On January 4, 2023, in Shellenberger v. Kreider Farms et al., 2023 Pa Super 1 (Jan. 4, 2023), the Superior Court of Pennsylvania issued an opinion of an appeal by Pamela K. Shellenberger, executrix of the estate of Richard M. Shellenberger, deceased, addressing the issue of determining the appropriate standard of care between employers and employees and whether an employer owes a heightened duty to protect employees from hazards about which the employer knew or should have known.
By way of background, Richard Shellenberger (“Appellant” or “Mr. Shellenberger”) was employed by Kreider Farms (“Appellees”) as the general manager of dairy plant operations from 1972 through 1980. Appellant worked directly with, and was proximately exposed to, asbestos on a regular and frequent basis and was diagnosed with malignant mesothelioma in May 2017, which was the ultimate cause of his death on January 21, 2019.
On November 8, 2018, Appellant filed a Complaint in the Court of Common Pleas of Philadelphia County against Appellees. The Complaint contained allegations of negligence against Appellees for their failure to warn and protect Appellant from the dangers of asbestos on Appellees’ property. Appellant alleged that Appellees knew or reasonably should have known of the hazardous conditions created by asbestos, that Appellant was neither aware nor should have been expected to be aware of such hazardous conditions, and that Appellees failed to exercise reasonable care to protect Appellant from the dangers of asbestos.
On September 17, 2019, Appellees filed a Motion for Summary Judgment, arguing that they had no knowledge of the dangers of asbestos during the time Appellant was employed at Appellees’ dairy processing plant. Essentially, Appellees’ argument was that they only owed a duty to protect their employees from known dangers. Appellant filed a Response in Opposition, arguing that Appellees’ owed Mr. Shellenberger a heightened duty of care to not only protect him from known dangers, but also from dangers that could have been discovered with reasonable care.
On November 27, 2019, the trial court entered an order granting Appellees’ Motion for Summary Judgment, dismissing all claims and cross-claims against Appellees, with prejudice. The trial court found that there was no evidence that Appellees possessed any knowledge of the dangers of asbestos during the material time period and that Appellees were not to be held to higher duty to discovery this danger for purposes of protecting their employees.
The issue on appeal was what law governs the duty Appellees owed Appellant, its employee. Appellant argued that Appellees owed Mr. Shellenberger a duty to provide him with a safe working environment, and that they breached this duty by knowingly exposing him to asbestos-containing components, which they should have known presented a significant risk to Mr. Shellenberger’s health and safety. Appellees argued that Mr. Shellenberger had no facts to support his argument that Appellees knew the asbestos-containing parts were hazardous.
The Superior Court of Pennsylvania agreed with Appellant and held that Appellees must be held to a heightened duty of care, as employers, to protect employees not only from known dangers, but also from dangers that might be discovered with reasonable care. See Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 656 (Pa. Super. 2002); Geier v. Board of Public Education of the School District of Pittsburgh, 153 A.3d 1189,1199 (Pa. Cmwlth. 2017); Restatement (Second) of Torts § 332 cmt. j. (1965). The Court reasoned that an employee would be entitled to the protections afforded to a business invitee while on the employer’s premises, and therefore owed Appellant a duty to protect him against both known dangers and dangers that might be discovered with reasonable care. The Court specifically found that Appellees were required to have knowledge of generally known scientific discoveries, to take care to ascertain facts which would indicate danger to their employees, and to take appropriate action if discovered.
In coming to this conclusion, the Court noted that the trial court only considered whether Appellant had established that Appellees had actual knowledge of the dangers of asbestos, which the Court found was a “clear error law.” The Court ruled that that trial court contained sufficient evidence from which a jury could have concluded that Appellees should have known of the dangers of asbestos, based on the evidence Appellant presented in the form of expert reports, medical journals, and publications from Pennsylvania Department of Labor and Pennsylvania Department of Health.
A copy of the Schellenberger opinion may be found here.
For additional questions, please contact Anthony Cognetti, Esq. and/or Conrad James Benedetto, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
