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Kivell v. Air Products and Chemicals
Citation: Not availableDocket: N15C-07-093 ASB
Court: Superior Court of Delaware; August 30, 2017; Delaware; State Appellate Court
Original Court Document: View Document
Defendant Air Products and Chemicals, Inc. was granted summary judgment in the case brought by Sandra Kivell, representing the estate of her deceased husband, Milton Kivell, who allegedly contracted mesothelioma due to asbestos exposure while working at the defendant's facility in the 1970s. The court found that the plaintiff could not meet the criteria for summary judgment as outlined under Louisiana law, which limits property owner liability for the actions of independent contractors. Specifically, property owners are only liable if the contractor's work is inherently dangerous or if the owner exercised control over the contractor's operations or authorized unsafe practices. The defendant contended that Mr. Kivell's tasks, such as changing pipes and valves, were routine maintenance and not inherently dangerous. Furthermore, the plaintiff failed to provide evidence that the defendant controlled the contractor's methods or allowed the use of asbestos. The court referenced a relevant case, Roach v. Air Liquide America, which clarified that hazards associated with an independent contractor's work do not impose a duty on the premises owner. This decision emphasized that the responsibility for safety regarding hazards intrinsic to the contractor's work lies with the employer, not the property owner. The plaintiff's assertion that her husband was exposed to asbestos while working for an independent contractor lacked supporting evidence necessary to establish that asbestos was a hazard inherent to the defendant's premises. The court noted the absence of information regarding the defendant's knowledge of asbestos use or any explicit requests for such materials during the relevant time period. Comparisons were drawn to other cases where evidence was presented showing the property owner's knowledge of asbestos hazards, which was not present in this case. The plaintiff in Smith provided evidence of asbestos exposure on the defendant's premises, but in the current case, the plaintiff failed to demonstrate a genuine issue of material fact regarding the defendant's breach of duty under Louisiana law. Consequently, the defendant's Motion for Summary Judgment on the negligence claim is granted. Similarly, summary judgment on the strict liability claim is also granted. To establish strict liability in Louisiana, a plaintiff must prove: (1) the item causing the damage was under the defendant's care, custody, and control; (2) it had a defect creating an unreasonable risk of harm; and (3) the injuries resulted from that defect. Custody, for strict liability, entails supervision and control, not merely ownership, and physical presence on premises does not equate to custody. The record lacks evidence showing that the defendant had direction, control, or ownership of the asbestos product involved. Therefore, the defendant's Motion for Summary Judgment is granted in both negligence and strict liability claims. The order is signed by The Honorable Calvin L. Scott, Jr.