Union Carbide Corporation v. Paul Williams, Individually

• Court: Kentucky Supreme Court
• Decided: March 19, 2026
• Docket: 2023-SC-0440
• Status: Published

Opinion

RENDERED: MARCH 19, 2026 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0436-DG

SCHNEIDER ELECTRIC USA, INC., APPELLANT F/K/A SQUARE D

ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0184 & 2022-CA-0190 FAYETTE CIRCUIT COURT NO. 16-CI-01842

PAUL WILLIAMS, INDIVIDUALLY; APPELLEES COLBY WILLIAMS, BY AND THROUGH HIS PARENT, GUARDIAN AND NEXT FRIEND, PAUL WILLIAMS; PAUL WILLIAMS, AS EXECUTOR OF THE ESTATE OF VICKIE WILLIAMS; AND UNION CARBIDE CORPORATION

AND

2023-SC-0440-DG

UNION CARBIDE CORPORATION APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0184 & 2022-CA-0190 FAYETTE CIRCUIT COURT NO. 16-CI-01842

SCHNEIDER ELECTRIC USA, INC., APPELLEES F/K/A SQUARE D; COLBY WILLIAMS, BY AND THROUGH HIS PARENT, GUARDIAN AND NEXT FRIEND, PAUL WILLIAMS; PAUL WILLIAMS, AS EXECUTOR OF THE ESTATE OF VICKIE WILLIAMS; AND PAUL WILLIAMS, INDIVIDUALLY OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

This appeal asks whether, under Kentucky negligence and products-

liability doctrine, the summary-judgment record permits the court to declare—

as a matter of law—that defendants owed no duty to protect against foreseeable

harm from alleged household (“take-home”) asbestos exposure. Specifically,

whether Kentucky law recognizes a legal duty sufficient to survive summary

judgment in a negligence and products-liability action arising from alleged

exposure pathways involving asbestos-containing molding compounds used at

Schneider Electric USA Inc., F/K/A Square D Company’s (“Square D”)

Lexington facility and supplied by Union Carbide Corporation (“Union

Carbide”).

Square D’s liability is pleaded in negligence; Union Carbide’s liability is

pleaded in negligence and products liability. The circuit court granted

summary judgment to both defendants on the grounds that no duty existed.

The Court of Appeals reversed, concluding that duty could not be negated

because foreseeability depended on disputed facts that must be viewed in the

nonmovant’s favor, that there were material facts in dispute, and that

summary judgment was, therefore, improper. It vacated the limiting order

placed upon Williams’ expert, Dr. Egilman, because the trial court did not find

prejudice and because deposition testimony served as a functional form of

disclosure. Lastly, the Court of Appeals affirmed the trial court’s denial of the

workers’ compensation exclusivity claim.

2 Appellants urge that liability, and the requisite duty, should be framed

as premises-duty. However, the Court of Appeals treated the case as standard

negligence with regard to Square D, as that was how the claims were

procedurally brought before the court, and additionally under products liability

as to Union Carbide. The Court of Appeals analyzed duty through

foreseeability under CR 1 56. We likewise resolve the questions presented

through settled Kentucky duty and summary judgment doctrines.

We address three issues: (1) whether the trial court properly granted

summary judgment on ‘no duty’ grounds; (2) whether the trial court abused its

discretion in excluding/limiting Dr. David Egilman’s opinions absent a finding

of prejudice; and (3) whether the Workers’ Compensation Act’s exclusivity

provision, KRS 2 342.690(1), bars the claims against Square D.

We affirm the Court of Appeals. Under Kentucky’s summary judgment

standard, duty cannot be negated where foreseeability turns on disputed facts

that must be viewed in the nonmovant’s favor. The Court of Appeals also

correctly vacated the expert-limitation order because the trial court did not find

prejudice and because the deposition disclosed the substance of the opinions.

Finally, on this record, KRS 342.690(1) does not compel dismissal of the claim

before us where all parties’ experts, the circuit court, and the Court of Appeals

agreed and treated the alleged causation as non-occupational household

1 Kentucky Rules of Civil Procedure.

2 Kentucky Revised Statutes.

3 exposure rather than an injury ‘arising out of and in the course of’ employment

as required by the Workers’ Compensation Act.

We emphasize at the outset that this appeal concerns only whether

summary judgment was appropriate—not whether liability exists—and that no

factual findings or credibility determinations are made here.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. PARTIES.

Appellant Union Carbide is a manufacturer. Relevant to the proceedings,

it was the manufacturer of asbestos-containing molding compounds purchased

and used by Square D at its Lexington facility. Specifically, Union Carbide

manufactured phenolic molding compounds to make finished plastic products.

Until 1974, some of Union Carbide’s phenolic molding compounds contained

asbestos fibers as a filler. Union Carbide supplied large quantities of molding

compounds to Square D during the 1960s and 1970s. Square D incorporated

those compounds into electrical components manufactured at its Lexington

facility. Square D purchased some molding compounds from Union Carbide,

and until around 1974, those compounds contained asbestos fibers. The

record shows Union Carbide sold phenolic molding products, some of which

contained asbestos fibers, to Square D during the time Ms. Williams lived with

her parents.

Appellant Square D is also a manufacturer. Since the late 1950s, Square

D has manufactured electrical enclosures, load centers, and switches at its

Lexington, Kentucky facility. Square D used asbestos-containing molding

4 compounds in the manufacturing process of its products during the relevant

period. These products were manufactured at the Lexington facility.

Vickie Williams (“Ms. Williams”) was adopted by the Baxters in 1967,

when she was approximately six years of age, and she lived with them until the

mid-1980s. Ms. Williams’ father, Ken Baxter, worked for Square D beginning

in the late 1960s until approximately 2003. Mr. Baxter was in or around

Square D’s mold room during the time Ms. Williams lived with him and was

allegedly exposed to asbestos dust generated during the manufacturing

process. Plaintiffs presented some evidence that Baxter routinely returned

home in work clothes contaminated with asbestos dust and that his household

members—including Ms. Williams—were repeatedly and regularly exposed to

asbestos through laundering and close domestic contact.

This case arose from the mesothelioma diagnosis in 2016 of Ms. Williams

at the age of fifty-four and asserted household (“take-home”) exposure linked to

asbestos-containing materials used in Square D’s manufacturing operations

and supplied by Union Carbide. Ms. Williams died from the disease

approximately a year later. Prior to her death, Ms. Williams filed suit in

Fayette Circuit Court against Square D and Union Carbide claiming exposure

to asbestos. Her estate was substituted in her place and her husband and son

added claims for loss of consortium. Appellee Estate of Vickie Williams

(“Williams”) alleges the dangerous manufacturing of these products resulted in

her asbestos injury and resulting mesothelioma through the repeated exposure

via her father’s contaminated clothing.

