In Re Certified Question From 14th Dist. Court of Appeals of Texas

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 25, 2007
In re CERTIFIED QUESTION FROM
THE FOURTEENTH DISTRICT COURT OF
APPEALS OF TEXAS,
_______________________________

GLENN MILLER, ESTATE OF CAROLYN
MILLER, SHAWN DEAN, JOHN ROLAND,
and ALMA ROLAND,

Plaintiffs,

v No. 131517

FORD MOTOR COMPANY,

Defendant.
_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

Plaintiffs filed suit in Texas against defendant, alleging that the decedent

contracted mesothelioma from washing the work clothes of her stepfather who

worked for independent contractors who were hired by defendant to reline the

interiors of blast furnaces with materials that contained asbestos. A jury found in
favor of plaintiffs. Pursuant to MCR 7.305(B), the Fourteenth District Court of

Appeals of Texas certified the following question to this Court:

Whether, under Michigan law, Ford, as owner of the property
on which asbestos-containing products were located, owed to
Carolyn Miller, who was never on or near that property, a legal duty
specified in the jury charge submitted by the trial court,[1] to protect
her from exposure to any asbestos fibers carried home on the
clothing of a member of Carolyn Miller’s household who was
working on that property as the employee of an independent
contractor.

Having granted the request to answer the certified question, and having

heard oral argument, we answer the question in the negative.2 Under Michigan

1
The jury was asked to decide whether defendant was negligent and was
instructed that “[n]egligence is the failure to use ordinary care.” Therefore, the
legal duty specified in the jury charge submitted by the trial court was the duty to
use ordinary care.
2
Justice Weaver restates her belief that this Court lacks the authority to
answer certified questions, but she has not prevailed on this issue. See, e.g., In re
Certified Question (Kenneth Henes Special Projects Procurement v Continental
Biomass Industries, Inc), 468 Mich 109; 659 NW2d 597 (2003); In re Certified
Question (Wayne Co v Philip Morris, Inc), 465 Mich 537, 543-545; 638 NW2d
409 (2002), certified questions in which Justice Weaver participated in this
Court’s substantive decisions. For one justice’s response to Justice Weaver’s
constitutional arguments, see In re Certified Question (Melson v Prime Ins
Syndicate, Inc), 472 Mich 1225, 1231-1242 (2005) (Markman, J., dissenting).
Moreover, we see no constitutional distinction in whether a certified question has
come to this Court from another state’s supreme court or from its court of appeals.
See MCR 7.305(B) (allowing this Court to consider certified questions from a
“federal court, state appellate court, or tribal court”).

Concerning Justice Cavanagh’s solicitude for Justice Young’s
“constitutional conscience,” post at 1-2, Justice Young, like Justice Weaver, has
written that this Court lacks the authority to answer certified questions, but his
position did not carry the day. See Melson, supra at 1226 (Young, J., concurring).
(continued…)

law, Ford, as owner of the property on which asbestos-containing products were

located, did not owe to Carolyn Miller, who was never on or near that property, a

legal duty to protect her from exposure to any asbestos fibers carried home on the

clothing of a member of her household who was working on that property as the

employee of independent contractors, where there was no further relationship

between defendant and Miller. Having answered the certified question, we now

return the matter to the Fourteenth District Court of Appeals of Texas for such

further proceedings as that court deems appropriate.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs allege that the decedent, Carolyn Miller, died from mesothelioma,

an incurable and fatal form of lung cancer, that she contracted from washing the

(…continued)

Five justices, including Justice Cavanagh, disagreed. Just as Justice Cavanagh is
within his rights as a supporter of certified questions not to answer a certified
question in a particular case (his position here), Justice Young as an opponent of
certified questions is within his rights to answer a certified question, because this
is now a part of our state’s “judicial power.” Indeed, Justice Young has previously
answered certified questions and, in fact, authored a majority opinion responding
to a certified question. Kenneth Henes, supra. Justice Young also joined Justice
Cavanagh’s opinion in Wayne Co, supra. This is obviously all well known to
Justice Cavanagh, who made no similar objections to Justice Young’s
participation in these previous cases in which he and Justice Young were in
agreement on the results. In respecting that the law is the law even where he
disagrees with that law, Justice Young’s determination to respect the majority
position of this Court and to participate in certified questions is the only honorable
position that could be taken by a justice of this Court.

work clothes of her stepfather, Cleveland “John” Roland.3 From 1954 through

1965, Roland worked for independent contractors who were hired on various

occasions by defendant to reline the interiors of blast furnaces used to melt iron

ore at the Ford Rouge plant in Dearborn, Michigan. Plaintiffs allege that the

materials used to reline the interiors of the blast furnaces contained asbestos.

There is no dispute that Miller was never on or near defendant’s premises. Miller

was diagnosed with mesothelioma in 1999 and died in 2000. After the Texas trial

court denied defendant’s motion for a directed verdict, a Texas jury awarded

plaintiffs $9.5 million for Carolyn Miller’s death on the basis of a theory of

negligence.4 After the trial court denied defendant’s motion for judgment

notwithstanding the verdict, defendant filed an appeal in the Fourteenth District

Court of Appeals of Texas. At defendant’s request and over plaintiffs’ objections,

the Fourteenth District Court of Appeals of Texas certified the above-quoted

question to this Court. We granted the request to answer the question and heard

oral argument. 477 Mich 1277 (2006).

3
Plaintiffs are the personal representative of the decedent’s estate and the
decedent’s stepfather, husband, daughter, and mother.
4
The jury awarded Miller’s estate $4.5 million and Miller’s husband,
daughter, and mother a total of $5 million for Miller’s death. The jury also
awarded $500,000 to John Roland for his own injuries on a premises liability
theory.

II. STANDARD OF REVIEW

Whether a defendant owes a duty to a plaintiff to avoid negligent conduct is

a question of law that is reviewed de novo.5 Dyer v Trachtman, 470 Mich 45, 49;

679 NW2d 311 (2004), citing Simko v Blake, 448 Mich 648, 655; 532 NW2d 842

(1995).

III. ANALYSIS

A. LEGAL DUTY IN GENERAL

There is no dispute among the parties that the substantive law of Michigan

governs plaintiffs’ claims.6 In Michigan, “the question whether the defendant

owes an actionable legal duty to the plaintiff is one of law which the court decides

after assessing the competing policy considerations for and against recognizing the

asserted duty.” Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981). That

is, “‘“[d]uty” is not sacrosanct in itself, but is only an expression of the sum total

of those considerations of policy which lead the law to say that the plaintiff is

entitled to protection.’” Buczkowski v McKay, 441 Mich 96, 100-101; 490 NW2d

330 (1992), quoting Friedman, supra at 22 n 9, quoting Prosser, Torts (4th ed), §

5
As plaintiffs concede, this is a negligence action, not a premises liability
action.
6
Although defendant has raised a number of issues on appeal, including
whether John Roland was even exposed to asbestos at defendant’s plant, the only
issue before us concerns defendant’s duty to Carolyn Miller.

