Quisenberry v. Huntington Ingalls Inc.

Decision Date11 October 2018
Docket NumberRecord No. 171494
Citation818 S.E.2d 805
Parties Wesley QUISENBERRY, Personal Representative of the Estate of Wanda Quisenberry, Deceased v. HUNTINGTON INGALLS INCORPORATED
CourtVirginia Supreme Court

Leslie Kendrick (Peter Kraus ; Jonathan George ; Charles S. Siegel, on briefs), for petitioner.

Alexandra B. Cunningham, Richmond (Stuart A. Raphael ; Wendy C. McGraw, Norfolk; Merideth Snow Daly, Richmond; Hunton & Williams, on brief), for respondent.

Amicus Curiae: Virginia Asbestos Firm (William W.C. Harty ; Robert R. Hatten ; Hugh B. McCormick, III ; Erin E. Jewell, Newport News; Jeanette Dodson-O’Connell ; Spencer Reiss ; Richard S. Glasser ; William H. Monroe, Jr. ; Marc C. Greco ; Kip A. Harbison, Norfolk; Greg Webb ; Kyle McNew, Charlottesville; Kevin P. Bilms ; Thomas F. Burris, III ; Patten, Wornom, Hatten & Diamonstein; Glasser & Glasser; Michie Hamlett PC, on briefs), in support of petitioner.

Amicus Curiae: Virginia Trial Lawyers’ Association (E. Kyle McNew ; J. Gregory Webb ; MichieHamlett, on briefs), Charlottesville, for petitioner.

Amici Curiae: Virginia Chamber of Commerce, Virginia Manufacturers Association, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufactuers, American Tort Reform Association, American Insurance Association, and NFIB Small Business Legal Center (Mark A. Behrens ; Shook Hardy & Bacon, on brief), in support of respondent.

PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.



The United States District Court for the Eastern District of Virginia entered an order of certification requesting that this Court exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40 and answer the following question of law:

Does an employer owe a duty of care to the family member of an employee who alleges exposure to asbestos from the work clothes of the employee, where such exposure takes place off of the employer’s premises and the employer has no relationship with the family member?

We accepted the certified question, and, for the reasons stated herein, we now restate the question pursuant to our authority under Rule 5:40(d),1 as follows:

Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?

So stated, we answer in the affirmative.


The certified question of law arises following a motion before the district court to dismiss this action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Accordingly, we take the factual allegations stated in the first amended complaint ("the complaint") as true "for the purposes of framing an answer that is responsive to the needs of the district court." Wyatt v. McDermott , 283 Va. 685, 689, 725 S.E.2d 555, 556 (2012) (citing Zinermon v. Burch , 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) ).

Plaintiff alleges that from approximately 1942 to 1977, Wanda Quisenberry’s father, Bennie Plessinger, was employed by Newport News Shipbuilding and Dry Dock, now known as Huntington Ingalls Incorporated ("the Shipyard"), in various capacities in which he was routinely exposed to asbestos and in which asbestos dust adhered to his clothing. He brought home asbestos fibers and his car was contaminated with these fibers. His daughter, Wanda, lived in his home and was exposed to asbestos beginning in 1942. Beginning in 1954, she regularly helped launder her father’s clothes, shaking off and breathing in asbestos dust in the process. She moved out of the home in 1969.

In December 2013, Wanda Quisenberry was diagnosed with malignant pleural mesothelioma, caused by exposure to asbestos dust and fibers. She died from the disease three years later. Her son, Wesley Quisenberry, administrator of her estate, brought this action in the Circuit Court of the City of Newport News. As is relevant to this certified question, the complaint alleges that in the years Wanda was exposed to asbestos, particularly between 1950 and 1969, the Shipyard knew or had reason to know of the dangers that asbestos posed to workers’ family members and members of the public, including Wanda. The complaint alleges the Shipyard was negligent in choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as coveralls; provide a locker room, showers, or laundry service; and adhere to various statutes, regulations, and guidelines. The complaint further alleges that this negligence proximately resulted in Wanda’s death. A separate count alleges gross negligence and wanton and willful conduct on the part of the Shipyard.

