If you own real estate or are a tenant in real estate, the odds are good that sooner or later the issue of asbestos in the structure will surface and have to be addressed. If handled wrong, it can result in significant injury to persons and high expense to the owner or user of the structure.
Asbestos litigation is the longest running mass tort litigation in the United States. The history of the litigation has been shaped by changes in the law, the rise of a sophisticated and well capitalized plaintiff bar, heightened media attention, and to the increase of available information both scientific and practical as to the effect of exposure to asbestos and the remedies that are available to eliminate it. Since the 1970s, asbestos exposure related illnesses and deaths have risen and become a global phenomenon.
Asbestos was once a wonder material, used worldwide to resist damage from fire or heat. Many considered it one of the most useful building materials available. As with cigarettes, increase in scientific knowledge as to its dangers eventually developed, was resisted by vested interests, but finally became widely known.
Asbestos is a group of naturally occurring minerals with long, thin fibrous crystals. Its durability and resistance to heat, fire, electricity and chemical damage gave it the name “miracle mineral,” making it popular among manufacturers and builders of the late nineteenth century and most of the twentieth century. The miracle mineral is now recognized as being highly toxic and carcinogenic.
Asbestos becomes a health hazard when asbestos containing materials disintegrate and release tiny asbestos particles into the air. These particles are often inhaled by people in close proximity and become lodged in the lung tissue causing scarring and inflammation of the lungs. This in turn affects breathing and also leads to other more serious health problems.
Since the material was widely used in both commercial and residential structures, the existence and legal removal of the material and notice to tenants becomes a vital issue to be confronted by the owner and user of real estate. This article shall discuss some of the law and practicalities required to address the possible or actual existence of asbestos in a structure.
Exposure to Asbestos and the Liability Deriving
Plaintiffs in asbestos exposure cases usually claim both economic and noneconomic damages for their injuries. See our article as to torts as well as American Litigation.
Injured persons seek to recover the cost of past and future medical care; the cost of necessary rehabilitation; lost past and future wages; lost earning capacity; lost enjoyment of life; emotional distress; and, past and future pain and suffering.
In addition, an injured person may also recover punitive damages. Punitive damages are intended not to compensate the victim for his or her losses, but to punish the defendant’s wrongful conduct. Although punitive damage awards receive much media attention, they are rare. The amount of punitive damages awarded is usually based on the wealth of the defendant and the magnitude of its wrongful conduct. Some states require that a portion of punitive damages awards be paid to the state.
Punitive damages normally lie where a defendant intentionally kept critical information from users of the property, thus increasing their exposure, or acted in a reckless manner, often illegally removing the asbestos. It should be noted that the illegal removal often involves use of unlicensed workers. One client of ours actually removed the asbestos on his own since it was only a small patch, and took it in his car to the dump. A tenant saw him and the cost was in the many hundreds of thousands of dollars even though no one was apparently injured.
The “easy” solution may be the most foolish solution. Professional removal is always recommended not only for your own health, but to avoid the massive liability that can result from angry tenants, judges and governmental agencies who police the field.
Asbestos litigation originated fifty years ago as a result of individuals’ long-term, widespread exposure to asbestos which caused serious and sometimes fatal injuries, usually in the commercial fields. At that time many asbestos product manufacturers’ failed to protect workers against exposure and failed to warn their workers about adequate precautions against such exposure. In 1906, the first documented case of an asbestos related death was reported when the autopsy of an asbestos worker revealed lung fibrosis. See Roberta C. Barbalace. “A Brief History of Asbestos Use and Associated Health Risks.”
By 1908, insurance companies also began decreasing policies and benefits for asbestos workers. By 1935, physicians began noticing that many patients who had asbestosis were also victims of lung cancer. Towards the late 1930’s, asbestos manufacturers were undoubtedly aware of the fatal implications of asbestos exposure and by the 1940’s it was medically accepted that asbestos exposure led to asbestosis, mesothelioma and lung cancer. However, instead of offering protection against exposure or adopting stricter safety measures, many asbestos manufacturing companies attempted to hide the truth behind asbestos exposure. It is unknown how many individuals suffered from this cover up but the result was the eventual explosion of litigation that occurred in the last fifty years and the lack of trust in the good will of those seeking to remove asbestos from buildings and structures. As one attorney put it, each defendant goes into court with one strike if not two against him or her.
Asbestos related injuries have claimed the lives of thousands of Americans since the early years. The litigation that followed these deaths has been referred to as an “impending disaster” and a “crises situation.”
It is estimated that although over one hundred thousand claims have so far been resolved, another 100,000 new claimants will now seek compensation. See Lester Brickman, “The Asbestos Litigation Crises: Is There A Need For An Administrative Alternative?” 13 Cardozo L. Rev. 1819 (1991 – 1992).