53, pp 325-326.7 Thus, the ultimate inquiry in determining whether a legal duty

should be imposed is whether the social benefits of imposing a duty outweigh the

social costs of imposing a duty. The inquiry involves considering, among any

other relevant considerations, “‘the relationship of the parties, the foreseeability of

the harm, the burden on the defendant, and the nature of the risk presented.’”

Dyer, supra at 49, quoting Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639

(1997), citing Buczkowski, supra at 100.

The most important factor to be considered is the relationship of the parties.

“[A] duty arises out of the existence of a relationship ‘between the parties of such

a character that social policy justifies’ its imposition.’” Dyer, supra at 49, quoting

Prosser & Keeton, Torts (5th ed), § 56, p 374. “‘The determination of whether a

legal duty exists is a question of whether the relationship between the actor and the

plaintiff gives rise to any legal obligation on the actor’s part to act for the benefit

of the subsequently injured person.’” Buczkowski, supra at 101 n 5, quoting

Rodriguez v Sportsmen’s Congress, 159 Mich App 265, 270; 406 NW2d 207

(1987). “The duty to protect others against harm from third persons is based on a

relationship between the parties.” Buczkowski, supra at 103, citing Prosser &

7
See also Buczkowski, supra at 101 n 5, quoting Samson v Saginaw
Professional Bldg, Inc, 393 Mich 393, 419; 224 NW2d 843 (1975) (Levin, J.,
dissenting) (“[T]he duty question turns on policy considerations . . . .”); Smith v
Allendale Mut Ins Co, 410 Mich 685, 716 n 24; 303 NW2d 702 (1981) (“In
imposing tort liability . . . a court is . . . concerned with whether it is appropriate
public policy to impose liability for particular conduct . . . .”).

Keeton, Torts (5th ed), § 56, p 385. “Only if the law recognizes a duty to act with

due care arising from the relationship of the parties does it subject the defendant to

liability for negligent conduct.” Friedman, supra at 22. “Duty . . . ‘concerns “the

problem of the relation between individuals which imposes upon one a legal

obligation for the benefit of the other.”’” Buczkowski, supra at 100, quoting

Friedman, supra at 22, quoting Prosser & Keeton, Torts (5th ed), § 53, p 356. See

also Buczkowski, supra at 100 (referring to “duty” as “the relational obligation

between the plaintiff and the defendant”).8

In Dyer, this Court focused exclusively on the relationship between the

parties to determine whether the defendant owed the plaintiff a legal duty. We

concluded that because there was only a limited relationship between the parties,

only a limited duty could be imposed on the defendant. More specifically, we

concluded that because there was only a limited relationship between the

defendant physician performing the independent medical examination (IME) and

the plaintiff patient, the physician only owed a limited duty to the patient, i.e., a

duty to perform an IME in a manner not causing physical harm to the patient. In

reaching this decision, we explained that “the duty of care in a medical

8
See also Simko, supra at 655 (“In legal malpractice actions, a duty exists,
as a matter of law, if there is an attorney-client relationship.”); Murdock, supra at
54 (“Where there is a duty to protect an individual from a harm by a third person,
that duty to exercise reasonable care arises from a ‘special relationship’ either
between the defendant and the victim, or the defendant and the third party who
caused the injury.”).

malpractice action has its basis in the relationship between the physician and the

patient.” Dyer, supra at 50. Because we found that only a limited relationship

existed, we did not even address the other factors, i.e., the foreseeability of the

harm, the burden on the defendant, or the nature of the risk presented.

Consideration of the other factors was unnecessary because when there is only a

limited relationship between the parties, only a limited duty can be imposed.

In Buczkowski, this Court similarly focused exclusively on the relationship

between the parties to determine whether the defendant owed the plaintiff a legal

duty. We concluded that because there was no relationship between the parties, no

duty could be imposed on the defendant. More specifically, this Court concluded

that because there was no relationship between the retailer who sold the shotgun

ammunition to the intoxicated customer and the bystander who was injured by the

use of the ammunition, the retailer owed no duty to the bystander. We explained,

“Our ultimate decision turns on whether a sufficient relationship exists between a

retailer and a third party to impose a duty under these circumstances.”

Buczkowski, supra at 103. Because we found that no relationship existed, we

again did not even address the other factors. This was unnecessary because when

there is no relationship between the parties, no duty can be imposed.

On the other hand, even when there is a relationship between the parties, a

legal duty does not necessarily exist. In order to determine whether a duty exists,

the other enumerated factors must also be considered. The foreseeability of the

harm is one of these. Just as the existence of a relationship between the parties is

not dispositive, that the harm was foreseeable is also not dispositive. A defendant

does not have a duty to protect everybody from all foreseeable harms. Although

foreseeability is a factor to be considered, “other considerations may be, and

usually are, more important.” Id. at 101.

“[T]he mere fact that an event may be foreseeable does not
impose a duty upon the defendant to take some kind of action
accordingly. The event which he perceives might occur must pose
some sort of risk of injury to another person or his property before
the actor may be required to act. Also, to require the actor to act,
some sort of relationship must exist between the actor and the other
party which the law or society views as sufficiently strong to require
more than mere observation of the events which unfold on the part
of the defendant. It is the fact of existence of this relationship which
the law usually refers to as a duty on the part of the actor.” [Id. at
101, quoting Samson v Saginaw Professional Bldg, Inc, 393 Mich
393, 406; 224 NW2d 843 (1975).]

When the harm is not foreseeable, no duty can be imposed on the defendant. But

when the harm is foreseeable, a duty still does not necessarily exist.9

To summarize, in determining whether a defendant owes a duty to a

plaintiff, competing policy factors must be considered. Such considerations

include: the relationship of the parties, the foreseeability of the harm, the burden

that would be imposed on the defendant, and the nature of the risk presented.

Where there is no relationship between the parties, no duty can be imposed, but

9
See Ross v Glaser, 220 Mich App 183, 196 n 1; 559 NW2d 331 (1996)
(Markman, J., dissenting) (“foreseeability is a necessary condition of duty, but not
always a sufficient condition to establish duty[;] [t]hat foreseeability alone is
insufficient to establish duty does not mean that a lack of foreseeability is
insufficient to establish a lack of duty”). (Emphasis in the original.)

where there is a relationship, the other factors must be considered to determine

whether a duty should be imposed. Likewise, where the harm is not foreseeable,

no duty can be imposed, but where the harm is foreseeable, other factors must be

considered to determine whether a duty should be imposed. Before a duty can be

imposed, there must be a relationship between the parties and the harm must have

been foreseeable. Once it is determined that there is a relationship and that the

harm was foreseeable, the burden that would be imposed on the defendant and the

nature of the risk presented must be assessed to determine whether a duty should

be imposed.10

B. DUTY WITH REGARD TO ASBESTOS LIABILITY

Because this Court has never addressed whether property owners owe a

duty to protect people who have never been on or near their property from

10
Plaintiffs and Justice Cavanagh rely on the following two statements
found in Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967), “duty . . .
may arise generally by operation of law under application of the basic rule of the
common law, which imposes on every person engaged in the prosecution of any
undertaking an obligation to use due care, or to so govern his actions as not to
unreasonably endanger the person or property of others” and “every person is
under the general duty to so act, or to use that which he controls, as not to injure
another.” However, they read these statements out of context. First, these
statements immediately follow the statement that “[a]ctionable negligence
presupposes the existence of a legal relationship between parties by which the
injured party is owed a duty by the other, and such duty must be imposed by law.”
Id. at 260-261. Although Justice Cavanagh quotes this sentence, he fails to give it
any meaning. Second, the Court subsequently addressed whether a relationship
existed between the parties before it concluded that a duty was owed. Therefore,
contrary to plaintiffs’ and Justice Cavanagh’s suggestion, Clark does not stand for
the proposition that everybody owes a duty to everybody else.

exposure to asbestos carried home on a household member’s clothing, it is helpful

to review the decisions of other courts that have addressed this issue.