5 Square D manufactured plastic electrical parts using molding

compounds. A measurable amount of these molding compounds were

purchased from Union Carbide until around 1974. These compounds

contained asbestos fibers. Ms. Williams lived with the Baxters from 1967 until

the mid-1980s. She testified that she frequently encountered her father’s dusty

work clothes, hugged him daily, and helped launder clothing. She was

diagnosed with mesothelioma in 2016 and died approximately a year later. The

suit alleged indirect exposure from her father’s contaminated clothing and

direct exposure during her brief employment. It includes claims against

Square D in negligence and claims against Union Carbide in negligence and

products liability.

Ms. Williams worked at Square D for a few months during the summer of

1978 as a teenager. The trial court found it significant that both the

Williamses’ experts and the defenses’ experts agreed that no portion of Ms.

Williams’ injury was caused by her 1978 employment at Square D. Williams

alleges that the disease resulted from long-term household exposure caused by

defendants’ negligent conduct and defective products.

B. TRIAL COURT PROCEEDINGS.

These proceedings began in Fayette Circuit Court as a single case. The

complaint alleged negligence and product liability as follows:

Factual Basis of Claim . . . Plaintiff, Vickie Williams, was exposed both directly and indirectly, in the manner described herein, to asbestos containing products manufactured, sold, distributed, constructed, designed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged, labeled and/or

6 otherwise placed into the stream of commerce by the Defendants. .... The Defendants and/or their predecessors have for many years either manufactured, produced, processed sold, distributed, constructed, designed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged, labeled, maintained property and/or otherwise placed into the stream of commerce, asbestos containing products.

Ms. Williams alleged that managers and agents of Square D failed to

implement proper rules and procedures to eliminate asbestos from being at or

being taken home from the Lexington facility. The complaint continued:

The asbestos containing products manufactured, distributed, sold, constructed, designed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged, labeled, and/or maintained by the Defendants reached the Plaintiff, Plaintiff’s father and others, without any substantial change or any alteration from their original home. . . . The Defendants failed to insure that employees or occupants at job sites would be protected from harm by exposure to asbestos products that were defective, unreasonably dangerous.

The ten claims were:

COUNT I: STRICT LIABILITY - FAILURE TO WARN COUNT II: STRICT LIABILITY - DESIGN DEFECT/CONSUMER EXPECTATION COUNT III: NEGLIGENCE – FAILURE TO EXERCISE ORDINARY CARE COUNT IV: NEGLIGENCE – FAILURE TO WARN COUNT V: KENTUCKY OCCUPATIONAL DISEASE ACT KOSHA/OSHA VIOLATIONS (NEGLIGENCE PER SE) COUNT VI: MISREPRESENTATION/CONSPIRACY TO DEFRAUD COUNT VII: PUNITIVE DAMAGES COUNT VIII: PERSONAL INJURIES COUNT IX: LOSS OF SPOUSAL CONSORTIUM COUNT X: LOSS OF PARENTAL CONSORTIUM

In a May 10, 2018, order, the circuit court denied Square D’s motion for

summary judgment, concluding (as to duty) that the Williamses had produced

7 evidence from which a factfinder could infer that take-home exposure risks to

household members were foreseeable. Square D’s affirmative defense that

workers’ compensation exclusivity applies was denied citing Square D’s failure

to set forth any legal authority supporting its position.

Square D pursued an interlocutory appeal on workers’ compensation

exclusivity under the Ervin Cable exception, which provides that unless a

worker opts out of the workers’ compensation system, the injured worker’s

recovery from the employer for sustained work-related injuries is limited to

workers’ compensation benefits. Ervin Cable Constr. v. Lay, 461 S.W.3d 422,

424 (Ky. App. 2015). After Sheets v. Ford Motor Co., 3 that appeal was vacated

and dismissed as procedurally improper, and the matter returned to circuit

court. 626 S.W.3d 594 (Ky. 2021). Meanwhile, the circuit court granted

summary judgment in favor of Union Carbide, finding that Union Carbide did

not owe Ms. Williams a duty of care because her injuries were an unforeseeable

risk. On remand, Square D promptly renewed its summary-judgment motion.

On January 28, 2022, the circuit court granted summary judgment to Square

D, expressly incorporating the reasoning of its prior ‘no duty’ ruling entered for

Union Carbide.

3 Square D pursued an interlocutory appeal after the trial court denied their

motion for summary judgment on the exclusive remedy issue as then authorized by Ervin Cable. The Court of Appeals affirmed that decision. Subsequently, this Court issued its opinion in Sheets holding that an order denying a motion for summary judgment based on application of the Workers Compensation Act’s exclusivity provision could not be reviewed until after a trial court’s final judgment.

8 C. COURT OF APPEALS.

The Court of Appeals reversed and held the ‘bystander of a bystander’

characterization by the trial court could not support summary judgment

because the underlying exposure facts were disputed and must be viewed most

favorably to the Williamses under Kentucky rules and Steelvest. Central to the

court’s analysis was that duty is not predicated on rigid classifications such as

“bystander” or “nonuser” and that duty is measured in terms of foreseeability.

Relying on Kentucky’s recognition of a general duty of ordinary care and

manufacturer duties extending beyond immediate users, the court concluded

defendants were not entitled to judgment as a matter of law on duty.

Appellants attempted to misconstrue the case at hand as one of premises

liability and, in doing so, they seek to apply doctrines that do not govern the

claims actually pleaded. The proper analysis of duty remains under

Kentucky’s traditional negligence and products-liability framework. This

includes the focus on foreseeability and procedural posture. The Court of

Appeals further held the characterization of the father as a bystander, and

daughter as bystander-of-a-bystander, to be incorrect or, at the very least, in

dispute. In sum, evidence exists to support a dispute regarding a genuine

issue of material fact.

9 II. STANDARD OF REVIEW

Summary Judgment Standard of Review (CR 56.03 and Steelvest).

Because the trial court disposed of Williams’ claims against Union Carbide and

Square D on summary judgment, in order to prevail on appeal, the movant

Appellants bear the initial burden of demonstrating that there is no genuine

issue of material fact in dispute. Summary judgment is appropriate where “the

pleadings, depositions, answers to interrogatories, stipulations, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” CR 56.03. The nonmovant must produce at least

some affirmative evidence of a genuine issue for trial.

We think it should be borne in mind that a motion for summary judgment is not a trick device for the premature termination of litigation. Its function is to secure a final judgment as a matter of law when there is no genuine issue of a material fact. . . . The burden is on the movant to establish the nonexistence of a material fact issue. He either establishes this beyond question or he does not. If any doubt exists, the motion should be denied.

Conley v. Hall, 395 S.W.2d 575, 580 (Ky. 1965); see also Roberson v.

Lampton, 516 S.W.2d 838, 840 (Ky. 1974). “The standard of review on appeal

of a summary judgment is whether the circuit judge correctly found that there

were no issues as to any material fact and that the moving party was entitled to

a judgment as a matter of law.” Pearson ex rel. Trent v. Nat’l Feeding Sys., Inc.,

90 S.W.3d 46, 49 (Ky. 2002). Summary judgment is only proper when “it

would be impossible for the respondent to produce evidence at the trial

warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 10 807 S.W.2d 476, 480 (Ky. 1991). In ruling on a motion for summary judgment,

the Court is required to construe the record “in a light most favorable to the

party opposing the motion . . . and all doubts are to be resolved in his favor.”

