos-
containing product that poses a risk of household exposure to the employee’s
spouse? Because the answers to these two questions impact the Court’s analysis of

the present Motion, the Court will outline both Plaintiff and Herty’s distinct

 

were properly left to jury in wrongful death action where psychiatrist released psychiatric patient
who subsequently killed plaintiff s decedent in automobile accident).

30 Doe 30 ’s Mother, 58 A.3d at 447 (citing Prl`ce, 26 A.3d at 167 n.9; Rl'ea'el, 968 A.2d at 22).
9

approaches to this issue before determining whether Herty owed Plaintiff a duty of

Cal’€ .

I. Plaintiff’ s Approach: A Manufacturer’s General Duty of Care in
Delaware

Delaware courts have consistently held that a manufacturer owes a duty of
care to warn reasonably foreseeable plaintiffs of an unreasonable risk of harm
associated with its product,31 “Among the essential elements that a plaintiff must
prove in a negligence-based products liability case is that the defendant had a duty
to warn of dangers associate[d] with its products.”32 “The manufacturer’s duty to
warn is dependent on whether it had knowledge of the hazards associated with its
product.”33 Proof of actual or constructive knowledge is sufficient to overcome a
manufacturer’s motion for summary judgment34 The manufacturer’s knowledge
“is a function of what a reasonably prudent individual would have known under the

. . . . . 5
pertinent circumstances at the time in question.”3

 

31 See, e.g., 112 re Asl)estos Li'tz'g., 799 A.2d 1151 (Del. 2002) (holding there was insufficient
evidence of manufacturer’s knowledge of asbestos dangers in its product to impose duty to warn
plaintiff).

22 Wukerson v. Am. honda Moz@r C@., lnc., 2008 WL 162522, at *2 (Dei. super Jan. 17, 2008)
(quoting fn re Asbeslos Lz'lz`g., 799 A.2d at 1152).

33 fn re Asbestos Li`lz`g., 799 A.2d at 1152.

24 see zd. ar 1152-53 wiring Gmham v. Pmsburgh earning Corp., 593 A.2d 567, 568 (D@i.
Super. 1990)).

35 la at 1153 reitng Gmham, 593 A.2d 61571).

10

Asbestos plaintiffs alleging a failure-to-warn theory of liability against a

product manufacturer typically identify a duty of care arising under § 388 of the

Restatement, entitled “Chattel Known to Be Dangerous for Intended Use.”36

Section 388 states:

One who supplies directly or through a third person a
chattel for another to use is subject to liability to those
whom the supplier should expect to use the chattel with
the consent of the other or to be endangered by its
probable use, for physical harm caused by the use of the
chattel in the manner for which and by a person for
whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is
likely to be dangerous for the use for which it is supplied,
and

(b) has no reason to believe that those for whose use the
chattel is supplied will realize its dangerous condition,
and

(c) fails to exercise reasonable care to inform them of its
dangerous condition or of the facts which make it likely
to be dangerous37

Asbestos claims alleging a duty of care under this section have been addressed by

this Court in the context of summary judgment.38

 

36 REsrATEi\/iENT (SECoND) oF ToRTs § 388 (1965). See, e.g., Wilkerson, 2008 WL 162522, at
*1-2.

37 § 388 (emphasis added).

22 sea e.g., Wukerson, 2008 WL 162522.

11

lnstead of arguing that Herty owed Plaintiff a duty of care under § 388,
Plaintiff cursorin cites to a comment under this section and proceeds to discuss
case law that is distinguishable from the facts of this case.39 As a result, Plaintiff
fails to provide ample authority to support her argument that this general duty of
care extends, ipso facro, to the context of take-home asbestos exposure cases
involving manufacturers

II. Defendant’s Approach Under Price and Riedel: A
Misfeasance/Nonfeasance Framework

The Court in Prz'ce held that an employer in Delaware does not owe a duty
of care to its employee’s spouse for failing to act to protect the spouse from an
unreasonable risk of harm on its premises.40 In so holding, the Court analyzed the

case consistent with Rz`ea’el, finding the plaintiff-spouse alleged claims of

 

