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Breedlove v. CSX Transp. Corp.


August 17, 2009


The opinion of the court was delivered by: Eduardo C. Robreno, J.


Plaintiff William Breedlove ("Breedlove") brought this lawsuit against Defendant CSX Transportation, Inc. ("CSX"), after he was diagnosed with mesothelioma in February 2008. Breedlove's complaint comprised a single tort claim, sounding in premises liability,*fn1 in which Breedlove alleged that he had been exposed to asbestos while on CSX property; that this exposure was an actual and proximate cause of his mesothelioma; and that he had been an invitee of CSX, to whom CSX breached its duty of ordinary care.

CSX now moves for summary judgment, arguing that Breedlove was a licensee to whom it owed only a duty to refrain from willful or wanton conduct; that as a matter of law, it did not violate any duty if in fact Breedlove was exposed to asbestos on CSX property; and that, in any event, Breedlove failed to produce evidence sufficient to survive summary judgment on the question of whether he was exposed to asbestos while on CSX's property.

This Court will deny CSX's motion for summary judgment because, for the reasons set forth below, it finds that CSX has failed to show that Breedlove was a licensee as a matter of law, and that questions remain for the jury as to whether Breedlove was exposed to asbestos during his visits to CSX property and, if he was, whether CSX breached its duty of ordinary care.


William Breedlove ("Breedlove") worked as an insurance agent from 1957 until 1995. In 1962, when he joined Provident Insurance ("Provident"),*fn2 Breedlove began selling insurance to railroad employees, including employees of defendant CSX Transportation ("CSX").*fn3 The policies that Breedlove sold -- mostly disability, life and dependant insurance -- were supplemental to the basic insurance coverage that CSX was contractually obliged to provide to its employees. CSX allowed its employees to pay for the coverage that they purchased through payroll deductions. Breedlove received commissions, from Provident, on the sales that he made.*fn4

Breedlove solicited sales from CSX employees primarily at two of CSX's mechanical shops. Beginning in the 1960s, Breedlove traveled to a shop in Atlanta, Georgia ("Tilford"), which he visited two or three days per month. Starting in the 1980s, Breedlove also solicited business from a shop located in Waycross, Georgia ("Waycross"), which he visited two or three times per year. At both shops, Breedlove witnessed employees working on locomotives and other railroad equipment, though he never himself performed any type of mechanical work. Breedlove believes that he saw workers using asbestos-containing insulation, brake shoes, gloves, and rope.*fn5 (Breedlove Dep. 41:11-44:21, July 11, 2008). At both Tilford and Waycross, Breedlove noticed accumulations of dust in the air, though he testified that Waycross was dustier than Tilford.*fn6 Id. at 34:23-24. Because Breedlove preferred not to stray from the employees' work area when he sold insurance, he generally conducted business "on top of a drum or . . . somewhere around the equipment."*fn7 Id. at 38:1-14.

To enter and conduct business in the Waycross and Tilford shops, Breedlove sought out and secured permission from CSX's managers.*fn8 Breedlove regularly would "chat" with the managerial staff, as he believed that a good relationship with management was necessary for his continued ability to sell insurance to CSX employees. (Breedlove Dep. 37:6-11, July 11, 2008). The managers initially provided escorts for Breedlove, though, and as he became more familiar with Tilford and Waycross, they allowed him to solicit sales without an escort. Perhaps because Breedlove's visits became so regular, CSX issued him safety equipment, including a hard hat (but not a respirator or mask). (Breedlove Dep. 39:1-6, July 11, 2008).

Breedlove was diagnosed with mesothelioma in February, 2008, and he died six months later, in August. Breedlove's wife, Eva, maintains the present action as the executrix of his estate.


A court may grant summary judgment when "the pleadings, the discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."*fn9 Fed. R. Civ. P. 56(c). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is "sufficient evidence from which a reasonable jury could find in favor of the non-moving party." El v. Se. Pa. Transp. Auth., 479 F. 3d 232, 238 (3d Cir. 2007). All reasonable inferences arising from the undisputed facts should be made in favor of the non-movant. Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F. 3d 199, 201 (3d Cir. 2008). The Court is not permitted to make inferences based on speculation. Lexington Ins. Co. v. Western Pa. Hosp., 423 F. 3d 318, 333 (3d Cir. 2005). So long as at least one reasonable inference may be drawn in favor of the non moving party, summary judgment is inappropriate, and the fact finder will have to determine which inference is correct. Ideal Dairy Farms v. John Labatt, 90 F. 3d 737, 744 (3d Cir. 1996) (citing Nathanson v. Medical College of Pa., 926 F. 2d 1368, 1380 (3d Cir. 1991)).

Further, while the moving party bears the initial burden of showing the absence of a genuine issue of material fact, the non-moving party "may not rely merely on allegations or denials in its own pleading; rather its response must -- by affidavits or as otherwise provided in [Rule 56] -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). Summary judgment is also proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986).


