In 1994, Conoco, Inc. initiated construction on a project that required the demolition of abandoned homes in Westlake, Louisiana. Along with demolition, the project required the evacuation and removal of soil. The soil, which contained asbestos, was distributed to homeowners that spread the soil on the lawns of their homes.
According to La. C.C. art. 2315.2:
“In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.”
Here, it was not proven that Conoco’s behavior was “wanton and reckless”, nor were their actions deemed highly unreasonable or involving an extreme departure from ordinary care. As an employer/employee involved in the removal or disposal of asbestos containing material, you have a duty to take reasonable steps to prevent public exposure. Steps include:
(1) visual surface test
(2) soil contamination test
(3) Option to replace contaminated soil, or sufficiently cover contaminated soil
In addition to punitive damages, the homeowners sought to recover (i) increased risk of developing asbestos related cancer, (ii) damages for mental anguish, and (iii) diminished property values. The requirements to recover under each claim are put forth below.
In Conoco, homeowners sought damages for “slight” exposure to asbestos, which only “slightly” increased the risk of contracting related cancer. As such, Louisiana does not allow recovery for a “slightly” increased risk of developing cancer. You must show that you are likely to contract cancer from “significant” exposure, the mere possibility is not sufficient. Expert witnesses, i.e. doctors and asbestos specializes, may be necessary to prove exposure levels.
Louisiana courts have been more inclined to award damages for mental anguish when it is accompanied by a manifest physical injury. However, to receive damages for mental anguish and emotion distress related to asbestos exposure, you must show, absent any physical injury, that you have a “particular likelihood of genuine and serious mental distress arising from the circumstances.” The strict language has been enforced to prevent frivolous suits from litigation.
Diminished Property Value
A property’s exposure to asbestos can have a direct and significant impact on the value of the home. In the present case, homeowners introduce what is called the “stigma effect” to show that the value of their property experienced a 10% drop. In short, “when the owners attempt to sell their property, they will have to disclose the fact that the property had once been contaminated with asbestos-containing soil. “Asbestos” certainly carries a negative connotation and will raise a red flag to potential home-buyers. Home owners in Westlake with known asbestos exposure should consider these issues when selling and purchasing homes.
All in all, asbestos is obviously a messy issue that all parties involve was never a problem. In the instance mentioned above, there were a lot of complex legal assertions and claims that all derived from a simple error that was likely a common mistake. While manufacturers or companies may not have intentionally allowed the substance into the air or everyday lives of families across Louisiana, they owe an accountability for the error in their ways. Only through proper legal representation can someone exposed hope to get the settlement or ruling that truly meets their interests and not the company’s bottom line.