Kinsman v. Unocal Asbestos case: Was the Jury Improperly Instructed?

Read the discussion in the Kinsman v. Unocal asbestos case, where Unocal argues with respect to the trial court’s instructions to the jury.

Finally, Unocal argues that even if Kinsman’s claim against it does not fail as a matter of law, the present verdict cannot stand because the jury was not properly instructed. As discussed, the trial court instructed the jury both on a premises liability theory and a negligent retention of control theory, and rendered a plaintiff’s verdict on only the former.

As to that former theory, the jury received a modified BAJI No. 8.01 instruction: “The owner or occupant of premises is under a duty to exercise ordinary care in the use, maintenance, and management of the premises in order to avoid exposing persons to an unreasonable risk of harm.

This duty exists whether the risk of harm is caused by the natural condition of the premises or by an artificial condition created on the premises. This duty is owed to persons on the premises and to persons off the premises. A failure to fulfill this duty is negligence.

Ordinary care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. You must determine whether a person under the same or similar circumstances as the defendant Unocal should have foreseen that a person such as the plaintiff Ray Kinsman would be exposed to an unreasonable risk of harm.

If you so find, you are instructed that the defendant Unocal owed plaintiff Ray Kinsman a duty of care and you should determine if the defendant exercised that care, considering all the surrounding circumstances shown by the evidence.”

The above instruction, while an accurate statement of premises liability generally, is partly erroneous when applied to the present situation. As discussed, when, as in the present case, the “dangerous or defective condition” is one which can be remedied by taking reasonable safety precautions, the landowner who has delegated job safety to the independent contractor only has a duty to the employee if the condition is concealed.

Because the general premises liability instruction given does not make clear that the hazard must have been unknown and not reasonably ascertainable to the independent contractor that employed Kinsman and to other contractors working contemporaneously on the premises—the jury was instructed in error.

Exposure to asbestos is known to cause serious diseases such as mesothelioma, asbestos-related lung cancer and asbestosis.

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