Kofron v. Amoco Chemicals Corp.
| Decision Date | 20 April 1981 |
| Citation | 441 A.2d 226 |
| Parties | Lewis KOFRON, et al., Plaintiffs Below, Appellants, v. AMOCO CHEMICALS CORPORATION, et al., Defendants Below, Appellees. Earl R. NUTT, et al., Plaintiffs Below, Appellants, v. E. I. duPONT deNEMOURS & CO., INC., et al., Defendants Below, Appellees. |
| Court | Supreme Court of Delaware |
Robert Jacobs (argued), of Bader, Dorsey & Kreshtool, Wilmington, for Kofron, et al., and Nutt, et al., plaintiffs below, appellants.
Howard M. Berg (argued), of Berg, Heckler & Cattie, Wilmington, for Amoco Chemicals Corp., et al., defendants below, appellees.
Thomas L. Morrissey (argued), of Carpenter, Bennett & Morrissey, Newark, N. J., for E. I. duPont deNemours and Co., Inc., et al., defendants below, appellees.
Before McNEILLY and HORSEY, JJ., and BROWN, Vice-Chancellor.
We here consider two appeals from decisions of the Superior Court which require us to determine the scope of coverage of the Delaware Workmen's Compensation Law. In both cases plaintiffs instituted common law causes of action based, respectively, on claims of gross negligence and intentional tort against defendants, their former or present employers, and a number of other corporations, engaged in the manufacturing of asbestos. In this opinion, however, we are concerned only with the allegations made against Amoco and duPont. The Superior Court granted defendants' motions to dismiss the claims pursuant to Superior Court Civil Rule 12(b)(6) for failure to state claims upon which relief could be granted. Plaintiffs appeal from these dismissals.
Because of the preliminary stage at which dismissal occurred in these cases, the only factual records before this Court are the complaints 1 filed by plaintiffs. In judging the merits of a motion to dismiss for failure to state a claim, all well-pleaded facts in the complaint are assumed to be true, Laventhol, Krekstein, Horwath & Horwath v. Tuckman, Del.Supr., 372 A.2d 168 (1976), and, as the Trial Court noted, a complaint will not be dismissed unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. Diamond State Tel. Co. v. University of Delaware, Del.Supr., 269 A.2d 52 (1970). Thus, the Certain basic factual similarities shared by these two cases should be highlighted before proceeding to a consideration of the particular allegations found in the two complaints. Plaintiffs are or were industrial workers who contracted certain diseases while in the employ of the defendants, chemical manufacturers with industrial plants in Delaware. The plaintiffs in Kofron worked at defendant Amoco Chemical Company's (Amoco) plant in New Castle. The plaintiffs in Nutt worked at defendant E.I. duPont deNemours & Company's (duPont) plant in Newport. The alleged origin of the diseases contracted by plaintiffs is overexposure to excessive levels of asbestos found in the working environments at these two plants.
"facts" set out below are merely the allegations found in the respective complaints and the reasonable inferences which may be drawn therefrom.
The particular facts alleged in Kofron are as follows. Plaintiffs are or were at all pertinent times employed by Amoco at the New Castle plant and, over a lengthy period of time, were exposed to asbestos fibers in extremely dangerous concentrations. As a direct result of such exposure, plaintiffs now suffer from various stages of asbestosis, lung cancer and/or other pulmonary diseases. At all material times, Amoco, its predecessor in title, and its parent corporations were aware of the dangerous conditions at the New Castle plant and were in a position to rectify the problems, but failed to correct the dangers and failed to warn plaintiffs of the dangers to their health from the excessive levels of asbestos at the plant. Plaintiffs allege that these acts and omissions constitute negligence and gross negligence by Amoco and proximately caused plaintiffs' diseases. Moreover, plaintiffs aver that as employees they were within the class of persons to whom Amoco owed a duty to warn of the known asbestos-related dangers.
