Temple-Inland Prod. Corp. v. Carter Sr.
| Decision Date | 29 April 1999 |
| Docket Number | TEMPLE-INLAND |
| Citation | 993 S.W.2d 88 |
| Parties | (Tex. 1999) PRODUCTS CORPORATION, PETITIONER v. MARTIN REEVES CARTER, SR. AND LARRY WILSON, RESPONDENTS NO. 97-0592 |
| Court | Texas Supreme Court |
ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS
The sole issue in this case is whether a person who has been exposed to asbestos but does not have an asbestos-related disease may recover damages for fear of the possibility of developing such a disease in the future. The district court granted summary judgment for the defendant on plaintiff's claims for actual and punitive damages. A divided court of appeals reversed only on the actual damages claim.1 For reasons we explain, the district court was correct.
Temple-Inland Forest Products Corporation employed Biskamp Electric to install electric outlets and computer jacks in a laboratory at one of its paper mills. In performing the installation, two Biskamp employees, Martin Reeves Carter Sr. and Larry Wilson, drilled holes in laboratory countertops, which they did not know and were not told contained asbestos. The drilling generated dust containing asbestos fibers to which Carter and Wilson were exposed. They had no protective gear to prevent them from inhaling the dust. Carter worked on the project from four to six weeks, and Wilson worked on it about two weeks. Not until the work was almost complete did the laboratory manager warn Carter and Wilson of the asbestos, at which point they stopped work on the project. Temple-Inland then tested and decontaminated the lab.
Some eighteen months later Carter and Wilson were examined by Dr. Daniel Jenkins, to whom they had been referred by their attorney. Although Dr. Jenkins concluded that neither Carter nor Wilson had any asbestos-related disease, they sued Temple-Inland for mental anguish damages caused by its having negligently exposed them to asbestos fibers. Carter and Wilson also alleged that Temple-Inland had failed to develop a hazard communication program as required by federal regulation2 to protect persons working on its premises.
Dr. Jenkins testified at his deposition that Wilson complained of shortness of breath on exertion, that Wilson's X-ray showed some bilateral pleural thickening, and that his pulmonary function report suggested some obstruction in the small peripheral airways. According to Dr. Jenkins, Wilson's shortness of breath and pleural thickening were possibly related to his obesity, and the pleural thickening could have been related to a history of asbestos exposure predating the Temple-Inland work. Dr. Jenkins did not attribute any of Wilson's symptoms to his exposure to asbestos on Temple-Inland's premises and agreed that that exposure was probably too recent to have resulted in any of Wilson's conditions, given the long latency period ordinarily involved in asbestos-related diseases. Carter's X-ray showed no abnormalities whatever, and his pulmonary function was close to normal. Dr. Jenkins thus concluded that Wilson and Carter suffered from no disease as a result of their exposure to asbestos and that they were not disabled. In their depositions Carter and Wilson reported no other symptoms.
Dr. Jenkins, however, insisted that Wilson and Carter had been injured by their exposure to asbestos and probable inhalation of asbestos fibers at the Temple-Inland lab. He estimated that the chances of their developing a disease as a result had increased from one in a million, which he estimated to be the risk that a person would ever develop a disease from asbestos exposure not occupationally related, to about one in 500,000 for the next ten or fifteen years, and as much as one in 100 over twenty or thirty years. Dr. Jenkins characterized plaintiffs' risk as a "high possibility" but not a probability.
Based on the depositions of Dr. Jenkins, Carter, Wilson, and others, Temple-Inland moved for summary judgment on the ground that Carter and Wilson had not suffered any injury for which they could recover mental anguish damages. Temple-Inland argued that plaintiffs' claims for fear of the mere possibility of developing some disease in the future amounted to nothing more than negligent infliction of emotional distress for which they could not recover under this Court's decision in Boyles v. Kerr.3 Plaintiffs responded that their inhalation of asbestos fibers was a real, physical injury which could eventually lead to disease, and that they were entitled to be compensated for their anxiety over that eventuality. Temple-Inland also contended that as a matter of law it had not been grossly negligent.
