A Connecticut trial court has refused to dismiss plaintiffs' claims for negligent infliction of emotional distress based on their alleged exposure to asbestos and their fear of contracting asbestos-related disease.
The Case
Julian Poce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, mason laborers employed by Connecticut Mason Contractors, sued O&G Industries, Inc. ("O&G") and Southern Middlesex Industries, Inc. ("SMI"), alleging that while working on a project at Wethersfield High School in Wethersfield, Connecticut, they were repeatedly exposed to asbestos. According to the plaintiffs, the work areas designated by the project manager, O&G, entailed the disturbing of floors, walls, and ceilings that, unbeknownst to them, contained asbestos.
The plaintiffs alleged that O&G had actual or constructive knowledge of the dangerous project site conditions and premises defects present on the property, including asbestos and PCBs, and had the authority to remediate the hazards present; controlled and supervised all phases of the work at the project site; exercised possession and control of the project site, including the premises where the plaintiffs had been injured; and, had the authority to prevent or suspend work in areas of the building containing asbestos. The plaintiffs also asserted that areas where they performed work had not been properly sampled, remediated, and tested before they became exposed to asbestos, and they had not been provided with, or required to wear, personal protective equipment.
During the time that the plaintiffs performed work at the site, they asserted, asbestos conditions were disturbed in such a manner making it highly probable that toxic substances would be breathed, thus repeatedly exposing them to asbestos without protective gear, hazard reduction training, or advance warning. According to the plaintiffs, O&G was aware of the repeated exposure despite the fact that the contracts executed between the Town of Wethersfield, O&G, and Connecticut Mason Contractors required O&G to observe safety protocols and procedures so as to avoid injury and occupational exposures to the plaintiffs. The plaintiffs alleged that O&G was aware that they were masons and not experienced and trained in asbestos protection, but that O&G did not arrange adequately for asbestos protection or hazard reduction training at the project site. Moreover, the plaintiffs asserted, O&G had advised their employer that laborers only would be dispatched to areas of the building that did not contain asbestos, or areas where suitable asbestos remediation had already been accomplished.
The plaintiffs also alleged that, during this time period, SMI undertook specified demolition work involving asbestos remediation on the premises; that SMI's conduct contributed to the failure to follow reasonable protocols by failing to properly cordon off what should have been regulated work areas to assure that the plaintiffs were not inadvertently exposed to the hazardous materials being remediated; that SMI failed to adequately test and sample the materials being removed so that substances, and the nature of exposures, could be adequately documented; and that SMI failed to provide advance warning to the plaintiffs so that they could protect themselves from potentially hazardous exposure given the proximity of the plaintiff's work area to the demolition and remediation underway.
O&G and SMI moved to strike, arguing that the plaintiffs' claims did not allege actual harm, only exposure to asbestos that placed them at increased risk for contracting asbestos-related diseases.
The Trial Court's Decision
The trial court struck the plaintiffs' negligence, premises liability, and recklessness counts.
It explained that the plaintiffs' complaint essentially asserted an increased risk of contracting asbestos-related diseases and medical monitoring but did not allege any express physical manifestations of symptoms of any asbestos-related disease. It held that "actual injury" as an element of negligence required the pleading and proof of some "physical component of injury." Given the absence of such an allegation, the trial court ruled, the negligence, premises liability, and recklessness claims were legally insufficient.
The trial court, however, refused to strike the claims for negligent infliction of emotional distress.
It pointed out that, to assert a claim for negligent infliction of emotional distress, a plaintiff must allege an unreasonable risk of causing the plaintiff emotional distress, that the plaintiff's distress was foreseeable, that the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress.
It then decided that the plaintiffs had alleged "exactly the requisite elements" by their allegations that the defendants had "created an unreasonable risk of causing emotional distress" to the plaintiffs that had been "severe enough that it might result in illness or bodily harm" and that it "was foreseeable that such distress might result" from the defendants' conduct.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].