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Published online by Cambridge University Press: 24 February 2021
The hazards posed by deteriorating friable asbestos in the nation’s schools are causing serious concerns for public health officials, school boards, parents and school employees. Reports by both the Environmental Protection Agency and the U.S. Attorney General’s Office agree that both school children and school employees stand a substantially increased risk of contracting some form of asbestos-related disease as a result of exposure to deteriorating asbestos materials in school buildings.
School systems plagued by die asbestos hazards are now filing suits against asbestos manufacturers alleging causes of action in breach of warranty, negligence and strict products liability in tort. Some plaintiffs in school asbestos litigation seek to recover die costs of EPA-mandated asbestos inspection and abatement programs which have already been completed. Still others request injunctions to compel the manufacturers themselves to conduct inspections and finance abatement.
This Note examines the school asbestos situation from a legal perspective and focuses primarily on whether die schools’ claims should be considered as economic losses or as property damage. It examines die impact of statutes of limitations on these cases under both contract and tort theories. The Note argues diat school asbestos claims should be decided under a strict products liability standard.
1 Rublin, , Asbestos Fallout: It Can Be Hazardous To A Company’s Financial Health, Barron’s, Feb. 11 , 1985, at 6, col. 2-3.Google Scholar
2 Id. at 6, col. 3. In September 1984, U.S. District Court Judge James Kelly certified a national class action of school systems against fifty-three asbestos manufacturers. Since that time, individual school districts with sizeable claims have filed their own lawsuits. The New York City Board of Education, the Los Angeles Unified School District and the District of Columbia have all filed lawsuits, each seeking millions of dollars in compensatory and punitive damages. Id. at 24, col. 5.
3 See infra note 11 and accompanying text.
4 Mehaffey, , Asbestos-Related Lung Disease, 16 Forum 341, 345 (1980).Google Scholar
5 Plaintiff’s Opening Brief at 3, In re Asbestos School Litigation, Master File No. 83-0268 (E.D. Pa. Mar. 9, 1984).
6 The Boston Globe, Feb. 5, 1984, § 4, at 6, col. 1.
7 U.S. DEP'T OF JUSTICE, The Attorney General’s Asbestos Liability Report to Congress, 50 (AUGUST 1981)Google Scholar [hereinafter cited as Attorney General’s Report] (citing U.S. ENVIRONMENTAL PROTECTION AGENCY, Support Document for Proposed Rule on Friable Asbestos-Containing Materials in School Buildings 6-7 (1980)).Google Scholar
8 Shabecoff, , Union Says E.P.A. is Stalling on Asbestos Cleanup, N.Y. Times, Sept. 12 , 1984,Google Scholar at A19, col. 3.
9 Rublin, supra note 1, at 6, col. 1.
10 Attorney General’s Report, supra note 7, at 19.
11 The EPA defines “friable" asbestos as “material that can be crumbled, pulverized or reduced to powder in the hand.” U.S. ENVIRONMENTAL PROTECTION AGENCY, Asbestos- Containing Materials in School Buildings: A Guidance Document, Part I 3 (1979).Google Scholar
The asbestos content of material generally used in school construction ranges from 5% to 50%. As the sprayed-on asbestos ages and deteriorates, it can release fibers into the air. These fibers cannot be easily destroyed, and they can remain airborne for a long period of time. Once asbestos fibers enter the lungs they will remain there indefinitely. Attorney General’s Report, supra note 7, at 47-49.
12 The risk of contracting some form of asbestos-related disease increases some 5-10 times with “moderate exposure" to airborne asbestos fibers. Attorney General’s Report, supra note 7, at 25, (citing G. Peters & B. Peters, Sourcebook on Asbestos Diseases: Medical, Legal and Engineering Aspects 88 (1980)).
13 See Attorney General’s Report, supra note 7, at 32; see also Note, Asbestos Litigation: The Dust Has Yet to Settle, 7 Fordham Urb. L. J. 55, 80 (1978) (“One exposure to asbestos can conceivably cause injury. ... At any level above zero there will be some risk associated with exposure to asbestos.”).
