                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 10 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LORETTA HOYT,                                    No. 13-35573

              Plaintiff - Appellant,             D.C. No. 2:12-cv-01648-TSZ

  v.
                                                 MEMORANDUM*
LOCKHEED MARTIN CORPORATION,
individually and as successor-in-interest to
Puget Sound Bridge and Dredging
Company and LOCKHEED
SHIPBUILDING COMPANY,
individually and as successor-in-interest to
Puget Sound Bridge and Dredging
Company,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 Thomas S. Zilly, Senior District Judge, Presiding

                      Argued and Submitted August 28, 2013
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Appellant Loretta Hoyt claims that she developed cancer from her exposure

to asbestos carried home, first by her father, and later by her husband, during the

period from 1948 to 1958. Appellee Lockheed Martin is the successor-in-interest

of the shipyard where Hoyt’s father and husband were allegedly exposed to

asbestos during their employment. Hoyt sued Lockheed for negligence under

Washington state law, and Lockheed moved for summary judgement, arguing that

it did not owe Hoyt a duty of care, and even if it did, the harm was not foreseeable.

The district court granted the motion, reasoning that while, in general, employers

owe the family members of their employees a duty of care to prevent harm from

take-home exposure to asbestos, Hoyt had not established a genuine issue of

material fact that harm from such exposure was foreseeable to Lockheed during the

relevant time period. We agree that Hoyt has failed to create a genuine issue of

material fact regarding foreseeability, and we affirm.

      Under Washington law, “[f]oreseeability is . . . one of the elements of

negligence.” Maltman v. Sauer, 530 P.2d 254, 258 (Wash. 1975) (en banc)

(citation and internal quotation marks omitted). In order for the plaintiff to prevail,

a factfinder must determine that the harm she suffered was within a “foreseeable

range of danger.” Simonetta v. Viad Corp., 197 P.3d 127, 131 n.4 (Wash. 2008).




                                           2
      On this record, no reasonable factfinder could conclude that harm from take-

home exposure to asbestos should have been foreseeable to Lockheed by 1958.

Hoyt’s own scientific expert, Dr. Barry Castelman, stated that “[s]tudies on the

occurrence of asbestos disease that included family members of asbestos-exposed

workers were not published until the 1960s.” Hoyt argues that even if no scientific

study detailing the risk from take-home exposure to asbestos had been published

by the time of her exposure, several other pieces of evidence suggest that Lockheed

should have known of the risk. She offers that federal regulations required

employers to provide separate facilities and lockers to employees exposed to

asbestos to prevent the contamination of their homes. These laws aim to limit

exposure to “contaminants hazardous to [the] health” of “workers,” not their

families. Similarly, she cites state safety standards that required employees change

clothes and shower after being exposed to hazardous materials, including asbestos.

But these standards focus on safeguarding the health of the worker. Further, Hoyt

points to minutes from the 1945 Pacific Shipyard Safety Conference, which

concerned “occupational hazards,” and precautions similar to those mandated by

the regulations and safety standards taken by other companies, but there is no

evidence that Lockheed knew or should have known of these precautions or the

basis for them. Hoyt has not produced evidence sufficient to permit a reasonable


                                          3
jury to conclude that Lockheed should have foreseen harm from take-home

exposure to asbestos by 1958.

      Hoyt argues that even if Lockheed could not have foreseen that she would be

harmed by take-home exposure to asbestos, the harm she suffered was within a

foreseeable “general field of danger.” Under Washington law, it is enough that the

“risk from which [the harm] results was known or in the exercise of reasonable

care should have been known” even if the particular harm was unknown. Travis v.

Bohannon, 115 P.3d 342, 346 (Wash. Ct. App. 2005); see also McLeod v. Grant

Cty. Sch. Dist. 128, 255 P.2d 360, 363 (Wash. 1953) (en banc); Berglund v.

Spokane Co., 103 P.2d 355, 361 (Wash. 1940). Hoyt urges that because companies

knew that exposure to asbestos was harmful to their employees, and because they

knew that take-home exposure to some hazardous materials could be harmful to

family members of their employees, harm to family members from take-home

exposure to asbestos was within a foreseeable “general field of danger.” However,

Washington courts assess foreseeability based on the risk posed by the particular

hazardous material in question to the class of people in the plaintiff’s position, not

to the risks posed by all hazardous materials to all people. See Lockwood v. AC&S,

Inc., 744 P.2d 605, 615-616 (Wash. 1987) (en banc) (in negligence action against

shipyard owner, evidence that factory owners knew of the risks of asbestos to their


                                           4
employees was relevant, but the question for trial was whether the evidence proved

that shipyard owners should have known of the risks of asbestos to their

employees).

      Because Lockheed is entitled to summary judgment on the basis of

foreseeability, we do not reach the issue of whether Washington law recognizes a

duty of care to prevent harm from take-home exposure to asbestos.

      AFFIRMED.




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