39 See Plaintist Br. at 11 (quoting § 388, cmt. d). See also ia'. at 11-15 (discussing Delmarva
Power & Ll`ght Co. v. Burrows, 435 A.2d 716 (Del. 1981) (affirming plaintiff verdict where
plaintiff alleged defendant power company was negligent for failing to warn plaintiff of
dangerousness of defendant’s exposed power lines with which plaintiff came into contact);
Robbins v. Porl‘er, 2006 WL 1313858 (Del. Super. Apr. 19, 2006) (denying summary judgment
to defendant in fatal one-car accident where plaintiff-administrator alleged defendant car dealer
negligently controlled access to vehicle at its dealership before car was stolen and used in fatal
crash two weeks later; court found duty owed by vehicle owners to third parties to secure their
property from theft); Kuczynskz` v. McLaughlz`n, 835 A.2d 150 (Del. Super. 2003) (denying
summary judgment to defendant boat operator who lead another boat that ultimately collided
with plaintiff` s boat; court held that “non-contact boat” owed duty to plaintiff to warn of
impending collision and that defendant’s negligent operation of his boat was proximate cause of
plaintiff s injuries in collision)).

20 see generally Pnce v. E.I. DuPOm de Nem@urs & Co., 26 A.3d 162 (Dei. 201 i).

12

nonfeasance and no special relationship existed between the parties.41 Tracing the
Restatement §§ 282, 284, and 302, both Courts held that the employer’s failure to
warn or protect the employee’s spouse represented nonfeasance.42 The defendant-
employers in both cases did not “create a new risk of harm” to the plaintiff-
spouses, i.e., misfeasance, but instead allegedly “failed to benefit [them] by
interfering in [their] affairs,” i`.e., nonfeasance.43

Both decisions appear to rest implicitly on the employer’s role as a
landowner and the employee’s status as an invitee onto the employer’s property.
The employer’s alleged failure to warn or make safe a dangerous condition on its
property constituted alleged misfeasance towards its employees_those who
physically entered onto the employer’s property.44 However, that same logic did
not extend to the imposition of a duty on the employer to the employee’s spouse,

who neither entered onto, nor lived next to, the employer’s facility.45 lnstead, the

employer’s alleged “conduct” towards the employee’s spouse constituted claims of

 

41 See id. at 168-69 (“The conduct Mrs. Price complains of here is indistinguishable from the
conduct about which l\/lrs. Riedel complained.”).

42 See Pri`ce, 26 A.3d at 167-69; Ri`ea’el v. ICIAmerl'cas lnc., 968 A.2d 17, 21-25 (Del. 2009).

43 Price, 26 A.3d at 171 (Berger, J., dissenting) (quoting W. Page Keeton et al., Prosser ana1
Keelon on the Law ofTorts, § 56, at 373 (5th ed. 1984)).

24 see Rzedel, 968 A.2d at 25.

45 See l`a’.

13

nonfeasance.46 Both Price and Rz'eolel Courts held that the employer did not
engage in affirmative conduct that worked positive injury on the spouses of its
employees; rather, they failed to act to protect a distant third party who never
entered onto their property.47
In both cases, because the Supreme Court found that the plaintiff-spouses
alleged claims of nonfeasance, the Court further determined that they failed to
show a special relationship between themselves and their husbands’ employers48
F or instance, in Ri'ea’el, the plaintiff alleged that she stood in a special relationship
with the defendant-employer under § 323 of the Restatement.49 Section 323 states:
One who undertakes . . . to render services to another
which he should recognize as necessary for the protection
of the other’s person . . . is subject to liability to the other
for physical harm resulting from his failure to exercise

reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of
such harm, or

(b) the harm is suffered because of the other’s reliance
upon the undertaking50

 

46 See icl.

22 see zd. at 22-23 (quoting RESTATEMENT (sEcoND) op rem § 314 cmt. c <1965>).
22 see Pnce, 26 A.3d ar 169~70;Riede1, 968 A.2d 6125-27.

22 see Riedel, 968 A.2d ar 25-26.

