Greater Exposure to Exposure: Pennsylvania Commonwealth Court Holds Local Government Agency Can Be Held Liable for Asbestos Exposure

By: Pamela A. Lee, Esquire
       [email protected]

In matter of first impression, the Commonwealth Court recently held that a local government agency – which includes school districts – can be liable to an employee for workplace exposure to asbestos dust if the condition causing exposure falls within one of the exceptions to governmental immunity. The case is Geier v. Board of Education of the School District of Pittsburgh.

The injured plaintiff in Geier was a math teacher from the fall of 1958 through the summer of 1959. The plaintiffs (husband and wife) alleged the wife was exposed to asbestos dust coming from pipe coverings on the steam and water pipes located in the hallways, stairways, and classrooms of the defendant’s high school where she worked. Five decades later, the wife was diagnosed with mesothelioma, and she ultimately died in July 2016. The defendant school district in Geier argued that it was immune under the Political Subdivision Tort Claims Act (“PSTCA”) and the PA Constitution for injuries caused by a workplace exposure to products containing asbestos.

First, the court in Geier found that the plaintiffs’ claims fell within two exceptions to the PSTCA: the real property and the utility service facilities exceptions. Specifically, the court found that given the evidence of the defendant school district’s “use of asbestos-containing products in its maintenance of its steam and water pipe coverings, and repair of its floors, ceilings and walls, and the Decedent’s [the wife’s] contraction of mesothelioma,” the plaintiffs sufficiently alleged that a dangerous condition of the school district’s utility service facilities and real property substantially contributed to the wife’s mesothelioma and death.

Next, the court noted that under common law, a landowner owes a duty of care to make the premises safe or warn the invitee of dangerous conditions on the property. The court in Geier recognized that the defendant school district owed the plaintiffs’ decedent the highest duty of care owed to any entrant upon land because the relationship between them was that of employer/employee. This higher duty of care requires the landowner to protect the employee – as a business invitee – not only against known dangers, but also against those that might be discovered with reasonable care.

The court in Geier explicitly noted that because recovery was not available under the Workers’ Compensation Act due to the 300-week occupational disease limitation provision, the Pennsylvania Supreme Court gave employees the right to seek a common law remedy in Tooey v. AK Steel Corp.

While the plaintiffs will be required to demonstrate that the defendant school district knew or reasonably should have discovered the dangers associated with exposure to asbestos before 1958 in order to ultimately prevail, the Commonwealth Court did not address this issue because the defendant did not raise it in its moving papers before the trial court.

What does this ruling mean for injured employees and local agencies? It means that a public employer has a duty to create reasonably safe conditions of employment, including maintaining safe structures. It also means it is possible for a local agency to be liable to an employee for workplace exposure to asbestos dust, but only if the condition causing exposure falls within one of the exceptions to governmental immunity.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Please contact Pamela A. Lee, Esquire at the Law Firm of DiOrio & Sereni, LLP at 610-565-5700 or email her at [email protected].

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