14 Attorney General’s Report, supra note 7, at 31-32.
15 In the preamble to the Asbestos School Hazard Detection and Control Act, 20 U.S.C. § 3601 (1982), Congress stated that “medical evidence has suggested that children may be particularly vulnerable to environmentally induced cancers.” But see, Sullivan, , Report on Asbestos Prompts Questions on Start of School, N.Y. Times, Aug. 31 , 1984, at 83,Google Scholar col. 6 (quoting a New Jersey Department of Health spokesperson: "The Department has issued a report that says while asbestos in a manufacturing environment poses a significant health hazard, the risk from passive exposure in a building with asbestos insulation is one-seventieth as dangerous as the risk from passive inhaling of cigarette smoke.”).
16 Attorney General’s Report, supra note 7, at 21-22 (citing Committee on Biological Effects of Atmosphere Pollutants, National Academy of Sciences, Asbestos: The Need for and Feasability of Air Pollution Control 4 (1971)).
17 Mehaffey, supra note 4, at 345.
18 Rublin, supra note 1, at 6, col. 4.
19 For a discussion of the implementation and administration of TAP, see U.S. DEP'T OF EDUCATION, ASEBSTOS IN THE SCHOOLS: A Report to the Congress 21-22 (1983).Google Scholar
20 EPA, Friable Asbestos-Containing Materials in Schools: Final Identification and Notification Rule, 47 Fed. Reg. 23360, (1982) (to be codified at 40 C.F.R. § 763). The effective date for this rule was June 28, 1982. The compliance date was set at May 27, 1983.
21 In fact, the EPA has yet to define precisely what constitutes a dangerous level of exposure to “passive" (friable) asbestos. It is difficult to articulate an exact threshold of danger since the physical symptoms of asbestos-related injuries do not manifest themselves until long after actual exposure to asbestos. Prolonged latency periods of up to forty years are common in both mesothelioma and asbestosis.
22 Some states have more stringent requirements for abatement of friable asbestos. See, e.g., N.Y. Educ. Law. §§ 430-449 (Consol. 1979) (School Asbestos Safety Act).
23 Huge, Schmidt, Cost of Removing Asbestos Daunts Schools, N.Y. Times, Oct. 5 , 1983, at A21,Google Scholar col. 1.
24 Shabecoff, , Study Cites Lack of E.P.A. Action on Asbestos Peril in U.S. Schools, N.Y. Times, Jan. 2 , 1984, at 1,Google Scholar col. 1.
25 E.P.A.: Schools Not Telling Parents of Asbestos, The Boston Globe, Feb. 2 , 1984, at 9,Google Scholar col. 4.
26 Kaufman, , E.P.A. Cites Schools for Asbestos Violations, The Boston Globe, Feb. 5 , 1984, at 17,Google Scholar col. 2. A New Hampshire town was fined $24,000 and the school district of Philadelphia, Pennsylvania was fined $12,000 for non-compliance. Twenty-one school districts in New England were charged with failure to inspect schools and/or failure to notify parents and school employees about potential hazards. Id. at 22, col. 6.
27 Shabecoff, supra note 8, at A19, col. 4.
28 Schmidt, supra note 23 at A21, col. 1.
29 Kaufman, supra note 26, at 17, col. 3.
30 Rublin, supra note 1, at 6, col. 2.
31 The New York state legislature has allocated seven million dollars over the past four years to help school districts pay for asbestos removal. However, schools in New York State have already spent almost forty-three million dollars on asbestos removal and containment. Schmidt, supra note 23, at col. 1.
32 Id.
33 20 U.S.C. §§ 3601-3611 (1982).
34 N.Y. Times, Feb. 5, 1984, § 4, at 7, col. 1.
35 493 F.2d 1076 (5th Cir. 1973), cert, denied, 419 U.S. 896 (1974).
36 Id. at 1086.
37 Id.
38 Id. at 1092.
39 Id. (emphasis added). Debate over when the asbestos industry knew or should have known of the hazards associated with asbestos exposure has been one of the most controversial issues in the asbestos forum. A report released in 1965 by Dr. Irving Selikoff of the Mount Sinai School of Medicine is generally cited as the first major American study linking asbestos exposure with health hazards and disease. Selikoff, , The Occurence of Asbestosis Among Insulation Workers, 132 Ann. N.Y. Acad. Sc. 139 (1965).CrossRefGoogle Scholar However, there is evidence that the hazards of asbestos were recognized well before the 1960s. For example, an article published in the British Medical Journal in 1924 reported instances of death from pulmonary fibrosis among asbestos workers. See Attorney General’s Report, supra note 7, at 20-21. One commentator has found that as early as 1933 the asbestos industry was aware that exposure to asbestos was likely to cause disease many years after the initial contact. Note, supra note 13, at 80.
