ROCHON v. SABERHAGEN HOLDINGS, 140 Wn. App. 1008 (2007)

Affirmed in part, reversed in part, andremandedby unpublished opinion per Cox, J., concurred in by Appelwick, C.J., and Coleman, J.

An essential element of an action for common law negligence is the existence of a duty of care.¹Whether one owes a duty of care is a question of law and "generally includes a determination of whether the incident that occurred was foreseeable."²

Here, the trial court dismissed the claims of Adeline Rochon on summary judgment. The decision was based, in part, on its conclusion that "foreseeability does not independently create a duty of care . . . [and] only when a duty has been found to exist, foreseeability . . . serves to limit the scope of that duty of care."³To the extent that this decision excludes foreseeability from the determination of whether a duty exists, we disagree. Thus, the trial court erred in dismissing Mrs. Rochon's claim under a general negligence theory. However, we agree that under the facts of this case, Mrs. Rochon fails to establish liability under the alternative negligence theories based on Kimberly-Clark's duties as an employer or landowner. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

Mrs. Rochon's husband, Lawrence Rochon, was employed by Scott Paper Company, the predecessor in interest to Kimberly-Clark Worldwide, Inc., Kimberly Clark Global Sales, Inc., and Kimberly-Clark Corporation (collectively, Kimberly-Clark), from 1956 to 1966. Mrs. Rochon alleges that during Mr. Rochon's employment, he was exposed to asbestos in the workplace and that he brought asbestos fibers into their home on his clothing. Their home was not located on Kimberly-Clark's property. Mrs. Rochon allegedly inhaled those fibers while laundering his clothing and eventually developed mesothelioma, a fatal lung disease caused by asbestos exposure.

The Rochons sued Kimberly-Clark. The company moved for summary judgment on the theory that it owed no duty of care to Mrs. Rochon. The trial court granted the motion.

The Rochons appeal. Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law.⁴A factual dispute is material if the outcome of the case depends upon it.⁵

If the moving party is a defendant who makes an initial showing of the absence of a material fact, the plaintiff must offer prima facie evidence to support each essential element of its claim.⁶All inferences from the facts are to be interpreted in favor of the non-moving party.⁷We review de novo a trial court's summary judgment determination.⁸

A common law negligence claim requires proof of four elements: (1) the existence of a legal duty owed to the complainant, (2) a breach of that duty, (3) resulting injury, and (4) proximate causation.⁹The existence of a legal duty is an issue of law to be decided by the court.¹⁰

A duty is an "obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks."¹¹Whether an affirmative duty to act exists depends upon many factors, including "mixed considerations of logic, common sense, justice, policy, and precedent."¹²Whether harm is foreseeable is part of the duty inquiry.¹³To be foreseeable, "the harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant."¹⁴Existence of a Legal Duty/Foreseeability

The parties dispute whether foreseeability should be considered in determining whether a legal duty exists in a particular situation. State supreme court precedent establishes that foreseeability is relevant in defining Kimberly-Clark's general duty to prevent harm from any unreasonable risk it created.

The trial court incorrectly concluded that no legal duty could exist under the facts of this case. The court held that foreseeability is only relevant if a legal duty has first been identified, but that Kimberly-Clark, "in its status as an employer and landowner, did not owe a duty of care" to Mrs. Rochon.¹⁵To the extent that the trial court believed that Kimberly-Clark did not owe a duty to Mrs. Rochon underanynegligence theory because its duties as a landowner and employer do not extend to her, the court was mistaken.

Legal duties may arise in different ways. The most common and obvious example is when a party takes an affirmative action that results in an unreasonable risk of harm to others.¹⁶That party has a duty to act reasonably under the circumstances to prevent foreseeable injury from the risk he or she created. Put another way, a person has a duty to prevent unreasonable risk of harm to others from his or her own actions.¹⁷The Restatement (Second) of Torts recognizes this basic principle in section 302:

Anegligent actor omission may be one which involvesan unreasonable risk of harm toanotherthrough either (a)the continuousoperation of a force started or continuedby the actor omission, or (b) the foreseeable action of the other, a third person, an animal, or a force of nature.¹⁸Comment a to this section clarifies:

This section is concerned only with the negligent character of the actor's conduct, and not with his duty to avoid the unreasonable risk.In general,anyone who does an affirmative act is under a duty toothers to exercise the care of a reasonable man toprotect them against an unreasonable risk of harm tothem arising out of the act.The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty.¹⁹

And comment c further clarifies that a "continuous operation" can qualify as an "affirmative act":

The actor may be negligent in setting in motion a force the continuous operation of which, without the intervention of other forces or causes, results in harm to the other. He may likewise be negligent in failing to control a force already in operation from other causes, or to prevent harm to another resulting from it.

