Wright v. 3M Co.

• Docket Number: 100768-0
• Decision Date: 03 August 2023
• Parties: WAYNE WRIGHT, individually and as personal representative for the estate of WARREN WRIGHT, deceased, Respondent, v. 3M COMPANY, f/k/a MINNESOTA MINING &MANUFACTURING COMPANY; E.J. BARTELLS SETTLEMENT TRUST; SHELL OIL COMPANY; TEXACO, INC.; U.S. OIL & REFINING COMPANY, Defendants, EXXONMOBIL OIL COMPANY, Petitioner.
• Court: Washington Supreme Court

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WAYNE WRIGHT, individually and as personal representative for the estate of WARREN WRIGHT, deceased, Respondent,
v.
3M COMPANY, f/k/a MINNESOTA MINING &MANUFACTURING COMPANY; E.J. BARTELLS SETTLEMENT TRUST; SHELL OIL COMPANY; TEXACO, INC.; U.S. OIL & REFINING COMPANY, Defendants,

EXXONMOBIL OIL COMPANY, Petitioner.

No. 100768-0

Supreme Court of Washington, En Banc

August 3, 2023

YU, J.

This case concerns a trial court's exercise of discretion regarding jury instructions in a premises liability case. The plaintiff, an invitee, was allegedly injured by exposure to asbestos on the defendant landowner's property.

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The landowner, petitioner ExxonMobil Oil Corporation (Mobil), requested a jury instruction to limit its potential liability for injuries caused by "known or obvious" dangers pursuant to § 343A of Restatement (Second) of Torts (Am. L. Inst. 1965). The trial court declined to give the § 343A instruction, and the jury issued a verdict in favor of the plaintiff. The Court of Appeals affirmed. We affirm the Court of Appeals.

Mobil argues that the jury should have been instructed on both §§ 343 and 343A of the Restatement as a matter of law. According to Mobil, an instruction on § 343A was necessary to make the jury instructions complete and to allow Mobil to argue its theory of the case. However, it is well established that the issuance of jury instructions is "within the trial court's discretion" and that instructions on "a party's theory of the case" are not "required" unless they are supported by "substantial evidence." Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017) (citing Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996)). We decline Mobil's invitation to limit the trial court's discretion in the context of § 343A instructions. We hold that both §§ 343 and 343A are not always required to be given as a matter of law.

Deciding whether to issue a particular jury instruction is often a close decision, requiring a fact-intensive inquiry based on the evidence presented in each case. Moreover, § 343A instructions must be approached with caution because the

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instructions can create a complete bar to recovery-especially where the landowner had greater knowledge of the danger and a greater ability to mitigate the risk. In this case, whether there was substantial evidence that the plaintiff fully appreciated the dangers of asbestos was a factually driven and close decision, which the trial court was in the best position to make. We therefore defer to the trial court's reasonable, discretionary decision not to provide a § 343A instruction in this case.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Warren Wright was exposed to asbestos as Mobil's business invitee in 1979 and later developed mesothelioma

During the relevant time period, Warren Wright was an employee of Northwestern Industrial Maintenance (NWIM). In 1979, Mobil's predecessor-in-interest hired NWIM as an independent contractor to remove asbestos-containing insulation from a facility in Ferndale, Washington.^[1] Wright's former coworker testified that at the time, NWIM was run by "three people" out of an "old house" in Burlington, Washington. Verbatim Rep. of Proc. (VRP) (Oct. 30, 2019) at 433. The company had no "corporate doctor" or "industrial hygienist" on its staff. Id. at 434.

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NWIM assigned Wright to the Ferndale job, which he worked for approximately three months. As a "working foreman," Wright worked alongside his crew members removing the insulation, while also performing supervisory tasks. Id. at 470. According to Wright's former coworkers, they took certain "precautions" against asbestos at the Ferndale job, including using water hoses to "wet down the insulation" to limit dust in the air and wearing masks while "dealing with [the] insulation." Id. at 515, 453. Additionally, as part of his supervisory duties, Wright was sometimes in charge of "safety meeting[s]" where the team discussed the "scope of the work for the day," any "[i]njuries that happened," and safety precautions such as wearing masks when they "dealt with insulation." Id. at 502-03, 453.

It is undisputed that Wright knew there was asbestos at the Ferndale refinery. However, Wright's former coworkers testified that in 1979, they did not know "there was a connection between asbestos exposure and cancer," they did not "have specific knowledge as to the hazards of asbestos to the human body," and they had not "received any education about the hazards of asbestos." Verbatim Tr. of Proc. (VTP) (Oct. 31, 2019) at 590; VTP (Nov. 7, 2019) at 1287-88.

Moreover, trial testimony established that the first class offering certification to "perform asbestos removal" in the state of Washington occurred in 1984-five years after the Ferndale job. VTP (Oct. 31, 2019) at 563. Before the 1984

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training, Wright's coworkers had not "received any formal training or education about the hazards of asbestos." VRP (Oct. 30, 2019) at 478. After the 1984 training, NWIM changed their "work practices" around asbestos to implement enhanced safety measures based on a more complete understanding of the gravity and probability of the harm caused by exposure to asbestos. Id.

There was no evidence that Wright had more knowledge or training than his coworkers in 1979. Indeed, Mobil's own corporate representative testified that he had "not seen" any evidence "that Mr. Wright attended any other class prior to 1984 to specifically learn about the hazards of asbestos." VTP (Nov. 4, 2019) at 781. By contrast, Mobil had extensive knowledge about the dangers of asbestos exposure at the time of the Ferndale job in 1979.

Mobil's corporate representative testified that since at least 1919, Mobil had been part of an "industry trade organization" that "met and discussed and shared medical and scientific information," specifically including "the hazards of handling asbestos and the disease of asbestosis." Id. at 770-71, 774. Mobil also had a dedicated medical and safety department in 1979, as well as a "large industrial hygiene department across the nation" that had been in place since "at least the 1950s." Id. at 760-61, 777. As a result, Mobil "knew what the medical and scientific information was," and Mobil "was acutely aware of the hazards of asbestos to the human body." Id. at 781-82. By "the mid 1960s, the Mobil Oil

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Company became aware of the hazards of asbestos . . . and the connection with mesothelioma." Id. at 745. In addition, Mobil's expert industrial hygienist testified that in "1979, Mobil clearly had knowledge about the hazards of asbestos and the precautions they needed to take for their employees." VTP (Nov. 12, 2019) at 1495.

After the job at the Ferndale refinery was complete, Wright worked at several other refinery jobs for NWIM until his retirement in 1988. In 2015, Wright passed away. After his death, an autopsy revealed that Wright had been living with mesothelioma, a type of cancer caused by exposure to asbestos.

In 2018, Wright's son Wayne, individually and as a personal representative for Wright's estate, filed suit against several defendants, including Mobil. Wright^[2]sought damages for personal injury and wrongful death caused by exposure to "asbestos and asbestos-containing products." Clerk's Papers (CP) at 2. All the...