40 Borel, 493 F.2d at 1093.
41 PROSSER, W. & KEETON, W., Prosser and Keeton on the Law of Torts 680 (5th ed. 1984).Google Scholar
42 See, e.g., Cinnaminson Township Bd. of Educ. v. U.S. Gypsum Co., 552 F. Supp. 855 (D.N.J., 1982); Santor v. A and M Karagheusian, Inc., 44 N J. 52, 207 A.2d 305 (1965); see also infra note 63.
43 See School District of Lancaster v. L.A.Q. D'Aminate Du Quebec, (Philadelphia Court of Common Pleas, September 28, 1983): Area Vocational Technical Board v. National Gypsum Co., (Philadelphia Court of Common Pleas, September 7, 1983); Pennsylvania v. General Public Utilities, 710 F.2d 47 (3d Cir. 1983).
44 63 Cal. 2d. 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1966).
45 In Seely, the plaintiff purchased a truck manufactured by the White Motor Company. . Several months after the purchase the brakes failed and the truck overturned. Plaintiff
himself was not injured. He sued the manufacturer for damages and for the costs of repairing the truck. The plaintiff recovered on his breach of warranty claim, but was denied recovery premised on strict liability. The trial court found that the plaintiff had failed to show that the alleged defect in the truck caused either the accident or the resulting damage. On appeal the California Supreme Court affirmed the trial court’s findings. Id.
46 Id. at 16, 403 P.2d at 152, 45 Cal. Rptr. at 24.
47 44 N.J. 52, 207 A.2d 305 (1965).
48 Id. at 65, 207 A.2d at 312.
49 See The Restatement (Second) of Torts § 402A (1965).
§ 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer.
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or to his property.
50 Santor, 44 N.J. at 65, 207 A.2d at 312 (emphasis added).
51 See Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976).
52 563 P.2d 248 (Alaska 1977). In Cloud, polyurethane foam ignited, causing extensive damage to the plaintiffs’ mobile home. The plaintiffs recovered damages from the manufacturer under both implied warranty and strict liability theories.
53 See Cloud, 563 P.2d at 251 (citing Fentress v. Van Etta Motors, 157 Cal. App. 2d 863, 323 P.2d 227 (1958) (origin of the “sudden and calamitous injury" test)).
54 See, e.g., Note, Strict Liability and Economic Harm in Ohio, 13 Akron L. Rev. 565 (1980).
55 See, e.g., Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965).
56 623 P.2d 324 (Alaska 1981).
57 Id. at n.5.
58 Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324, 328 (Alaska 1981) (quoting Russel v. Ford Motor Co., 281 Or. 587, 575 P.2d 1383, 1386-87 (1978)).
59 672 P.2d 455 (Alaska 1983).
60 Id. at 464.
61 Santor, 44 N.J. at 65, 207 A.2d at 312.
62 In measuring the amount of monetary damages to be awarded, the Alaska Supreme Court noted that:
[t]he relevant complaint here is not that the Shooshanians received poor insulation for their money. [It is] [rjather . . . that the incorporation of an allegedly toxic substance in their building has physically altered it in a manner which makes it harmful to them, and that the physical damage to the property may be measured by the cost of repairing the walls to make them safe.
Shooshanian, 672 P.2d at 464.
63 In addition to New Jersey and Pennsylvania, whose positions are discussed in the text, New York courts have held that economic loss due to a defective product design is sufficient to state a cause of action in strict liability. See Schiavone Constr. Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 431 N.Y.S.2d 933 (N.Y. App. Div. 1981).
64 552 F. Supp. 855 (D. N.J. 1982).
65 Id. at 859.
66 Id.
67 Id.
68 432 Pa. 217, 246 A.2d 848 (1968).
69 Restatement (second) of Torts § 402A (1965).
70 Husab, 432 Pa. at 231, n.7, 246 A.2d at 851 (emphasis added).
71 Comment, Strict Liability—Under Pennsylvania Law Damages Solely to a Defective Product Itself Are Recoverable Under Section 402A: Pennsylvania Glasss Sand Corp. v. Caterpillar Tractor Co., (3d Cir. 1981), 27 Vill. L. Rev. 836, 855 (1982).
72 (E.D. Pa. Apr. 14, 1976).