Id. In Steelvest, the word “‘impossible’ is used in a practical sense, not in an

absolute sense.” Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). In

other words, the party opposing the motion then has the burden to present “at

least some affirmative evidence showing that there is a genuine issue of

material fact for trial.” Steelvest, 807 S.W.2d at 480.

This is a negligence case which requires proof that (1) the defendant

owed the plaintiff a duty of care, (2) the defendant breached the standard by

which his or her duty is to be measured, and (3) consequent injury. Mullins v.

Commonwealth Life Ins. Co., 839 S.W.2d 245, 247-48 (Ky. 1992). This Court

later clarified “consequent injury” to be (3) causation and (4) damages. Patton v.

Bickford, 529 S.W.3d 717, 729 (Ky. 2016); Hayes v. D.C.I. Properties-D KY, LLC,

563 S.W.3d 619, 622-23 (Ky. 2018).

Duty, the first element, presents a question of law. Mullins, 839 S.W.2d

at 248. Thus, for Appellants Union Carbide and Square D to be entitled to

judgment as a matter of law, they must show that (1) it was impossible for

Williams to produce any evidence in her favor on one or more of the issues of

fact, Steelvest, 807 S.W.2d at 483; and further must show (2) under the

undisputed facts of the case, they owed no duty to Williams, see Ashcraft v.

Peoples Liberty Bank & Tr. Co., Inc., 724 S.W.2d 228 (Ky. App. 1986) (“If no

duty is owed by the defendant to the plaintiff, there can be no breach thereof,

11 and therefore no actionable negligence.”); or (3) as a matter of law, any breach

of a duty it owed to Williams was not a legal cause of her injuries. See id.

III. ANALYSIS

Whether Ms. Williams could produce any evidence in her favor on one or

more of the issues of fact precludes a finding of summary judgment under

Steelvest, 807 S.W.2d at 483. The record contains competing expert testimony

on critical issues bearing on duty and foreseeability. Appellees’ experts—

including Drs. Egilman, Ellenbecker, and Roggli—opined that asbestos dust

was known at the time to migrate on clothing, that repeated household

exposure was a recognized pathway of harm, and that such exposure could

cause mesothelioma. Appellants’ experts—including Dr. Crapo and industrial

hygienist Robert Adams—disputed the extent and significance of such exposure

but did not conclusively negate its effects. These conflicting opinions, together

with disputed evidence regarding Mr. Baxter’s work location and the frequency

of household contact, create genuine issues of material fact. Under Kentucky’s

summary judgment standard, such disputes must be resolved by a jury which

is better suited to weigh the credibility and effect of such testimony, not the

court. Gersh v. Bowman, 239 S.W.3d 567, 571-72 (Ky. App. 2007) (explaining

that a jury may determine the weight and credibility of evidence.)

Here, the amount of time Mr. Baxter spent in or near the molding

department, and thus the extent of asbestos-dust exposure, was a point of

“great contention.” Although Appellants characterize Mr. Baxter as an “office

worker” or designer, the summary judgment record does not establish, as a

12 matter of law, that he was insulated from asbestos-generating processes.

Evidence in the record reflects that Baxter spent substantial time on the

production floor, overseeing process and production, and that he crossed

through the molding areas regularly. The Williamses cited coworker testimony

that he was frequently in the molding room, while Appellants characterized him

as primarily office-based. The parties dispute the extent, frequency, and

duration of his exposure in those areas. Much of these disputes are informed

by competing expert opinions. Because foreseeability of take-home exposure

turns in part on the nature and regularity of workplace contact with asbestos-

containing materials, this factual dispute is material and must be resolved by a

jury.

Under Kentucky’s summary-judgment standard, courts do not resolve

such conflicts or weigh credibility; they ask only whether a genuine issue exists

when the evidence is viewed in the nonmovant’s favor. Where, as here,

foreseeability turns on contested exposure facts—such as whether Mr. Baxter

was frequently in the molding department—the dispute itself precludes

summary judgment.

A. SUMMARY JUDGMENT WAS IMPROPER WHERE DUTY CAN BE FOUND AND THERE IS A GENUINE ISSUE OF A MATERIAL FACT.

1. Duty can be found if the risk of injury was foreseeable.

Whether a duty exists in this instance turns on application of settled

Kentucky negligence and products-liability principles to the summary

judgment record. “The first step in proving negligence is determining what

duty, if any, the defendant owed the plaintiff.” Smith v. Smith, 563 S.W.3d 14,

13 16 (Ky. 2018). Kentucky measures duty in terms of foreseeability as “a

universal duty owed by all to all” but further explained as “‘a duty of every

person to every other person to exercise ordinary care in his activities to

prevent foreseeable injury.’” Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d

891, 897 (Ky. 2013) (citing Gas Serv. Co. v. City of London, 687 S.W.2d 144,

148 (Ky. 1985) and Grayson Fraternal Ord. of Eagles, Aerie No. 3738, Inc. v.

Claywell, 736 S.W.2d 328, 332 (Ky. 1987)).

The existence of a duty is a question of law informed by whether the

defendant’s conduct created a foreseeable risk of harm. Pathways, Inc. v.

Hammons, 113 S.W.3d 85, 89 (Ky. 2003). Kentucky recognizes a general duty

of ordinary care, including an independent duty on manufacturers to design,

manufacture, and distribute reasonably safe products. Nichols v. Union

Underwear Co., 602 S.W.2d 429, 433 (Ky. 1980). Duty is not defined by rigid

classifications such as “bystander,” “nonuser,” or “nonconsumer.” Jones v.

Hutchinson Mfg., Inc., 502 S.W.2d 66, 69-70 (Ky. 1973).

In this analysis of legal duty, we have determined that the major issue is the question of foreseeability. In order to apply any “universal duty of care” to a particular circumstance, “it must appear that the harm was foreseeable and the facts must be viewed as they reasonably appeared to the parties charged with negligence....”

Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky. 1995), holding modified by

Gaither v. Just. & Pub. Safety Cabinet, 447 S.W.3d 628 (Ky. 2014) (citing North

Hardin Devs. v. Corkran, 839 S.W.2d 258 (Ky. 1992); Mitchell v. Hadl, 816

S.W.2d 183 (Ky. 1991)).

14 In deciding whether harm was foreseeable, Kentucky courts look to the general foreseeability of harm, not to whether the particular, precise form of injury could be foreseen. Miller v. Mills, 257 S.W.2d 520 (Ky.1953). It is enough that injury of some kind to some person within the natural range of effect of the alleged negligent act could have been foreseen. Id.

T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 531 (Ky. 2006)

(emphasis added). Rather, duty turns on the general foreseeability of harm

arising from the defendant’s affirmative conduct, and where foreseeability

depends on disputed facts, summary judgment is inappropriate. Steelvest, 807

S.W.2d at 480. 4

a. Negligence: Duty Is a Question of Law, Foreseeability Is a Factor.