The trial court granted summary judgment. The court of appeals affirmed the judgment denying punitive damages but, by a divided vote, reversed the judgment on plaintiffs' actual damage claims.4 Relying principally on the Fifth Circuit's decision in Watkins v. Fibreboard Corp.5 and the Sixth Court of Appeals' opinion in Fibreboard Corp. v. Pool,6 the court concluded that "it is well established a plaintiff may recover for mental anguish based upon fear of cancer even though the evidence shows the plaintiff does not have, and in reasonable medical probability, will not have cancer, so long as there has been exposure to the causative agent and the fear is reasonable."7 Holding that the summary judgment record did not establish that Carter's and Wilson's fears of developing asbestos-related diseases were unreasonable, the court remanded their claims for trial.8 Chief Justice Walker dissented, stating that plaintiffs' risk of developing cancer was so low that their fears were, as a matter of law, unreasonable.9
We granted Temple-Inland's application for writ of error10 and now reverse the court of appeals' judgment insofar as it reversed the district court's judgment.
The summary judgment record establishes that Carter and Wilson were exposed to asbestos at Temple-Inland's lab but do not presently suffer from any asbestos-related disease, and that while their risk of developing such a disease was increased by their exposure to asbestos, that risk is still no higher than one chance in a hundred over twenty to thirty years. The issue is whether they can recover for their fear that they will someday develop such a disease from their work at Temple-Inland's lab.
Carter and Wilson first argue that they are entitled to recover mental anguish damages even if they sustained no physical injury, as long as their fear of developing some asbestos-related disease is reasonable. This argument conflicts with our decision in Boyles v. Kerr, where we held that "there is no general duty not to negligently inflict emotional distress."11 As we later explained in City of Tyler v. Likes, "12 Absent physical injury, the common law has not allowed recovery for negligent infliction of emotional distress except in certain specific, limited instances.13
There are few situations in which a claimant who is not physically injured by the defendant's breach of a duty may recover mental anguish damages. See, e.g., Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex. 1988) (bystander recovery); Silcott v. Oglesby, 721 S.W.2d 290, 292 (Tex. 1986) (); Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (defamation); Billings v. Atkinson, 489 S.W.2d 858, 860-61 (Tex. 1973) (invasion of privacy); Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351, 353 (1885) (); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 906-07 (Tex. Civ. App.-Houston [14th Dist.] 1969, writ ref'd n.r.e.) ().14
Whether a plaintiff can recover mental anguish damages without physical injury 15
Plaintiffs' claims in this case do not fall within any of the categories in which recovery has been allowed. Moreover, a landowner's tortious breach of his duty to invitees - like Temple-Inland's negligently exposing Carter and Wilson to asbestos - is not a wrong for which mental anguish is compensable absent physical injury.16 This is true whether the landowner's duty arises from the common law or from the federal regulation invoked by Carter and Wilson in their pleadings. Accordingly, Carter and Wilson cannot recover mental anguish damages absent physical injury.
Alternatively, Carter and Wilson argue that they have been physically injured because of their exposure to asbestos fibers. Carter's and Wilson's testimony, as well as that of Dr. Jenkins, supports the inference that they inhaled asbestos fibers in the lab, and Temple-Inland has not refuted this inference. Also, Dr. Jenkins' testimony that plaintiffs were physically injured by the inhalation of asbestos is uncontradicted in the record. We therefore assume, as we must for summary judgment purposes, that Carter and Wilson were physically injured by their exposure to asbestos on Temple-Inland's premises, so that they reasonably fear developing some asbestos-related disease. The question comes to this: given that plaintiffs inhaled asbestos fibers, can they recover mental anguish damages for their increased risk and reasonable fear of possibly developing asbestos-related diseases that they do not currently have and may never have?
While the existence of physical injury is ordinarily necessary for recovery of mental anguish...
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