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In Shellenberger, the Pa. Superior Court Keeps the Courtroom Door Open for Mesothelioma Victims Suing Their Employers

Although society has known about the link between asbestos and mesothelioma for about a century, that doesn’t make the stories of hardworking people who died after contracting mesothelioma any less tragic. Unfortunately, those stories include the story of Richard Shellenberger, a general manager of dairy plant operations at Lancaster County-based Kreider Farms, who died after being exposed to asbestos while employed there.

Recently, in Shellenberger v. Kreider Farms, 2023 PA Super 1—a case in which Shein Law represented the Shellenbergers—the Pennsylvania Superior Court overturned a trial court ruling granting summary judgment in favor of Kreider Farms regarding Mr. Shellenberger’s negligence claims that would have prevented a jury from hearing his story. In doing so, the Superior Court reminded attorneys about two important pillars of workplace premise liability jurisprudence.

First, juries should be the ones to decide whether credible evidence shows employers knew or should have known about the dangerous conditions their employees faced while working. Second, as was embraced by the Pennsylvania Supreme Court in its 2013 decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), Pennsylvania has a long-standing policy of placing responsibility for workplace safety in the hands of employers.

Employers owe a duty to their employees to protect them from dangerous conditions they either knew about or should have known about

The appeal arose from an asbestos-related personal injury action filed by Richard and Pamela Shellenberger. Mr. Shellenberger developed malignant mesothelioma because of his exposure to asbestos while working at Kreider Farms from 1972 to 1980. He alleged negligence on the part of his employer because of its failure to protect him from the dangers of asbestos on its property. He worked directly with and was exposed to asbestos-containing products on a regular and frequent basis at work. About a month before his death, he testified that a boiler containing asbestos required daily, monthly, and semi-monthly maintenance, and that he replaced gaskets labeled “asbestos” weekly for eight years.

The trial court granted Kreider Farms’ motion for summary judgment in which it argued that the Shellenbergers failed to produce evidence to support their negligence claim, notably evidence that the company knew during Mr. Shellenberger’s years of employment that exposing an employee to asbestos was exposing them to a hazardous material.

Mrs. Shellenberger appealed, claiming that Kreider Farms owed a heightened duty to not only protect her late husband from known dangers, but also dangers the company should have known about if it had exercised reasonable care.

The Superior Court focused its opinion on the duty Kreider Farms owed to its employee Mr. Shellenberger. Citing liberally from both its decision in Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 654 (Pa. Super. Ct. 2002) and the Restatement (Second) of Agency, the Superior Court held that employers owed their employees “a duty to protect them not only from known dangers, but also from those which might be discovered with reasonable care.” Accordingly, Kreider Farms owed a duty to its employees to maintain a safe work environment, including having “knowledge of generally known scientific discoveries,” taking care “to ascertain facts which would indicate danger to [its] employees,” and taking “appropriate action if discovered.”

Holding that the trial court erred in its application of this heightened standard because it considered only whether Kreider Farms had actual knowledge of the hazards of asbestos, the Superior Court turned to whether the record before the trial court contained sufficient evidence to allow a jury to conclude Kreider Farms should have known of the dangers of asbestos.

The court found that the record did.

The Superior Court held that the Shellenbergers presented evidence in the form of expert reports, medical journals, and publications from the Pennsylvania Department of Labor and the Pennsylvania Department of Health that showed that the dangers of asbestos were generally known in the 1960s—that is, well before Mr. Shellenberger began working at Kreider Farms in 1972.

These documents showed that as early as the 1930s, there was a suspected link between asbestos and cancer, and by the early 1960s, the medical industry had acknowledged and documented the many diseases and cancers associated with asbestos exposure.

Notably, the Shellenbergers also provided as evidence the Occupational Safety and Health Administration’s (“OSHA”) enactment of regulations regarding workplace exposures to asbestos. The regulations required employers to, among other things, monitor places where asbestos fibers were released to determine whether their employees’ exposure to those fibers exceeded the allowable limit. Those regulations were enacted in June 1972—right around the time Mr. Shellenberger began working at Kreider Farms.

Holding that this evidence would allow a reasonable jury to find that Kreider Farms should have known of the dangers of asbestos and the risk that equipment containing asbestos posed to Mr. Shellenberger’s health, and that it had a duty to exercise reasonable care to protect him from these hazardous conditions, the Superior Court reversed the trial court’s decision to grant Kreider Farms’ summary judgment motion and remanded it for further proceedings.

Importantly, the Superior Court ended its opinion by taking umbrage with the trial court’s statement that “it would not further any policy of the law” for Kreider Farms “to bear the costs of Mr. Shellenberger’s alleged asbestos exposure.” The Superior Court noted that Pennsylvania “has a well-established, long-standing public policy of recognizing that the responsibility for workplace safety rests with the employer,” for which it cited a number of Pennsylvania Supreme Court cases, including Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013).

Juries should hear credible evidence that an employer should have known about the dangerous conditions they exposed their employee to

A decade ago, Tooey opened the courthouse doors for people, like Mr. Shellenberger, who developed mesothelioma and other occupational diseases that manifest more than 300 weeks after their employment ends. In ruling that these individuals (or their heirs and successors) could bypass Pennsylvania’s Workers’ Compensation Act and bring common-law actions against their employers for monetary damages incurred as a result of their exposure to asbestos and other hazardous materials, the Pennsylvania Supreme Court sent shockwaves through the Commonwealth’s legal community.

It is fitting that the Superior Court in Shellenberger cited Tooey because Shellenberger not only keeps the courthouse doors open for people like Ms. Shellenberger, but it also keeps the courtroom doors open by making it clear they should have the opportunity to present their case to a jury.

It is hornbook law that in a premises liability case, the standard for breach of duty is two-fold: either the defendant had actual knowledge of the dangerous condition or it should have known of it if it had exercised reasonable diligence. The Superior Court in Shellenberger reminds trial courts that they must look at both prongs.

As importantly, the decision instructs trial judges that at the summary judgment stage, if there is any credible evidence that the employer should have known about the dangerous condition(s) faced by an employee, that question should go to a jury to decide. After all, the existence of a duty is a question of law for a court, but the determination of whether an act or a failure to act constitutes a breach of duty is a question of fact for a jury.

By ruling consistently with Tooey, and citing it and the public policy considerations embodied by it and similar cases, the Superior Court confirms that Tooey’s holding—that employees can sue employers directly in toxic tort cases in certain circumstances—is alive and well.

Shellenberger is a reminder to both the plaintiffs’ bar and defense bar that employees (or their heirs or successors) bringing claims against their employers have the right to present their case to a jury when there is credible evidence to support a jury’s finding that the employer should have known about the dangerous condition(s) that led to the employee’s injuries.

When factoring in the hornbook law the Superior Court relied on and the public policy considerations embodied by Tooey, litigants can expect the “should have known” issue at the center of Shellenberger to be a central one in their case when no credible evidence exists to show an employer had actual knowledge of the dangerous conditions that caused its employee’s injuries.

Benjamin Shein is the Founding Partner of Shein Law Center in Philadelphia. For more than 35 years, Shein Law has helped people in the Delaware Valley and across the United States hold accountable the companies that played a role in exposing them to the asbestos products that caused their mesothelioma. He can be reached at 215-735-6677 or [email protected].

Reprinted with permission from the April 18, 2023 edition of The Legal Intelligencer/Pennsylvania Law Weekly © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].

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