The Court of Appeals properly framed the issue before us as negligence

and products liability. Under a negligence theory, duty turns on foreseeability

of harm from the defendant’s conduct. Critically, we do not find that Square D

owed a premises-based duty to the general public, or that employers always

owe a duty for take-home exposure, but confine our analysis to household

4 Foreseeability of harm is distinct from foreseeability of litigation, or as the

dissent states, a previously recognized “compensable risk” as such premise would bar recognition of any new duty because every claim of first impression would fail for a lack of prior adjudication. Kentucky negligence law must remain capable of addressing evolving industrial hazards. Additionally, the standard is not whether widespread public recognition exists, but whether industry actors knew or should have known as “[a]bsolute proof of knowledge is not required to create civil liability.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 81 (Ky. 2010). Finally, reliance on Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009) is misplaced as nonbinding, “involving a[n exposure] timeframe a decade earlier” with an entirely different record, and predates our subsequent clarification of summary-judgment principles. It neither controls our analysis nor compels a finding of unforeseeability as a matter of law.

15 members with regular, repeated, close contact over an extended period

consistent with a conduct-based negligence analysis.

To import premises concepts to narrow duty artificially attempts to apply

doctrines that do not otherwise apply to negligence and products liability.

Upon a careful reading of the pleadings, record, and briefs, references to

“premises” were merely descriptive of location, not invocations of premises-

liability doctrine upon the part of Williams. The alleged wrong is affirmative

conduct—manufacturing, using, and distributing asbestos-containing

materials in a manner that allegedly allowed hazardous fibers to leave the

workplace.

Appellants claim the duty is narrow and exceptional, that foreseeability

must be shown through prior similar incidents, that a “special relationship”

must exist, and that the Court would be “creating new law” if it recognizes

duty, a decision belonging to the General Assembly. That would be true if the

case were solely premises liability. However, it is negligence and products

liability. Duty has been found under existing Kentucky precedent.

b. Foreseeability Limits Duty to Harms a Reasonable Person Could Anticipate in Light of Existing Knowledge and Circumstances at the Time of the Conduct.

Brief History of Asbestos Knowledge. By the mid-twentieth century—

well before the period relevant to this case—the health hazards associated with

asbestos were widely recognized within industry, government, and the scientific

community. Asbestos dust was known to become airborne during routine

industrial processes and to cause serious disease, including mesothelioma.

16 Kentucky courts acknowledged by the early 1960s that airborne asbestos dust

constituted a dangerous industrial hazard. Bethlehem Mines Corp. v. Davis,

368 S.W.2d 176, 177 (Ky. 1963). This Court held that actual knowledge of

asbestos hazards was so pervasive by 1969 in the pipefitting industry that “the

whole industry —including the empty-chair defendants —knew of the risks.”

CertainTeed Corp. v. Dexter, 330 S.W.3d 64 (Ky. 2010). A paper written in

1930 articulated that an asbestos-related disease could be acquired by merely

“any exposure to asbestos.” Id.

By the 1960s, it was also understood that asbestos fibers could adhere to

clothing and be transported beyond the workplace. Industry practices at

certain facilities—including protective clothing, changing rooms, and on-site

laundering—were adopted specifically to prevent workers from carrying

asbestos fibers home and exposing family members. The record reflects

testimony acknowledging that such measures were implemented for the

express purpose of protecting workers’ families, supporting the conclusion that

secondary or “take-home” exposure was a known and anticipated risk during

the relevant period.

Regulatory action reflected this understanding. In 1972, OSHA

promulgated comprehensive asbestos standards addressing airborne exposure

limits and employee hygiene practices, including the handling of contaminated

clothing. Manufacturers and suppliers of asbestos-containing materials

operated within this established body of knowledge. Under Kentucky law,

manufacturers are charged with knowledge of the dangers inherent in their

17 products and the reasonably foreseeable ways in which those products may

cause harm. Nichols, 602 S.W.2d at 433. This historical context informs the

foreseeability inquiry and, viewed in the light most favorable to the non-

movant, precludes negating duty as a matter of law at the summary-judgment

stage.

c. Foreseeability of the Harm as a Natural and Probable Consequence of the Conduct.

We emphasize the bounded nature of the duty analysis as described by

the Court of Appeals: this case does not involve ‘random, sporadic, or isolated’

contact, and the duty recognized is to household members who ‘regularly and

repeatedly’ came into close contact with contaminated work clothing over an

extended period—not the general public. The competing expert testimony in

this record bears directly on whether the alleged exposure falls within this

bounded category. Appellees’ experts opined that repeated laundering,

physical contact, and re-entrainment of asbestos fibers in the home constitute

medically significant exposure pathways. Appellants’ experts disputed the

magnitude and significance of those exposures. These conflicts, together with

disputed evidence regarding the frequency of Mr. Baxter’s presence in

production areas, create genuine issues of material fact as to whether the

alleged domestic contact was sufficiently regular and repeated to render injury

foreseeable. Such determinations cannot be resolved at summary judgment.

Steelvest, 807 S.W.2d at 480. We do not recognize a universal “take-home

asbestos” duty, nor do we impose a duty to the general public. The duty which

could be found here is confined to individuals alleged to have experienced

18 regular and repeated domestic contact with asbestos-contaminated work

clothing over an extended period of time, such that injury from the defendant’s

conduct or products was reasonably foreseeable. Casual, incidental, or

transitory contact falls outside the scope of this duty.

Square D cites to the Napper/Reeves line of cases as determinative of

duty in the case before us. Reeves requires policy analysis; it does not convert

products-liability duty into categorical immunity. When this Court applied

decades-old precedent which held that

a landowner has a duty to protect patrons from third-party acts only if he or she “knows of activities or conduct of other patrons or third persons which would lead a reasonably prudent person to believe or anticipate that injury to a patron might be caused,” and if he or she can reasonably safeguard against them,

we were referencing a premises owner’s duty to protect visitors from third-party

criminal acts. Walmart, Inc. v. Reeves, 671 S.W.3d 24, 28 (Ky. 2023) (quoting

Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d 270, 271 (Ky. 1958)). A

duty could be imposed if the criminal conduct was determined to be

foreseeable. In Reeves, we held no duty to protect visitors from those

unforeseeable third-party criminal acts—a context the Court itself treats as

exceptional because the harm is produced by an intervening third party rather

than the defendant’s own product or conduct. Limiting duty due to the

unforeseeable intervention of a criminal act is highly distinguishable from the

facts in this case.

19 Square D alleges this Court categorically rejected a universal duty of care

on business owners “to protect all visitors against all third-party acts” based on

a policy analysis, citing repeatedly to our decision in Reeves, 671 S.W.3d at 29.

Union Carbide claims in its brief, “[c]reating a duty to warn those in Ms.

Williams’s position relative to the product manufacturer would impose

excessive and unworkable burdens on those manufacturers.” We hold finding

a duty under the specific circumstances of facts before us today would not.

Further, this duty is consistent with existing liability law.

