FLETCHER v. WATER APPLICATIONS DISTRIBUTION GROUP, INC. Et Al.

WHOLE COURT

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

July 16, 2015

In the Court of Appeals of Georgia
A15A0527. FLETCHER v. WATER APPLICATIONS JE-025
DISTRIBUTION GROUP, INC. et al.

ELLINGTON, Presiding Judge.

Marcella Fletcher appeals from the order of the State Court of Thomas County

granting summary judgment to Water Applications Distribution Group, Inc., (“Water

Applications”) and CertainTeed Corporation (“CertainTeed”) in this suit for personal

injury arising out of the alleged negligence of the appellees, a vendor and

manufacturer, respectively, of asbestos-containing cement water pipe. Fletcher

averred that she was exposed to her father’s asbestos dust-contaminated work

clothing between 1960 and 1977 when she was responsible for washing her family’s

laundry at home and that, as a result of that exposure, she developed malignant

pleural mesothelioma. The trial court granted summary judgment to the appellees,
concluding that they owed no duty of care to Fletcher under these circumstances. For

the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. On appeal
from the grant or denial of a motion for summary judgment, we review
the evidence de novo, and all reasonable conclusions and inferences
drawn from the evidence are construed in the light most favorable to the
nonmovant.

(Citations, punctuation and footnote omitted.) MCG Health, Inc. v. Barton, 285 Ga.

App. 577, 578 (647 SE2d 81) (2007). So viewed, the record shows the following

relevant facts.

Fletcher was diagnosed with malignant pleural mesothelioma on August 5,

2012. She produced evidence that the disease is caused by asbestos exposure and has

a latency period of approximately 40 years from the time of exposure to the onset of

disease. Fletcher deposed that she was exposed to two sources of asbestos during her

lifetime: (1) during a 1971construction project in her family home and (2) during the

seventeen years between 1960 and 1977 when she laundered her father’s asbestos

dust-contaminated work clothing at home. Fletcher recalled seeing a gray dust on her

father’s work clothes that became an airborne “mist” when she shook out his clothing

2
prior to laundering it. Fletcher presented evidence that asbestos dust released from

work clothing could remain in the home as a continuing contaminant, exposing a

worker’s family members to a risk of mesothelioma.

Fletcher’s father was employed by the City of Thomasville Water & Light

Department from 1948 until his retirement in 1983. From 1971 through 1977, her

father’s primary job duty was handling, cutting, installing, and repairing water pipe.

A city employee testified that Fletcher’s father worked primarily with CertainTeed

asbestos-containing cement pipe. When Fletcher’s father cut and beveled the pipes,

dust containing asbestos was deposited on his work clothing. At the end of each work

day, he wore those contaminated work clothes home.

CertainTeed has been manufacturing asbestos-containing products since 1930.

It began manufacturing asbestos-containing water and sewer pipe in 1962. Sales

invoices establish that approximately 30,158 linear feet of CertainTeed “Fluid-Tite”

asbestos-containing cement pipe was shipped to the City of Thomasville Water &

Light Department between 1969 and 1973. The invoices also show that the pipe was

sold to the City through a local vendor, Davis Meter & Supply Company, the

predecessor to Water Applications. The pipes contained approximately 10 to 20 per

3
cent asbestos by weight, and they had to be cut and beveled in order to be connected

to other pipes.

Fletcher presented evidence in response to the appellees’ motion for summary

judgment showing that the dangers, not only to a worker but also to a worker’s

family, from work clothing that had been contaminated with toxic substances were

known and documented in published occupational health and safety literature as early

as 1913. In 1943, the Pennsylvania Department of Labor distributed to industrial

employers in the state, including CertainTeed, a “Safe Practice Bulletin” advising

employers to have their employees keep their asbestos-contaminated work clothing

at work in special lockers. In 1949, CertainTeed joined the National Safety Council,

an industry public service organization, and, in 1954, the National Safety Council

published articles warning against the dangers of workers carrying toxic substances

home to their families on their work clothes. CertainTeed admitted in a verified

interrogatory in another lawsuit “that it became aware at least by 1962, . . . if not

earlier” that exposure to asbestos fibers was associated with an increased risk of

developing certain asbestos-related diseases, including mesothelioma. In 1963, the

National Safety Council again warned its members that “contaminated work clothes

should not be taken home where a toxic dust could contaminate the home or expose

4
other members of the family.” In 1964, during a conference attended by CertainTeed,

researchers presented evidence that mesothelioma was associated not only with

occupational exposure to asbestos dust but also to exposure to dust brought home by

relatives working with asbestos. In 1972, Occupational Safety and Health

Administration (“OSHA”) rules and regulations required employers to provide special

clothing for those working with asbestos fibers and to properly isolate those work

clothes to prevent the employee’s street clothes from becoming contaminated.