50 RESTATEMENT (SECoND) oF ToRrs § 323.

14

The Court rejected the plaintiffs use of § 323 because the Riedel plaintiff
presented insufficient evidence of the employer’s negligent undertaking51 The
only evidence the plaintiff could marshal in support of her argument under § 323
was that the employer had issued publications to its employees regarding healthy
home practices.52 The Court found this fact insufficient proof of the employer’s
negligent undertaking53

Courts that have addressed duty of care in this context have taken divergent
positions on the issue of whether an employer owes a duty to warn the employee’s
spouse of the risks of take-home asbestos exposure. These courts, however, almost

uniformly implement variant approaches from Prz'ce and Rz`edel.54 For instance,

 

2‘ see Rzedei, 968 A.2d 6126-27.
22 see 161 at 25.
22 see 161 6126-27.

22 see, e.g., Mamn v. Cmcinnazi cas & Eiec. Co., 561 F.3d 439 (6ih Cir. 2009) (appiying
general tort principles under Kentucky law; holding it was not reasonably foreseeable that
asbestos at employer’s worksite would pose hazard to plaintiff-son); Dube v. Pi`tl'sburgh Cornz'ng,
870 F.2d 790 (lst Cir. 1989) (applying general tort principles under Maine law; defendant-Navy
was charged with knowledge of household asbestos exposure risk in 1964 and negligently failed
to warn bystanders of asbestos exposure), abrogated on other grounds, United States v. Gauberi‘,
499 U.S. 315 (1991); Gi'llen v. Boez`ng Co., 40 F.Supp.3d 534 (E.D. Pa. 2014) (applying
Pennsylvania law; holding employer owed no duty of care to plaintiff’ s spouse based on absence
of preexisting relationship between parties); Kesner v. Superior Courl, 385 P.3d 283 (Cal. 2016)
(holding employer owes duty of care to employee’s spouse in take-home asbestos exposure case
based on general tort principles and Restatement (Third) of Torts); Simpkins v. CSX Transp.,
Inc., 965 N.E.2d 1092 (lll. 2012) (reversing dismissal of complaint and permitting leave to
amend to state facts regarding negligent failure to warn of risks of household exposure to
asbestos transported home from railroad worker’s jobsite); Nelson v. Aurora Equip. Co., 909
N.E.2d 931 (lll. App. Ct. 2009) (affirming summary judgment to employer; holding employer
owed no premises liability duties to employees’ relatives); Chaisson v. Avondale Indus., Inc.,

15

the California Supreme Court recently reviewed the landscape of take-home
asbestos cases in this country in Kesner v. Superz`or Court.55 The Kesner Court
held that California recognizes an employer’s duty to an employee’s spouse based
on general tort principles.56 That Court’s decision makes clear that this issue--an
employer’s duty of care to the employee’s spouse_has received a tremendous
amount of jurisprudential attention.57 However, much of this attention focuses on

whether the employer owes a duty of care to the employee’s spouse, not whether

 

947 So.2d 171 (La. Ct. App. 2006) (finding employer owed duty of care to employee’s wife to
guard against her household exposure to asbestos); In re Certi'jied Questi'on from Fourteenth
District Court of Appeals of Texas, 740 N.W.2d 206 (Mich. 2007) (answering certified question
in negative; holding employer/property owner owed no duty of care to relative who never
entered onto employer’s property); Olz`vo v. Owens-Illi'noz`s, Inc., 895 A.2d 1143 (N.J. 2006)
(holding premises owner owed duty of care to employees’ spouses based on traditional premises
liability and foreseeability principles); In re New York Cin Asbestos Liti`g., 840 N.E.2d 115
(N.Y. 2005) (holding employer/landowner owed no duty to protect or warn employees’ spouses
of take-home asbestos exposure); Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. Ct. App. 2007)
(holding no duty based on absence of foreseeable risk of harm from household exposure during
relevant period); Satterfi`eld v. Breedi`ng Insulati'on Co., 266 S.W.3d 347 (Tenn. 2008) (finding
employer owed duty to those who came into close, regular contact with its employees’
contaminated work clothes over extended period of time). Cf Georgia Pacifl`c, LLC v. Farrar,
69 A.3d 1028 (l\/ld. 2013) (holding insufficient evidence presented of defendant-manufacturer’s
knowledge of risks of take-home asbestos exposure and feasibility of warning plaintiff-
granddaughter of risks of such harm).

22 385 P.3d 283 (Cai. 2016).

