Burden Shifting Approach in Slip and Fall Cases Not Applicable to Employees of Independent Contractors

August 2, 2006

The Court of Appeals recently published, Brewster v. Colgate Palmolive Company, et al., which is the latest on premises liability implicating Lanier v. Walmart. Brewster was the employee of several contractors who worked at Colgate Palmolive and Jewish Hospital. He was diagnosed with asbestosis after years of working on construction sites. He sued the defendants claiming he had contracted the disease after being exposed on their premises. The trial court ruled that Brewster’s reliance on Lanier and its burden shifting approach was misplaced. Finding no evidence of knowledge on the part of Colgate or Jewish, and thus, no duty to warn, the trial court dismissed both claims.

The court of appeals reiterated the general rule that a premises owner owes a duty to contractors to warn of hidden dangers “known” to the premises owner. This duty was not eliminated merely because the contractors may have superior knowledge regarding the existence of such dangers. Because there was no evidence that Jewish or Colgate had knowledge of the existence of asbestis, there was no duty to warn Brewster or the contractors for whom he worked. The court refused to expand the Lanier burden shifting approach to cases involving independent contractors.

The trial court raised an interesting issue regarding the “superior knowledge” of contractors, which deserves more consideration. Is a premises owner like Jewish or Colgate responsible to warn about dangers of asbestes in construction to a contractor who is engaged the business and who has superior knowledge of the likelihood of such a defect? Isn’t it reasonable to assume that a contractor would be aware of the possibility of a substance such as asbestes and take appropriate precautions. If so, why place such a duty on the premises owner? Would a warning by the owner, discharging its duty, even do any good? Interesting issues that I think will resurface. My impression is the trial court was correct in both its ruling and analysis.

I also commend the court of appeals for declining to extend Lanier. Mostly, because I do not think that Lanier has been adequately presented to or explained by the Supreme Court in typical premises liability cases. Issues regarding the application of the burden shifting approach continue. I hope the Supreme Court has the opportunity to address those issues before it decides whether to expand the ruling to other types of cases.

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