In CSX Transportation, Inc v Williams, 278 Ga 888, 891; 608 SE2d 208

(2005), the Supreme Court of Georgia, answering a certified question from the

United States Court of Appeals for the Eleventh Circuit, held that “an employer

does not owe a duty of care to a third-party, non-employee, who comes into

contact with its employee’s asbestos-tainted work clothing at locations away from

the workplace.” That court explained:

“‘[I]n 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.
Accordingly, we decline to promulgate a policy which would extend
the common law so as to bring the . . . plaintiff[s] within a class of
people whose interests are entitled to protection from the defendant’s
conduct.” [Id. at 890, quoting Widera v Ettco Wire & Cable Corp,
204 AD2d 306, 307-308; 611 NYS2d 569 (1994) (other citations
omitted).][11]

In In re New York City Asbestos Litigation, 5 NY3d 486; 840 NE2d 115;

806 NYS2d 146 (2005), New York’s highest court held that the defendant owed

11
As in Michigan, “mere foreseeability was rejected by [the Georgia
Supreme] Court as a basis for extending a duty of care . . . .” CSX Transportation,
supra at 890.

no duty to the defendant’s employee’s wife, who was allegedly injured from

exposure to asbestos that the employee introduced into the family home on soiled

work clothes that the plaintiff wife laundered. That court explained:

“[I]n determining whether a duty exists, courts must be
mindful of the precedential, and consequential, future effects of their
rulings, and limit the legal consequences of wrongs to a controllable
degree” . . . . “Foreseeability, alone, does not define duty . . . .” . . .
A specific duty is required because otherwise, a defendant would be
subjected “to limitless liability to an indeterminate class of persons
conceivably injured” by its negligent acts . . . . “Moreover, any
extension of the scope of duty must be tailored to reflect accurately
the extent that its social benefits outweigh its costs.” [Id. at 493,
quoting Hamilton v Beretta USA Corp, 96 NY2d 222, 232; 750
NE2d 1055; 727 NYS2d 7 (2001) (other citations and internal
quotation marks omitted).]

The court was concerned about “limitless liability” and questioned why, if a duty

was owed to an employee’s spouse, a duty would not also be owed to the

employee’s babysitter or an employee of a neighborhood laundry. In re New York

City Asbestos Litigation, supra at 498.

[W]e must consider the likely consequences of adopting the
expanded duty urged by plaintiffs. While logic might suggest (and
plaintiffs maintain) that the incidence of asbestos-related disease
allegedly caused by the kind of secondhand exposure at issue in this
case is rather low, experience counsels that the number of new
plaintiffs’ claims would not necessarily reflect that reality. [Id.]

The court explained, “[T]he ‘specter of limitless liability’ is banished only when

‘the class of potential plaintiffs to whom the duty is owed is circumscribed by the

relationship.’ Here, there is no relationship between the [defendant] and [the

defendant’s employee’s wife].” Id., quoting Hamilton, supra at 233. The court

held that because there was no relationship between the defendant and the

defendant’s employee’s wife, no duty could be imposed.

In Adams v Owens-Illinois, Inc, 119 Md App 395; 705 A2d 58 (1998), the

Maryland Court of Special Appeals held that the defendant did not owe a duty to

the defendant’s employee’s wife who was allegedly exposed to asbestos from her

husband’s clothes. The court explained:

If liability for exposure to asbestos could be premised on
Mary Wild’s handling of her husband’s clothing, presumably
Bethlehem would owe a duty to others who came in close contact
with Edwin Wild, including other family members, automobile
passengers, and co-workers. Bethlehem owed no duty to strangers
based upon providing a safe workplace for employees. [Id. at 411.]

In Zimko v American Cyanamid, 905 So 2d 465, 482 (La App, 2005), the

Louisiana Court of Appeals, “recogniz[ing] the novelty of the duty,” held that the

defendant owed a duty to the defendant’s employee’s son who was allegedly

exposed to asbestos from his father’s work clothes that he brought home.

However, the Louisiana court relied exclusively on a New York intermediate

appellate court decision that was subsequently reversed by New York’s highest

court. As explained by New York’s highest court, “The [Zimko] court

summarized [New York’s intermediate appellate court’s] decision . . . and, without

providing an independent analysis, concluded that the father’s employer owed a

duty of care to the son.” In re New York City Asbestos Litigation, supra at 496.

Because the court in Zimko relied exclusively on a decision that has since been

reversed, we do not find Zimko persuasive.

After New York’s highest court reversed the decision by New York’s

intermediate appellate court in In re New York City of Asbestos Litigation, the

Louisiana Court of Appeals reaffirmed its decision in Zimko. Chaisson v

Avondale Industries, Inc, 947 So 2d 171 (La App, 2006). However, “Louisiana

relies more heavily upon foreseeability in its duty/risk analysis . . . .” Id. at 182.

Unlike Louisiana, Michigan relies more on the relationship between the parties

than foreseeability in determining whether a duty exists.

In addition, in Louisiana, unlike in Michigan, “a ‘no duty’ defense in a

negligence case is seldom appropriate,” Zimko, supra at 482; “resolution of a

negligence case based on a finding that a defendant has ‘no duty’ should be

reserved for the exceptional situation,” id. at 482-483, such as “cases involving

‘failure to act, injuries to unborn victims, negligently inflicted mental anguish or

purely economic harm unaccompanied by physical trauma to the claimant or his

property,’” id. at 482 n 19 (citation and emphasis omitted). In Michigan, however,

“[o]nly if the law recognizes a duty to act with due care arising from the

relationship of the parties does it subject the defendant to liability for negligent

conduct.” Friedman, supra at 22. See also Murdock, supra at 53 (“Only after

finding that a duty exists may the factfinder determine whether, in light of the

particular facts of the case, there was a breach of the duty.”). For these reasons,

we do not find Chaisson persuasive.

