On July 11, 2011, the Delaware Supreme Court issued a 3-to-2 divided opinion in Price v. E. I. du Pont de Nemours & Co. which addresses the issue of a landowner’s duty in a so-called “take-home” asbestos exposure case, in which the injured party is allegedly exposed to asbestos fibers brought home from work by his or her spouse. The Price opinion is available here. In its decision, the Price Court concluded that a landowner is merely nonfeasant – not misfeasant – with respect to the injured party in such cases. In accordance with the Restatement (Second) of Torts, the Court held that a landowner is only liable when it is in a “special relationship” with the injured party. In its holding, the Delaware Supreme Court resolved questions that were left open in the Court’s 2009 Riedel v. ICI Americas Inc. opinion.
As a practical matter, this decision will not have a significant impact on the Delaware asbestos litigation, given that most of the asbestos cases filed in Delaware are governed by the substantive law of another jurisdiction. Nonetheless, this case is important in that it contributes to the growing body of case law on the question of duty in take-home asbestos exposure cases. Consequently, a more detailed analysis of the Price opinion, including the case’s procedural history and a summary of the Riedel decision, is provided after the jump.
Background of Price: Riedel and the Question of Misfeasance.
The plaintiffs in the Price case, Patricia and Bobby Price, filed their complaint in the Delaware Superior Court on June 9, 2009, just three months after the Delaware Supreme Court’s opinion in Riedel v. ICI Americas Inc. was issued, which represented the Supreme Court’s first effort at addressing the question of a landowner’s duty in take-home asbestos exposure cases. The Riedel decision is available here. In Riedel, the Court affirmed a Superior Court order granting summary judgment in favor of a landowner-defendant, ICI Americas Inc., against whom the plaintiff, Linda Riedel, had alleged negligence for failure to prevent her husband, an employee of ICI Americas, from taking asbestos fibers home on his clothing and failure to warn of the dangers of asbestos.
The Supreme Court’s opinion in Riedel began by drawing the distinction between misfeasance and nonfeasance. Under comment (a) of the Restatement (Second) of Torts § 302, parties who merely fail to do an act necessary to protect another – commit nonfeasance – do not a owe a duty to an injured party unless there is a “special relationship” giving rise to such a duty. By contrast, parties who engage in an affirmative act – commit an act of misfeasance – are charged with a duty to act with reasonable care to protect all others against an unreasonable risk of harm.
The Court then held, as a procedural matter, that the Ms. Riedel was precluded from arguing that ICI Americas was liable under a misfeasance theory of negligence because plaintiff’s claims against ICI Americas were presented to the trial court under a theory of nonfeasance only. The decision then became a simple application of the Restatement (Second) of Torts § 302, which, as noted above, provides that parties are only liable for nonfeasance when they are in a special relationship with those who are injured by such alleged nonfeasance. After concluding that Ms. Riedel and ICI Americas were not in a special relationship, the Court affirmed the Superior Court’s holding that ICI Americas owed no duty to Ms. Riedel.
Due, however, to the Court’s procedural holding – that the plaintiff could not argue that ICI Americas committed an act of misfeasance – the decision left open the question of whether take-home asbestos exposure claims could be brought under a misfeasance theory of negligence. Thus, the stage was set for a take-home exposure plaintiff to argue that she was injured as a result of a landowner’s misfeasance, thereby avoiding the problem of having to prove a special relationship between the plaintiff and the landowner. And along came Price.
Price: No duty – and we really mean it this time.
Patricia and Bobby Price alleged in their complaint that Ms. Price developed interstitial fibrosis and pleural thickening as a result of her exposure to asbestos fibers brought home on the clothes and skin of her husband. Mr. Price worked as a maintenance technician at an E. I. duPont de Nemours & Co. facility in Delaware from 1957 to 1991, and allegedly worked around asbestos-containing equipment and other products. As to the sole landowner-defendant, DuPont, Plaintiffs alleged that the release of asbestos fibers at the plant was “active, affirmative misconduct” where it was reasonably foreseeable that Ms. Price would come in contact with the asbestos fibers as a result of her husband’s work at the plant.
In light of the Riedel decision and comments from Judge Johnston of the Delaware Superior Court in a hearing on motions in other asbestos-related litigation, the plaintiffs moved to amend their complaint so as to plead an act of misfeasance on the part of the landowner, DuPont. The Special Master, who is charged under Delaware’s Standing Order in asbestos litigation with hearing non-case-dispositive motions, denied Plaintiffs’ motion to amend as futile, noting that he could not “find any factual allegation in the amended complaint that is substantially or significantly different from those that the Court held insufficient as a matter of law….” The Superior Court affirmed the Special Master’s decision and then, agreeing that it was an original and substantial question of law, granted an interlocutory appeal.
The Supreme Court’s majority opinion in Price opened by noting the similarity between the facts in the Price case and the facts in Riedel, which started a general discussion of the Riedel opinion. In the majority’s view, Riedel did not directly decide whether the plaintiff’s attempt to re-characterize her allegations as misfeasance at the appellate stage was possible, but did, in fact, conclude that the plaintiff’s complaint alleged only nonfeasance against the landowner-defendant. The majority held that the Price’s complaint, when stripped bare of the baroque prose, alleged nothing more than that DuPont failed to warn the Prices of the dangers of asbestos or prevent Mr. Price from bringing asbestos fibers home on his skin, thereby exposing his wife. Such allegations, the Court concluded, which are nearly identical to those in Ms. Riedel’s complaint, amount to “pure nonfeasance – nothing more.” After holding that Ms. Price was not in a special relationship with DuPont, the Court affirmed the Superior Court’s decision denying Plaintiffs’ motion to amend as futile.
In the dissent’s view, Riedel did not decide that Ms. Riedel’s complaint alleged only nonfeasance, but merely took that conclusion as a given in light of plaintiff’s failure to argue otherwise to the Superior Court. The dissent argued that by releasing asbestos fibers at Mr. Price’s workplace, DuPont did, in fact, engage in an affirmative act – making DuPont’s conduct cognizable as misfeasance, not nonfeasance. In the dissent’s view, therefore, the question should not be whether Ms. Price was in a special relationship with DuPont, but whether the injury to Ms. Price was foreseeable. The dissent concluded it was, assuming the allegations in the complaint to be true.
 At the time, Judge Johnston was in charge of the Delaware asbestos docket. Judge Johnston stated in a hearing on motions for summary judgment that, pursuant to Riedel, a plaintiff must plead “something more” than simply that a landowner-defendant allowed an employee to take asbestos fibers home on his clothes or skin for a finding of misfeasance. The relevant comments made at the hearing are included in the Superior Court’s decision in the Price matter, which is available here.
 Whether Plaintiffs were successful in this venture can be judged for oneself; the relevant paragraphs of the Price’s original and amended complaint are reproduced on pages 3 through 6 of the Supreme Court’s decision.