After removing to federal court, the Shipyard sought to dismiss this action on the basis that the plaintiff’s theory relied on "take home" exposure liability. Although this Court has not addressed the specific issue, the Shipyard represented that Virginia precedent did not support imposing a legal duty on an employer for injury to an employee’s family member that occurred outside the premises. Agreeing that this Court had not addressed this issue, Quisenberry argued that the majority, although not all, of the circuit courts from Virginia that had considered the issue had recognized such a duty. The Shipyard then moved to certify the question to the Supreme Court of Virginia to resolve the issue. On November 3, 2017, the Eastern District issued a certification order requesting that this Court exercise its discretion to consider this dispositive question of law. On November 16, 2017, this Court issued an order accepting the certified question for oral argument and requesting briefing. We now consider the question.

A. Restating the Question

The certified question in this case characterizes the Shipyard and Wanda as having "no relationship." The pleadings clearly indicate they lack a contractual, familial, employer-employee, or agency-agent relationship, or facts giving rise to a "special relationship." See Thompson v. Skate America, Inc. , 261 Va. 121, 129, 540 S.E.2d 123, 127 (2001) (collecting examples of special relationships recognized in Virginia). They are, generally speaking, strangers under the law. This is not, however, dispositive as to the existence of a duty.2 Whether the circumstances surrounding the issue now being litigated created a sufficient relationship for duty to lie in a general negligence claim is a question of law. This inquiry is distinct from the traditional characterizations of "relationship" above and is dependent on whether plaintiff has pled a set of circumstances where the Shipyard placed Wanda within reach of the Shipyard’s conduct, within a class of persons at recognizable risk of harm. Accordingly, in order to prevent the language of "relationship" in the certified question from creating assumptions as to duty under the law, we restate the original question as follows:

Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?

"[W]hether a legal duty in tort exists is a pure question of law." Volpe v. City of Lexington , 281 Va. 630, 636, 708 S.E.2d 824, 827 (2011) (internal quotation marks omitted). The "finding of a legal duty" is a "prerequisite to a finding of negligence." Jeld-Wen, Inc. v. Gamble , 256 Va. 144, 149, 501 S.E.2d 393, 397 (1998). "Without a legal duty there can be no cause of action for an injury." Id. at 147, 501 S.E.2d at 396. Accordingly, the question before us is a dispositive threshold question, Marshall v. Winston , 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990), in that if it is answered in the negative there can be no action in negligence based upon Virginia law before the federal court for the Eastern District.

B. Analysis

The principles of duty in general negligence claims under such circumstances in Virginia are familiar and established. They were set forth in RGR, LLC v. Settle , 288 Va. 260, 275, 764 S.E.2d 8, 16 (2014), and we reaffirm them today.3 "General negligence principles require a person to exercise due care to avoid injuring others." Id. (citing Overstreet v. Security Storage & Safe Deposit Co. , 148 Va. 306, 317, 138 S.E. 552, 555 (1927) ); Charles E. Friend, Personal Injury Law in Virginia § 1.1.1., at 2 (3rd ed. 2003) ("There is ... a general duty not to injure others [that] arises whenever [a] defendant's conduct creates a risk of harm to others."). Specifically, the common law requires that " ‘every person [must] exercise ordinary care in the use and maintenance of his own property to prevent injury to others.’ " Perlin v. Chappell , 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957) (quoting Rice v. Turner , 191 Va. 601, 605, 62 S.E.2d 24, 26 (1950) ); accord Standard Oil Co. v. Wakefield, 102 Va. 824, 828, 47 S.E. 830, 831 (1904) (recognizing the "duty of every man to so use his own property as not to injure the persons or property of others"). As we reiterated in RGR , the " ‘broad common law maxim’ sic utere tuo ut alienum non laedas requires that ‘one must so use his own rights as not to infringe upon the rights of another.’ " 288 Va. at 275-76, 764 S.E.2d at 16 (quoting Cline v. Dunlora South, LLC , 284 Va. 102, 107, 726 S.E.2d 14, 17 (2012) ).

This duty is not abstract: a specific course of conduct gives rise to a specific duty extending to specific persons. Dudley v....

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