In Olivo v Owens-Illinois, Inc, 186 NJ 394; 895 A2d 1143 (2006), the New

Jersey Supreme Court held that if the defendant owed a duty to the worker, the

defendant owed a duty to the wife of the worker who was exposed to asbestos

when she washed the clothes of her husband, who was hired by an independent

contractor to perform work at the defendant’s premises.12 However, as explained

by the New York Court of Appeals, “Olivo is distinguishable legally in that New

Jersey, unlike New York, relies heavily on foreseeability in its duty analysis.” In

re New York City Asbestos Litigation, supra at 497. In Olivo, supra at 402, the

New Jersey Supreme Court described “foreseeability of harm” as “‘“a crucial

element in determining whether imposition of a duty on an alleged tortfeasor is

appropriate.”’” (Citations omitted.) It further explained, “in respect of a

landowner’s liability, whether a duty of care can be owed to one who is injured

from a dangerous condition on the premises, to which the victim is exposed off-

premises, devolves to a question of foreseeability of the risk of harm to that

individual or identifiable class of individuals.” Id. at 403. However, as explained

above, Michigan, like New York, relies more on the relationship between the

12
It is important to note that the court did not hold that the defendant owed
the worker’s wife a duty. In fact, it held that if the defendant owed no duty to the
worker, the defendant necessarily owed no duty to the worker’s wife. Olivo, supra
at 408 (If “no duty is owed to Anthony[,] . . . no derivative duty can be imposed on
[defendant] for Eleanor in respect of the exposure she experienced from asbestos
borne home on Anthony’s work clothing.”). The court remanded the case because
a question of fact existed regarding whether the defendant owed the worker a duty
because the worker was an employee of an independent contractor.

parties than foreseeability of harm when determining whether a duty exists.13 For

this reason, we do not find Olivo persuasive.14

C. APPLICATION TO THIS CASE

As explained above, under Michigan law, the ultimate inquiry in

determining whether a legal duty should be imposed is whether the social benefits

of imposing a duty outweigh the social costs of imposing a duty. The inquiry

involves considering, among any other relevant considerations: “‘the relationship

of the parties, the foreseeability of the harm, the burden on the defendant, and the

nature of the risk presented.’” Dyer, supra at 49 (citations omitted).

In the instant case, the relationship between Miller and defendant was

highly tenuous-- defendant hired an independent contractor who hired Roland who

13
We recognize that New York law differs from Michigan law in that New
York does not consider foreseeability at all in determining whether a duty should
be imposed, while we do give some consideration to this factor. See In re New
York City Asbestos Litigation, supra at 494 (“foreseeability bears on the scope of a
duty, not whether a duty exists in the first place”).
14
For the same reason, the California Court of Appeals decision in Condon
v Union Oil Company of California, 2004 Cal App Unpub LEXIS 7975 (Cal App,
2004), is not persuasive. The court in that case relied exclusively on the
forseeability factor. It stated, “Since it was known that a worker’s clothing could
be a source of contamination to others, then it was foreseeable that family
members who were exposed to this clothing would also be in danger of being
exposed.” Id. at *13. In addition, Satterfield v Breeding Insulation Co, Inc, 2007
Tenn App LEXIS 230, *25 (Tenn App, 2007), which held that the defendant
employer could be liable for the plaintiff’s injuries caused by asbestos being taken
home on her father’s clothes, is not persuasive because “[i]n Tennessee, [unlike in
Michigan,] ‘the foreseeability prong [of the balancing test] is paramount because
“foreseeability is the test of negligence.”’” (Citations omitted.)

lived in a house with Miller, his stepdaughter, who sometimes washed his

clothes.15 Miller had never been on or near defendant’s property and had no

further relationship with defendant. Therefore, the “relationship between the

parties” prong of the duty test, which is the most important prong in this state,

strongly suggests that no duty should be imposed.16

15
Although Justice Cavanagh attempts to downplay the importance of the
relationship prong, he is unable to cite a single decision in which this Court has
found that a duty existed where a relationship did not exist. Moreover, it is
noteworthy that, although Justice Cavanagh does not dispute that relationship, or
lack thereof, constitutes a factor that must be considered, he says nothing at all
about the relationship, or lack thereof, between Miller and the defendant in this
case, other than a conclusory statement that there was a relationship between
Roland and defendant and that such a relationship should “extend[]” to Miller.
Post at 6.
16
Plaintiffs rely on Shepard v Redford Community Hosp, 151 Mich App
242; 390 NW2d 239 (1986). In Shepard, the plaintiff went to the defendant
hospital and was diagnosed as suffering from an upper respiratory problem. In
fact, the plaintiff was suffering from spinal meningitis. The plaintiff’s son became
infected with spinal meningitis and died. The Court of Appeals held that the
defendant hospital owed the plaintiff’s son a duty because it had a physician-
patient relationship with the plaintiff. Shepard is distinguishable from the instant
case because in Shepard there was a physician-patient relationship between the
plaintiff mother and the defendant, while in the instant case there was not even an
employer-employee relationship between the stepfather and defendant. Because
Shepard is distinguishable, we do not need to address whether it was decided
correctly; however, we do note that the Court of Appeals concluded that a duty
was owed based solely on the existence of a relationship. See Shepard, supra at
246 (“Because defendant had a special relationship with plaintiff, we conclude that
defendant owed a duty of reasonable care to [plaintiff’s son]”). As we explained
above, although the nonexistence of a relationship precludes the imposition of a
duty, the existence of a relationship does not require the imposition of a duty.
Instead, where the existence of a relationship is found, the other factors must be
considered before a duty can be imposed.

The “burden [that would be imposed] on the defendant” prong also

suggests that no duty should be imposed because protecting every person with

whom a business’s employees and the employees of its independent contractors

come into contact, or even with whom their clothes come into contact, would

impose an extraordinarily onerous and unworkable burden.17

17
Justice Cavanagh contends that “the potential burden must be examined
in this limited context, not extrapolated to all other imaginable potential litigants.”
Post at 7 (emphasis added). He contends further that this question “should also be
viewed in the extremely narrow confines of this particular case.” Post at 12.
However, this is not how a court of law properly determines the existence, or
nonexistence, of a legal duty, for such a determination will apply not only in the
instant case but in the next 500 cases as well. One cannot assess “social benefits”
and “social costs” by considering only a “particular” case or without considering
other “potential litigants.” Unlike Justice Cavanagh, we refuse to consider
whether to impose a new legal duty without regard to the consequences of such a
decision for future cases. As New York’s highest court explained:

Plaintiffs assure us that this will not lead to “limitless
liability” because the new duty may be confined to members of the
household of the employer’s employee, or to members of the
household of those who come onto the landlord’s premises. This
line is not so easy to draw, however. For example, an employer
would certainly owe the new duty to an employee’s spouse
(assuming the spouse lives with the employee), but probably would
not owe the duty to a babysitter who takes care of children in the
employee’s home five days a week. But the spouse may not have
more exposure than the babysitter to whatever hazardous substances
the employee may have introduced into the home from the
workplace. Perhaps, for example, the babysitter (or maybe an
employee of a neighborhood laundry) launders the family members’
clothes. In short, as we pointed out in Hamilton, the “specter of
limitless liability” is banished only when “the class of potential
plaintiffs to whom the duty is owed is circumscribed by the
(continued…)

Given what we know about asbestos today, i.e., that there is a causal

relationship between exposure to asbestos and mesothelioma, and assuming that

defendant directed the independent contractor to work with asbestos-containing

materials, the “nature of the risk” was serious. Therefore, the “nature of the risk”

prong suggests that a duty should be imposed.

