Personal Injuries – On Church Property or During Church Activities

Richard R. Hammar, J.D., LL.M., CPA

• Key point: A church cannot be responsible for a child’s alleged increased risk of developing asbestos-related health problems associated with exposure to asbestos during church activities without observable physical problems associated with such exposure.

• A Kentucky court dismissed a lawsuit brought by parents against a church alleging that their children had an increased risk of cancer and other diseases as a result of their exposure to asbestos in church. The parents had 2 children who attended preschool, kindergarten, and church activities at their church. The parents sued their church seeking money damages (including punitive damages) for the church’s “negligent infliction of mental distress.” They claimed that the church negligently caused them to suffer “mental distress” as a result of their children’s exposure to asbestos on church property. In dismissing this claim the court noted that in order for the parents to recover for negligent infliction of emotional distress they are required to show some physical contact to themselves that caused the mental distress. The court concluded that “as the parents have not alleged that they were exposed to asbestos, they do not satisfy the contact requirement and cannot maintain a negligence claim for mental distress.” The court then addressed the parents’ claim that the church was legally responsible as a result of the children’s increased risk of disease caused by the presence of asbestos on church property. The parents claimed that even though the children did not presently manifest any physical symptoms from their alleged asbestos exposure, they should be able to maintain an action for increased risk of future illness. The parents relied on an affidavit from a medical doctor who stated that “the exposure to airborne asbestos fibers sustained by the [children] subjects them to an increased risk of contracting an asbestos-related malignancy, especially mesothelioma and lung cancer.” In rejecting this basis of liability, the court observed: “Given the [parents’] admission that they can prove only that the children possibly might contract an asbestos-related disease in the future, which risk they cannot quantify, it is apparent that damages for the increased risk would be based on conjecture or speculation. An award of damages based on speculation is not permitted …. [I]t must be shown by medical testimony that causation is probable and not merely possible. The [parents] cannot maintain an action … for increased risk of future consequences.” Michaels v. William T. Watkins Methodist Church, 873 S.W.2d 216 (Ky. App. 1994).