A. Breedlove's Status As An Invitee Or Licensee Under Georgia Law

CSX argues that Breedlove was a licensee because CSX "did not invite, induce, or lead him to CSX's premises." (Def.'s Mot. for Summ. J., doc. no 21, at 11). CSX contends that, since Mr. Breedlove was a licensee, CSX would be liable only for willful or wanton injuries. Id. at 13. Therefore, even if Mr. Breedlove was exposed to asbestos on CSX property, CSX claims that their conduct did not rise to the level of willful and wanton misconduct and thus, it is entitled to summary judgment. Id. at 17-18.

The parties agree that Georgia substantive law applies. The Georgia legislature has codified the common law definitions relative to invitees and licensees. Specifically, O.C.G.A. Section 51-3-1 defines, and sets forth the duties owed to, an invitee:*fn10

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.*fn11

With regard to licensees, Section 51-3-2(a) defines a licensee as "a person who (1) is neither a customer, a servant, nor a trespasser; (2) does not stand in any contractual relation with the owner of the premises; and (3) is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience or gratification." O.C.G.A. Section 51-3-2(a). With respect to a licensee, the landowner or occupier is liable only for its willful or wanton conduct. O.C.G.A. 51-3-2(b). See also Ballenger Paving Co. v. Gaines, 499 S.E. 2d 722, 728 (Ga. Ct. App. 1998) (citing Lee v. Myers, 374 S.E. 2d 797 (Ga. Ct. App. 1988)). If the owner has actual or constructive knowledge that a licensee is "within the range of a dangerous act being done or a hidden peril . . . ," it is willful or wanton not to exercise ordinary care to warn the licensee. Aldridge v. Tillman, 516 S.E. 2d 303, 307 (Ga. Ct. App. 1999) (citing Wade v. Mitchell, 424 S.E. 2d 810, 813 (Ga. Ct. App. 1992)).

The determination of a visitor's status has posed a "perennial" challenge*fn12 for Georgia courts, which apply a "mutuality of interest" test to distinguish between invitees and licensees.*fn13 Chatham v. Larkins, 216 S.E. 2d. 677, 678 (Ga. Ct. App. 1975). A person is deemed an invitee if he has been induced, expressly or impliedly, to come upon the premises for any lawful purpose and his presence on the premises "is of mutual benefit to both him and the landowner." Matlack v. Cobb Elec. M'ship Corp., 658 S.E. 2d 137, 139 (Ga. Ct. App. 2008).

Two cases illustrate the application of the mutuality of interest test. In Findley v. Lipsitz, 126 S.E. 2d 299, 301 (Ga. Ct. App. 1962), an electrical appliance salesman who entered defendant's store to sell light bulbs had a mutual interest with the owner when he replaced defendant's burnt out bulbs, using defendant's stock, in the hope of encouraging defendant to buy new bulbs. The Court found a mutuality of interest because defendant "benefitted by having his store better lighted," and plaintiff "derived a potential benefit by making his product and services known to the defendant, a prospective customer."*fn14 Id. On the other hand, in Todd v. Byrd, 640 S.E. 2d 652, 657 (Ga. Ct. App. 2006), the court held that an individual who entered a store to use the restroom, and not to shop, was a licensee because he had no present business relations with the owner.

Here, the undisputed facts show that, beginning in 1962, Breedlove regularly went to the Tilford maintenance shop in order to sell supplemental insurance to CSX's employees, and that he did the same at the Waycross shop beginning in the 1980s. CSX allowed its employees to pay for the insurance that they purchased through payroll deductions. While it is true that Breedlove was never under contract with CSX, nor was he CSX's employee, CSX managers, in response to Breedlove's entreaties, gave Breedlove repeated permission to come onto CSX property to service CSX's employees insurance needs. Under these circumstances, this case is close to Findley, in that CSX benefitted from having Plaintiff service CSX's employees.*fn15

CSX points to two early twentieth century Kentucky cases, Indian Refining Co. v. Mobley, 121 S.W. 657, 658 (Ky. 1909) and Cummings' Adm'x v. Paducah Grain & Elevator Co., 226 S.W. 345, 346 (Ky. 1920), in which the court found that the defendant did not benefit from the plaintiff agent's sale of insurance to the defendant's employees, making the agent at most a licensee. These cases are distinguishable because in those cases the courts did not apply the more modern mutuality of interest test.

The two other two cases cited by CSX, Edmunds v. Copeland and Offut et al. v. O'Leary, are also distinguishable. In Edmunds, the court found that an insurance saleswoman was a licensee, despite the fact that defendant had filled out and returned a card signifying interest in purchasing a policy from plaintiff, when the plaintiff called on defendant at the time of her choosing, without first having made an appointment, and when plaintiff was injured before she had consummated a business relationship by negotiating for the sale of the policy. 398 S.E. 2d. 280, 281 (Ga. Ct. App. 1990). In Offut, the court held that an insurance agent in the process of calling on a customer at the defendant landlord's house became a mere licensee when he deviated from the normal path set aside for sales calls. 265 S.W. 296, 297 (Ky. 1924).