Exposure to disease causing asbestos fibers in the United States and the world has been widespread. Though on the decline, such exposure has not ended and may never totally cease. In the United States, this has resulted in a significant number of personal injury claims over the past 20 years. Rather than gradually decreasing over time, the pace of these claim filings has been increasing. As a result of this extensive litigation, more than a dozen major defendant companies have already been forced into bankruptcy. This has led to a depletion of the assets from which severely injured plaintiffs can obtain compensation.
In terms of the individual property owner, however, the exposure derives from users of the building and workers retained by the property owner to coat or remove the asbestos. The exposure can be insured but intentional violation of the law in detection, removal and notice as to asbestos can create liability that is not covered by insurance.
Key Issues As To Liability
The most critical question in asbestos litigation is whether the plaintiff was actually exposed to the defendant’s product (for commercial litigation) or exposed to asbestos in the building (for landlord tenant litigation or employment litigation.) To make the defendant liable, there should be proximity between the plaintiff, and the defendant’s product. People whose work brings them into contact with asbestos and workers who renovate buildings with asbestos in them may inhale fibers that are in the air; this is called occupational exposure. But note that workers’ families and tenants’ friends and relatives may inhale asbestos fibers released by clothes that have been in contact with asbestos containing materials; this is called para occupational exposure in the commercial setting but also for landlords of structures they face such extensive ancillary liability. Children are far more susceptible to exposure than adults.
People who live or work near asbestos related operations or structures might inhale asbestos fibers that have been released into the air by such operation; this is called neighborhood exposure.
In civil court lawsuits in the in the commercial or industrial setting, legal responsibility for injuries caused by asbestos exposure is mostly determined under the law of product liability. A product liability case arises when manufacturers, distributors, suppliers, retailers, and others who make products available to the public are claimed as responsible for the injuries caused by those products. Products liability law consists of common and/or statutory law provisions that allow damages to be obtained against sellers or manufacturers of defective products that cause injuries. See our article Product Liability-The Basics. Products liability lawsuits typically involve claims of mismanufacture, misrepresentation, defective design, or a failure to warn or instruct the consumer regarding safe use of the product. Product liability cases are usually based on one of three theories: (1) breach of warranty; (2) negligence; or (3) strict liability. For a full discussion of those theories, see our Product Liability article.
In the real estate field, it is not product liability but providing a safe environment for tenants and employees that is the critical area of liability and that is usually subject to local and state ordinances as well as Federal law on safe working environments. Each state has its own laws in this area but every state requires the landlord, be it commercial or residential, to provide a safe working and use environment for the tenants and employees and contractors of the landlord and violation of this requirement can create both civil and, if extreme, criminal liability.
It is vital to note that proper and safe treatment or removal of asbestos is also required and many cases derive from misguided efforts of landlords to remove or coat asbestos improperly.
The major diseases related to asbestos exposure are lung cancer, asbestosis and mesothelioma. In addition, several other noncancerous lung and pleural disorders may also be caused due to asbestos exposure. The symptoms of these diseases which include shortness of breath, wheezing and pain or tightening in the chest, may become apparent only decades after the initial exposure.
Long-term, regular asbestos exposure is often required to develop diseases such as asbestosis or mesothelioma. Exposure to asbestos may take place at the work place, home or in the community where a person resides. Workers engaged in shipbuilding, asbestos mining and milling, manufacturing of asbestos textiles and other asbestos products and insulation work are highly prone to such exposure. Demolition workers, drywall removers, asbestos removal workers, firefighters, and automobile workers are also threatened by exposure to asbestos fibers. Moreover, family members of these workers are also at an increased risk of developing such deadly diseases by exposure to asbestos laden clothing.
Similarly, people who live close to asbestos mines or in areas having a high concentration of asbestos deposits are at a higher risk of developing exposure related diseases. Further, smokers who have also been exposed to asbestos have a higher risk of developing lung cancer than nonsmokers.
Yet another more specific category include individuals involved in the rescue, recovery and cleanup of the September 11, 2001, World Trade Center (WTC) attack site in New York City, because asbestos material was used in the construction of the first 40 floors of the World Trade Towers. Residents in close proximity to the WTC as well as those who attended schools nearby are also at an increased risk of developing these diseases.
Lastly, tenants or owners of buildings that have such product installed may face exposure both during use and during removal or treatment of the product. Asbestos is a fact of life for any building that is twenty years or older and must be part of the due diligence when purchasing a building or considered during any renovation.
If such product is discovered it is absolutely essential to get qualified legal advice prior to any attempt at removal and to determine what notice to tenants is required under applicable local law. Remember, both criminal and punitive liability may be created by failure to comply with notice and removal requirements. Much liability is created by landlords seeking to minimize the problem by ignoring it or using the improper means to remove the product.
