Vice Dean Leslie Kendrick’s Oral Argument Prevails at State Supreme Court

Landmark Ruling Expands Liability in Asbestos Lawsuit
Leslie Kendrick

Leslie Kendrick is the David H. Ibbeken ’71 Research Professor of Law.

October 16, 2018

Vice Dean Leslie Kendrick ’06 of the University of Virginia School of Law has won her debut argument at the Supreme Court of Virginia, in a case that reshapes state tort law and garnered national attention.

The landmark 4-3 ruling released Thursday in Quisenberry v. Huntington Ingalls Inc. expands corporate liability for damages from asbestos and other potential traveling health hazards.

In the case, a Newport News man representing his mother’s estate filed suit in the U.S. District Court for the Eastern District of Virginia alleging that a shipyard was negligent in her death from mesothelioma in 2016.

The federal lawsuit claimed she had been exposed for years to asbestos from her father’s work clothes; the company hadn’t warned that it would be dangerous to bring them into their home or taken steps to prevent home contamination, the lawsuit said.

The shipyard sought dismissal, arguing that it should only be liable for what happened on site, and that the woman was neither an employee nor ever on the premises.

The district court asked the state Supreme Court to help clarify state law regarding responsibility and advise on how to proceed with the federal litigation.

“The lawyers for Mrs. Quisenberry reached out to me because the issue was a pure question of law about tort duties in Virginia,” said Kendrick, who served as co-counsel with four attorneys with Dallas–based Waters Kraus & Paul and presented oral argument in April. She has argued in federal court before in her career, but not the state Supreme Court.

The attorneys had to establish that the company had a “duty of care” in order to proceed with the negligence claim. In this case, a duty of care would place a legal obligation on one party to take reasonable steps to avoid injuring others; the state Supreme Court had never ruled on whether a duty exists in “take-home” asbestos cases.

The court ruled that a company has a duty to prevent “recognizable and foreseeable” risk based on Virginia common law, including for household members exposed to asbestos on employees’ work clothes.

“The concept of a mobile hazard that leaves a premises is not new to this court, and asbestos that predictably leaves the property is not unlike livestock or any other hazard posing a risk of harm to persons outside the premises,” Senior Justice Leroy F. Millette Jr. wrote in his opinion for the majority.

Kendrick said the clarification will help the lawsuit move forward.

“This case settles the question the court had before it: It establishes a duty of care in ‘take-home’ asbestos cases in Virginia,” Kendrick said. “It also suggests more broadly that defendants cannot use dangerous substances in ways that risk the health of non-employees and then avoid liability entirely by asserting they have no duty to those individuals.”

Professor Kenneth Abraham, one of the nation’s leading scholars and teachers in tort law, said Kendrick persuaded the justices to apply Virginia law in the way most lower courts and other states have, rather than be bogged down by artificial limits on liability.

“Doing that wasn’t easy because Virginia law was not entirely clear on the issue in the case before this decision,” Abraham said. “It took very effective advocacy to achieve this result.”

The plaintiff will still have to prove that the shipyard is responsible for his mother’s death, an issue the justices did not address.

“In order to recover, the plaintiffs must establish all the other elements of a tort claim, but defendants cannot avoid liability entirely on the ground that no duty exists,” Kendrick said.

Kendrick is a member of the American Law Institute, as well as past chair of the AALS Section on Torts and Compensation Systems and a member of the Harvard Higher Education Forum. In 2014, she received the Law School’s Carl McFarland Prize for outstanding scholarship by a junior faculty member. In 2017, she received the University of Virginia’s All-University Teaching Award and was named vice dean.

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