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NCR Corp. v. U.S. Mineral Products Co.5/31/1995
ts from other jurisdictions have analyzed the issue and provide useful guidance in formulating our test. The majority of courts considering this question holds that a cause of action accrues when a plaintiff knows or should know that the condition of the asbestos contaminated the building or posed a hazard requiring abatement. See, e.g., Appletree Square I, Ltd Partnership v. W.R. Grace & Co., supra, While these decisions recognize that harm occurs by the release of fibers, they do not limit accrual to the actual detection of these fibers. Instead, these courts recognize that other factors could alert a property owner to the hazardous condition of the asbestos.
Balancing the views of both parties and examining the experience of courts in other jurisdictions, we hold that in Ohio, except when brought by a school board, a cause of action for asbestos removal accrues when the plaintiff discovers or in the exercise of reasonable diligence should have discovered that the presence of asbestos constitutes a hazard requiring abatement. "Hazard requiring abatement" means that the premises are contaminated by the asbestos to the extent that a potential health hazard to occupants exists.
Accordingly, based on the trial court's having applied a test different from the one adopted by this court today, we reverse the judgment of the appellate court and remand the cause to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment only.
WRIGHT, J., dissents.
WRIGHT, J., dissenting. I concur in paragraphs one and three of the syllabus of the majority-opinion, but, applying this test, I would affirm the judgment of the court of appeals instead of remanding this cause to the trial court for new proceedings. The majority fairly and accurately cites a number of cases from other jurisdictions that support my conclusion.
The record reflects that NCR discovered or should have discovered asbestos contamination in its buildings more than four years before NCR sued USM, which would bar NCR's action against USM due to the statute of limitations. NCR did not sue USM until July 30, 1991. As early as the late 1970s, NCR's maintenance manager at its "Sugar Camp" facility, who reported to a facility manager who reported directly to NCR's assistant vice-president, knew that NCR employees occasionally disturbed and knocked loose the asbestos fireproofing in the boiler room of one of NCR's buildings. Knowledge that asbestos fibers had been knocked loose from the structure of a building and had been released into the air is relevant and important to the scope of a maintenance manager's employment; therefore, this knowledge is imputed to NCR. See 1 Restatement of the Law 2d, Agency (1958), Sections 272, 283; 3 American Jurisprudence 2d (1986) 789, Agency, Section 284.
Accordingly, I respectfully dissent.
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