In CSX Transportation, Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208 (2005), the Supreme Court of Georgia answered the following question certified to the court by the United States Court of Appeals for the Eleventh Circuit:
In CSX Transportation, Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208 (2005), the Supreme Court of Georgia answered the following question certified to the court by the United States Court of Appeals for the Eleventh Circuit:
Whether Georgia negligence law imposes any duty on an employer to a third-party non-employee, who comes into contact with its employee's asbestos-tainted work clothing at locations away from the workplace, such as the employee's home?
In these consolidated cases, three of the four plaintiffs brought suit in federal court against CSX Transportation ("CSXT") under Georgia negligence law based on each plaintiff's claim that he was exposed at home as a child to airborne asbestos emitting from the clothing his father wore while working for CSXT, and that this "clothing exposure" contributed to the plaintiff's asbestos-related disease. Id. at 888. The fourth plaintiff brought a wrongful death action in federal court under Georgia negligence law based on his late wife's exposure at home to asbestos on clothes he wore to work at CSXT facilities, contending that exposure contributed to her asbestos-related disease. Id.
CSXT filed a motion for summary judgment in each case, arguing that the "clothing exposure" claims are not viable under Georgia law because CSXT owed no duty to non-employees to protect them from exposure to airborne asbestos emitting from its employees' work clothing away from the CSXT workplace. Id. at 888-89. The federal district court denied each motion, but recognizing the issue of duty raised by CSXT was one of first impression in Georgia, granted CSXT leave to seek interlocutory appeal, staying these and all other "clothing-exposure" claims pending resolution of the appeals. Id. at 889. The Eleventh Circuit then granted the interlocutory appeal on the "clothing exposure" issue and certified the question concerning Georgia negligence law to the Supreme Court of Georgia. Id.
The Georgia Supreme Court began its analysis by stating that before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage. Id., citing City of Douglasville v. Queen, 270 Ga. 770, 514 S.E.2d 195 (1999). The court further stated that under Georgia statutory and common law, an employer owes a duty to his employee to furnish a reasonably safe place to work and to exercise ordinary care and diligence to keep it safe. CSXT v. Williams, 278 Ga. at 889, citing Dugger v. Miller Brewing Co., 199 Ga. App. 850, 406 S.E.2d 484 (1991). However, the court noted that those to whom CSXT would owe the duty advanced by the plaintiffs were not at the time of the alleged breach of duty employees of CSXT and were not exposed to any danger in the workplace, so that duty was not owed to them. CSXT v. Williams, 278 Ga. at 889.
In denying summary judgment to CSXT and in its unpublished order in an earlier "clothing exposure" case (James v. CSX Transportation, No. CV-590-250 (S.D. Ga. 2001)), the federal district court relied on Hitachi Chemical Electro-Products v. Gurley, 219 Ga. App. 675, 466 S.E.2d 867 (1995), as establishing a duty on the part of an employer to protect third-parties from exposure to hazardous substances, independent of the location of exposure. CSXT v. Williams, 278 Ga. at 889. However, the CSXT court noted that the federal district court's analysis of Hitachi appears to be largely based on a misapprehension of the specific cause of action being discussed by the Court of Appeals of Georgia in that case. Id.
In particular, the plaintiffs in Hitachi, children of the defendant's employees, were born with birth defects alleged to have been caused by exposure to chemicals at the parents' workplace. Id. The district court noted that the complaint was ambiguous about whether the children were exposed to chemicals on the defendant's premises after their conception or were injured solely by their parents' pre-conception exposure to the chemicals, and therefore discounted the importance of location in determining whether a duty was owed. Id. at 889-90.However, in Hitachi, the Court of Appeals of Georgia pointed out that the parties claimed that the exposure to the chemicals occurred at the Hitachi factory. Id. at 890 (citation omitted). The Court of Appeals also made clear that the cause of action it was discussing involved pre-conception exposure of the parents to the chemical, not post-conception, prenatal exposure of the children themselves to the chemicals. Id. Thus, the Georgia Supreme Court found that Hitachi did not support the district court's conclusion that location is not a factor in determining whether a duty is owed and Hitachi is not, as the district court held, "almost identical" to the case at bar. Id.