Here, the undisputed record shows that Breedlove visited CSX's factories only after receiving permission from its managerial staff, at their direction, and over a long period of time. In addition, as previously discussed, there is no evidence from which a jury could reasonably conclude that Breedlove strayed from those portions of the premises in which CSX permitted him to conduct business. Under these circumstances CSX has not shown that Breedlove was a licensee as a matter of law.

B. Proximate Cause

i. Evidence of Exposure to Asbestos on CSX Property

CSX additionally argues that it is entitled to summary judgment because Breedlove has not pointed to evidence on this record from which a fact finder reasonably could conclude that he was exposed to asbestos while on CSX property. (Def. Repl. to Pl. Resp. to Def. Mot. Sum. J., doc. no. 28, at 14). Causation is an essential element of Breedlove's premises liability claim.

The record evidence shows that Breedlove regularly noticed accumulations of "dust" in the atmosphere at both the Tilford and Waycross stations. According to his deposition testimony, Breedlove believed that this dust was present as a result of the work that CSX employees conducted on locomotives and other railroad equipment, and that it contained asbestos fibers.*fn16 (Breedlove Dep. 29:3-6, July 11, 2008).

At his deposition, Breedlove used photographs to identify several asbestos-containing products, including train brake pads, workers' gloves, rope, and insulation, as having been used by CSX employees. (Breedlove Dep. 41-44, July 11, 2008). Breedlove also testified that a CSX employee gave him a piece of asbestos rope, and that he recalled CSX employees discussing the subject of asbestos particularly with respect to insulation and gloves. Id.

To corroborate his deposition testimony, Breedlove points to a learned treatise, which detailed that railroads used asbestos products in their maintenance shops up until the mid to late twentieth century. (Pl. Resp. Def. Mot. Sum. J., doc. no. 27, at Ex. G ). He also attached correspondence from a CSX doctor, which included a list of asbestos products commonly used by railroads indicating that CSX, in particular, used a number of the listed products at least through the 1960s or 1970s. (Pl. Resp. Def. Mot. Sum. J., doc. no. 27, at Ex. H). Additionally, CSX's designated corporate representative, Mark Badders ("Badders"), testified in a separate case that CSX used a number of possibly asbestos-containing products, including gaskets and packing materials. (Badders Dep. 91-92, Sept. 16, 2008, Grimes v. CSX Transp., Inc., civ. no. 16-2007-CA-003677 (Fl. Cir. Ct.)); See also (Pl. Resp. Def. Mot. Sum. J., Ex. H, Doc. No. 27). Badders acknowledged that certain groups of employees were issued masks to guard against asbestos exposure during the normal course of their work.*fn17 (Badders Dep. 105:1-10, Sept. 16, 2008). Finally, Breedlove submits an expert medical opinion that his mesothelioma was caused by his exposure to asbestos while on CSX property. (Pl. Resp. Def. Mot. Sum. J., doc. no. 27 at Ex. I).

Breedlove has pointed to evidence sufficient to create a genuine issue of material fact as to whether he was exposed to asbestos that was released by products used by CSX at Tilford and Waycross and whether that exposure caused the onset of his mesothelioma. The Court finds that a fact finder reasonably could infer, without resorting to speculation or conjecture, that Breedlove inhaled asbestos fibers that were released into the air by CSX employees at the Tilford and Waycross shops.

ii. Application Of Blackston Standard To Premises Liability

Finally, CSX argues that Breedlove's evidentiary proffer with regard to causation is insufficient in light of Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1486 (11th Cir. 1985). In Blackston, the Eleventh Circuit, interpreting Georgia law, articulated the summary judgment standard by which federal courts are to assess the sufficiency of a plaintiff's proffer of asbestos exposure in a products liability suit. A plaintiff in an asbestos products liability suit must be able to identify other individuals with whom they worked and provide affidavits from those co-workers stating which asbestos containing products they worked with, or have co-workers testify both that they worked with the plaintiff and that specific asbestos containing products were used at that worksite. Blackston 764 F.2d at 1482 (internal citations omitted).

Blackston is distinguishable from the instant case because Blackston articulated the heightened standard in a products liability case, not a premises liability case. The Blackston court reasoned that a more rigorous standard of proof was necessary in products liability cases in order to forestall the imposition of a de facto market-share or industry-wide liability scheme with respect to defendants named in products liability actions. Thus, requiring plaintiffs to identify those products to which they were exposed ensured that each defendant would have "liability for injuries adjudged on the basis of his own marketed product and not that of someone else." 764 F.2d at 1483. That consideration is not present in a premises liability action, where a plaintiff is asserting asbestos exposure at a specific worksite, and defendant's liability is determined with respect to the specific conditions present on that worksite. There is not the same danger of plaintiffs imposing a market-share or industry-wide liability scheme. Therefore, this Court declines to extend the Blackston standard beyond the products liability context in which it was decided.


For these reasons, CSX's motion for summary judgment shall be denied. An appropriate order follows.

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