Court Nixes Tenant's Asbestos Negligence Claim Against Landlord

What Happened: An office tenant moved out when quality testing of the air inside an office building revealed the presence of asbestos at unsafe levels. The landlord sued for unpaid rent, and the tenant countersued the landlord for negligence by undertaking repairs on the roof knowing it might disturb asbestos-containing materials. It also asserted another tort-based counterclaim for products liability. You can’t raise tort claims in a contract lawsuit, the landlord argued.

Ruling: The Pennsylvania federal court disagreed but still tossed one of the tenant’s tort counterclaims.  

Reasoning: As in many other states, Pennsylvania has a rule barring negligence and other tort claims based on a party’s actions in carrying out a contract when “the gist of the action” is breach of contract. The duty the landlord allegedly breached in this case—to prevent the release of, and exposure to, asbestos—was a social duty “separate, distinct and independent from” the contractual duties the landlord owed the tenant under the lease, the court reasoned. So, the rule didn’t apply. Even so, the court tossed the negligence claims for substantive reasons, while at the same time allowing the product liability claims to go to trial.

• Moxie ATE LP v. Bostwick Design P’ship, 2022 U.S. Dist. LEXIS 61056, 2022 WL 976396