Reeves confirms that courts must consider policy implications before

expanding duty, while Shelton v. Kentucky Easter Seals Society, Inc. instructs

that duty is a question of law defined by general categories of cases, not by the

particularized facts of an individual plaintiff. 413 S.W.3d 901, 906–07 (Ky.

2013). The limiting principle applied here complies with both directives. By

defining duty to extend only to individuals alleged to have experienced regular

and repeated domestic contact with asbestos-contaminated work clothing,

the Court articulates a categorical boundary grounded in foreseeability, while

leaving case-specific questions—such as the frequency, duration, and nature of

contact—to the jury.

This approach preserves Shelton’s separation between duty as a legal

determination and breach as a factual inquiry and avoids the fact-bound duty

analysis Shelton cautioned against. The disputed facts determine whether this

case falls within the defined category, not whether the category itself exists.

Accordingly, we reiterate the narrow scope of today’s holding: we do not

20 recognize a universal “take-home asbestos” duty, nor do we impose a duty to

the general public. Rather, duty is confined to circumstances in which

prolonged, regular domestic exposure renders harm reasonably foreseeable

based on the defendant’s conduct or products. This limitation reflects

Kentucky’s long-standing reluctance to impose categorical duties divorced from

factual context and is consistent with Pathways, 113 S.W.3d at 89 (Ky. 2003),

and Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 332 (Ky.

1987).

Manufacturers, businesses, and commercial entities are sophisticated

actors that regularly write and enter contracts with their customers and

suppliers. To warn its customer, to require its customer to warn its employees,

to indemnify itself via contract, or to take an act requiring the mere posting of a

warning label, is standard business practice that fails to “create an

economically untenable reality for business owners and, ultimately, their

customers.” Reeves, 671 S.W.3d at 29. While in the situation of Reeves, this

Court reaffirmed the Napper premises-liability exception that states a

landowner owes a limited duty to protect patrons from third-party criminal acts

only if the owner knows or has reason to know such acts are occurring or are

about to occur. Napper, 310 S.W.2d at 271. That case differs from this in every

doctrinally significant respect. Further, Square D’s potential liability in

particular arises under ordinary negligence, based on affirmative conduct in

the use and handling of asbestos-containing materials in their processes by

allegedly failing to implement hygiene and exposure controls thereby allowing

21 foreseeable fiber migration off-site via contaminated clothing. Products liability

imposes an independent manufacturer’s duty to design, manufacture, and

distribute reasonably safe products. See Nichols, 602 S.W.2d at 433.

A party injured by a product can bring suit for that injury under three different theories: (1) breach of warranty under the Uniform Commercial Code, (2) negligence, or (3) strict liability in tort. See Williams v. Fulmer, Ky., 695 S.W.2d 411 (1985). When the case involves a retrofit, the plaintiff is claiming the product was defectively designed. Here, for example, Ostendorf claims the C–300 forklift was defectively designed because it did not have operator safety restraints. A plaintiff in Kentucky can bring a defective design claim under either a theory of negligence or strict liability. The foundation of both theories is that the product is “unreasonably dangerous.” Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197, 200 (1976). Whereas negligence examines the conduct of the manufacturer—could the manufacturer foresee the harm to the plaintiff and did the manufacturer act reasonably to prevent that harm—strict liability typically evaluates the condition of the product. But in a negligent design case, even a strict liability claim examines the manufacturer's conduct. See Nichols v. Union Underwear Co. Inc., Ky., 602 S.W.2d 429 (1980) (distinction between strict liability and negligence “is of no practical significance so far as the standard of conduct required of the defendant”). So under either theory, it is the legal duty of a manufacturer to use reasonable care to protect against foreseeable dangers.

Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003) (emphasis

added).

Appellees produced evidence, viewed in the light most favorable to them,

that by the relevant time period, asbestos dust was widely recognized as a

hazardous substance, that asbestos fibers could adhere to clothing and be

transported beyond the workplace, and that prolonged exposure to such fibers

could cause mesothelioma. Whether Appellants knew or should have known of

22 these risks, and whether their conduct fell below the standard of ordinary care,

are classic jury questions.

Courts must be careful not to collapse duty into breach or causation,

particularly at the summary judgment stage. Applying these principles, the

Court of Appeals correctly concluded that duty could not be negated as a

matter of law.

The Court of Appeals did not hold that Appellants owed a duty to the

general public, expressly confining the analysis to household members

allegedly subjected to regular, repeated exposure through contaminated work

clothing. Consistent with Kentucky’s reluctance to announce categorical duty

rules divorced from factual context, this narrow framing also limits blanket

liability and immunity. Similarly, it aligns with limiting frameworks other

states have successfully applied without a flooding of recourse.

d. Products Liability: Foreseeability is Unnecessary Pursuant to the Products Liability Act, Analyzed at the Breach Stage.

The duty framework applies with equal force in Kentucky products-

liability law, which imposes an independent obligation on manufacturers to

place reasonably safe products into the stream of commerce. No “special duty”

or relationship must be shown, as we established in Embs v. Pepsi-Cola Bottling

Co. of Lexington, Ky., Inc., 528 S.W.2d 703, 705 (Ky. 1975) when we found no

essential reason why non-consumers should not be brought within the scope of

protection afforded by the adopted view of strict liability in tort law expressed

in Section 402A of the American Law Institute’s Restatement of Torts 2d.

23 Kentucky products liability is strict liability, and once strict liability is

accepted, “bystander recovery is fait accompli.” Embs, 528 S.W.2d at 705. The

Court of Appeals relied on that principle and CertainTeed Corp., 330 S.W.3d at

77, in rejecting a categorical ‘bystander-of-a-bystander’ no-duty rule.

Duty analysis focuses on conduct and foreseeability, not rigid

classifications. T&M Jewelry, Inc. v. Hicks, 189 S.W.3d 526 (Ky. 2006). Under

this framework and applying these principles to the summary judgement

record, we disagree with the trial court’s finding of no duty to a “bystander-of-

a-bystander” and that Union Carbide’s “duty as a product manufacturer did

not extend to secondary exposures to asbestos that Ms. Williams may have

experienced as a result of her contact with Mr. Baxter or the environment he

occupied after leaving the premises owned and operated by UCC’s customer.”

2. Conflicting Evidence Creating an Issue of a Material Fact Precludes Summary Judgment.

As per the March 21, 2018, hearing, Appellee cited Carlos Martino, agent

for Union Carbide, as having testified to actual knowledge when he stated by

1968, they were “providing protective clothing to the individuals at the Bound

Brook facility and the express reason we did that was we knew they could take

asbestos home and harm their families.”

Dr. Michael Ellenbecker is a Certified Industrial Hygienist (“CIH”) who

confirmed that more likely than not, Mr. Baxter was frequently exposed to

asbestos-containing products while working in Square D’s mold room, that Ms.

Williams’ only asbestos exposure was from his contaminated work clothes, and

24 that the exposures were directly a percentage relative to Union Carbide’s

supplied asbestos products.

