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.                          )
                                             )
    AIR PRODUCTS AND CHEMICALS )
    INC. et al.,                             )
                                             )
          Defendants.                        )

                                 August 30, 2017
                  Upon Defendant Air Products and Chemicals Inc.’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

Air Products and Chemicals Inc. (“Defendant”) was the premises owner of one of

the facilities in New Orleans, Louisiana where Mr. Kivell worked for an independent


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).
contractor in the 1970s. Mr. Kivell worked at Defendant’s facility while he was

employed by Lou Con Inc. Mr. Kivell changed old pipe, valves, pumps, insulation,

and stop leaks, and worked around Defendant’s employees performing other jobs.

Mr. Kivel reported to the foreman from Lou Con for his jobs. Under Louisiana law,

“property owners are not liable for the negligence of an independent contractor”2

unless the (1) independent contractor was involved in inherently or intrinsically

dangerous work, or (2) the land owner exercised “control over the contractor’s

method of operation or giving express or implied authorization to an unsafe

practice.”3

        Defendant argues that Mr. Kivell performed routine maintenance such as

changing old pipes, valves, pumps, insulation, and stopping leaks, which is not

inherently or intrinsically dangerous work. Additionally, Defendant argues that

Plaintiff has not presented evidence showing that Defendant had control over Mr.

Kivell’s employer’s method of operation or gave express or implied authorization to

use asbestos. Defendant also argues that Plaintiff’s reliance on Smtih v. Union

Carbide Corp. is undermined by a more recent decision from the United States

District Court for the Western District of Louisiana, Roach v. Air Liquid Am. In

Roach, the court held that Smtih was an “improper expansion of Louisiana law,” and



2
    Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.Ct.App. 1990).
3
    Williams v. Gervais F. Favrot Co., 499 So.2d 623, (La.Ct.App. 1986).
“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).” 4 The Roach

court pointed out that the hazard to the plaintiff in that case, sandblasting 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.”5 Thus, the court found

that the it was the “employer’s duty to ensure plaintiff’s safety with respect to the

specific hazards created by the performance of [plaintiff’s] work.”6 Likewise,

Plaintiff claims that her husband was exposed to asbestos from products used while

employed by an independent 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. Even assuming that under a premise owner’s

general duty, which the Smith court expanded 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,”7 the record is void. Plaintiffs have not provided

evidence, such as, Defendant’s knowledge that asbestos was being used,



4
  Roach v. Air Liquide America, 2016 WL 1453074, at *4 (W.D. La. Apr. 11, 2016).
5
  Id.
6
  Id.
7
  Id. See Smith v. Union Carbide, 2014 WL 4930457, (E.D. La. Oct. 1, 2014).
Defendant’s specific request for asbestos use, or knowledge of the dangers of

asbestos at the time Plaintiff was employed on Defendant’s premises. 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.8 Similarly, in Jefferson, the

plaintiff presented evidence that he 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’s Motion for Summary Judgment on Plaintiff’s negligence claim9 is

hereby 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:

(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




8
 Thomas v. A.P. Green Indus. Inc., 933 So.2d 843, 853 (La.Ct.App. 2006).
9
 Plaintiff’s wrongful death claim does not seem to fit under Delaware’s relation
back rule. Plaintiff’s wrongful death claim is dismissed with the negligence claim.
harm; and (3) the injuries were caused by the defect.”10 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.”11 The “[m]ere physical presence of the thing on one’s premises

does not constitute custody.”12 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 hereby

GRANTED.

      IT IS SO ORDERED.




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




10
   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)).
11
   Haydel v. Hercules Transport, Inc., 654 So.2d 408, 414 (La.Ct.App. 1995).
12
   Id.