However, the “foreseeability of the harm” prong suggests that no duty

should be imposed. From 1954 to 1965, the period during which Roland worked

at defendant’s plant, we did not know what we know today about the hazards of

asbestos. See Exxon Mobil Corp v Altimore, 2007 Tex App LEXIS 2971 (Tex

App, 2007) (holding that because the Occupational Health and Safety

Administration did not promulgate regulations prohibiting employers from

allowing workers who had been exposed to asbestos to wear their work clothes

home until 1972, the risk of “take home” asbestos exposure was not foreseeable to

Exxon Mobil before 1972, and, thus, Exxon Mobil did not owe a duty to the

(…continued)

relationship.” [In re New York City Asbestos Litigation, supra at
498, quoting Hamilton, supra at 233.]

Unlike Justice Cavanagh, the New York plaintiffs at least recognized that their
burden in urging the creation of a new duty required an assessment of the
consequences arising from such a duty for future cases. Moreover, Justice
Cavanagh fails to offer any principled way of distinguishing the claims of
household members from other potential claimants-- for instance, a person who sat
next to Roland on the bus every day after work-- based on “the social benefit of a
healthy people.” Post at 21.

plaintiff, who was allegedly exposed to asbestos brought home on her husband’s

clothes from 1942 to 1972). Further, plaintiffs’ own expert conceded that the first

published literature suggesting a “specific attribution to washing of clothes” was

not published until 1965. Joint Appendix at 897a. Therefore, the risk of “take

home” asbestos exposure was, in all likelihood, not foreseeable by defendant

while Roland was working at defendant’s premises from 1954 to 1965.18

Because the ultimate inquiry in determining whether a duty should be

imposed involves balancing the social benefits of imposing a duty with the social

costs of imposing a duty, we cannot decide whether a duty should be imposed

without “assessing the competing policy considerations . . . .” Friedman, supra at

22. We must be “concerned with whether it is appropriate public policy to impose

18
Justice Cavanagh criticizes us for relying on Altimore rather than on “the
evidence produced at trial.” Post at 8. However, he fails to point to any “evidence
produced at trial” that suggests that the harm was foreseeable. He states that “the
transcripts are repeatedly cut off during what appears to be testimony shedding
further light on the question of foreseeability.” Post at 11. If there are missing
pages to the transcript that contain “testimony shedding further light on the
question of foreseeability,” plaintiffs obviously could have included those pages.
This is a matter for the Fourteenth District Court of Appeals of Texas, not this
Court. That court has certified a question of law and we have answered that
question of law on the basis of the information that has been presented to us.

Also, contrary to Justice Cavanagh’s contention, it should come as no
surprise to the parties that we are addressing foreseeability given that it is well-
established law in Michigan that foreseeability is a factor to be considered in
determining whether a legal duty should be imposed. Nevertheless, “other
considerations may be, and usually are, more important.” Buczkowski, supra at
101.

liability . . . .” Smith, supra at 716 n 24. “‘“[I]n fixing the bounds of duty, not

only logic and science, but policy play an important role.”’” CSX Transportation,

supra at 890, quoting Widera, supra at 307 (other citations omitted). “‘[T]here 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.’” CSX Transportation, supra at 890,

quoting Widera, supra at 307. “‘[I]n determining whether a duty exists, courts

must be mindful of the precedential . . . effects of their rulings, and limit the legal

consequences of wrongs to a controllable degree.’” In re New York City Asbestos

Litigation, supra at 493, quoting Hamilton, supra at 232 (other citations and

internal quotation marks omitted). “‘Moreover, any extension of the scope of duty

must be tailored to reflect accurately the extent that its social benefits outweigh its

costs.’” Id.

As the United States Supreme Court has recognized, this country is

experiencing an “asbestos-litigation crisis” as a result of the “‘elephantine mass of

asbestos cases’ lodged in state and federal courts . . . .” Norfolk & W R Co v

Ayers, 538 US 135, 166; 123 S Ct 1210; 155 L Ed 2d 261 (2003) (citation

omitted). Asbestos claims have given rise to one of the most costly products-

liability crises ever within our nation’s legal system. “Asbestos claims continue to

pour in at an extraordinary rate [and] scores of employers have been forced into

bankruptcy.” Behrens & Cruz-Alvarez, A potential new frontier in asbestos

litigation: Premises owner liability for “take home” exposure claims, 21 Mealey’s

Litig Rep Abs 1, 4 (2006). Some commentators have said that “[b]efore it ends,

the litigation may cost up to $195 billion — on top of the $70 billion spent through

2002.” Id. These same commentators have explained:

Premises owner liability for “take home” exposure injuries
represents the latest frontier in asbestos litigation. These actions
clearly involve highly sympathetic plaintiffs. Yet, as several leading
courts have appreciated, the law should not be driven by emotion or
mere foreseeability. Broader public policy impacts must be
considered, including the very real possibility that imposition of an
expansive new duty on premises owners for off-site exposures would
exacerbate the current “asbestos-litigation crisis.” Plaintiffs’
attorneys could begin naming countless employers directly in
asbestos and other mass tort actions brought by remotely exposed
persons such as extended family members, renters, house guests,
carpool members, bus drivers, and workers at commercial
enterprises visited by the worker when he or she was wearing dirty
work clothes . . . .

Furthermore, adoption of a new duty rule for employers could
bring about a perverse result: nonemployees with secondary
exposures could have greater rights to sue and potentially reap far
greater recoveries than employees. Namely, secondarily exposed
nonemployees could obtain noneconomic damages, such as pain and
suffering, and possibly even punitive damages; these awards are not
generally available to injured employees under workers’
compensation. [Id. at 5.]

In Henry v Dow Chemical Co, 473 Mich 63; 701 NW2d 684 (2005), this

Court held that mere exposure to a negligently released dioxin, a synthetic

chemical that is potentially hazardous to human health, does not give rise to a

negligence action. We explained:

[W]e have on occasion allowed for the development of the
common law as circumstances and considerations of public policy
have required. But as Justice Young has recently observed, our
common-law jurisprudence has been guided by a number of
prudential principles. See Young, A judicial traditionalist confronts

the common law, 8 Texas Rev L & Pol 299, 305-310 (2004).
Among them has been our attempt to “avoid capricious departures
from bedrock legal rules as such tectonic shifts might produce
unforeseen and undesirable consequences,” id. at 307, a principle
that is quite applicable to the present case.

