Pennsylvania Does Not Recognize Duty To Warn An Employee’s Spouse

District court predicts that Pennsylvania will not recognize a duty to protect or warn the spouse of an employee in "take home" or "household" asbestos exposure cases.

On August 26, Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania issued his opinion in Gillen v. Boeing Co., opining that Pennsylvania would not impose a duty on The Boeing Company to protect or otherwise warn the spouse of an employee about the risks of exposure to asbestos fibers carried into the home on the clothes of the employee—a so-called "take home" or "household" exposure scenario.1 Gillen is significant because it answers a question that Pennsylvania appellate courts have yet to address and restricts a novel expansion of liability sought by the plaintiffs' bar.

Gillen v. Boeing

The plaintiff in Gillen, Mrs. Marilyn Gillen, was employed by Boeing as a secretary in the company's Ridley Park, Pennsylvania, facility from 1966 to 2005. Hugh Gillen, Mrs. Gillen's husband, also worked at the Boeing facility in Ridley Park as a machinist from 1966 to 1970 and from 1973 to 2005. According to the complaint, Mrs. Gillen developed mesothelioma after being exposed to asbestos in two ways: (i) in her capacity as an employee when Boeing performed asbestos abatement projects in her proximity and (ii) when she laundered Mr. Gillen's clothes, which allegedly contained dust from asbestos products used by Mr. Gillen.2 Boeing moved to dismiss the latter half of Mrs. Gillen's negligence claim, contending that the company did not owe a duty to Mrs. Gillen for her take-home or household exposure. Determining that no Pennsylvania appellate court had spoken on this issue, the district court weighed five factors that Pennsylvania courts have considered in determining whether common law negligence would impose such a duty.3

First, the court observed that the relationship between Boeing and Mrs. Gillen in the take-home or household exposure context was the equivalent of "legal strangers."4 Even though Mrs. Gillen was also an employee of Boeing, the relationship at issue "must be viewed in the context of the alleged tort, not in the context of any connection outside the circumstances of this lawsuit."5 Thus, the only relevant relationship for a take-home or household theory was that of Mrs. Gillen as the spouse of a Boeing employee. Second, the court found that the social utility of Boeing's conduct did not weigh in favor of or against imposing a duty...