Donald Marano for Square D testified that “Square D was still machining

parts in the plant that contained asbestos and that the potential existed” and

went on to say

any exposure that [Williams] would have had from this – from working there for that two months would have been indistinguishable from any exposure that she may have had from laundering her father’s work clothing when he came home from – from working there, if she had any exposure to that at all.

His opinion contested any exposure existed contrasting with Ellenbecker’s

claim there was frequent exposure.

Industrial Hygienist Robert Adams for Union Carbide also testified he did

not have any “information that would provide [him] any ability to testify to any

other exposures she had beyond the household exposures that are alleged from

the use of the phenolic molding compounds that her father would have brought

home on his work clothes.”

Dr. David Egilman provided a self-prepared series of PowerPoint slides

setting forth what Square D and Union Carbide knew or should have known of

the hazards of take-home exposures during the alleged relevant timeframe

referencing a study that mathematically predicted what the rates of

mesothelioma in people would be at lower exposures.

Q (By Mr. Woods) All right. So now let’s talk about exposures that Ms. Williams may have experienced during the time period that she lived with Mr. Baxter. And I think you mentioned several different methods of exposure that she may have had. One was in the car? 25 A Yes.

Q Riding in the car where he had previously ridden with clothing that was contaminated with asbestos; correct? A Correct.

Q and laundering Mr. Baxter’s clothes? A Correct.

Q Having direct contact with Mr. Baxter after he worked at Square D after–with his clothes after he worked at Square D? A Correct. When he came home, if she came and hugged him or came in contact with him, correct.

Q and then the last one was the re-entrainment of asbestos in the house? A Correct.

Q Which had been deposited from his clothes at some point? A Correct.

Q Do you have – well, first of all, can you quantify the exposures to asbestos that Mr. –I’m sorry Ms. Williams had from any of those sources? A With a number, no.

Q Can you give me a range of what her exposures would have been to asbestos from any of those sources? A A range? You know, I can only go from the Manville ’76 testimony in OSHA which says that the home exposures, particularly to children, are much more important or more significant than occupational exposures because they’re 24- hour-a-day exposures and there’s re-entrainment and they occur at a younger age. So given the fact that meso has got a long latent period, you’ve got a – those are – those exposures are more likely to cause harm.

Deposition of Dr. Egilman p. 161-63 (emphasis added). Dr. Egilman indicated

contested claims regarding the issue of impact or significance of the timing and

duration upon a child from such exposures in addition to the frequency.

Conflicting evidence regarding a material issue of fact, whether or not

Williams was exposed to asbestos, is sufficient to preclude summary judgment. 26 B. LIMITATION OF EXPERT TESTIMONY REQUIRES A SHOWING OF ACTUAL PREJUDICE.

Square D and Union Carbide argued that Dr. David Egilman’s opinions

should be limited because they were not sufficiently disclosed in formal expert

reports, and some were presented through deposition testimony and

demonstrative materials (PowerPoint). No Daubert hearing was conducted, no

finding that his methodology was unreliable was made, and there was no

finding of surprise or inability to cross-examine. Despite this, the trial court

limited Dr. Egilman’s testimony. The restricted testimony included historical

knowledge evidence, industry-wide foreseeability opinions, and take-home

exposure pathway testimony. The limitation occurred while summary

judgment was pending. The Court of Appeals vacated the limitation because

(1) depositions serve the disclosure function of CR 26.02 and 26.05, and (2) the

trial court did not find prejudice; without prejudice, there is no valid basis to

exclude or limit testimony. The order thus improperly affected the summary-

judgment analysis by restricting evidence relevant to foreseeability and duty.

Square D and Union Carbide contend that the Court of Appeals erred in

vacating the trial court’s order limiting the testimony of Appellees’ expert, Dr.

David Egilman, based on alleged deficiencies in expert disclosure. We disagree.

The admission or exclusion of expert testimony lies within the sound

discretion of the trial court. Goodyear Tire & Rubber Co. v. Thompson, 11

S.W.3d 575, 577 (Ky. 2000). However, that discretion is not unbounded. A

trial court abuses its discretion when its decision is arbitrary, unreasonable,

27 unfair, or unsupported by sound legal principles. Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999).

Kentucky law is clear that exclusion of expert testimony is a severe

sanction, and absent a showing of actual prejudice, it is generally disfavored.

Clephas v. Garlock, Inc., 168 S.W.3d 389, 393–94 (Ky. App. 2004); Tamme v.

Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998). The purpose of expert

disclosure rules is to prevent surprise and allow meaningful cross-

examination—not to provide a procedural mechanism for exclusion where the

opposing party is already aware of the substance of the testimony.

Here, as the Court of Appeals correctly observed, Dr. Egilman’s opinions

were disclosed through deposition testimony, which “served the same function

as formal disclosure.” The record reflects that Appellants were aware of the

substance of Dr. Egilman’s opinions, had the opportunity to examine him at

length, and identified no specific prejudice resulting from the manner of

disclosure. Absent such a showing, exclusion or limitation of testimony

constitutes an abuse of discretion. Clephas, 168 S.W.3d at 394.

Moreover, at the summary-judgment stage, expert testimony should not

be limited in a manner that effectively weighs credibility or resolves disputed

factual issues. Steelvest, 807 S.W.2d at 480. The trial court’s limitation of Dr.

Egilman’s testimony had precisely that effect.

Accordingly, we agree with the Court of Appeals that the trial court erred

in limiting Dr. Egilman’s testimony without a finding of prejudice. The Court of

Appeals properly vacated that order, and we affirm its ruling on this issue.

28 Here, absent a showing of prejudice, excluding or limiting expert testimony was

an abuse of discretion.

C. WORKERS’ COMPENSATION EXCLUSIVITY.

Whether the trial court has acted outside its jurisdiction is a question of

law. Therefore, the standard of review is de novo. Grange Mut. Ins. Co. v.

Trude, 151 S.W.3d 803, 810 (Ky. 2004); Hinners v. Robey, 336 S.W.3d 891 (Ky.

2011).

The Workers’ Compensation Act is a statutory system designed to

compensate an injured worker or the worker’s dependents for economic loss

sustained as a result of work-related injury, disease or death. KRS 342.0011.

The primary purpose of the Workers’ Compensation Act is to aid injured or deceased workers and statutes are to be interpreted in a manner that is consistent with their beneficent purpose. The overarching purpose of the workers’ compensation chapter is to compensate workers who are injured in the course of their employment for necessary medical treatment and for a loss of wage-earning capacity, without regard to fault, thereby enabling them to meet their essential economic needs and those of their dependents.

Kindred Healthcare v. Harper, 642 S.W.3d 672, 679 (Ky. 2022).

Generally, workers’ compensation is an exclusive remedy. “If an

employer secures payment of compensation as required by this chapter, the

liability of such employer under this chapter shall be exclusive and in place of

all other liability of such employer to the employee ... on account of such injury

or death.” KRS 342.690(1). Exclusivity applies to injuries “arising out of and in

the course of employment.” KRS 342.0011. “Essentially, the exclusive remedy

provision grants immunity for liability arising from common law and statutory

29 claims, meaning such claims cannot be pursued in the courts of this

Commonwealth.” Ky. Emps. Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007).