Plaintiffs have asked us to recognize a cause of action that
departs drastically from our traditional notions of a valid negligence
claim.[19] Beyond this enormous shift in our tort jurisprudence,
judicial recognition of plaintiffs’ claim may also have undesirable
effects that neither we nor the parties can satisfactorily predict. For
example, recognizing a cause of action based solely on exposure—
one without a requirement of a present injury—would create a
potentially limitless pool of plaintiffs. [Id. at 83 (citations and
emphasis omitted).]

Just as recognizing a cause of action based solely on exposure would create

a potentially limitless pool of plaintiffs, so too would imposing a duty on a

landowner to anybody who comes into contact with somebody who has been on

the landowner’s property. “We would be unwise, to say the least, to alter the

common law in the manner requested by plaintiffs when it is unclear what the

consequences of such a decision may be and when we have strong suspicions . . .

that they may well be disastrous.” Id. at 88 (citation omitted). “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

19
In response to the “asbestos-litigation crisis,” this Court adopted an
administrative order precluding trial courts from “‘bundling’ asbestos-related
cases for settlement or trial.” Administrative Order No. 2006-6, 476 Mich xliv.
One of the purposes of this order was to ensure that asbestos litigants are subject
to traditional legal standards. Therefore, it would be inconsistent for us now to
suggest that traditional legal standards should not apply to asbestos litigants.

almost infinite universe of potential plaintiffs.20 Accordingly, we decline to

promulgate a policy which would extend the common law so as to bring the . . .

plaintiff[s] within a class of people whose interests are entitled to protection from

the defendant’s conduct.” CSX Transportation, supra at 890 (citation omitted).21

20
Justice Cavanagh would impose a duty here because the social benefit of
compensating somebody for a loved one’s death is “tremendous.” Post at 15. We
certainly do not quarrel with him in this characterization. However, we do not
believe that this automatically allows courts to ignore the social costs of imposing
a duty. Although every death, or serious injury, is indeed “tremendous,” this is no
warrant for placing responsibility upon an inappropriate defendant. Not every
death or serious injury, however genuinely “tremendous,” is legally compensable
by someone else. Under Justice Cavanagh’s approach, no matter how attenuated
or remote the relationship between parties, if a plaintiff has suffered a death, or
presumably any kind of serious injury, he or she would prevail. This is simply not
the law in Michigan or in any other state. Nor could it be the law in any
reasonably functioning society that desires that its resources be devoted to
something other than litigation. Justice Cavanagh would impose liability here
because Carolyn Miller died. One need not fail to recognize the gravity of this
occurrence to recognize that additional analysis is required under traditional legal
rules.
21
Plaintiffs and Justice Cavanagh rely heavily on Olivo, supra at 405,
which held that any duty owed to the members of a worker’s household constitutes
a “derivative duty,” i.e., one derived from the duty owed to the worker himself.
Thus, even under Olivo, no duty is owed to a worker’s household members unless
a duty is owed to the worker himself. Justice Cavanagh, however, concludes that
defendant owed Miller a duty without considering whether defendant owed
Roland a duty. Because Roland was an employee of an independent contractor,
defendant would have owed him a duty under Michigan law only if it could be
shown that the “common work area” doctrine was satisfied and that defendant
“retained control” over the work being performed. Ormsby v Capital Welding,
Inc, 471 Mich 45, 55; 684 NW2d 320 (2004). To our knowledge, there was no
evidence presented establishing the “‘unusually high degree of control’” over the
relining projects required by Ormsby, supra at 55 (citation omitted). Indeed, the
jury instructions given on this point seem inconsistent with Michigan law.
(continued…)

Finally, plaintiffs argue that under the “inherently dangerous activity”

doctrine, property owners may owe a duty to somebody who has never been on

their property even where they do not owe a duty to their own employees or the

employees of an independent contractor that they have hired. Plaintiffs are correct

that under the “inherently dangerous activity” doctrine, property owners may owe

a duty to a person who has never been on their property even though they owe no

duty to their employees or the employees of their independent contractors.

DeShambo v Anderson, 471 Mich 27, 38; 684 NW2d 332 (2004). However, the

“inherently dangerous activity” doctrine is not at all applicable to the instant case.

“[U]nder this doctrine, the landowner must itself owe some duty to the specific

third party, . . . the negligent act that causes the injury cannot be collateral to the

work contracted for, and . . . the injury that occurs must be reasonably expected by

the landowner.” Id. at 34.

First, for the reasons discussed above, defendant owed no duty to Miller. In

addition, the “inherently dangerous activity” doctrine only applies to persons on

the defendant’s property, passing by the property, or on neighboring property. See

Detroit v Corey, 9 Mich 165 (1861) (a passerby fell into a ditch); Darmstaetter v

Moynahan, 27 Mich 188 (1873) (a passerby ran into a wall of ice); McWilliams v

(…continued)

However, given that we conclude that defendant owed no duty to Miller regardless
of whether defendant owed a duty to Roland, it is not necessary for us to decide
whether defendant owed a duty to Roland.

Detroit Central Mills Co, 31 Mich 274 (1875) (a passerby was run over by a

railroad car); Rogers v Parker, 159 Mich 278; 123 NW 1109 (1909) (a fire spread

to neighboring land); Inglis v Millersburg Driving Ass’n, 169 Mich 311; 136 NW

443 (1912) (a fire spread to the plaintiff’s adjoining land); Olah v Katz, 234 Mich

112; 207 NW 892 (1926) (a neighboring child fell in a hole); Wight v H G

Christman Co, 244 Mich 208; 221 NW 314 (1928) (sparks from a steam shovel

started an adjacent house on fire); Watkins v Gabriel Steel Co, 260 Mich 692; 245

NW 801 (1932) (a worker fell from third story as a result of improperly fastened

steel joists); Tillson v Consumers Power Co, 269 Mich 53; 256 NW 801 (1934)

(excavation on property caused damage to an adjacent property); Grinnell v

Carbide & Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937) (a boat

exploded, seriously injuring its passengers); Barlow v Krieghoff Co, 310 Mich

195; 16 NW2d 715 (1944) (a child fell into a bucket of hot tar on an adjacent lot);

McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d 609 (1972) (a boom

fell on a worker); see also DeShambo, supra, at 33 (“‘“[A] man who orders a work

to be executed, from which, in the natural course of things, injurious consequences

to his neighbor must be expected to arise, unless means are adopted by which such

consequences may be averted, is bound to see the doing of that which is necessary

to prevent mischief, and cannot relieve himself of his responsibility by employing

some one else.”’”) (citations omitted; emphasis in the original); Prosser & Keeton,

Torts (5th ed), § 71, p 514 (inherently dangerous activity doctrine is limited to

activity that poses a “specific risk or set of risks to those in the vicinity”)

(emphasis added). The “inherently dangerous activity” doctrine has never been

applied to extend a property owner’s duty to somebody completely disconnected

from the property.22

Second, “the negligent act that causes the injury cannot be collateral to the

work contracted for . . . .” DeShambo, supra at 34 (emphasis added). Here, the

work contracted for was the relining of blast furnaces. Plaintiffs argue that

defendant was negligent in providing the workers with materials that contained

asbestos. This allegedly negligent act-- providing unsafe materials-- was

“collateral” to the work contracted for-- the relining of the blast furnaces.

