Boynton v. Kennecott Utah Copper, LLC
| Decision Date | 05 August 2021 |
| Docket Number | 20190259 |
| Parties | Larry Boynton individually and on behalf of the heirs of Barbara Boynton, Appellee/Cross-Appellant, v. Kennecott Utah Copper, LLC, [1] Appellant/Cross-Appellee |
| Court | Utah Supreme Court |
Heard November 13, 2020
On Interlocutory Appeal Third District, Salt Lake The Honorable Randall N. Skanchy No. 160902693
Troy L. Booher, Beth E. Kennedy, Dick J. Baldwin, Salt Lake City and Richard I. Nemeroff, Barrett B. Naman, Park City, for appellee/cross-appellant Larry Boynton
Rick L. Rose, Kristine M. Larsen, Blake M. Biddulph, Salt Lake City, for appellant/cross-appellee Kennecott Utah Copper, LLC
Stephen K. Christiansen, Bret W. Reich, Salt Lake City, or cross-appellee PacifiCorp
Tracy H. Fowler, Stewart O. Peay, Kristen Overton, Salt Lake City for cross-appellees Phillips 66 Company and ConocoPhillips Company
Justice Himonas authored he opinion of he Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.
¶1 Larry Boynton was exposed to asbestos while working at several job sites during the 1960s and 1970s. His wife, Barbara Boynton, was later diagnosed with mesothelioma. She died of the disease shortly after her diagnosis. Mr. Boynton sued the job site operators for indirectly exposing his wife to asbestos dust. The district court granted summary judgment to two of the operators on the grounds that they had no duty to prevent "take-home exposure" to asbestos dust. We reverse and take this opportunity to explain why job site operators-"premises operators" in the vernacular of the law-owe a duty of care to a worker's cohabitants with respect to take-home exposure to asbestos. We also hold that one of the premises operators retained control over its contractor, and we take this opportunity to flesh out the retained control exception to the general rule of employer nonliability for the acts of their contractors.
¶2 Barbara and Larry Boynton married in September 1962.[2]During their marriage, Larry worked at numerous job sites where he was exposed to asbestos.
¶3 Larry alleges-and for the purposes of summary judgment and this appeal, we assume-that Barbara was exposed to asbestos dust he carried home from work and that this exposure brought on her mesothelioma and resulting death. More specifically, Larry alleges that he would drive home from work, incidentally leaving asbestos dust in the Boyntons' car. Upon arrival, he would enter the home wearing his work clothes, spreading asbestos dust in the process. Barbara would then launder Larry's clothes, shaking the dust out before washing. Afterwards, she would sweep the laundry room to clean the accumulated asbestos dust. Through this process, Barbara was exposed to asbestos dust in "great quantities." After nearly fifty-four years of marriage, Barbara was diagnosed with malignant mesothelioma on February 4, 2016, and she died from it on February 27, 2016.
¶4 Larry worked at no fewer than six job sites during the 1960s and 1970s. He alleges that the "cutting, chipping, mixing, sanding, sawing, scraping and sweeping ... by [him] and ... around [him] [of] asbestos-containing products exposed him to great quantities of asbestos." Three job sites are relevant to this appeal.
¶5 From 1961 to 1964, Lary worked as a laborer for Kennecott Utah Copper, LCC ("Kennecott") at Kennecott's smelter His duties included cleaning up discarded pipe insulation that may have contained asbestos. Beginning in 1963, Larry worked as an electrician for Wasatch Electric (an independent contractor). He continued to work at Kennecott's smelter, albeit as an employee for Wasatch Electric, for another two years. During that time, Kennecott's employees scraped, sawed, and swept asbestos insulation and mixed asbestos cement. Each of these activities occurred near Larry-who was allegedly less than twenty feet away-and released asbestos dust into the air. All these activities caused asbestos dust to settle on Larry's clothes, dust that Barbara is alleged to have inhaled during the Boynton's marriage. Kennecott never warned Larry about the dangers of asbestos and never provided laundry services that would have allowed him to change his clothes before returning home to Barbara.