In the unpublished James v. CSXT case, supra, the district court there relied on foreseeability as a basis for extending the employer's duty beyond the workplace. Id. However, mere foreseeability was rejected by the Georgia Supreme Court as a basis for extending a duty of care in City of Douglasville v. Queen, supra, where the foreseeability of parade attendees walking on railroad tracks adjacent to the parade route did not extend a municipality's duty to protect them from being hit by a train. Similarly, in Vadische Corp. v. Caylor, 257 Ga. 131, 133, 356 S.E.2d 198 (1987), this basis for extending the doctrine was rejected where the foreseeability of third parties relying on financial statements was held not sufficient to extend to those third parties the duty of care owed to the client by the accountant who prepared the statements.
The Supreme Court of Georgia recognized, as did the court in Widera v. Ettco Wire & Cable Corp., 204 A.D. 2d 306, 307-308, 611 N.Y.S.2d 569 (N.Y.A.D.2 Dept., 1994):
[T]hat "in fixing the bounds of duty, not only logic and science, but policy play an important role.". . . However, it must also be recognized that there is a responsibility to consider the larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree. . . . The recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs. Accordingly, we decline to promulgate a policy which would extend the common law so as to bring the . . . plaintiff[s] within a class of people whose interests are entitled to protection from the defendant's conduct.
As the New York court did in Widera, the Supreme Court of Georgia declined to extend on the basis of foreseeability the employer's duty beyond the workplace to encompass all who might come into contact with an employee or an employee's clothing outside the workplace. CSXT v. Williams, 278 Ga. at 890-91.
The Georgia Supreme Court noted that in James, and in the present cases by reliance on James, the district court examined duties beyond the scope of an employer's duty to provide a safe workplace, citing U.S. v. Aretz, 248 Ga. 19, 26, 280 S.E.2d 345 (1981), which held that "where one by his own act, although without negligence on his part, creates a dangerous situation, he is under a duty to remove the hazard or give warning of the danger so as to prevent others from being injured where it is reasonably foreseeable that this will occur." CSXT v. Williams, 278 Ga. at 891. However, the court noted that these cases do not involved CSXT itself spreading asbestos dust among the general population, thereby creating a dangerous situation in the world beyond the workplace. Id. Thus, the court found that U.S. v. Aretz, supra, and the concept it sets forth, have no applicability to the issues presented in this case. Id.
The Georgia Supreme Court said that more closely related conceptually and factually to the case at bar is Widera, supra, where a worker's clothing was contaminated at the workplace by lead dust and chemicals with which his wife came into contact when she washed them, contact that was alleged to have caused birth defects in their child with whom she was pregnant at the time. Id. The Widera court held that the common law duty to provide employees with a safe workplace "has not been extended to encompass individuals, such as the infant plaintiff, who are neither 'employees' nor 'employed' at the worksite." Id. (citation omitted). Nor did the Widera court's research reveal a reported case from any jurisdiction where an employer's duty had been interpreted to extend to a person, such as the infant plaintiff, who is injured in the manner alleged in that case. Id. The Georgia Supreme Court concluded that the holding in Widera is consistent with negligence law in Georgia and held that an employer does not owe a duty of care to a third-party, non-employee, who comes into contact with its employee's asbestos-tainted work clothing at locations away from the workplace. Id.
The Georgia Supreme Court recognized that New York has recently retreated from the position it took in Widera, choosing to distinguish that case from one involving a wife alleging injury from asbestos brought home on her husband's work clothes on the narrow factual point that Widera involved the unique question of a tort feasor's liability to an infant for injuries occurring while in utero. Id. Although the New York court chose to distinguishWidera on this narrow factual point, the Georgia Supreme Court found that the rationale of that case makes clear that it has abandoned the policy consideration informing the Widera decision. Id. at 892. However, the Georgia Supreme Court believed that the policy enunciated in Widera remains valid and chose, therefore, to adhere to the position that an employer's duty to provide a safe workplace does not extend to persons outside of the workplace. Id.
Having concluded that the employer's duty to provide a safe workplace is not to be extended to persons outside the workplace and that general principles concerning a duty to prevent harm after creating a dangerous situation do not apply in the context of these cases, the Georgia Supreme Court answered the question posed by the Eleventh Circuit Court of Appeals in the negative: Georgia negligence law does not impose any duty on an employer to a third-party, non-employee who comes into contact with its employee's asbestos-tainted work clothing at locations away from the workplace. Id.