Toxic Torts

Is There Contributory/Comparative Negligence in an Asbestos Case?

It's fairly rare, but when an asbestos claimant's own wrongdoing plays a role in his or her health problems, it can have an impact on a settlement or court judgment.

In injury-related cases, the concepts of contributory and comparative negligence come up when the person filing the lawsuit (the plaintiff) also played a part in causing or contributing to their injury. In this article, we'll discuss contributory and comparative negligence in the context of an asbestos lawsuit.

Contributory and Comparative Negligence: The Basics

A common example of contributory negligence, as a legal concept, is failing to wear a seat belt and sustaining greater injury in a car accident than you would have had the seat belt been used properly.

Historically, people who contributed to their own injury had no claim against others. A small number of "contributory negligence states" still follow this harsh, plaintiff-unfriendly rule.

But under a more modern approach known as "comparative fault," most states allow a plaintiff who has contributed to his or her own injury to still make a claim against others who may also be liable. How much recovery is allowed under this principle varies by jurisdiction. It comes down to assigning fault to the injured party -- was the claimant 20% responsible? 49%? 80%? -- and then apportioning compensation under those same percentages. So that a claimant who was deemed 30% at fault would only recover 70% of his or her damages from other at-fault parties. But note that in many states, people who are more than 50% responsible for their injury cannot recover at all.

Negligence in an Asbestos Case

Fault in an asbestos case (driven by the legal concept of negligence) can be complicated and is typically spread among many parties, sometimes including the plaintiff. This can be true even if the plaintiff did not know asbestos was harmful.

Asbestos disease occurs as a result of inhaling asbestos fibers. Asbestos was known to be hazardous for decades while it continued to be used as a common material. Because this knowledge was available to companies that mined asbestos fibers and to the manufacturers of asbestos-containing products such as insulation, fireproofing, and gaskets, the mining and manufacturing companies were typically considered negligent in marketing asbestos-containing products without warning the users of the hazard.

Plaintiffs’ Negligence

Workers who used asbestos-containing products (ACPs) are not likely to be seen as negligent if they could not reasonably have known how dangerous asbestos was. But that's not likely to stop defendants from trying to argue that workers should have known about the hazards of asbestos if they used ACPs after such information was available to unions, contractors, and the general public. A person who worked with products containing "the miracle mineral" in the 1940's and 1950's is much less likely to be perceived as negligent than a person who used ACPs in the 1970's.

Other arguments for worker negligence relate to jobsite safety precautions. As long ago as the 1930’s, state and federal governments enacted regulations about hazardous dusts. These regulations required such cautionary measures as proper clean-up and disposal, use of face masks and work coveralls, and "wet-down" procedures. Even if the dust was not known to be hazardous, failure to observe such precautions can be seen as negligent.

The fact that an asbestos claimant failed to wear a protective mask when one was provided, especially when the claimant knew the mask had protective value, is the most common contributory negligence-related argument you're likely to hear from the defendant in an asbestos case. Chipping, breaking, or penetrating known asbestos-containing materials without taking care to contain the dust is another common form of contributory negligence.

How Does This Affect Settlements?

Because mesothelioma and other asbestos-related diseases result from continuous exposure, rather than a single incident, assigning fault in an asbestos case can be complicated. Asbestos settlements take into account a number of factors, including the type of exposure, the length and frequency of the exposure, precautions taken by the plaintiff and plaintiff’s employer, and the strength of the evidence. Experienced attorneys on each side know what kinds of settlements the defendant makes in similar cases, and will consider all factors without trying to assign an exact percentage of liability to the plaintiff.

If an asbestos case goes to trial, however, the jury will be asked to award damages. Typically, in valuing an asbestos case, the jury will come up with a total figure that includes the value of the entire harm done to plaintiff: medical bills, lost wages, lost household services, and pain and suffering. Once the jury has that number, the jury will assign a portion of responsibility to the plaintiff, to the defendant(s) on trial, and to all other parties (which includes settled defendants and parties who could not be sued, such as defendants who have gone entirely out of business).

A jury might assign a value of $3 million to a case, find the defendant on trial 10% responsible, find the plaintiff 5% responsible, and all others 85% responsible. The plaintiff’s 5% liability would not be deducted from the trial defendant’s portion of liability. However, the plaintiff will not receive a check for $3 million either. The defendant will pay only its share of the value of the case.

There are numerous complicated factors which determine the actual monetary amount of a defendant’s portion of a settlement, including money already received in settlements, the number of defendants in the case, the value of the economic damages compared to the value of the non-economic damages, and so on. Each case is individual. You should discuss these issues with your asbestos attorney and formulate the best strategy for your case.

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