73 Comment, supra note 71, at 850, (quoting Celotex at 4).
74 652 F.2d 1165 (3d Cir. 1981).
75 Id. at 1169.
76 Id. at 1174.
77 Id. at 1173.
78 Id. at 1169.
79 Id. at 1174.
80 Breach of warranty claims are governed by contract statutes of limitations, while negligence, strict liability, and fraud claims are covered by tort statutes. See, e.g., County of Johnson v. United States Gypsum Co., 580 F, Supp. 284, 292 n.l (E.D. Tenn. 1984) (school system’s warranty claim barred by state statute of limitations for warranty claims, but allegations of property damage were sufficient to state a cause of action under § 402A and were governed by discovery rule standard).
81 Forty-three states have adopted U.C.C. § 2-314 and § 2-725, the statute of limitations for implied warranty claims. In the seven remaining states, as well as in the territory of Puerto Rico, the general contract statute of limitations applies: Florida—5 years; Louisiana—10 years; Iowa—5 years; Mississippi—6 years; Wisconsin—6 years.
82 See Uniform Commercial Code § 2-314 and Official Comment 11 (1983).
83 There is some question as to whether the Uniform Commercial Code is applicable at all in the school asbestos cases. The U.C.C. applies only to goods attached to realty which are capable of severance “without material harm thereto.” See Uniform Commercial Code § 2-107, Official Comment a. (1983).
84 “A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made.” Uniform Commercial Code § 2-725(2) (1983).
85 While a statute of limitations is legislatively mandated, in the absence of a specific statutory definition, determination of the exact date of accrual is left to the judiciary. See, Raymond v. Eli Lilly & Co., 117 N.H. 164, 167, 371 A.2d 170, 172 (1977).
86 Id.
87 Application of the tort statute of limitations has been quite inconsistent from jurisdiction to jurisdiction. In personal injury asbestos litigation, three major theories have been
advanced. First, some courts have ruled that a cause of action accrues and the statute of limitations begins to run from the date of the plaintiff’s final exposure to asbestos. See, e.g., Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala. 1981). Secondly, many courts have adopted a rule that the cause of action accrues and the statute of limitations runs from the date the disease is diagnosed or discovered. See Neubauer v. Owens-Corning Fiberglass Corp., 686 F.2d 570 (7th Cir. 1982),cert. denied, 103 S. Ct. 1233(1982); McDaniel v.Johns-Manville Sales Corp., 646 F.2d 1151 (6th Cir. 1981) (expressly rejecting date of final exposure as triggering statute of limitations); Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357 (E.D. Pa. 1982); Fearson v. Johns-Manville Sales Corp., 525 F. Supp. 671 (D.C. Cir. 1981); Transcon Trailers, Inc. v. Northland Ins. Co., 436 So.2d 380 (Fla. 1983). Finally, a few courts, (New York primarily), have held that the cause of action accrues and the statute of limitations begins to run from the time of the defendant’s negligence (i.e. first exposure to asbestos), see, e.g., Steinhardt v. Johns-Manville Sales Corp., 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), cert. denied, 102 S. Ct. 2226 (1981).
88 See, Lopez v. Sawyer, 62 N.J. 267, 272, 300 A.2d 563, 565 (1973) (Discovery rule applied in medical malpractice case).
89 Note, Denial of a Remedy: Former Residents of Hazardous Waste Sites and New York’s Statute of Limitations, 8 Colum. J. Envtl. L. 161, 170 n.55 (1982).Google Scholar
90 The discovery rule has also been applied in the “overwhelming majority" of asbestos personal injury cases. Ins. Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1220 n.13 (6th Cir. 1980).
91 Rublin, supra note 1, at 6, col. 3.
92 Several jurisdictions have enacted special construction statutes of limitations which may also apply to school asbestos cases if defendant’s arguments prevail. These statutes are not subject to the discovery rule, and the plaintiff’s cause of action arises on the date of the building’s completion. However, in most jurisdictions suppliers and manufacturers are not insulated by construction statutes of limitations. See e.g., Va. Code § 8.01-250 (1977) (expressly exempting manufacturers from protection of the statute).
93 U.S. Environmental Protection Agency, Support Documentation for Proposed Rule on Friable Asbestos-Containing Materials in School Buildings (1980); cited in U.S. Environmental Protection Agency, Friable Asbestos Containing Materials in Schools: Proposed Identification and Notification Rule, 45 Fed. Reg. 61966 (1980).