¶6 In 1973, Larry worked as a construction electrician for Jelco-Jacobsen, a general contractor at PacifiCorp's[3] Huntington Canyon Power Plant. PacifiCorp had entered a contract with Jelco-Jacobsen to build the power station. While Larry did electrical work, employees from Mountain States Insulation (a subcontractor) worked with asbestos pipe insulation, allegedly creating asbestos dust in so doing. Again, Larry worked within twenty feet of these asbestos-generating activities. And like Kennecott (and later ConocoPhillips), neither PacifiCorp nor Jelco-Jacobsen warned him about the dangers of asbestos, monitored or attempted to limit his asbestos exposure, or provided laundry services that would have allowed him to change before driving home. As a result, Larry alleges that PacifiCorp and Jelco-Jacobsen exposed him to asbestos that he carried home to Barbara, eventually causing her mesothelioma and premature death.
¶7 And from 1976 to 1978, Larry worked as an electrician or L.E. Myers, an independent contractor, at Phillips 66/ConocoPhillips's ("Conoco") oil refinery. Conoco employees allegedly removed asbestos pipe insulation and let it fall to the ground. Conoco employees would later sweep the discarded insulation during cleanup. Both the pipe removal and the cleanup allegedly generated asbestos dust. Larry alleges that he worked within twenty feet of the Conoco employees. He further alleges that the asbestos dust would settle on his clothes and that Barbara would inhale that dust when laundering his clothes. The result, again, was to cause Barbara to develop mesothelioma. Conoco, like the others, did not warn Larry about the dangers of asbestos, did not monitor or attempt to limit asbestos levels at the refinery, and did not provide laundry services that would have prevented him from bringing his contaminated clothes home.
¶8 PacifCorp did not use its own employees to handle the asbestos materials used in the construction of the Huntington Plant. Instead, it contracted with Jelco-Jacobsen to build the plant. The contract required Jelco-Jacobsen to use several asbestos-containing materials, including asbestos insulation and asbestos cement. Only PacifiCorp could approve substitutions to materials that did not contain asbestos. The contract also provided detailed specifications about the project. Some of these specifications prescribed how Jelco-Jacobsen would handle the asbestos-containing materials, such as specifications on how to mix and apply the asbestos cement. And PacifiCorp retained a general responsibility over safety. For example, PacifiCorp had a general responsibility to inspect the project's materials and Jelco-Jacobsen's methods. I it found any safety issues, PacifiCorp was able to unilaterally direct changes in the materials or order Jelco-Jacobsen to stop unsafe work practices. Further, PacifiCorp was obligated to direct Jelco-Jacobsen in implementing adequate control measures to prevent harmful dust levels.
¶9 Larry filed suit against Kennecott, PacifCorp, and Conoco (at times, the "premises operators") for strict premises liability and negligence. The premises operators each moved for summary judgment, arguing they did not owe a duty of care to Barbara. The district court denied Kennecott's motion, finding a disputed issue of fact because Larry alleged affirmative acts exposing him to asbestos, thus inviting the inquiry into whether Kennecott owed a legal duty to Barbara. But the district court granted PacifiCorp and Conoco's motions, determining that PacifiCorp and Conoco did not engage in any misfeasance that would have created a duty to Barbara. Moreover the district court determined that PacifiCorp and Conoco did not interfere with the work of their general contractors.
¶10 This case comes before us on interlocutory appeal. We exercise jurisdiction under rule 5 of the Utah Rules of Appellate Procedure.
¶11 On interlocutory appeal, we review grants and denials of summary judgment for correctness. Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 19, 116 P.3d 323. "Summary judgment is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Herland v. Izatt, 2015 UT 30, ¶ 9, 345 P.3d 661. We view the facts and indulge the reasonable inferences in the light most favorable to Larry, the nonmoving party. See id.
¶12 Following Barbara's death, Larry sought legal relief against the premises operators, among others. Against Kennecott and Conoco, Larry asserts strict premises liability and direct-liability negligence; he bases these claims on Barbara's take-home exposure to asbestos dust generated by the premises operators' employees when he worked for Kennecott at its smelter, when he was an employee of the independent contractor at the smelter, and when he was an employee of the independent contractor at Conoco's premises. On summary judgment before the district court Kennecott and Conoco argued they owed no duty of care to Barbara. Conoco was successful in its argument; Kennecott wasn't. With respect to these two defendants, the sole issue before us in this interlocutory appeal is whether they owed Barbara a duty of care.
¶13 Against PacifiCorp, Larry asserts strict premises liability and direct-liability negligence based on PacifiCorp's...
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