Diseases commonly associated with Asbestos exposure are:
Asbestosis: Asbestosis is a lung disease first found in textile workers. Asbestosis is a scarring of the lung tissue from an acid produced by the body’s attempt to dissolve the fibers. When inhaled, asbestos fiber embed themselves in the alveoli, the tiny air sacs where gas exchange occurs at the interface between the lung and the capillaries. The body’s natural defense mechanism responds to this by producing macrophages that attempt to engulf the fibers. In this defensive mechanism an acid is produced which causes scarring of the lungs. The scarring may eventually become so severe that the lungs can no longer function. The time taken for the disease to develop (latency period) is often 1020 years.
Mesothelioma: A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 2050 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.
Cancer: Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. Lung cancer causes the largest number of asbestos related deaths. The incidence of lung cancer in people who are or were directly involved in the mining, milling, manufacturing and use of asbestos and its related products is much higher than in the general population. The most common symptoms of lung cancer are coughing and a noticeable change in breathing. Other symptoms include shortness of breath, persistent chest pains, hoarseness, and anemia. People who have been exposed to asbestos and are also exposed to other carcinogens such as those in cigarette smoke have a significantly greater risk of developing lung cancer. One study indicates that asbestos workers who smoke are about 90 times more likely to develop lung cancer than people who neither smoke nor have been exposed to asbestos. The latency period for cancer is often 1530 years.
Pleural Disease – Asbestos exposure can cause a thickening or calcification of the pleura, a membrane lining the lungs, pleural plaques and pleural effusion. Pleural plaques and thickening are scarring of the pleura, the membrane that lines the inside of the chest wall and covers the outside of the lungs. Pleural effusion is the presence of liquid in the pleural space. Pleural plaques and thickening can be diagnosed by a chest X-ray and can be accompanied by symptoms and diminished pulmonary function.
The Occupational Safety and Health Administration (OSHA) contains three standards to protect workers from exposure to asbestos in the workplace: one regulates construction work, including alteration, repair, renovation, and demolition of structures containing asbestos; another covers asbestos exposure during work in shipyards; and the third applies to asbestos exposure in general industry, such as exposure during brake and clutch repair, custodial work, and manufacture of asbestos containing products. In addition, under current OSHA standards, employers must provide education and training for employees exposed above a permissible asbestos exposure limit (PEL), and for all employees involved in certain identified work classifications.
The Environmental Protection Agency’s “Worker Protection Rule” extends standards implemented by the OSHA to state and local employees who perform asbestos work, and who are not covered by OSHA Asbestos Standards or a state OSHA plan. The Worker Protection Rule parallels OSHA requirements and covers medical examinations, air monitoring and reporting, protective equipment, work practices, and record keeping. In addition, many state and local agencies have more stringent standards than those required by the federal government.
A major issue in identifying asbestos containing materials is that unless a material is labeled, it is difficult to determine whether it contains asbestos. OSHA requires employers to place warning labels on all asbestos products, containers, and installed construction materials when feasible.
State employment laws often mirror the above protection scheme for workers. There are often local ordinances that are county or even city wide that relate to asbestos notice, removal, etc.
Most real estate liability derives from State law and most states have stringent procedures for both detecting and removing asbestos and notifying interested parties.
If the owner has insurance, it is always a good idea to bring in the insurance company from the beginning since failure to give appropriate notice or inappropriate removal and notice can end up voiding much insurance protection.
For the business owner or landlord, the key for both Federal and State law is do not ignore the problem or try to rush into a removal solution without exploring the legal liabilities, insurance requirements, and realizing that such product is simply one more business issue you must confront with calm and intelligent common sense. Professionals should be brought in. Do not remove it yourself since not only will it endanger your health and the health of your loved ones, but it may expose you to extreme personal liability.
For the possible victim, remember that the statute of limitations may bar your action if you wait too long and you should obtain professional medical and legal advice for yourself and your family as quickly as possible to determine if you should make a claim and how best to protect yourself. If you see illegal removal of asbestos, you should immediately contact local authorities and quite possibly remove yourself from the tenancy until you know it is safe.
One client who faced a fifty thousand dollar fine and loss of his insurance coverage for pulling out a small piece of asbestos covering a boiler in an old apartment building perhaps made the most salient comment. “It seemed so simple and easy…just pull it off, stuff it in a garbage bag, dump it into the trash container. Now I’m being sued by everyone from the State government to the trash men. One minute not thinking and five years of agony. Just wasn’t thinking…”
He had always done his own work around the apartment building, had been the one to fix pipes, do the landscaping, etc. etc. He was just doing what he always did…
But with asbestos…that method is disastrous.