Kinsman v. Unocal Asbestos case: Was there an Instructional Error?

Read the discussion in the Kinsman v. Unocal asbestos case, where Unocal continues their argument with respect to whether the trial court’s instructional error was prejudicial.

When deciding whether an instructional error was prejudicial, “we must examine the evidence, the arguments, and other factors to determine whether it is reasonably probable that instructions allowing application of an erroneous theory actually misled the jury.” A “reasonable probability” in this context “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.”

We conclude that the failure to properly instruct the jury in this case was prejudicial.

Although the jury, in finding Unocal negligent under a premises liability theory, implicitly found that Unocal knew or should have known of the hazard of asbestos dust on its property, it made no finding about whether Kinsman’s employer, Burke & Reynolds, or any other contractor working at the same time as Kinsman, knew or should have known of the hazard, nor whether Unocal was or should have been aware that these contractors did not know of the hazard.

As discussed, a finding that these contractors did know that the dust in the refinery was asbestos and was hazardous to an employee like Kinsman, would, under the principles articulated in the Privette line of cases and in this opinion, completely relieve Unocal of liability for any resultant employee injury.

Whether a hazard is concealed is a factual matter, and the record before us is inconclusive on this issue. On the one hand, there is no evidence in the record before us regarding whether Burke & Reynolds, or any other contractor working on the job site, knew about the hazards of asbestos or even whether asbestos was present.

In fact, Kinsman points out that there was no evidence that Unocal used independent contractors, as opposed to its own employees, to remove and replace the insulation.

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