56 ld. at 288 (“We hold that the duty of employers and premises owners to exercise ordinary care
in their use of asbestos includes preventing exposure to asbestos carried by the bodies and
clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or
personal effects will act as vectors carrying asbestos from the premises to household members,
employers have a duty to take reasonable care to prevent this means of transmission.”).

57 See supra, note 54 (collecting cases).

16

the manufacturer of a product-supplied to the employer and transported home by
the employee_involves the same analysis.

Notwithstanding how other jurisdictions address legal duty of care in the
context of the employer-employee’s spouse situation, Delaware law on this issue is
manifest under Prl`ce: the employer owes no duty of care for failing to take steps to
protect the employee’s spouse from a dangerous condition on its property and
transported home unless the plaintiff identifies a special relationship between the
parties.58 Accordingly, if the rationale of Prl'ce applies to this case, Plaintiff must
overcome this misfeasance/nonfeasance framework before her negligence claims
may proceed beyond summary judgment

III. Price and Riedel Apply to Take-Home Asbestos Cases Involving
Manufacturers Who Supply Products to the Employee’s Worksite

The Court finds that the analytical framework implemented in Prl`ce and
Rl‘edel is equally applicable to the facts of the present case. Those cases involved
analogous claims of take-home asbestos exposure asserted by a spouse against her
husband’s employer. The key difference in this case-that Herty is a manufacturer

and not Plaintiffs husband’s employer_~undermines, rather than bolsters,

 

22 see generally Pn'ee v. E.l. DnPenl ele Nelnenns & Ce., 26 A.3d 162 (Dei. 2011). AS discussed
below, however, this Court need not analyze the special relationship considerations under § 323
in this case because Plaintiff does not argue, in the alternative, that she stood in a special
relationship with Herty, nor did she produce any evidence in support of this position. See infra
(discussing absence of evidence on special relationship).

17

Plaintiffs contention that Prl`ce and Rl`edel are distinguishable This is clear when
Plaintiff’s argument is outlined to its logical conclusion.

A plaintiff, such as l\/lrs. Ramsey, cannot state a valid negligence claim
against her husband’s employer, Haveg, without first identifying either: (l) the
employer’s misfeasance; or (2) the employer’s nonfeasance and an associated
special relationship Under Prl'ce, where the employer fails to take any steps to
protect the employee’s spouse and simply permits the employee to leave with
asbestos debris on his uniform, the employer owes no duty of care to the spouse
However, applying Plaintiff s argument, that same plaintiff could state a valid
claim against the manufacturers who supplied the asbestos product to the
employer. Thus, the defendant with a closer relationship to the plaintiff-the
employer_~in that scenario owes no duty of care to the plaintiff, while a distant
third party-the manufacturer--would be held to a general duty of care.

Contrary to Plaintiff’s assertion, this finding does not re-impose the
restrictive notions of privity for manufacturers in products liability actions.59
lnstead, applying Price and Rl'edel’s misfeasance/nonfeasance approach to take-
home asbestos cases involving manufacturers who supplied products to the
relevant worksite recognizes the paradoxical result were the Court to decide that

general theories of tort liability apply to such claims. The effect of applying the

 

59 See Plaintiff’ s Br. at 8.
18

latter, as Plaintiff suggests, would serve as an end-run around the decisions in
Prl'ce and Rl`edel for all those except the employer. The Court declines to adopt an
approach that would lead to such a result, Accordingly, this Court will now apply
the analysis in Prl`ce and Rl`edel to the present l\/lotion.

IV. Plaintiff Alleges Claims of Nonfeasance

Distilled to their essence, Plaintiff s allegations epitomize nonfeasance
Plaintiff alleges Herty, among other manufacturers: “Chose not to adequately
warn [Plaintiff];” “Chose not to adequately test, research and investigate;” “Chose
not to adequately package, distribute and use [its product];” and “Chose not to take
adequate steps to remedy [its alleged] failure[s].”60 These allegations functionally
mirror the allegations in Prl`ce and Rl`edel.