Fletcher adduced evidence that neither appellee had placed an asbestos health hazard

warning on the asbestos-containing water pipe products during the time of Fletcher’s

alleged exposure.

Fletcher sued CertainTeed and Water Applications under theories of

negligence. She asserted against both appellees various “general negligence” claims

as well a claim for negligent failure to warn of the health risks associated with the

product’s use. Fletcher also sued both appellees under a theory of negligence for

selling a defective product, asserting that the water pipe was defective because it

contained asbestos fibers that were released into the air when the pipe was cut.1

1
We note that, because Fletcher claims that she suffers from a disease allegedly
caused by the appellees’ negligence, her claims are not barred by the statute of repose
applicable to statutory “strict liability” claims. See OCGA § 51-1-11 (b) (2). (“No

5
CertainTeed and Water Applications both moved for summary judgment, and,

following a hearing, the trial court granted the motions, concluding that the appellees

did not owe Fletcher a duty of care because she was neither a user nor a consumer of

action shall be commenced pursuant to this subsection with respect to an injury after
ten years from the date of the first sale for use or consumption of the personal
property causing or otherwise bringing about the injury.”) Fletcher’s negligence-
based claims, however, are subject to OCGA § 51-1-11 (c), which provides:

The limitation of paragraph (2) of subsection (b) of this Code section
regarding bringing an action within ten years from the date of the first
sale for use or consumption of personal property shall also apply to the
commencement of an action claiming negligence of a manufacturer as
the basis of liability, except an action seeking to recover from a
manufacturer for injuries or damages arising out of the negligence of
such manufacturer in manufacturing products which cause a disease or
birth defect, or arising out of conduct which manifests a willful,
reckless, or wanton disregard for life or property. Nothing contained in
this subsection shall relieve a manufacturer from the duty to warn of a
danger arising from use of a product once that danger becomes known
to the manufacturer.

(emphasis supplied.) See Chrysler Corp. v. Batten, 264 Ga. 723, 725-726 (2) (450
SE2d 208) (1994) (Holding that OCGA § 51-1-1l (c) “extends the ten-year statute of
repose to negligence actions, but differs from subsection (b) (2) by providing for two
exceptions to the statute of repose, i.e., where the manufacturer’s negligence resulted
in a product causing disease or birth defect, or where the injuries or damages arose
out of conduct manifesting a ‘willful, reckless, or wanton disregard for life or
property.’” (citation omitted.).

6
the pipe at issue and because the appellees “could not have reasonably foreseen that

[she] would be affected by their product.” It is from this ruling that Fletcher appeals.

To state a cause of action for negligence in Georgia, the following
elements are essential: (1) A legal duty to conform to a standard of
conduct raised by the law for the protection of others against
unreasonable risks of harm; (2) a breach of this standard; (3) a legally
attributable causal connection between the conduct and the resulting
injury; and, (4) some loss or damage flowing to the plaintiff’s legally
protected interest as a result of the alleged breach of the legal duty.

(Citation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693)

(1982). “Before negligence can be predicated upon a given act, some duty to the

individual complaining must be sought and found, the observance of which duty

would have averted or avoided the injury or damage.” (Citations omitted.) CSX

Transportation, Inc. v. Williams, 278 Ga. 888, 889 (608 SE2d 208) (2005). “The duty

can arise either from a valid legislative enactment, that is, by statute, or be imposed

by a common law principle recognized in the caselaw.” Rasnick v. Krishna

Hospitality, Inc., 289 Ga. 565, 566-567 (713 SE2d 835) (2011). “The existence of a

legal duty is a question of law for the court.” Id. at 567.

1. CertainTeed’s duty to Fletcher. Generally, under Georgia negligence law,

a product manufacturer “has a duty to exercise reasonable care in manufacturing its

7
products so as to make products that are reasonably safe for intended or foreseeable

uses[.]” (Citations omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450

SE2d 208) (1994). With respect to product manufacturers, Georgia law recognizes

causes of action based on three general categories of product defect: manufacturing

defects, design defects, and warning defects. See Banks v. ICI Americas, 264 Ga. 732,

733 (1) (450 SE2d 671) (1994); Chrysler Corp. v. Batten, 264 Ga. at 724 (1).2 The

2
According to one treatise, “the practical importance of general negligence
principles has decreased in recent years as the Georgia Supreme Court has moved
Georgia products liability law closer to the unified functional definitions of defect in
the Restatement (Third).” J. Kennard Neal, Ga. Products Liability Law § 3:1 (4th ed.).
The Restatement provides:

A product is defective when, at the time of sale or distribution, it
contains a manufacturing defect, is defective in design, or is defective
because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its
intended design even though all possible care was exercised in the
preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by
the product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission of
the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced
or avoided by the provision of reasonable instructions or warnings by
the seller or other distributor, or a predecessor in the commercial chain
of distribution, and the omission of the instructions or warnings renders
the product not reasonably safe.

8
duties owed pursuant to each claim are not coextensive and must be analyzed

separately. Chrysler Corp. v. Batten, 264 Ga. at 724 (1).

(a) Manufacturing defect. Generally, a manufacturing defect results from an

error specifically in the fabrication process, as distinct from an error in the design

process. See J. Kennard Neal, Ga. Products Liability Law § 6:1, n. 8 (4th ed.). Thus,

for a manufacturing defect claim, “it is assumed that the design of the product is safe

and had the product been manufactured in accordance with the design it would have

been safe for consumer use[.]” Banks v. ICI Americas, 264 Ga. at 733 (1). Because

a manufacturing defect represents a departure from a product’s design specifications,

a manufacturing defect may be found when the product at issue is compared “to a

properly manufactured item from the same product line.” (Citation omitted.) Id.

The facts alleged in Fletcher’s claim for a manufacturing defect are not

consistent with the proposition that, when CertainTeed fabricated the cement water

pipe handled by Fletcher’s father, it negligently departed from the design

specifications for the pipe and that Fletcher’s injuries arose from such negligent

manufacture. Rather, Fletcher contends that an entire product line – the CertainTeed

“Fluid-Tite” water pipe – is defective because it contains asbestos fibers that are

Restatement (Third) of Torts: Products Liability, § 2 (1998).

9
released when the pipe is cut. When a plaintiff calls into question the safety of an

entire product line, as in this case, the claim is one for a design defect and not for a

manufacturing defect. See Division 1 (b), infra. Because Fletcher’s complaint does

not set forth facts supporting the existence of a cause of action for a manufacturing

defect, the trial court did not err in granting summary judgment to CertainTeed on this

claim.

(b) Design defect. As the Supreme Court of Georgia has explained, in a

products liability action for defective design,

the focus [under Georgia statutory and case law] is not on use of the
product. . . . [Rather], the proper analysis in a design defect case is to
balance the risks inherent in a product design against the utility of the
product so designed. . . . The “heart” of a design defect case is the
reasonableness of selecting from among alternative product designs and
adopting the safest feasible one. Consequently, the appropriate analysis
. . . includes the consideration of whether the defendant failed to adopt
a reasonable alternative design which would have reduced the
foreseeable risks of harm presented by the product.

(Citations, punctuation, and footnotes omitted.) Jones v. Nordictrack, Inc., 274 Ga.

115, 115-118 (550 SE2d 101) (2001). See also Ogletree v. Navistar, 271 Ga. 644, 645

10
(522 SE2d 467) (1999) (“In a negligent design case, the risk-utility analysis applies

to determine whether the manufacturer is liable.”). The risk-utility analysis is

a test balancing the risks inherent in a product design against the utility
of the product so designed. . . . [U]nder the risk-utility analysis for the
determination whether a manufacturer should be liable for an entire
product line, no finite set of factors can be considered comprehensive or
applicable under every factual circumstance, since such matters must
necessarily vary according to the unique facts of each case.

Banks v. ICI Americas, Inc., 264 Ga. at 735-736 (1). Generally, “it is for the trier of

fact to consider the numerous factors which are pertinent in balancing the risk of the

product against its utility or benefit. . . . [D]etermination of a product’s risks and

benefits as a matter of law . . . will rarely be granted in design defect cases when any

of these elements is disputed.” (Citations omitted.) Ogletree v. Navistar, 271 Ga. at

646. A defendant bears the burden, in seeking a judgment as a matter of law, “to show

plainly and indisputably an absence of any evidence that a product as designed is

defective.” (Citation omitted; emphasis in original.) Id.

Rather than addressing the issue of whether its product as designed was

defective, CertainTeed contends it is entitled to judgment because Fletcher is not

within a class of people whose interests are entitled to protection from its conduct,

11
citing CSX Transp., Inc. v. Williams, 278 Ga. 888 (608 SE2d 208) (2005). In that

case, the Supreme Court of Georgia “decline[d] to extend on the basis of

foreseeability” the duty that an employer owes to provide a safe workplace to its

employees to encompass potential liability for injuries sustained by any third party,

non-employee who might come into contact with its employees’ asbestos-tainted

work clothing at locations away from the workplace. Id. at 890-891. We conclude,

however, that CSX Transp., Inc. v. Williams is not controlling when determining

whether a manufacturer violated its duty of care in a design defect case. The risk-

utility analysis applicable to such claims is not concerned with protecting only

specified classes of people. See Jones v. Nordictrack, Inc., 274 Ga. at 115-118; Banks

v. ICI Americas, Inc., 264 Ga. at 736 (1). Because CertainTeed failed to carry its

burden of showing plainly and indisputably an absence of any evidence that its

product as designed was defective under the risk-utility analysis, the trial court erred

in granting summary judgment to CertainTeed on Fletcher’s design defect claim.

Ogletree v. Navistar, 271 Ga. at 647.

nonobvious foreseeable dangers from the normal use of its product.” (Citations

omitted.) Thornton v. E.I. Du Pont De Nemours & Co., 22 F3d 284, 289 (III) (b) (11th

12
Cir.1994) (applying Georgia law). See also Chrysler Corp. v. Batten, 264 Ga. at 724

(1) (“[T]he manufacturer of a product which, to its actual or constructive knowledge,

involves danger to users, has a duty to give warning of such danger.”) (citations

omitted); Fouch v. Bicknell Supply Company, 326 Ga. App. 863, 872 (2) (756 SE2d

682) (2014) (accord). The manufacturer’s duty to warn continues even after the

product has been sold. See DeLoach v. Rovema Corp., 241 Ga. App. 802, 804 (527

SE2d 882) (2000) (recognizing a manufacturer’s duty to warn consumers of a danger

arising from the use of a product based on knowledge acquired after the product is

sold). The manufacturer’s duty to warn extends to users, consumers, and purchasers

of the product.3 Georgia law also requires a manufacturer to exercise reasonable care

to inform third persons of foreseeable dangers arising from the reasonable use for

which a product is intended. R & R Insulation Svcs., Inc. v. Royal Indem. Co., 307 Ga.

App. 419, 427 (3) (705 SE2d 223) (2010). Although, as a practical matter, Fletcher

would not have seen warning labels placed on CertainTeed’s pipe, she argues that,

if CertainTeed had warned the City or Fletcher’s father (the purchaser and user of the

3
See DeLoach v. Rovema Corp., 241 Ga. App. at 804 (manufacturer’s duty
extends to consumer of a product); Zeigler v. CloWhite Co., 234 Ga. App. 627, 629
(2) (507 SE2d 182) (1998) (manufacturer’s duty extends to user of a product);
Vickery v. Waste Mgmt. of Ga., 249 Ga. App. 659, 660 (2) (549 SE2d 482) (2001)
(manufacturer’s duty extends to purchaser of a product).

13
pipe, respectively) of the risks both to the user and to third parties from inhaling

asbestos dust released by cutting the pipe, her father would have taken precautions

to protect himself, his family, and others from exposure to the asbestos dust. See

Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 830 (516 SE2d 848) (1999) (A

manufacturer’s warning that is given “to a person in a position such that he may

reasonably be expected to act so as to prevent the danger from manifesting itself” may

be sufficient to reasonably protect third-party bystanders.) (citation and punctuation

omitted).4

4
This position is more consistent with the Restatement (Third) approach, which
focuses on the foreseeable risk of harm to persons from a product that is rendered
defective as a result of inadequate warnings or instructions. The Restatement (Third)
of Torts: Products Liability, § 1 (1998) provides that “One engaged in the business
of selling or otherwise distributing products who sells or distributes a defective
product is subject to liability for harm to persons or property caused by the defect.”
Additionally, the Restatement (Third) of Torts: Products Liability § 2 (c) (1998)
provides that a product

is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced
or avoided by the provision of reasonable instructions or warnings by
the seller or other distributor, or a predecessor in the commercial chain
of distribution, and the omission of the instructions or warnings renders
the product not reasonably safe.

14
Applying this law to the facts of this case, we conclude that whether

CertainTeed had a duty to warn of the risks of its asbestos-containing water pipe

remains a question for the jury to resolve. Fletcher presented some evidence that,

prior to and during the period that Fletcher’s father was actively working with its

pipe, CertainTeed had actual or constructive knowledge of the following: (1) asbestos

is a hazardous substance that causes mesothelioma; (2) asbestos dust may be released

from its asbestos-containing cement water pipe during the ordinary use of that

product; (3) the asbestos dust may be deposited on the work clothing of those using

the pipe; (4) workers who are unaware of the risks of asbestos dust may unwittingly

expose others, in this case family members, to that dust. Because the facts adduced

with respect to CertainTeed’s knowledge are disputed and because questions

concerning foreseeability are typically for the jury, the trial court erred in granting

summary judgment to CertainTeed on Fletcher’s negligent failure to warn claim. See

R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. at 427-430 (3) (a); Wabash

Metal Prods., Inc. v. AT Plastics Corp., 258 Ga. App. 884, 886-887 (1) (575 SE2d

683) (2002).

(d) Miscellaneous “general negligence” claims. Fletcher has asserted other

general negligence claims against CertainTeed, e.g., negligent failure to test and

15
negligent failure to recall. However, Fletcher has not challenged the trial court’s grant

of summary judgment in favor of CertainTeed with respect to any of these other

“general negligence” claims. Thus, with respect to those claims, the trial court’s

judgment is affirmed.

2. Water Application’s duty to Fletcher. The record shows that Water

Applications (as the successor to Davis Meter & Supply Company) was not involved

in the manufacture of the water pipe at issue in this case; rather, it was a vendor.

Fletcher obtained records from CertainTeed which show that Water Applications

placed the order for the CertainTeed pipe for the City and that the pipe was shipped

directly to the City. There is no evidence in the record establishing that Water

Applications ever had possession of the pipe. Nor has Fletcher presented evidence

from which a jury might infer that Water Applications had actual or constructive

knowledge, at the time that it sold the pipe, of the health risks to third persons from

asbestos dust released from CertainTeed’s asbestos-containing water pipe.

(a) Manufacturing and design defect claims and other “general negligence”

claims. As we held in Division 1 (a), Fletcher has not supported her claim for a

manufacturing defect. Further, Fletcher has not challenged the trial court’s grant of

summary judgment in favor of Water Applications as to any of the other product

16
liability or “general negligence” claims alleged in the complaint, other than the claim

alleging negligent to failure warn. Thus, with respect to those claims, the trial court’s

judgment is affirmed.

(b) Negligent failure to warn. “[T]he distributor of a product which, to its

actual or constructive knowledge, involves danger to users has a duty to give warning

of such danger at the time of sale and delivery.” (Citations and punctuation omitted;

emphasis supplied.) Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 354 (1) (498

SE2d 583) (1998). Unlike a manufacturer, a seller or a distributor does not have a

continuing duty to warn. DeLoach v. Rovema Corp., 241 Ga. App. at 804-805. In this

case, Fletcher has presented no evidence from which the fact-finder could reasonably

infer that Water Applications was aware that the pipe contained no warning labels

affixed by the manufacturer. There is no evidence that the pipe was ever in its

possession. Further, all of the evidence that Fletcher adduced with respect to the

dangers associated with asbestos dust released from the water pipe pertained to

knowledge that CertainTeed, as the manufacturer of the product, would have had.

Fletcher has not presented evidence from which a jury could infer that, at the time of

sale, Water Applications had constructive knowledge of the hazards associated with

asbestos dust residue released from CertainTeed’s water pipe. Consequently, the trial

17
court did not err in granting summary judgment to Water Applications on Fletcher’s

negligent failure-to-warn claim.

Judgment affirmed in part and reversed in part. Barnes, P. J., Phipps, P. J.,

and McFadden, J., concur. Dillard, Ray and McMillian, JJ., concur fully in

Divisions 1 (a) (d) and 2, and dissent as to Division 1 (b) and (c).

18
A15A0527. FLETCHER v. WATER APPLICATIONS

DISTRIBUTION GROUP, INC. et al.

DILLARD, Judge, concurring in part and dissenting in part.
The trial court correctly granted summary judgment as to all of Fletcher’s

claims. Thus, I concur fully with Divisions 1 (a), (d) and 2 of the majority’s opinion.

However, I respectfully dissent as to Division 1 (b) and (c) of the majority’s opinion,

in which it contends that genuine issues of material fact remain as to whether

CertainTeed owed Fletcher any duty.

Both Fletcher’s negligent-design and duty-to-warn claims are grounded in

negligence, and it is well established that “[i]n order to have a viable negligence

action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty

on the part of the defendant, a breach of that duty, causation of the alleged injury, and

damages resulting from the alleged breach of the duty.”1 A legal duty, of course, is

the obligation to “conform to a standard of conduct under the law for the protection

of others against unreasonable risks of harm.”2 And importantly, “[t]he existence of

a legal duty is a question of law for the court.”3

In this matter, Fletcher argues that CertainTeed owed her a duty because it was

foreseeable that the asbestos contained in its products would contaminate her father’s

1
Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 566 (713 SE2d 835)
(2011).
2
Id.
3
Id. at 567.

2
work clothes and then expose family members tasked with washing those clothes.

However, in CSX Transportation, Inc. v. Williams,4 the Supreme Court of Georgia

rejected a nearly identical theory of duty. Specifically, in Williams, the plaintiffs sued

their fathers’ employer, CSXT, claiming that they were exposed to asbestos from the

clothing their fathers wore while working for CSXT and that such exposure

contributed to their asbestos-related disease.5 Determining whether CSXT owed

plaintiffs a legal duty, the Supreme Court noted that

in fixing the bounds of duty, not only logic and science, but policy play
an important role. However, it must also be recognized that there is a
responsibility to consider the larger social consequences of the notion
of duty and to correspondingly tailor that notion so that the illegal
consequences of wrongs are limited to a controllable degree. The
recognition of a common-law cause of action under the circumstances
of this case would, in our opinion, expand traditional tort concepts
beyond manageable bounds and create an almost infinite universe of
potential plaintiffs.6

4
278 Ga. 888 (608 SE2d 208) (2005).
5
Id.
6
Id. at 890 (punctuation omitted) (citing Widera v. Ettco Wire and Cable
Corp., 204 AD.2d 306, 307-08 (611 NYS2d 569) (1994)).

3
Accordingly, the Court declined “to extend on the basis of foreseeability the

employer’s duty beyond the workplace to encompass all who might come into contact

with an employee or an employee’s clothing outside the workplace.”7

Although it acknowledges Williams, the majority concludes that it “is not

controlling when determining whether a manufacturer violated its duty of care in a

design defect case.” But such a conclusion amounts to question begging given that

Williams does not address whether a duty was violated, but rather is concerned with

whether a duty is even owed as an initial matter.8 And as the majority also

acknowledges, establishing a legal duty in the first place is essential for stating a

cause of action for negligence in Georgia.9

In contrast to the majority, it is my view that the Supreme Court of Georgia’s

limitation on the parameters of who is owed a legal duty, as analyzed in Williams,

also applies to limit the scope of the duty owed by manufacturers such as CertainTeed

7
Williams, 278 Ga. at 890-91.
8
See id. at 889 (explaining that the question certified is “[w]hether Georgia
negligence law imposes any duty on an employer to a third-party, non-employee, who
comes into contact with its employee’s asbestos-tainted work clothing at locations
away from the workplace, such as the employee’s home?”).
9
Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); accord
Rasnick, 289 Ga. at 566; Williams, 278 Ga. at 889; Diamond v. Dep’t of Transp., 326
Ga. App. 189, 193 (2) (756 SE2d 277) (2014).

4
in this matter. Indeed, such manufacturers of asbestos-containing products are even

further removed from household-exposure plaintiffs than an employer who utilizes

such products at its worksite. And given such circumstances, finding as a matter of

law that one so far removed, nevertheless, owes a duty to such a plaintiff “expands

traditional tort concepts beyond manageable bounds” and, in fact, creates the “almost

infinite universe of potential plaintiffs” against which Williams warns.10 Accordingly,

I would affirm the trial court’s grant of summary judgment in its entirety.

For all of the foregoing reasons, I concur fully with Divisions 1 (a), (d) and 2

of the majority’s opinion, but I respectfully dissent as to Division 1 (b) and (c).

I am authorized to state that Judge Ray and Judge McMillian join in this

opinion concurring in part and dissenting in part.

10
Williams, 278 Ga. at 890.