Finally, “the injury that occurs must be reasonably expected by the

landowner.” Id. at 34. As discussed above, the risk of “take home” asbestos

exposure, in all likelihood, was not reasonably expected by defendant while

Roland was working at defendant’s plant from 1954 to 1965. For these reasons,

the “inherently dangerous activity doctrine” does not apply here.

22
Further, the “inherently dangerous activity” doctrine only applies to non-
delegable duties. DeShambo, supra at 34 (the inherently dangerous activity
doctrine is “founded on the existence of a duty on behalf of the landowner, or
employer of an independent contractor, and the duty must be of the type that is
nondelegable”). The removal of asbestos containing materials is certainly not a
nondelegable duty. Otherwise, a homeowner who hired a person to remove
asbestos from his house could be held liable to somebody who that person exposed
to asbestos. This cannot be the case. Homeowners must be able to delegate this
duty to professionals who are specifically trained in removing asbestos without
fear of liability.

IV. CONCLUSION

In Michigan, “the question whether the defendant owes an actionable legal

duty to the plaintiff is one of law which the court decides after assessing the

competing policy considerations for and against recognizing the asserted duty.”

Friedman, supra at 22. The social benefits of imposing a duty must outweigh the

social costs of doing so. The inquiry involves considering, among any other

relevant considerations: “‘the relationship of the parties, the foreseeability of the

harm, the burden on the defendant, and the nature of the risk presented.’” Dyer,

supra at 49, quoting Murdock, supra at 53, citing Buczkowski, supra at 100.

However, the most important factor pertains to the relationship between the

parties. Because any relationship between Miller and defendant was highly

tenuous, the harm was, in all likelihood, not foreseeable, the burden on defendant

would be onerous and unworkable, and the imposition of a duty, under these

circumstances, would “‘expand traditional tort concepts beyond manageable

bounds and create an almost infinite universe of potential plaintiffs,’” CSX

Transportation, supra at 890 (citation omitted), we conclude that a legal duty

should not be imposed. For these reasons, we answer the certified question in the

negative. That is, we hold that, under Michigan law, defendant, as owner of the

property on which asbestos-containing products were located, did not owe to the

deceased, who was never on or near that property, a legal duty to protect her from

exposure to any asbestos fibers carried home on the clothing of a member of her

household who was working on that property as the employee of independent

contractors, where there was no further relationship between defendant and the

deceased. Having answered the certified question, we now return the matter to the

Fourteenth District Court of Appeals of Texas for such further proceedings as that

court deems appropriate.

Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

STATE OF MICHIGAN

SUPREME COURT

In re CERTIFIED QUESTION FROM
THE FOURTEENTH DISTRICT COURT
OF APPEALS OF TEXAS.

GLENN MILLER, ESTATE OF CAROLYN
MILLER, SHAWN DEAN, JOHN
ROLAND, and ALMA ROLAND,

Plaintiffs,

v No. 131517

FORD MOTOR COMPANY,

Defendant.

CAVANAGH, J. (dissenting).

I dissent from the majority opinion because I do not believe that this Court

should substantively decide this appeal. In fact, without the participation of

Justice Young, who strongly believes that this Court lacks the constitutional

authority to answer the certified question,1 this Court would not have answered

1
See In re Certified Question (Veliz v Cintas Corp), 474 Mich 1228 (2006)
(Young, J., concurring); In re Certified Question (Melson v Prime Ins Syndicate,
Inc), 472 Mich 1225 (2005) (Young, J., concurring).
the question. I would point out the curiosity that Justice Young’s constitutional

conscience would allow him to subordinate his deeply held belief to provide the

fourth vote to answer the question in this case. Despite the fact that he has

participated in answering certified questions before, the fact remains that had he

not provided the deciding vote to answer this certified question, he would have

caused the Court not to answer the question, which surely would have aligned

much better with his view against providing a foreign court with a “didactic

exegesis on our law” than answering it. See In re Certified Question (Veliz v

Cintas Corp), 474 Mich 1228 (2006) (Young, J., concurring). This situation

differs from the previous cases in which Justice Young participated because in

those cases, there were enough votes to answer the question regardless of his

participation. In other words, his vote in those cases had no impact on the fact

that the question was answered.2

In any event, I further disagree that Michigan law compels the result the

majority reaches. Contrary to the majority’s conclusion, defendant could be

found to owe a duty to Carolyn Miller with respect to asbestos contamination

through take-home exposure. Regarding our role in this case, it is my view that

2
Compare this to Melson, supra, wherein Justice Young could have
provided, but did not provide, the fourth vote to answer the question. Thus, I fail
to see the same laudability of this inconsistent and unpredictable behavior that
Justice Markman does. See ante at 3 n 2.

the question certified to us by the Texas court improperly asks us to decide the

specific case pending before that court. The Texas court asked

[w]hether, under Michigan law, Ford, as owner of property on which
asbestos-containing products were located, owed to Carolyn Miller,
who was never on or near that property, a legal duty specified in the
jury charge submitted by the trial court, to protect her from exposure
to any asbestos fibers carried home on the clothing of a member of
Carolyn Miller’s household who was working on that property as the
employee of an independent contractor.
By this wording, the Texas court has asked this Court to decide the case

without the benefit of examining it on direct appeal under an applicable standard

of review. Moreover, in my view, this state’s well-developed negligence

precedents would enable the Texas court to decide the case before it without

resort to an advisory opinion or a substantive decision from this Court.

The answer to the Texas court’s formulation of the certified question

depends on the intricacies of this specific case, and because of these complexities

I would decline to answer the question. I do not believe that we should entangle

ourselves in an appeal pending in another state by determining whether this

defendant owed a duty to Carolyn Miller. If anything, we should be determining

only whether Michigan law would permit the Texas court to hold that defendant

owed a duty to Carolyn Miller. But by deciding the case, this Court oversteps its

advisory role and decides issues of fact without the benefit of full review.

However, because the majority decides the case, I must register my

disagreement with its analysis. Contrary to the majority’s position, I would hold

that a duty can be imposed in the present case. I am guided first and foremost by

traditional principles of negligence set forth by this Court in Clark v Dalman, 379

Mich 251, 260-261; 150 NW2d 755 (1967):

Actionable negligence presupposes the existence of a legal
relationship between parties by which the injured party is owed a
duty by the other, and such duty must be imposed by law. The duty
may arise specifically by mandate of statute, or it may arise
generally by operation of law under application of the basic rule of
the common law, which imposes on every person engaged in the
prosecution of any undertaking an obligation to use due care, or to
so govern his actions as not to unreasonably endanger the person or
property of others. This rule of the common law arises out of the
concept that every person is under the general duty to so act, or to
use that which he controls, as not to injure another. Pinnix v.
Toomey, (1955), 242 NC 358, 362 (87 SE2d 893).
Such duty of care may be a specific duty owing to the
plaintiff by the defendant, or it may be a general one owed by the
defendant to the public, of which the plaintiff is a part. [Emphasis
added.]
The majority ignores these fundamental principles, and I do not find its

attempt to diminish their import, ante at 10 n 10, persuasive. Further, the

majority misstates other aspects of Michigan law. For instance, although the

majority spends considerable time opining that, in a duty analysis, “[t]he most

important factor to be considered is the relationship of the parties,” ante at 6, 16-

17, this is not a bright-line rule in this state, and it is not true in every factual

situation. In Buczkowski v McKay, 441 Mich 96, 101; 490 NW2d 330 (1992),

this Court recognized that “[c]ourts take a variety of approaches in determining

the existence of a duty, utilizing a wide array of variables in the process.

