Date: 08-26-2007

Case Style: Charles E. Brewster v. Colgate-Palmolive Company and Jewish Hospital Healthcare Services, Inc.

Case Number: 2004-CA-002681-MR

Judge: Buckingham

Court: Supreme Court of Kentucky on appeal from the Circuit Court of Jefferson County

Plaintiff's Attorney:

Paul J. Kelley, Louisville, Kentucky and Kenneth L. Sales Louisville, Kentucky

Defendant's Attorney:

Russell H. Saunders, Louisville, Kentucky for Jewish Hospital

Lisa C. DeJaco and Rebecca F. Schupbach, Louisville, Kentucky

Description:

Charles E. Brewster appeals from separate summary judgments entered by the Jefferson Circuit Court in favor of Jewish Hospital HealthCare Services, Inc., and Colgate-Palmolive Company. Brewster's claims were filed against Jewish Hospital and Colgate in 2001 following his being diagnosed with asbestosis. We affirm.

Brewster worked for numerous employers at various locations during his employment from approximately 1950 until 1979 when he suffered a back injury. In 1970, he began working for Wilhelm Construction Company. While working for Wilhelm, he worked on a construction project at Jewish Hospital for approximately one to two years. The construction project was a nine-story addition that involved tearing out portions of old construction and constructing the new addition. Brewster does not know if he was exposed to asbestos while working on the project.

Brewster worked for Dahlem Construction Co., Inc., from the third quarter of 1966 through the second quarter of 1970 and from the second quarter of 1974 through the third quarter of 1976. While employed by Dahlem, he worked at a Colgate facility in Indiana on at least one occasion and probably more than once. While working at Colgate, he tore out some construction material using a cutting torch. He also poured concrete for construction involving a new facility. Brewster does not know if he was exposed to asbestos while working at Colgate.

After being diagnosed with asbestosis in 2001, Brewster filed a civil action in the Jefferson Circuit Court against Jewish Hospital, Colgate, and other defendants. In late December 2004, the court awarded summary judgments to Jewish Hospital and Colgate, and it dismissed Brewster's claims against both parties. This appeal by Brewster followed.

The court awarded summary judgment to Jewish Hospital for two reasons. First, the court determined that Brewster did not present sufficient evidence that Jewish Hospital caused him to have asbestosis. The court noted that Brewster was unable to state whether he had been exposed to asbestos while working on the construction project at Jewish Hospital and also noted that Brewster had not presented any witness to say that he had been exposed to asbestos at the construction site. The court concluded that the evidence was insufficient for a jury to draw a reasonable inference that Brewster had actually been exposed to asbestos while working on the project. The court concluded that any verdict in favor of Brewster "would, of necessity, be the product of speculation and supposition." Therefore, the court awarded summary judgment to Jewish Hospital on that basis.

The court also awarded summary judgment to Jewish Hospital on an alternative ground. The court concluded that Brewster failed to demonstrate that Jewish Hospital, as a premise owner, breached a duty owed to him. The court rejected Brewster's reliance on the burden-shifting approach in Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003), and concluded that "this case should be decided based on the duty of a premise owner to employees of independent contractors not the duty owed to patrons or customers of a business." The court based its decision on Ralston Purina Co. v. Farley, 759 S.W.2d 588 (Ky. 1988), and Owens v. Clary, 256 Ky. 44, 75 S.W.2d 536 (1934).

In its order awarding summary judgment to Colgate, the court addressed two issues. First, the court rejected Colgate's argument that it was entitled to summary judgment based on the defense of "up-the-ladder" workers' compensation coverage. The court concluded that fact issues remained concerning whether Colgate had secured such coverage in connection with Brewster and whether the work performed by Brewster at Colgate was a regular or recurrent part of Colgate's business. However, the court awarded summary judgment to Colgate on the ground that Brewster had failed to prove that Colgate, as a premise owner, breached any duty owed to him. Again, the court based its decision on the Ralston Purina and Owens, cases.

There are several issues that have been raised by the parties on appeal. These include the sufficiency of Brewster's proof regarding his exposure to asbestos, Colgate's up-theladder immunity defense under workers' compensation law, and the circuit court's personal jurisdiction over Colgate in this case. However, we believe the summary judgments of the court may be affirmed based solely on the premise liability issue without regard to the other issues that have been raised.

In resolving the premise liability issue in favor of Jewish Hospital and Colgate as a matter of law, the court relied on the Ralston Purina and Owens cases. In the Ralston Purina case, Ralston Purina, the owner and occupier of a building, employed an independent contractor to construct an addition to the building. The independent contractor subcontracted with another company to perform a portion of the work. An employee of the subcontractor fell through a weak section of the roof and was injured.

The Kentucky Supreme Court in the Ralston Purina case held that Ralston Purina discharged any duty it owed to the employee of the subcontractor by warning the contractor of the weak roof. Id. at 590. The court did not reach the issue of whether there was a duty to warn because it was clear that Ralston Purina had discharged any such duty it may have had. Id.

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Outcome: The judgments of the Jefferson Circuit Court are affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None