94 This was the position articulated by the U.S. Department of Justice in the 1981 Attorney General’s Report:
[I]t is appropriate to observe that under a discovery or ‘manifestation’ cause of action accrual rule, a school district could persuasively contend that tort limitation periods should not commence to run until the district learned, or should have learned, of the danger posed by friable asbestos products. It may prove noteworthy in this regard that the Asbestos School Hazard Detection and Control Act was not enacted until June 14, 1980 and only since then have school districts been directed by competent national authority to detect asbestos hazards in the schools.
Attorney General’s Report, supra note 7, at 232.
95 For a general discussion of statutes of repose, see McGovern, , The Variety of Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U.L. Rev. 579, 580 n.3 (1981).Google Scholar
96 See, e.g., Tenn. Code Ann. § 29-28-103(b) (1978); County of Johnson v. United States Gypsum Co., 580 F. Supp. 284, 292 (E.D. Tenn. 1984) (asbestos related injuries specifically excluded from coverage under the Tennessee products liability statute of limitations).
97 Defendant manufacturers have sought the protection of state statutes of repose to insulate themselves from liability in school asbestos cases. Statutes of repose were enacted to protect architects, engineers and contractors from untimely claims related to the design and construction of buildings. Over forty states have adopted architects and engineers statutes of repose. McGovern, supra note 95, at 587. However, plaintiffs argue that these statutes were never intended to apply to design defect claims against manufacturers. In fact, the majority of courts which have considered this question have held that manufacturers are not protected by statutes of repose.
An in-depth analysis of these statutes is beyond the scope of this Note. For excellent discussion of statutes of repose, see McGovern, supra note 95; Note, Product Liability of the 1980s: Repose Is Not the Destiny of Manufacturers, 61 N.C. L. Rev. 35(1983);Google Scholar Comment, Statutes of Repose cited in Products Liability: Death Before Conception, 37 S.W. L. J. 665 (1983).Google Scholar
98 Restatement (second) of Torts § 402A (1965).
99 Id. A product is defective when it is “unreasonably dangerous for its intended use.” Defining “defect" further has been a great source of controversy for courts. Although there is a wide margin of variation from jurisdiction to jurisdiction, the basic formula for defining defect generally either utilizes a risk-benefit analysis or examines ordinary consumer expectations. See id. at § 402A, comment i.
100 See generally Wade, , On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825 (1973)Google Scholar (Seven factors are considered in determining whether a product is defective. The test is a risk-benefit analysis, discounting “consumer expectations.”); see also Barker v. Lull Engineering Co., 20 Cal. 3d 413, 432-33, 573 P.2d 443, 455-56, 143 Cal. Rptr. 225, 237-38 (1972) (two-tier defect test, taking into account safety expectations of the ordinary consumer, and then weighing a product’s risk against its utility).
101 But see N.Y. Times, Aug. 31, 1984, at B5 col. 6. There has been some evidence that friable asbestos, when left undisturbed in school walls may not pose health risks to school occupants.
102 Commentators have questioned whether commonly articulated policies of strict liability have realized positive economic or social results. However, these theories are still fundamental in strict liability decision making. See generally Henderson, , Product Liability and the Passage of Time: The Imprisonment of Corporate Rationality, 58 N.Y.U. L. Rev. 765 (1983)Google Scholar (imposition of strict liability for dangerous products is counterproductive); Epstein, , Products Liability: The Search for the Middle Ground, 56 N.C. L. Rev. 643 (1978);Google Scholar Klemme, , The Enterprise Liability Theory of Torts, 47 Colo. Law. 153 (1976)Google Scholar (criticizing risk-spreading rationale for strict liability).
103 This form of declaratory relief was denied to the plaintiff (Johnson County Board of Education) in County of Johnson v. United States Gypsum Co., 580 F. Supp. 284, 293 (E.D. Tenn. 1984).
104 Even in the national class action recently certified by Judge Kelly in the Eastern District of Pennsylvania, the laws of all 50 states and 4 United States territories were applied to determine whether certification was appropriate. The court had to find that the elements of each cause of action were substantially similar in each state and territory to insure the commonality of all the potential plaintiffs’ claims. See In re School Asbestos, Civ. No. 83-0268, Order No. 20 (E.D. Pa., Sept. 28, 1984) (certification order for nation-wide class action in school asbestos litigation).
