Fourteenth Court of Appeals Reverses Trial Court Judgment against Exxon in an Asbestos Household Exposure Case

Fourteenth Court of Appeals Reverses Trial Court Judgment against Exxon in an Asbestos Household Exposure Case

On August 1, 2006, the Fourteenth Court of Appeals reversed the trial court’s judgment, holding that Exxon Mobil Corporation (Exxon) did not owe a duty to an employee’s wife who was injured by asbestos exposure from her husband’s work clothes, “during a time when such an injury was considered a medical curiosity.”

Appellee, the wife of a lifelong Exxon employee, Mr. Altimore, was diagnosed with mesothelioma in April 2003, and as a result, brought suit against a number of Defendants, including Exxon. In her petition, Appellee alleged that Exxon negligently permitted Mr. Altimore to transfer asbestos dust from his jobsite to his home on his work clothes, and that while washing Mr. Altimore’s clothes covered in asbestos, Appellee inhaled the asbestos dust, causing her to contract mesothelioma. On the day of trial, Exxon was the only remaining defendant in the case. The case was submitted to the jury, who returned a verdict against Exxon for $992,901 in actual damages and $992,901 in exemplary damages, finding that Exxon acted negligently and with malice. Exxon appealed.

Exxon presented to the Court eight issues of appeal, arguing that the trial court erred in its ruling in Appellee’s favor. However, because this court held that Exxon owed no duty to appellee, only the first issue was addressed.

In any negligence case, duty is the threshold inquiry, as there is no liability for negligence if no duty exists. Moreover, duty is a pure question of law; therefore, the trial court’s ruling must be reviewed on a de novo basis. To determine whether a duty exists, the court must consider several factors, such as “risk, foreseeability, and likelihood of injury, weight against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994). Of the above factors, foreseeability is most important. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Foreseeability means that a person of ordinary intelligence should have predicted the risks created by his negligent behavior or act. However, it is not required that the person anticipated the precise manner in which the injury would occur as long as he is aware of the general danger. Taylor v. Carley, 158 S.W.3d 1, 9 (Tex. App. – Houston [14th Dist.] 2004, pet. denied).

The Court had to determine whether evidence presented at trial illustrated that Exxon should have foreseen that, during the pertinent time frame, an employee’s spouse was in danger of contracting a serious illness from inhaling asbestos dust from her husband’s work clothes.

Mr. Altimore worked at the Exxon refinery in Baytown, Texas between 1942 and 1977, starting in the oil refinery and ultimately moving to the polyolefins unit. In 1972 he was promoted to supervisor of the air-conditioned tool room within the polyolefins unit, where he worked until he retired in 1977. As he was exposed to asbestos from the time he started working at Exxon until he became supervisor of the air-conditioned tool room, the pertinent time period in this case is 1942-1972.

Based on evidence presented at trial, including the testimony of appellee’s epidemiologist expert witness, Dr. Richard Lemen, the Court found that “Exxon did not become aware of the take-home risk of asbestos exposure until 1972 when OSHA prohibited employers from allowing workers who had been exposed to asbestos to wear their work clothes home.” It was not until 1972 that Exxon was put on notice that “asbestos posed a risk to persons, such as employee families, who were never on the employer’s premises.” Therefore, the foreseeability of a risk to Appellee of contracting a serious illness such as mesothelioma became apparent in 1972, which initially triggered a duty to protect Appellee and other family members similarly situated. In 1972, Mr. Altimore was moved to the air-conditioned tool room and was no longer exposed to asbestos dust. Therefore, as a matter of law, “Exxon did not owe a duty to appellee” and the Court reversed the trial court’s judgment, and rendered a judgment that appellee take nothing on her claim against Exxon.

J.D. Bashline, one of the firm’s longest serving officers, assisted as co-counsel in Exxon’s representation during trial.

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