Employment Counseling and Litigation

Duty of Care to Family and Third Parties

The Virginia Supreme Court significantly extended the duty of care an employer owes beyond employees to any family members, or even third parties, who may be affected by the employer’s action.  The issue in this case involved asbestos, but the ruling easily could apply to other situations as well.  In a 4 to 3 decision, the Virginia high court ruled that, if an employer knew or should have known that an employee’s clothing dusted with asbestos could be handled by others, the employer owed a duty of care to those people.  Recognizing that the impact of this decision will extend beyond the particular asbestos claims at issue, a strongly worded dissent warned that “no one will be able to predict who else among the host of possible targets will be subjected to this novel theory of liability.”

The case arose from an employee regularly exposed to asbestos.  As a result, the employee regularly brought home asbestos fibers stuck to his clothing.  His daughter helped her father with his laundry, shaking off his work clothing. She inevitably inhaled asbestos particles. She eventually died from exposure.

The Virginia Supreme Court considered the following question:  Does an employer owe a duty of care to an employee’s family member (or others) who allege exposure and employer negligence from the place of employment to the employee’s home?”  The majority held that “a general duty is owed to those within the reach of defendant’s conduct.” Accordingly, the father, as well as those persons “similarly situated,” were found all to be within the employer’s “zone of danger.”

The dissenting justices strongly criticized the majority’s ruling, warning that “[t]he duty created…is limitless” and “does not propose any framework for limiting an employer’s duty to those who share living quarters with its employees.”  The dissent explained that prior to the majority’s ruling, “no one could have predicted that an employer owed a legal ‘take home’ duty to a non-employee…arising out of and in the course of the employer’s work.”

In light of this decision, companies should reconsider a variety of workplace practices because of the ruling’s potential to expand liability to third parties that are in a “zone of danger” – whatever that may be.  The boundaries of that zone, however, remain undefined and an open question.  No one will know the answers to those questions until others are sued.