Brewster v. Colgate-Palmolive Co.

279 S.W.3d 142, 28 I.E.R. Cas. (BNA) 1210, 2009 Ky. LEXIS 18, 2009 WL 160419
CourtKentucky Supreme Court
DecidedJanuary 22, 2009
Docket2006-SC-000584-DG, 2007-SC-000366-DG
StatusPublished
Cited by28 cases

This text of 279 S.W.3d 142 (Brewster v. Colgate-Palmolive Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142, 28 I.E.R. Cas. (BNA) 1210, 2009 Ky. LEXIS 18, 2009 WL 160419 (Ky. 2009).

Opinions

Opinion of the Court by

Chief Justice MINTON.

I. INTRODUCTION.

Decades after working on projects in various premises owners’ buddings, an independent contractor’s employee developed asbestosis, the cause of which the employee claimed arose from exposure to asbestos while working in the various buildings. Assuming that asbestos exposure occurred on the premises as the employee claimed, under what circumstances can the premises owners be held liable for the employee’s disease? Did the owners have a duty to warn of the presence and potential dangers of asbestos, which at one time was used extensively in building construction but later attracted notoriety as a potential health hazard?

Some argue that these questions are answered by longstanding Kentucky precedent establishing a duty to warn only where the building owner has actual knowledge of the danger and the independent contractor had neither actual nor constructive knowledge of the danger.1 Oth[144]*144ers argue that Kentucky should adopt an approach used by other state courts, which imposes a duty to warn only where the premises owner had superior knowledge of the danger at the time of exposure.2 Still others press for more liberalized recovery afforded by the burden-shifting approach used by Kentucky courts in business invitees’ slip-and-fall cases.3

We accepted discretionary review to provide guidance concerning when a premises owner’s duty to warn independent contractors4 arises in asbestos cases and in other hidden-danger cases.5 We now reaffirm the applicability of our longstanding precedent of Owens v. Clary, decline to adopt the similar-sounding but more dispute-producing superior knowledge approach and decline to expand the burden-shifting approach as used in customer slip-and-fall cases to the present context.

Charles E. Brewster filed the case before us after he was diagnosed -with asbestosis several years ago. Brewster alleges that he was exposed to asbestos-containing building materials while performing construction work for independent contractors at Colgate-Palmolive’s plant in Jefferson-ville, Indiana, in the 1960s and 1970s and at Jewish Hospital in Louisville in the 1970s. Brewster seeks to hold both premises owners liable for his asbestosis. Apparently, Brewster never sought workers’ compensation benefits for asbestosis from his independent-contractor employers because the statute of limitations had expired for such claims.6 The trial court granted summary judgment in favor of the premises owners. We agree with the Court of Appeals that summary judgment was proper based on the lack of evidence to establish a duty to warn under Kentucky law, and we decline to reach other issues raised by the parties as unnecessary for [145]*145resolution.7 We further decline to extend the burden-shifting approach employed in customer slip-and-fall cases.

II. FACTS.

Brewster worked as a laborer for several employers on numerous worksites between 1950 and 1979. Between 1966 and 1976, Brewster worked often for Dahlem Construction, a company based in Louisville, Kentucky. While employed by Dah-lem, he worked on projects at the Colgate-Palmolive plant in Jeffersonville, Indiana, for one or more brief periods.8 He recalled tearing out various materials at the plant. He also recalled pouring concrete for a new construction project.

Between employment stints at Dahlem, Brewster worked for Wilhelm Construction Company for a period beginning in 1970. He spent all of his time working for Wilhelm at Louisville’s Jewish Hospital. He recalled tearing out old materials, including insulation for ceilings, wiring, and tanks, while a new addition to the hospital was being built. He also recalled being present when new insulation was being installed.

A back injury disabled Brewster from work beginning in 1980. In 2001, he was diagnosed with asbestosis and brought suit against numerous parties. His suit alleged negligence claims against several property-owner defendants, including Jewish Hospital and Colgate, stating that they breached duties by failing to warn independent contractors working on their premises of the presence and dangers of asbestos. Eventually, the trial court granted summary judgment in favor of Jewish Hospital on the grounds of Brewster’s failure to produce evidence of exposure to asbestos at Jewish Hospital and failure to show breach of a duty owed to him by Jewish Hospital. The trial court also granted summary judgment in favor of Colgate based on Brewster’s failure to show breach of any duty owed to him by Colgate, although the trial court rejected Colgate’s claim of statutory immunity from Brewster’s tort claim based upon the “up-the-ladder” defense.9

[146]*146The Court of Appeals affirmed the trial court on the ground that the property owners did not have a duty to warn of dangers of possible asbestos exposure or to take steps to protect Brewster from asbestos exposure because there was no evidence that either property owner had actual knowledge of a hidden danger of asbestos, citing both Farley and Clary. Although the Court of Appeals agreed with the trial court that the premises owners had no duty to warn, it rejected as inapplicable under Kentucky law the superior-knowledge standard cited by the trial court. The Court of Appeals also declined to extend to employees of independent contractors injured on the owner’s premises the burden-shifting approach used for business customers in slip-and-fall cases as in Lanier10 We now affirm the Court of Appeals.

III. ANALYSIS.

Before we address the question of the premises owner’s duty to warn, we note that other cases involving similar issues of potential premises-owner liability might be resolved without reaching the issue of duty if the trial court determines that the premises owner is entitled to up-the-ladder immunity. Jewish Hospital apparently never claimed this type of immunity. Colgate did claim it, but the trial court did not grant it summary judgment on this ground.

While we will express no opinion about whether Colgate could have been ultimately entitled to up-the-ladder immunity because we resolve this case on other grounds, we do not agree with Colgate that our recent ruling in Cain automatically establishes that Colgate is entitled to up-the-ladder immunity in this case. Since Brewster testified to pouring concrete at Colgate for a new addition, we think that the trial court properly found material issues of fact concerning the regular and recurrent characteristic of his work at Colgate, despite the fact that some tasks he performed — ripping out old materials in what may have been a routine maintenance project — closely resembled those held by this Court to be regular and recurrent in another case involving an independent contractor’s employee allegedly contracting an occupational disease at Colgate.11 We refer those seeking informa[147]*147tion on the up-the-ladder defense to our recent decision in Cain, which discusses in some detail the regular and recurrent aspect of the up-the-ladder defense.

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Cite This Page — Counsel Stack

Bluebook (online)
279 S.W.3d 142, 28 I.E.R. Cas. (BNA) 1210, 2009 Ky. LEXIS 18, 2009 WL 160419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewster-v-colgate-palmolive-co-ky-2009.