For instance, in Prz`ce, the Court held that any amendment to the plaintiffs
complaint would be futile because the plaintiff’s allegations, “stripped of all
reformatory recharacterization,” alleged claims of nonfeasance61 The Court then
listed the unadorned allegations in Prl'ce:

(1) Mr. Price, as an employee of DuPont, worked with
and around products containing asbestos for 34 years, (2)
asbestos fibers settled on his skin, clothing, and vehicle;

(3) DuPont did not provide locker rooms, uniforms, or
warnings to the Prices regarding the dangers of asbestos,

 

60 Complaint at 11 16.

2‘ Pn'ee, 26 A.3e1 er 169.

19

(4) DuPont did not prevent Mr. Price from transporting
the asbestos fibers home on his skin, clothing, and
vehicle, and (5) l\/lrs. Price, because she lived with l\/lr.
Price and washed his clothes, developed several diseases
from l6izer exposure to the asbestos he brought home from
work.

These allegations, the Court held, were “pure nonfeasance-nothing more.”63

Similarly, Plaintiff alleges: (1) Mr. Ramsey, an employee of Haveg,
“worked with and around products containing asbestos for” four years;64 (2)
“asbestos fibers settled on his . . . clothing;” (3) Herty did nothing to warn Mr.
Ramsey of the “dangers of [take-home] asbestos” exposure; (4) Herty “did not
prevent Mr. [Ramsey] from transporting the asbestos fibers home on his . . .
clothing;” and (5) “l\/lrs. [Ramsey], because she lived with l\/lr. [Ramsey] and
washed his clothes, developed [lung cancer] from her exposure to the asbestos he
brought home from work.”

As discussed above, Mrs. Ramsey’s case recasts the allegations in Price and
Rl`edel, but stretches them one step further. Now, instead of the employer’s

nonfeasance, Plaintiff alleges that Herty provided her husband’s employer with an

asbestos-containing product and failed to act in essentially the same manner as

 

Gzlar
63[d

64 Assuming his alleged exposure to Herty’s product was from 1976-1980, as the parties assumed
for purposes of this Motion.

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DuPont did in Price. Under Delaware law, her allegations still ring as
nonfeasance: Herty’s failure to take steps to protect a third party.

Since the Court finds that Plaintiff alleges claims of nonfeasance, Plaintiff
must identify the existence of a special relationship between herself and Herty
before liability may be imposed for Herty’s alleged nonfeasance
V. No Special Relationship Exists Between Herty and Plaintiff

There are several legally cognizable special relationships outlined in the
Restatement These include: “common carriers, innkeepers, and possessors of
land who hold [the land] open to the public.”65 The plaintiffs in Rl`edel and Price
alleged a special relationship under § 323.66 ln this case, however, Plaintiff fails to
identify any legally cognizable special relationship between herself and Herty in
the Restatement. Therefore, because Plaintiff has failed to present any evidence
sufficient to rebut Herty’s argument that no genuine issue of material fact exists on
this issue, summary judgment is appropriate.67 Accordingly, the Court finds that
Herty has met its burden of proving that no duty of care exists between the parties

and Herty is entitled to summary judgment on this issue

 

22 Rleelel v. lcl Aneen'ens lne., 968 A.2d 17, 26 & 626 (Dei. 2009) (eiring RESTATEMENT
(SECoND) oF ToRTs § 314A)).

66 See l`d. at 25-27. See also Prl`ce, 26 A.3d at 169-70.

67 Cf In re Asbestos Ll`tl`g., 2007 WL 2410879, at *4 (Del. Super. Aug. 27, 2007) (discussing
litigant’s failure to raise issue in text of opening brief as waiver of issue on summary judgment).

21

CONCLUSION
The Court finds that Herty owed no duty of care to Plaintiff consistent with
the analysis in Price and Rl`edel. When a manufacturer provides an asbestos-
containing product to an employer’s worksite and debris from the product is
transported home by the employee, the plaintiff must identify evidence of either:
(1) misfeasance; or (2) nonfeasance with an associated special relationship Where
claims of nonfeasance are alleged and the plaintiff cannot put forth evidence of a
special relationship_such as in the case sub judice_no duty of care exists
between the parties and no civil liability may arise
IT IS SO ORDERED that Defendant Herty’s l\/lotion for Summary

ludgment is GRANTED.

 

   

 

Vivian L. Medinilla
Judge

cc: All Counsel via File&Serve

22

