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.
II. LEGAL STANDARD - MOTION FOR SUMMARY JUDGMENT
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 ...