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.