As stated above, foreseeability is relevant to this inquiry.²⁰A risk is "unreasonable," and thus a party has a duty to prevent resulting harm, only if a reasonable person would have foreseen the risk.²¹Conversely, if the risk is not foreseeable, the person who created the risk generally does not have a duty to prevent it.²²

Here, it is Kimberly-Clark's own affirmative acts — operating its own factory in an unsafe manner — that allegedly caused Mrs. Rochon's illness, not either a failure to act or the act of a third party.²³Kimberly-Clark may have had no affirmative duty to act to protect Mrs. Rochon from outside forces, but it had a duty to prevent injury from an unreasonable risk of harm it had itself created. This assumes, of course, that the risk of harm to Mrs. Rochon was foreseeable.

Kimberly-Clark ignores these basic negligence principles. It argues that Mrs. Rochon has not identified a legal duty because employer liability does not extend to employees' spouses and homes, and premises liability does not extend outside of the premises. Kimberly-Clark's argument misses the point. The general rule, to which there are numerous exceptions, is that one does not have an affirmative duty to act in a particular situation.²⁴But if one chooses to act, one must do so reasonably.²⁵The special duties imposed by one's status as an employer or landowner are exceptions to the general rule that one does not have an affirmative duty to act.²⁶But Mrs. Rochon need not rely on employer or premises liability to establish liability in this case. Likewise, she need not argue that Kimberly-Clark had an affirmative duty to protect her from the acts of third parties. Rather, her position is that Kimberly-Clark's own unreasonably risky acts directly and proximately caused her injuries. Because Kimberly-Clark acted in this case, it had a duty to do prevent foreseeable injury from any of its unreasonably safe actions.

The cases on which Kimberly-Clark relies are not helpful. For example, Kimberly-Clark relies uponNivens v. 7-11 Hoagy'sCorner.²⁷In that case, the court analyzed whether a corner store owed a duty of care to protect invitees on its property from the criminal acts of third parties. Notably, a third party, not the defendant property owner, had caused the injury in that case. The question before the court, then, was whether there was an applicable exception to the general rule that persons do not have an affirmative duty to act to protect others.²⁸The court concluded that one such exception applied in that case, based on the special relationship between property owners and invitees.²⁹Here, the defendant itself allegedly caused the harm by creating the risky situation. So we need not ask whether a special relationship created an affirmative duty in Kimberly-Clark to protect Mrs. Rochon from outside dangers.

Next, we must inquire whether Kimberly-Clark indeed acted in a way that placed Mrs. Rochon at an unreasonable risk of harm. Taking Mrs. Rochon's allegations as true, there is a genuine issue of material fact whether Kimberly-Clark operated and maintained its factory in an unreasonably unsafe way that caused foreseeable and proximate harm to Mrs. Rochon. According to her allegations, Kimberly-Clark used asbestos in an unsafe manner and required Mr. Rochon to work with and around asbestos as part of his job. Whether Kimberly-Clark knew or should have known about the health risks of asbestos during the relevant time period, what precautions it should have taken to prevent any resulting harm, and whether Mrs. Rochon was a foreseeable victim are all questions that are at issue. Because Kimberly-Clark took affirmative acts that a reasonable person could find were unreasonably risky and caused her disease, the trial court erred in summarily dismissing her claim.

Although the issue of foreseeability is relevant to defining Kimberly-Clark's duty, Mrs. Rochon did not support her summary judgment opposition with evidence that her injury was a foreseeable consequence of Kimberly-Clark's actions in this case. In its order, however, the trial court specifically declined to consider the issue of foreseeability, so that issue is not properly before us now. The trial court noted that Mrs. Rochon had requested further discovery on the issue. Such discovery may proceed on remand.