However, the “exclusive remedy” protection covered by Kentucky’s

Workers’ Compensation Act only applies to those injuries and diseases which

arise “out of and in the course of employment,” and must be considered “work-

related” or “occupational.” See KRS 342.0011(1) and (2). Larson helpfully gives

two examples of when an injury is not considered to have arisen “out of and in

the course of employment:”

Suppose plaintiff is a clerk in defendant’s store. On a day when she is off work, she goes into the store to buy a dress, and is hit in the eye by a hanger as a result of the sales clerk’s negligence. Obviously she can sue the store and the co- employee. Or, suppose a nurse who works for the defendant hospital happens to be involved in a weekend accident while driving past the hospital, and is rushed to hospital’s emergency room, where the alleged malpractice occurs. Here again, no one would contend that her suit is barred.

Arther Larson & Lex K. Larson, LARSON’S WORKERS’ COMPENSATION LAW, § 113.08

(2007) (internal footnotes omitted).

Square D argues exclusivity applies to bar these proceedings because the

complaint referenced exposure during Vickie’s brief 1978 employment. The

Court of Appeals, however, noted that the medical and expert proof during

discovery attributed her mesothelioma to household exposure from work

clothing—not from that brief summer job—and the circuit court found both

sides’ experts agreed no portion of the injury was caused by the employment.

Here, all experts agree that Ms. Williams’s brief summer employment did

not cause her disease, nullifying the “arise out of and in the course of

30 employment” requirement. That undisputed record evidence defeats exclusivity

as a matter of law. Williams alleges non-occupational household exposure

occurring before and after that employment. The coverage available to

Kentucky workers under KRS 342 for workers’ compensation cannot convert

non-occupational exposure into employers’ immunity. We hold, upon a

showing the injury did not arise “out of or in the course of” the employment,

Square D would not be entitled to immunity. Therefore, here, workers’

compensation immunity and exclusivity do not apply.

IV. CONCLUSION

We hold foreseeability determinative of an existing duty and genuine

issues of material fact exist under the specific facts of this case. For the

foregoing reasons, we affirm the Court of Appeals and remand this matter for

further proceedings consistent with this opinion.

Lambert, C.J.; Bisig, Conley, Keller, and Thompson, JJ.; and Special

Justice Adrian Mendiondo and Special Justice Julie Tennyson sitting. Lambert,

C.J.; Bisig, and Conley, JJ.; and Special Justice Mendiondo and Special

Justice Tennyson concur. Thompson, J., concurs in part and dissents in part

by separate opinion. Nickell and Goodwine, JJ., not sitting.

THOMPSON, J., CONCURRING IN PART AND DISSENTING IN PART: I

have much sympathy for what Vickie Williams and her family have suffered

from her alleged exposure to “take home” asbestos from her father’s

employment at Square D, and her subsequent death from Mesothelioma, which

through the lens of hindsight appears wholly preventable. However, not all

31 tragedies come with legal responsibility. I cannot agree with the majority that

her injury was reasonably foreseeable to Schneider Electric USA, Inc. F/K/A

Square D based on what was generally known at the time of her alleged

exposure from 1967 through 1974. Without foreseeability, Square D cannot be

legally responsible for her and her family’s injuries based on ordinary

negligence.

As to Union Carbide’s responsibility for producing a hazardous product,

its own actual knowledge about the risks its product posed to bystanders by

1968 is enough to survive summary judgment. Therefore, I concur with the

majority opinion that summary judgment should not have been granted to

The first toxic tort theory cases, which began with asbestos cases, were

filed in the 1970s. 5 In 1973, Borel v. Fibreboard Paper Products Corp., 493 F.2d

1076, 1093 (5th Cir. 1973), a valid cause of action for workers exposed to

asbestos was first recognized, on the basis that such an injury was foreseeable.

Borel involved a worker subjected to heavy concentrations of asbestos dust in

the manufacturer process of insulation for more than thirty years, with his

exposure ending in 1969. Id. at 1081-82.

It was not until 2006, that the first cause of action for “take home”

asbestos was first recognized. Olivo v. Owens-Illinois, Inc., 895 A.2d 1143, 1149

5 57 Am. Jur. Trials 395 (Originally published in 1995); Richard A. Solomon,

Esq. Clearing the Air: Resolving the Asbestos Personal Injury Litigation Crisis, 2 Fordham Envtl. L. Rep. 125 (1991).

32 (N.J. 2006). Currently, about eleven jurisdictions recognize a duty based on

secondary exposure.

Based on such a history, employers simply had no reason to consider

that exposure to contaminated clothing would cause both damage and a

compensable risk to a third party, at least in the absence of a definitive

connection between such clothing and such risk during the time period when

Williams was exposed.

While in Kentucky every person owes a duty to every other person to

exercise ordinary care to prevent foreseeable injuries, such duty cannot apply if

the injury is not foreseeable. Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999). In

determining whether the harm is foreseeable, “proper application of negligence

law requires courts to view the facts as they reasonably appeared to the party

charged with negligence [at the time of causation of the injury]. We are not at

liberty to impose liability based on hindsight.” Mitchell v. Hadl, 816 S.W.2d

183, 186 (Ky. 1991). If the harm is not foreseeable, no duty of reasonable care

can be owed. Lhotsky ex rel. Lhotsky v. Sutcliffe, 723 S.W.3d 842, 852 (Ky. App.

2025). “The mere fact that the risk may have materialized does little to resolve

the foreseeability question.” James v. Meow Media, Inc., 300 F.3d 683, 692 (6th

Cir. 2002).

The experts for Williams can establish that the risk to employees’ health

from exposure to asbestos was known within the medical community at the

time of her exposure. The experts can also establish that it was also known in

the medical community that some noxious substances could result in “take

33 home” disease. But what the experts cannot establish is that it was reasonably

foreseeable to Square D, during the relevant time period, that asbestos was one

of those substances which, when taken home on a worker’s clothing or person,

would cause exposure in sufficient concentrations to harm household

members.

I am persuaded by the opinion of Martin v. Cincinnati Gas and Elec. Co.,

561 F.3d 439 (6th Cir. 2009), which correctly applied Kentucky law to reject

that a similar claim regarding “take home” asbestos involving a timeframe a

decade earlier could survive summary judgment, ruling that as a matter of law

the consequences of such exposure were not reasonably foreseeable. Thus,

liability for negligence was precluded. Id. at 445-46.

The Court noted in evaluating such a claim that:

In Kentucky, there is a universal duty of care which requires “every person . . . to exercise ordinary care in his activities to prevent foreseeable injury.” Lee v. Farmer's Rural Elec. Cooperative Corp., 245 S.W.3d 209, 212 (Ky.Ct.App.2007) (quoting Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 332 (Ky. 1987)). “‘The most important factor in determining whether a duty exists is foreseeability.’” Pathways [v. Hammons], 113 S.W.3d [85,] 89 [(Ky. 2003)] (quoting David J. Leibson, Kentucky Practice, Tort Law § 10.2 (1995)); see also Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky. 1995). Foreseeability, in turn, is determined based on “what the defendant knew at the time of the alleged negligence.” Pathways, 113 S.W.3d at 90; see also James v. Wilson, 95 S.W.3d 875, 891 (Ky. Ct. App. 2002) (“[F]oreseeability is to be determined by viewing the facts as they reasonably appeared to the party charged with negligence, not as they appear based on hindsight.”). “[P]roper application of negligence law requires courts to view the facts as they reasonably appeared to the party charged with negligence.” Mitchell v. Hadl, 816 S.W.2d 183, 186 (Ky. 1991).