Several specific acts or omissions by Amoco are also alleged in the complaint. Plaintiffs claim that at all material times Amoco knew of the high levels of asbestos fibers and dust at the plant. Further, plaintiffs allege that Amoco possessed medical and scientific data and other information which clearly indicated that asbestos and asbestos products were hazardous to plaintiffs' health and safety, given plaintiffs' excessive exposure to such materials during the course of their work. Despite such knowledge, Amoco and other defendants purportedly engaged in a course of conduct (characterized as a conspiracy) intended to deceive plaintiffs and others similarly situated to their injury and to the advantage of defendants. In this regard, plaintiffs aver that Amoco:
(1) asserted to plaintiffs that it was safe for plaintiffs to work in close proximity to the asbestos materials, knowing this to be untrue;
(2) suppressed the information concerning the dangers of asbestos exposure, causing plaintiffs to be and remain ignorant thereof;
(3) failed to warn plaintiffs about the nature of the asbestos materials and the danger which such materials posed to them;
(4) failed to provide plaintiffs with adequate protective masks and devices and reasonably safe working conditions;
(5) failed to provide sufficient information concerning the asbestos dangers to physicians retained by Amoco to do periodic examinations of plaintiffs, and failed to inform such physicians of the true nature of its efforts to control asbestos dust levels at the plant;
(6) failed to operate the plant in accordance with state and federal regulations concerning dust levels and safe working conditions; and
(7) failed to file reports with the Industrial Accident Board, required by law, indicating that plaintiffs had contracted compensable occupational diseases from their exposure to asbestos materials when such facts became known to Amoco.
Plaintiffs also claim that physicians, whom Amoco retained to perform periodic physical examinations of employees, discovered the asbestos-related medical problems The facts alleged in the Nutt complaint are substantially similar to those in Kofron, with one main difference: whereas the primary tort characterization of Amoco's conduct in Kofron is negligence and gross negligence, plaintiffs in Nutt characterize duPont's conduct as constituting an intentional tort. In any event, the same basic allegations are found in Nutt. Thus, plaintiffs allege that at all pertinent times they are or were employed by duPont at the Newport plant, were there exposed to dangerous concentrations of asbestos over long periods of time, and, as a direct result of such exposure, have contracted incipient cancer and various pulmonary diseases. Plaintiffs claim that duPont knew of the asbestos-related conditions at the plant, knew that these conditions posed a significant danger to plaintiffs and others similarly situated, and failed to take any measures to alleviate the dangers and to protect the health and safety of plaintiffs. In particular, plaintiffs allege that defendants, including duPont, possessed medical and scientific data and other information which clearly indicated that asbestos and asbestos products were hazardous to plaintiffs' health and safety, given plaintiffs' excessive exposure thereto during the course of their work. Despite such knowledge, duPont and others purportedly engaged in a course of conduct (also characterized as a conspiracy) intended to deceive plaintiffs and others similarly situated to their injury and to the advantage of defendants. In furtherance of this design, plaintiffs allege that duPont:
in plaintiffs but failed to so inform them and advise them of the relationship between their diseases and the work environment at a time when the physicians and Amoco knew that plaintiffs were unaware of these facts. Plaintiffs contend that all the aforementioned acts or omissions were done falsely, fraudulently, wilfully and deliberately to deceive plaintiffs and that, had plaintiffs known the true facts, they would not have continued to work in the asbestos environment.
(1) positively asserted to plaintiffs that it was safe for plaintiffs to work in close proximity to the asbestos materials, knowing this to be untrue;
(2) suppressed information concerning the dangers of asbestos exposure, causing plaintiffs to be and remain ignorant thereof;
(3) failed to warn plaintiffs about the nature of the asbestos materials and the dangers which such materials posed to them;
(4) failed to provide plaintiffs with adequate protective masks and devices and reasonably safe working conditions;
(5) failed to provide sufficient information concerning the asbestos dangers to physicians retained by duPont to do periodic examinations of plaintiffs, and failed to inform the physicians of the true nature of its dust control program at the plant;
(6) failed to operate the plant in accordance with state and federal regulations concerning dust levels and safe working conditions; and
(7) failed to file reports with the Industrial Accident Board, required by law, indicating that plaintiffs had contracted compensable occupational diseases from their exposure to asbestos materials when such facts became known to duPont.
Lastly, plaintiffs allege, as did the plaintiffs in Kofron, that all the foregoing acts and omissions were done falsely, fraudulently, wilfully and deliberately to deceive plaintiffs, and that, had plaintiffs known the true facts, they would not have continued to work in the asbestos environment. It is not contended, however, that duPont created or maintained the condition for the purpose of causing injury to its employees generally or to these specific plaintiffs.
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