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Fletcher v. Water Applications Distribution Group, Inc.

Court of Appeals of Georgia

July 16, 2015


Reconsideration denied July 31, 2015 -- Cert. applied for.

Page 860

Negligence. Thomas State Court. Before Judge Mitchell.

Buck Law Firm, Robert C. Buck, Juliana Y. Sleeper, for appellant.

Schiff Hardin, Leah Ward Sears; Demahy, Labrador, Drake, Victor & Cabeza, Michael J. Crist; Hawkins, Parnell, Thackston & Young, E. Elaine Shofner, Elisabeth M. Cheatham, for appellees.

ELLINGTON, Presiding Judge. Barnes, P. J., and Phipps, P. J., concur. McFadden, J., concurs fully in Divisions 1 and 2 (a) and concurs specially in Division 2 (b). Dillard, Ray and McMillian, JJ., concur fully in Divisions 1 (a), (d) and 2, and dissent as to Division 1 (b) and (c).


Page 861

Ellington, Presiding Judge.

Marcella Fletcher appeals from the order of the State Court of Thomas County granting summary judgment to Water Applications Distribution Group, Inc., (" Water Applications" ) and CertainTeed Corporation (" CertainTeed" ) in this suit for personal injury arising out of the alleged negligence of the appellees, a vendor and manufacturer, respectively, of asbestos-containing cement water pipe. Fletcher averred that she was exposed to her father's asbestos dust-contaminated work clothing between 1960 and 1977 when she was responsible for washing her family's laundry at home and that, as a result of that exposure, she developed malignant pleural mesothelioma. The trial court granted summary judgment to the appellees, concluding that they owed no duty of care to Fletcher under these circumstances. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations, punctuation and footnote omitted.) MCG Health v. Barton, 285 Ga.App. 577, 578 (647 S.E.2d 81) (2007). So viewed, the record shows the following relevant facts.

Fletcher was diagnosed with malignant pleural mesothelioma on August 5, 2012. She produced evidence that the disease is caused by asbestos exposure and has a latency period of approximately 40 years from the time of exposure to the onset of disease. Fletcher deposed that she was exposed to two sources of asbestos during her lifetime: (1) during a 1971 construction project in her family home and (2) during the seventeen years between 1960 and 1977 when she laundered her father's asbestos dust-contaminated work clothing at home. Fletcher recalled seeing a gray dust on her father's work clothes that became an airborne " mist" when she shook out his clothing prior to laundering it. Fletcher presented evidence that asbestos dust released from work clothing could remain in the home as a continuing contaminant, exposing a worker's family members to a risk of mesothelioma.

Fletcher's father was employed by the City of Thomasville Water & Light Department from 1948 until his retirement in 1983. From 1971 through 1977, her father's primary job duty was handling, cutting, installing, and repairing water pipe. A city employee testified that Fletcher's father worked primarily with CertainTeed asbestos-containing cement pipe. When Fletcher's father cut and beveled the pipes, dust containing asbestos was deposited on his work clothing. At the end of each work day, he wore those contaminated work clothes home.

CertainTeed has been manufacturing asbestos-containing products since 1930. It began manufacturing asbestos-containing water and sewer pipe in 1962. Sales invoices establish that approximately 30,158 linear feet of CertainTeed " Fluid-Tite" asbestos-containing cement pipe was shipped to the City of Thomasville Water & Light Department between 1969 and 1973. The invoices also show that the pipe was sold to the City through a local vendor, Davis Meter & Supply Company, the predecessor to Water Applications. The pipes contained approximately 10 to 20 percent asbestos by weight, and they had to be cut and beveled in order to be connected to other pipes.

Fletcher presented evidence in response to the appellees' motion for summary judgment showing that the dangers, not only to a worker but also to a worker's family, from

Page 862

work clothing that had been contaminated with toxic substances were known and documented in published occupational health and safety literature as early as 1913. In 1943, the Pennsylvania Department of Labor distributed to industrial employers in the state, including CertainTeed, a " Safe Practice Bulletin" advising employers to have their employees keep their asbestos-contaminated work clothing at work in special lockers. In 1949, CertainTeed joined the National Safety Council, an industry public service organization, and, in 1954, the National Safety Council published articles warning against the dangers of workers carrying toxic substances home to their families on their work clothes. CertainTeed admitted in a verified interrogatory in another lawsuit " that it became aware at least by 1962, ... if not earlier" that exposure to asbestos fibers was associated with an increased risk of developing certain asbestos-related diseases, including mesothelioma. In 1963, the National Safety Council again warned its members that " contaminated work clothes should not be taken home where a toxic dust could contaminate the home or expose other members of the family." In 1964, during a conference attended by CertainTeed, researchers presented evidence that mesothelioma was associated not only with occupational exposure to asbestos dust but also to exposure to dust brought home by relatives working with asbestos. In 1972, Occupational Safety and Health Administration (" OSHA" ) rules and regulations required employers to provide special clothing for those working with asbestos fibers and to properly isolate those work clothes to prevent the employee's street clothes from becoming contaminated. Fletcher adduced evidence that neither appellee had placed an asbestos health hazard warning on the asbestos-containing water pipe products during the time of Fletcher's alleged exposure.

Fletcher sued CertainTeed and Water Applications under theories of negligence. She asserted against both appellees various " general negligence" claims as well a claim for negligent failure to warn of the health risks associated with the product's use. Fletcher also sued both appellees under a theory of negligence for selling a defective product, asserting that the water pipe was defective because it contained asbestos fibers that were released into the air when the pipe was cut.[1] CertainTeed and Water Applications both moved for summary judgment, and, following a hearing, the trial court granted the motions, concluding that the appellees did not owe Fletcher a duty of care because she was neither a user nor a consumer of the pipe at issue and because the appellees " could not have reasonably foreseen that [she] would be affected by their product." It is from this ruling that Fletcher appeals.

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable

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risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.

(Citation and punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 200 (296 S.E.2d 693) (1982). " Before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage." (Citations and punctuation omitted.) CSX Transp. v. Williams, 278 Ga. 888, 889 (608 S.E.2d 208) (2005). " The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the caselaw." Rasnick v. Krishna Hospitality, 289 ...

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