34 The defendant’s knowledge at the time includes “knowledge of pertinent matters . . . as a reasonable man would have.” Pathways, 113 S.W.3d at 90 (quoting Restatement (Second) of Torts § 289(a)). This knowledge includes the “capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.” Id. (quoting Restatement (Second) of Torts § 290(a)).

Id. at 444 (footnote omitted) (emphasis added).

In Martin, like here regarding Square D, there is no evidence that the

defendants had actual knowledge of the danger of bystander exposure to

household members from workers’ contaminated clothing during the time

frame at issue. “[S]o the question is whether [Square D] should have known:

that is, was such a risk [from ‘take home’ asbestos to household members

based on use of a molding compound containing asbestos] foreseeable to [it]

based on ‘common knowledge at the time and in the community.’” Martin, 561

F.3d at 445 (quoting Pathways, 113 S.W.3d at 90). Without foreseeability of

any injury from take home exposure, there can be neither negligence nor

products liability. Id. at 446-47.

While the experts’ reports establish that by the 1950s and 1960s,

mesothelioma was linked to exposure to asbestos, and there was some

indication that others outside of the workplace could be exposed, Williams has

not established that it was common knowledge that “take home” asbestos could

cause mesothelioma among household members during the requisite time

period. The publication of “Asbestos: Airborne Danger” by the U.S. Department

of Labor in its May-June 1972 issue of Safety Standards focused on protecting

workers. The Occupational Safety and Health Guideline for Asbestos Potential

35 Human Carcinogen in 1988 and the National Institute of Occupational Safety

and Health Report to Congress on Workers’ Home Contamination Study

Conducted Under the Workers’ Family Protection Act from 1995, cannot

establish that the danger of “take home” asbestos was well established from

1967-74. Neither can studies specifically identifying danger to family members

published in 1976, 1978, and later. Although some studies earlier than these

mentioned environmental exposures, it is simply not established that this

information was sufficiently widespread to make it common knowledge within

the industries of which Square D was a part.

The risk to Williams as a household member of her father, who allegedly

brought home asbestos fibers on his clothing from his work at Square D and

exposed her to the fibers when she hugged him while he was wearing

contaminated clothing, laundered his contaminated clothing, or was simply

exposed to the fibers which became present in the home, was not reasonably

foreseeable during the window of time in which she was most likely to be

exposed—from her adoption in 1967 until Square D discontinued its use of the

molding compounds in 1974.

While there may have been rare theories that a household member could

be harmed by particles taken home on an employee’s clothing near the end of

Williams’s exposure period, I do not believe that is enough to create liability

under these circumstances.

In contrast, as to Union Carbide, there was more evidence that this

company knew of the risk regarding its asbestos-laden molding compound,

36 making it reasonably foreseeable that bystanders would be injured by this

product. For example, The Asbestos as a Health Hazard in the United Kingdom,

by I.C. Sayers, dated December 5, 1967, regarding Union Carbide U.K. Limited,

demonstrates that a risk to workers working with materials containing

asbestos was established by that time. Similarly, trial and deposition testimony

submitted as exhibits here from other cases reveals that by 1968 Union

Carbide understood the dangers of exposure to asbestos to their workers and

that something would need to be done to mitigate such risk. I am persuaded by

the majority opinion’s citation to Carlos Martino, agent for Union Carbide

having testified to actual knowledge of a risk to others by 1968 when they were

“providing protective clothing to the individuals at the Bound Brook facility and

the express reason we did that was we knew they could take asbestos home

and harm their families.” This knowledge was then behind providing workers

working with asbestos at Union Carbide generally with protective suits and air-

line respirators, and phasing out the use of asbestos by 1974. Collectively, this

is enough to survive summary judgment regarding Union Carbide’s production

of a hazardous product because in this case there is evidence that the danger

from secondary exposure was reasonably foreseeable at the time of Williams’s

exposure based on Union Carbide’s actual knowledge of the risk posed by its

product.

While the danger of secondary exposure to asbestos through

contaminated clothing is now well-known, I disagree that such danger was

reasonably foreseeable to Square D during the relevant time period at issue

37 based on the general knowledge available to it. In contrast, Williams

established that Union Carbide had actual knowledge as to the risk its

products posed to third parties, thereby making Williams’s injuries foreseeable

and establishing that summary judgment should not have been granted to it.

Accordingly, I concur in part and dissent in part.

COUNSEL FOR APPELLANT/APPELLEE, SCHNEIDER ELECTRIC USA, INC. F/K/A SQUARE D:

Todd Smith Page Matthew Ryan Parsons Palmer Gene Vance, II Stoll Keenon Ogden PLLC

COUNSEL FOR APPELLANT/APPELLEE, UNION CARBIDE CORPORATION:

Brantley Cole Rowlen Lewis Brisbois Bisbaard & Smith, LLP

Michael Patrick Abate Burt Anthony Stinson Kaplan Johnson Abate & Bird LLP

Brett Legner Michael A. Scodro Craig A. Woods Mayer Brown LLP

COUNSEL FOR APPELLEES, PAUL WILLIAMS, AS EXECUTOR OF THE ESTATE OF VICKIE WILLIAMS; COLBY WILLIAMS, BY AND THROUGH HIS PARENT AND NEXT FRIEND, PAUL WILLIAMS; AND PAUL WILLIAMS, INDIVIDUALLY:

Kevin Crosby Burke Jamie Kristin Neal Burke Neal PLLC

38 Paul James Ivie Paul Jason Kelley Joseph Donald Satterley Satterley & Kelley PLLC

COUNSEL FOR AMICUS CURIAE, AMERICAN ASSOCIATION FOR JUSTICE:

Tad Thomas Thomas Law Offices PLLC

COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION:

Paul A. Casi, II Paul A. Casi, II, P.S.C.

Penny Hendy Hendy Johnson Vaughn P.S.C.

Matthew McGill Lowder & McGill, PLLC

COUNSEL FOR AMICI, AMERICAN PROPERTY CASUALTY INSURANCE ASSOCIATION; AMERICAN TORT REFORM ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; COALITION FOR LITIGATION JUSTICE, INC.; KENTUCKY CHAMBER OF COMMERCE; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES; NATIONAL FEDERATION OF INDEPENDENT SMALL BUSINESS LEGAL CENTER, INC.:

Mark A. Behrens Shook, Hardy & Bacon L.L.P.

Bethany A. Breetz Whitney Frazier Watt Stites & Harbison, PLLC