Kinsman v. Unocal Asbestos case: Application

Read the discussion in the Kinsman v. Unocal asbestos case, where the application to the case is discussed.

The crux of Kinsman’s case is that Unocal knew that asbestos used to insulate the pipes found at its refinery, which was released as dust when the insulation was replaced, was hazardous.

Furthermore, Kinsman and the contractor for whom he worked did not know of the hazard, either because they did not know they were being exposed to airborne asbestos or did not know that asbestos was hazardous. In light of these facts, Kinsman contends Unocal was negligent in failing to warn the contractor or failing to provide proper safety equipment.

As an initial matter, we note there is no reason to distinguish conceptually between premises liability based on a hazardous substance that is concealed because it is invisible to the contractor and known only to the landowner and a hazardous substance that is visible but is known to be hazardous only to the landowner.

If the hazard is not reasonably apparent, and is known only to the landowner, it is a concealed hazard, whether or not the substance creating the hazard is visible. Unocal does not appear to dispute this proposition.

Unocal contends, however, that knowledge of the hazards of asbestos was public at the time Kinsman was injured in the 1950’s, and that Kinsman is in effect attempting to resurrect the “superior knowledge” theory of liability proposed by Justice Werdegar’s concurring and dissenting opinion in Toland, which was rejected by the majority. As the concurring and dissenting opinion stated:

“[W]hen conditions within the special knowledge or control of the hirer create a danger inherent and peculiar to the work, there is no justification in statute, policy or precedent to immunize the hirer from tort liability for his or her own failure to require reasonable precautions be taken against the danger.

“Tort liability for injuries to the contractor’s employees should, therefore, be recognized only when the hirer ‘was in a better position than the contractor either to anticipate dangers to workmen, to foresee and evaluate the best methods of protection, or to implement and enforce compliance with appropriate on-site safety precautions.’ ”

Courtesy of http://www.courtinfo.ca.gov/opinions/archive/S118561.PDF

Other helpful links:

Asbestos Asbestos
Asbestos and lung cancer Asbestos and lung cancer
Mesothelioma attorney Mesothelioma attorney
Mesothelioma Lawyer Mesothelioma lawyer
Asbestos attorney Asbestos attorney