Legal Limits of Property Use During Asbestos Abatement
Landowners should understand the risks, rights and liabilities if their property contains asbestos, including obligations to test for and remove potential absestos exposure.
Until recently, this topic was almost completely irrelevant. Property owners, such as multifamily dwelling and commercial building owners, weren’t liable for asbestos exposure damages unless they knew the building contained asbestos. Constructive knowledge (should have known) wasn’t enough. But in 2019, much to the chagrin of owners’ groups, the Supreme Court struck down this defense.
This 2019 decision has a new meaning in light of the EPA’s 2024 asbestos ban. Owners of old buildings cannot simply knock down old walls or otherwise remove asbestos. To avoid liability, they must first know the full extent of asbestos use, so a removal contractor can prepare accordingly. More on that below.
Many property owners were victims of the asbestos cover-up. They didn’t fully understand the hazardous qualities of asbestos. For the most part, however, these victims didn’t contact an asbestos exposure-related illness, because the asbestos was sealed inside the structure. Other asbestos exposure victims weren’t so lucky. Instead, they developed illnesses that are very expensive to treat and generally fatal. So, an asbestos exposure lawyer obtains the compensation these victims need to pay these expenses and move forward with their lives.
Asbestos in Buildings
The combination of 2019 and 2024 has pushed property owners into a corner. Before 2024, the asbestos abatement process was a very good option, but optional. Now, the asbestos abatement process is mandatory. When owners pass property to their children, they want to pass along a valuable asset, not a liability risk. Furthermore, abatement increases a property’s marketability. The new owner has the same liability-free guarantee.
An air test is the first step in the abatement process. An air test, which also detects other toxins, lets contactors know what they’re up against.
Furthermore, although most buildings constructed before 1980 contained asbestos, that’s certainly not true of all such buildings, especially if the building had a construction dae close to 1980. The Twin Towers are a good example. The lower floors, which were built in the early 1970s, were heavily laced with asbestos. When builders added the upper floors in the mid 1970s, the asbestos cover-up was starting to unravel, and asbestos use tapered off.
The Twin Towers also show how air tests can be deceptive. If someone tested the air in the 41st floor, the reading would have been minimal. The 40th floor, which was roughly the asbestos cutoff, would’ve been a different story. Similarly, if asbestos readings are minimal in one room, that doesn’t mean the risk is low.
Contractors must account for this possibility when they plan asbestos abatement stages two and three, which are removal and disposal.
Asbestos removal is a long and expensive process, mostly because the contractor must essentially demolish the structure to find the asbestos. This substance could be almost anywhere, including:
Attic insulation,
Drywall,
Plumbing insulation,
Concrete,
Floor/ceiling tiles,
Electrical insulation, and
Roof tiles.
Then, the contractor must use all the king’s horses and all the king’s men to put Humpty-Dumpty back together again.
The final step, disposal, is almost as delicate. Asbestos is a heat-resistant hazardous substance that cannot be easily incinerated. Therefore, only a few hazardous waste disposal sites handle asbestos. Frequently, contractors must transport asbestos over long distances to dispose of it properly.
As mentioned, this process is long and expensive. Property owners should resist the temptation to cut corners. Only use a certified contractor who uses proven methods. Unscrupulous contractors might cost less in the short term, but they always create more problems than they solve.
Asbestos Exposure Illnesses
Asbestos laws affecting property owners have changed dramatically, but the illnesses this substance causes remain unchanged. This fact might be the most important reason to remove asbestos from your property. Until that happens, guests are essentially visiting a toxic waste dump.
These diseases often have at least a fifty-year latency period. So, if asbestos is inside Joe’s Barber Shop and that asbestos poisons someone, Joe Jr. Jr. could have a major lawsuit on his hands. More on that below.
Mesothelioma
Occasionally, asbestos causes peritoneal mesothelioma, a form of abdominal cancer that’s usually associated with asbestos-laced talcum powder. Most property owners don’t mass produce talcum powder, so most property owners need not worry about peritoneal (abdominal) mesothelioma.
Pleural (Lung) mesothelioma is a different story. Inhaled asbestos fibers cause tumors to form in the mesothelium (layer that separates the heart and lungs). The particles which cause these tumors are microscopic, and the resulting tumors aren’t much bigger, at least initially, and are hard to see. Further complicating the diagnosis process, the thick membranes in the mesothelium block imagining rays, much like Mr. Burns blocked the sunlight.
As a result, pleural mesothelioma tumors grow undetected. Outward physical symptoms, such as extreme fatigue and radical weight loss, often only appear when the cancer has spread to other parts of the lung or, even worse, to neighboring organs.
When that happens, the tumor is too large to treat with a combination of chemotherapy, surgery, and radiation. That’s especially true since many mesothelioma victims are older adults in their 70s or 80s. In these situations, the future is bleak for victims and their families.
Asbestosis
This condition is also known as popcorn lung. In advanced asbestosis cases, when doctors use stethoscopes to monitor breathing, they hear disturbing crackling noises.
Asbestos fibers burn the lungs. The resulting scar tissue reduces vital capacity (VC) and total lung capacity (TLC). In plain English, the lung doesn’t expand and contract properly, and airflow is restricted. As a result, asbestosis victims have trouble breathing even white resting. Additionally, the drastic reduction in lung function due to the stiffening of the lungs and reduced TLC often induces right-sided heart failure (cor pulmonale). Other collateral effects include reduced diffusion capacity and low oxygen levels in the blood of the arteries.
We mentioned the asbestos cover-up above. Nellie Kershaw, an English woman who went to work at age 12, succumbed to asbestosis in 1924. Her case was the first published account of disease definitely attributed to occupational asbestos exposure. However, Turner Brothers Asbestos, her former employers, accepted no responsibility for her injuries and paid no compensation, either to Kershaw during her final illness or to her family after her death.
We also mentioned property guests above. These individuals, be they social or commercial guests, are at the highest risk for exposure. On-property asbestos could also poison people who never set foot on the premises. For example, when the Twin Towers collapsed, an asbestos-laced cloud of smoke and dust covered much of New York City.
Liability Issues for Property Owners
In civil court, the burden of proof is a preponderance of the evidence (more likely than not). So, an asbestos exposure lawyer must only prove that asbestos from a certain place, such as a grocery store or apartment building, probably caused the plaintiff’s injury.
Picture it this way. If two equally-sized stacks of paper are side by side, and someone adds one sheet to the stack on the right right, that pile is taller than the one on the left. That’s a preponderance of the evidence.
Until 2019, the bare metal defense blew down the stack of paper, no matter how tall it was. Since that’s no longer the case, the defendant is now liable for substantial damages.
These damages usually include punitive damages. A pre-1980 construction date doesn’t guarantee that builders used asbestos, but the probability is high. Punitive damages are available in most states if the defendant intentionally disregards a known risk.
Removing asbestos now doesn’t alter the fate of people who’ve already been poisoned. But it does help guarantee that Joe Jr. Jr. is protected from legal danger.