Kivell v. Air Products and Chemicals
N15C-07-093 ASB
| Del. Super. Ct. | Aug 30, 2017Background
- Plaintiff Sandra Kivell sued on behalf of her deceased husband, Milton Kivell, alleging he contracted mesothelioma from asbestos exposure while working in the 1970s for an independent contractor (Lou Con Inc.) at premises owned by Air Products and Chemicals, Inc. (Defendant).
- Mr. Kivell performed routine maintenance (replacing pipes, valves, pumps, insulation, stopping leaks) and worked alongside Defendant’s employees but reported to the contractor foreman.
- Under Louisiana law, a property owner is generally not liable for negligence of an independent contractor unless the work is inherently dangerous or the owner controlled the contractor’s methods or authorized unsafe practices.
- Defendant moved for summary judgment arguing the work was routine (not inherently dangerous) and that there is no evidence Defendant controlled or authorized asbestos use or knew asbestos was being used.
- Plaintiff relied on prior decisions expanding premises-owner duties to contractors’ employees, but the court relied on more recent precedent distinguishing hazards inherent to the premises from hazards inherent in the contractor’s work.
- The court found no evidence that asbestos was in Defendant’s custody, control, or that Defendant knew of or authorized its use; it granted summary judgment for Defendant on negligence, strict liability, and related wrongful-death claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether owner owes duty for independent contractor’s employees exposed to asbestos on premises | Landowner had duty to take reasonable steps to ensure safe environment for contractor employees (rely on expanded precedent) | No general duty: work was routine and hazard arose from contractor’s work; owner not liable absent inherent danger or control | Court held no duty: summary judgment for Defendant — no evidence asbestos was inherent to premises or owner-controlled |
| Whether owner exercised control or authorized unsafe practices | Owner implicitly or expressly authorized asbestos use / controlled methods | No evidence owner directed, supervised, or requested asbestos use | Court found no evidence of control or authorization; summary judgment for Defendant |
| Whether owner can be strictly liable for asbestos on premises | Owner liable if thing causing harm was in its custody/control and had a defect | Mere physical presence is insufficient; custody requires supervisory/control rights | Court held no custody or control of asbestos products shown; summary judgment for Defendant |
| Whether wrongful-death claim survives with negligence claim | Wrongful death derivative of negligence; seeks recovery despite relation-back concerns | Wrongful death depends on proving negligence or strict liability | Court dismissed wrongful-death claim along with negligence claim; relation-back issue noted but claim dismissed |
Key Cases Cited
- Moore v. Sizemore, 405 A.2d 679 (Del. 1979) (summary judgment standard and related Delaware precedent)
- Davenport v. Amax Nickel, Inc., 569 So.2d 23 (La. Ct. App. 1990) (landowner liability for independent contractors is limited)
- Williams v. Gervais F. Favrot Co., 499 So.2d 623 (La. Ct. App. 1986) (owner liability when controlling contractor’s methods)
- Thomas v. A.P. Green Indus. Inc., 933 So.2d 843 (La. Ct. App. 2006) (evidence of owner knowledge and contracts for asbestos-containing products supported liability)
- Migliori v. Willows Apartments, 727 So.2d 1258 (La. Ct. App. 1999) (elements of strict liability in Louisiana)
- Haydel v. Hercules Transport, Inc., 654 So.2d 408 (La. Ct. App. 1995) (custody for strict liability requires supervisory/control rights)
- Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La. 1990) (principles relating to defect and causation for strict liability)