Tuesday, September 23, 2014

Worker Asbestos Exposure

In Donna Walston vs. The Boeing Company the widow of Gary Walston, a Boeing worker, was suing Boeing in a wrongful death case.  Her husband had died from asbestos exposure.  Normally, workers who are injured on the job are compensated through labor and industries, but have no right to sue their employee individually.  There is an exception however, if the employee can show that the employer intentionally injured them.  Intentional injury can be shown if the employer had “actual knowledge” that the injury would occur.

Boeing had intentionally sent Gary Walston into an area that they knew was contaminated with asbestos and that widow alleged that this constituted an intentional injury.  Boeing countered with the testimony of an expert who gave evidence that while asbestos may cause cancer it is not certain to cause cancer.  On that basis Boeing argued that they did not have “actual knowledge” that the injury would occur.  The Supreme Court looked at previous caselaw which had held that even where the employer had “substantial certainty” that the injury would occur this does not rise to the level of “actual knowledge”.   Based on this the court upheld the dismissal of the suit against Boeing.  This case underlines the difficulty which any employee has in attempting to bring an individual action against their employer.

Wong Fleming | Washington 

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