Our conclusion is consistent withLunsford v. SaberhagenHoldings, Inc.³⁰There, this court held that an asbestos manufacturer could be liable to a family member exposed to asbestos on clothing based on principles of foreseeability. Kimberly-Clark is correct thatLunsfordwas a product liability case, and therefore is not instructive on whether a negligence duty existed in the first place. But its conclusion that, as a factual matter, a family member who launders clothes could be a foreseeable victim of asbestos exposure is persuasive. At the very least, it shows that reasonable minds could differ regarding foreseeable victims of asbestos exposure, depending on the particular circumstances of the case. Whether and to what extent similar conditions exist in this case may be addressed on remand.

Kimberly-Clark argues that extending a duty to Mrs. Rochon will expose employers to endless litigation. We disagree.

First, Kimberly-Clark's general duty to act reasonably if it created an unreasonable risk of harm will only extend to a victim if the victim proves that his or her injury was a foreseeable consequence of its actions. Second, as discussed above, the duty is only one to act reasonably to prevent injury from Kimberly-Clark's own risky acts, not to protect Mrs. Rochon from the acts of third parties or from circumstances it did not create. Third, both courts and juries, in their separate roles, may limit the extent of this duty when deciding whether Kimberly-Clark's actions were the legal cause and the cause-in-fact of Mrs. Rochon's injuries.³¹

In short, even in the absence of any special relationship between them, Kimberly-Clark had a duty to prevent Mrs. Rochon's injury if its use of asbestos was unreasonably risky, and if Mrs. Rochon's injury was a foreseeable consequence of its risky actions. The trial court erred in dismissing the case as a matter of law. Alternatively, Kimberly-Clark argues that its duty of care as Mr. Rochon's employer does not extend to Mrs. Rochon. We agree.

Employers generally owe their employees a duty to provide a reasonably safe work environment.³²This can even include the duty to protect employees from outside forces such as the criminal conduct of third parties.³³Mrs. Rochon was not an employee of Kimberly-Clark, and she cites to no Washington case extending liability to family members of employees under this theory.

For example,Lunsford v. Saberhagen Holdings,Inc.³⁴is a product liability case, not a negligence case. While it does discuss whether it is foreseeable that asbestos would migrate to workers' homes on their clothing, that issue is not relevant to whether an employer has a legal duty to persons other than employees under a negligence theory.

In sum, Mrs. Rochon has not shown that the special employer-employee relationship created a duty to protect her in this case. Summary judgment on this theory was proper. Kimberly-Clark argues that its duty of care as a landowner does not extend to Mrs. Rochon, who was never a licensee, invitee, or trespasser on its property. We agree.

Landowners have distinct duties of care to persons entering their land, depending on the status of the visitor.³⁵But Mrs. Rochon cannot escape the fact that she has not alleged that she entered Kimberly-Clark's land. And she cites no Washington case extending liability under this theory to persons who were not at least adjacent to the real property in question.

For example, Mrs. Rochon citesZuniga v. Pay Less DrugStores, N.W.³⁶for the proposition that liability is not limited by the categories of invitee, licensee, and trespasser if the plaintiff never entered the defendant's premises.Zunigamerely held that the categories of invitee, licensee, and trespasser consider the location of the plaintiff, not the defendant, at the time of the accident.³⁷Since Mrs. Rochon did not enter Kimberly-Clark's land, this doctrine and this case are inapplicable.

Mrs. Rochon also citesStone v. City of Seattle, in which the court reiterated that an abutting property owner must exercise reasonable care over an adjacent sidewalk used for the owner's own special purpose.³⁸AndBradley v. AmericanSmelting and Refining Co., also cited by Mrs. Rochon, examined whether a landowner who emitted particulate matter into the air could be liable for nuisance, but did not examine negligence theories.³⁹

Indeed, Mrs. Rochon's position sounds more in nuisance, as argued in the amicus brief, because she argues that asbestos particles tortuously invaded her home based on Kimberly-Clark's use of its property. But Kimberly-Clark is correct that because she did not argue this theory before the trial court, it is not properly preserved for appeal, and we decline to consider it.

In conclusion, Kimberly-Clark did not owe a special duty to Mrs. Rochon as an invitee, licensee, or trespasser upon its land. Summary judgment on this theory was proper as well.

We affirm in part, reverse in part, and remand for further proceedings.

WE CONCUR: