dissenting, with KUHN, Chief Judge, joining:
The majority begins with a brief statement of the difference between misfea-sanee and nonfeasance. Then, it demonstrates that the facts alleged in this case are the same as the facts alleged in Riedel. Finally, because Riedel characterized her claim as one for nonfeasance, the majority concludes that Price’s factually identical claim is one for nonfeasance. The problem with the majority’s opinion is that Riedel never considered whether the allegations stated a claim for nonfeasance or misfeasance. Without any “reformatory rechar-acterization” by the parties or the Court, the facts alleged by Price and Riedel constitute misfeasance. Accordingly, Price should be allowed to pursue her claim.
Riedel Did Not Analyze Misfeasance vs. Nonfeasance
The Riedel Court never decided whether Riedel’s claim was properly characterized as nonfeasance. Riedel had proceeded on a theory of nonfeasance in the trial court. Consistent with that theory, she alleged, for example, that ICI failed to warn about the danger of taking asbestos home on one’s clothing. Riedel attempted to re-characterize her claim on appeal, arguing that it was a claim of misfeasance. This Court rejected that effort, not because the facts would not support a claim of misfeasance, but because Riedel never raised the issue in the trial court:
Because Mrs. Riedel presented a theory of negligence grounded in nonfea-sance to the trial judge and did not fairly present a claim of misfeasance, she is precluded from arguing on appeal that the trial judge erred by analyzing ICI’s summary judgment motion in terms of nonfeasance.27
Considering the claim to be one of nonfea-sance, this Court addressed only the “al-*171tentative argument that [Riedel] and ICI shared a legally significant relationship.”28
The majority transforms Riedel’s adherence and citation to “the well settled rule which precludes a party from attacking a judgment on a theory which was not advanced in the court below,”29 into a decision on the very issue Riedel did not consider — whether a so-called “take home” asbestos claim is properly characterized as a claim of misfeasance or nonfeasance.
The Factual Allegations State a Claim of Misfeasance
Misfeasance is “an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another.”30 Nonfeasance is “a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.”31 To decide whether a claim should be analyzed as misfeasance or nonfeasance, the Court must focus on the “the negligent character of the actor’s conduct” by determining whether the defendant is one “who does an affirmative act” or “one who merely omits to act.”32 The treatise, Prosser & Keeton on the Law of Torts, explains, “by ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs.” 33
A classic example of conduct properly analyzed as nonfeasance arises when a passerby sees someone drowning but does nothing to aid the victim.34 Absent a special relationship, the law generally would not impose a duty on the passerby because he did not create a new risk of harm to the swimmer.35 Instead, the swimmer fell “into peril through no conduct of the actor.” 36 The passerby merely failed to act; he made the swimmer’s situation no worse.
DuPont’s conduct is properly analyzed as misfeasance because, unlike the passerby, DuPont performed an “affirmative act” that “created a new risk of harm.” DuPont’s affirmative act was the release of asbestos in the workplace. The majority appears to agree that DuPont’s conduct, in relation to an employee exposed to asbestos at the work site, must be analyzed as misfeasance. One could not argue that the employee came into peril through no conduct of DuPont, or that DuPont “made [the employee’s] situation no worse.”37 Rather, DuPont created the risk of harm by releasing asbestos.
The majority is emphatic that, “legal characterizations cannot change the nature of the underlying conduct.” Thus, the majority would have to agree that, as to Mr. Price, DuPont’s misfeasance is not transformed into nonfeasance by focusing, for example, on DuPont’s failure to provide Mr. Price a breathing mask. Regardless of the remedial steps Dupont might have *172taken, the fact remains that Dupont’s release of asbestos into the workplace caused harm to Mr. Price.
The same analysis should apply to Mrs. Price’s claim. DuPont’s conduct has not changed. The company still “created” the risk of harm by releasing the asbestos. No one could contend that Mrs. Price came “into peril through no conduct of’ DuPont. There is a difference, however, between Mr. Price’s exposure at the workplace and Mrs. Price’s exposure at home. Dupont’s release of asbestos in the workplace harmed Mr. Price directly, without any act by another. Dupont harmed Mrs. Price only because Mr. Price unknowingly brought the asbestos home with him. But that difference has no bearing on whether Dupont acted or failed to act. Rather, it bears on the separate question of whether it was foreseeable that Dupont’s conduct would harm Mrs. Price.38
Other jurisdictions that have addressed whether “take home” asbestos claims constitute misfeasance or nonfeasance have found them to constitute misfeasance. In Rochon v. Saberhagen Holdings, Inc., the Washington Court of Appeals looked to the Restatement (Second) and held that conduct essentially identical to Dupont’s had the character of “affirmative acts” and thus must be analyzed as misfeasance, not nonfeasance: “Here, it is Kimberly-Clark’s own affirmative acts — operating its own factory in an unsafe manner — that allegedly caused Mrs. Rochon’s illness, not either a failure to act or the act of a third.”39 The Tennessee Supreme Court reached the same conclusion in Satterfield v. Breeding Insulation Co.40
There is a split of authority in other jurisdictions, but those decisions do not address the misfeasance/nonfeasance issue. Rather, they discuss foreseeability and policy. For example, in Olivo v. Owens-Ill., Inc., the New Jersey Supreme Court held that, “to the extent Exxon Mobil owed a duty to workers on its premises for the foreseeable risk of exposure to friable asbestos and asbestos dust, similarly, Exxon Mobil owed a duty to spouses handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing.”41 Those courts that reject similar claims do so based on public policy considerations and/or distinguishable facts.42 It does not appear that any court has rejected a “take home” asbestos claim by characterizing it as nonfeasance.
The majority focuses on DuPont’s admitted omissions — its failure to warn, and, generally, its failure to prevent Mr. Price from taking home asbestos — in concluding that DuPont’s conduct is “pure nonfea-*173sanee and nothing more.” But, the fact that Dupont’s conduct included omissions does not necessarily equate to nonfea-sance. The Restatement warns against such analysis by explaining that the Court should focus on the character of Dupont’s conduct.43 That is, the Court must determine whether DuPont is one “who does an affirmative act” or “one who merely omits to act”44 and, similarly, whether Dupont’s conduct created the peril.45 As explained above, regardless of anything Dupont may have failed to do, we know, for present purposes, that it released asbestos into the workplace and that the asbestos caused harm to Mrs. Price. Dupont created the peril as to both Mr. and Mrs. Price. Neither would be suffering asbestos-related disease if not for Dupont’s wrongful act.
In sum, this is not a matter of semantics. It is about applying the proper test to determine whether the conduct is misfeasance or nonfeasance, regardless of how the conduct is characterized. The analytical framework provided in the Restatement requires a finding of misfeasance.46
To Prevail on a Misfeasance Claim the Harm must be Foreseeable
Misfeasance is “an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another.”47 One “who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.”48 Thus, even when a defendant is one “who does an affirmative act” instead of “one who merely omits to act,” a duty is not imposed on the defendant unless, in summary, the defendant should have reasonably recognized that his affirmative act would harm another.
Consistent with the Restatement, Delaware tort law uses foreseeability to determine whether one person owes a duty to another.49 Thus, whether the law will impose a duty on DuPont will turn on whether the harm to Mrs. Price was foreseeable — whether DuPont should have recognized that its release of asbestos created an “unreasonable risk of [invading]” Mrs. Price’s interests.50 Mrs. Price’s proposed amended complaint alleges that: (1) Mr. Price worked at DuPont; (2) DuPont knew or should have known asbestos was dangerous to human health; (3) DuPont knew or should have known asbestos had a tendency to release fibers that would be transported to its employees’ homes; (4) DuPont exposed Mr. Price to asbestos despite that knowledge; and (5) it thereby knowingly and wrongfully exposed Mrs. Price to asbestos, which made her ill. Assuming those allegations to be true, the injury to Mrs. Price was foreseeable.
Based on the foregoing, the trial court’s decision should be reversed.
. Riedel v. ICI Americas Inc., 968 A.2d 17, 19 (Del.2009).
. Ibid.
. Riedel, 968 A.2d at 25 (quoting Danby v. Osteopathic Hosp. Ass'n of Del., 104 A.2d 903, 907-08 (Del.1954)).
. Restatement (Second) of Torts § 284(a) (hereafter Restatement).
. Restatement § 284(b).
.Restatement § 302 cmt. a.
. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 56, at 373 (5th ed.1984) (hereafter, Prosser).
. Restatement § 314 cmts. c and e.
. Prosser, § 56, at 373.
. Restatement § 314 cmt. e.
.Prosser, § 56, at 373.
. Restatement § 284(a); Sirmans v. Penn. 588 A.2d 1103, 1107 (Del.1991).
. 140 Wash.App. 1008, 2007 WL 2325214, at *3 (Wash.Ct.App. Aug. 13, 2007).
. 266 S.W.3d 347, 354-360 (Tenn.2008).
. 186 N.J. 394, 895 A.2d 1143, 1149 (2006). See also, Condon v. Union Oil Co. of Cal., 2004 WL 1932847, at *5 (Cal.Ct.App. Aug. 31, 2004) ("[I]t was foreseeable that family members who were exposed to this clothing would also be in danger of being exposed.”); Chaisson v. Avondale Indus., Inc., 947 So.2d 171, 183-84 (La.Ct.App.2006) (considering various factors including that defendant’s acts created a foreseeable risk to the plaintiff).
. In re New York City Asbestos Litig., 5 N.Y.3d 486, 806 N.Y.S.2d 146, 840 N.E.2d 115, 119-22 (2005) (finding no duty based on policy considerations, including the potential for limitless liability); In re Certified Question from Fourteenth Dist. Court of Appeals of Texas, 479 Mich. 498, 740 N.W.2d 206, 211-22 (2007) (finding no duty because the social costs would exceed the social benefit); CSX Transp., Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208, 209-10 (2005) (finding no duty based on policy considerations).
. Restatement §§ 302 cmt. a, 314 cmt. e, 284.
. Restatement § 302 cmt. a. (emphasis added).
. Ibid.
. Restatement §§ 302 cmt. a, 314 cmt. e, 284.
. Restatement § 284(a).
. Restatement § 302 cmt. a.
. See, e.g., Sirmans, 588 A.2d at 1107; Delmarva Power & Light Co. v. Burrows, 435 A.2d 716, 719 (Del.1981).
. Restatement § 284(a).