Frequently, the first component examined by the court is the foreseeability of the

risk. However, other considerations may be, and usually are, more important.”

The fact that the relationship between the parties is a component of a duty

analysis and may, at times, be given more weight than another of the components

certainly does not mean that the relationship is the most important inquiry.3 How

heavily to weigh each of the several factors depends on the precise situation at

hand.4

Many variables are considered in a duty analysis. As the Buczkowski

Court noted:

Dean Prosser described the several variables that consistently
go to the heart of a court’s determination of duty as including:
foreseeability of the harm, degree of certainty of injury, closeness of
connection between the conduct and injury, moral blame attached to
the conduct, policy of preventing future harm, and, finally, the
burdens and consequences of imposing a duty and the resulting
liability for breach. [Id. at 101 n 4, quoting Prosser & Keeton, Torts
(5th ed), § 53, p 359 n 24.]
Each of these factors is significant, and the majority incorrectly represents the

law in this state by asserting that the relationship between the parties is the most

important. Only by subordinating these factors to that of relationship is the

majority able to discount every opinion of another state in which a duty was

found with respect to take-home exposure.

3
It should be noted that in Buczkowski, the nature of the injured person’s
claim involved the criminal act of a third party. Here, no third-party conduct is
involved. The analysis, therefore, will not be identical to that in Buczkowski.
4
For a recent case in which the relationship of the parties was hardly
mentioned but in which foreseeability was this same majority’s paramount focus,
see Brown v Brown, 478 Mich ___; ___ NW2d ___ (Docket No. 270689, decided
July 11, 2007).

With respect to relationship, the majority states that because Carolyn

Miller was never “on or near defendant’s property,” the relationship prong

“certainly suggests that no duty should be imposed.” Ante at 17. But the

majority’s severely curtailed view of “relationship” seems to be based on its view

of premises liability law rather than on the principles of ordinary negligence.

Under the latter (and the former as well, although that is not at issue here), a

harmed person need not visit the property of the injuring party. This case

involves an employer who exposed a worker to asbestos, knowing that the

asbestos fibers were toxic and could be carried home, thus exposing the worker’s

family to asbestos. Under these circumstances, I have no difficulty concluding

that the relationship—that a jury found defendant had to Cleveland “John”

Roland—extended to Carolyn Miller. To conclude otherwise, as does the

majority, ignores basic negligence principles and gives employers carte blanche

to expose workers to communicable toxic substances without taking any measure

whatsoever to prevent those substances from harming others. This I cannot do.

Indeed, as discussed later in this dissent, our government also refuses to grant this

free pass.

Moreover, I disagree that the burden defendant would bear by shouldering

a duty with respect to Carolyn Miller is so great that innocent people must suffer

without recourse. Our federal government has stated that it “is aware of no

instance in which exposure to a toxic substance has more clearly demonstrated

detrimental health effects on humans than has asbestos exposure.” 51 Fed Reg

22615 (1986). In assessing whether defendant should have a duty, I would find

that the extreme toxicity of asbestos weighs heavily in favor of finding that

defendant had a duty to protect those whom defendant put at risk by exposing

them to it.

The majority also seriously overstates what the consequences of imposing

a burden on defendant would truly be by asserting that, if a duty were imposed,

businesses would have to “protect[] every person with whom a business’s

employees and the employees of its independent contractors come into contact, or

even with whom their clothes come into contact . . . .” Ante at 18. That is

incorrect. The certified question is specific to this case in that it asks whether this

defendant should be found to have a duty owed to Carolyn Miller. Thus, the

potential burden must be examined in this limited context, not extrapolated to all

other imaginable potential litigants.5 And again, as will be discussed in this

dissent, defendant now has a regulatory duty to minimize the potential for take-

home exposure. Thus, holding that defendant had a duty to this particular person

5
In response to the majority, ante at 18 n 17, I did not write the certified
question. The Texas appellate court wrote the certified question, and it wrote it in
probably the most specific way possible. The majority oversteps the bounds of the
question by considering factors that are not at issue in this case. And there is
nothing novel about deciding the legal question of duty as it pertains to a particular
set of parties. Although duty is a question of law, it will always be answered in
the context of a unique set of circumstances. The factors used in a duty analysis
make that clear; for instance, the relationship of these parties and whether the
harm was foreseeable to this defendant are considered.

would not impose nearly the burden the majority claims. Questions of duty

specifically entail drawing lines, and under a properly tailored rule, the duty

could be appropriately limited. Thus, the majority mischaracterizes the burden

and concludes, on the basis of unwarranted extremism, that the burden is too

great. I would not conclude that the burden of imposing a duty on defendant,

whose actions led to Carolyn Miller’s exposure to a toxic substance, would be too

large to bear.

I further take issue with the majority’s conclusion regarding foreseeability.

In its analysis, the majority commits three errors. First, it reasons that because

foreseeability was not found with respect to Exxon Mobil in Exxon Mobil Corp v

Altimore, unpublished opinion of the Texas Court of Appeals, issued April 19,

2007 (Docket No. 14-04-01133-CV), “the risk of ‘take home’ asbestos exposure

was, in all likelihood, not foreseeable by defendant while [John] Roland was

working at defendant’s premises from 1954 to 1965.” Ante at 20. But the

Altimore court based its holding on the evidence produced at trial, as it should

have. See Altimore, supra, 2007 Tex App LEXIS 2971 at *36. This Court’s

conclusion, too, should be based on the evidence produced at trial. It is improper

for this majority to rely on another court’s holding to determine whether this

defendant in the present case knew or should have known of the risk.

It may be of interest to the reader that in a different case involving Exxon

Mobil, the evidence showed that Exxon Mobil was fully aware of the possibility

of take-home exposure:

Exxon Mobil was aware by 1937 that exposure, of sufficient
duration and intensity, to asbestos dust or raw asbestos was
associated with asbestosis. Moreover, a report prepared in 1937
specifically for the petroleum industry, detailed the hazards
associated with “occupational dust,” including asbestos particles,
which was prevalent at petroleum plants. [Olivo v Owens-Illinois,
Inc, 186 NJ 394, 404; 895 A2d 1143 (2006).]
The majority’s mention of only the case in which Exxon was not found to know

of the risk is curious.

It is also worth noting that it has not proved unusual to find that an

employer knew or should have known about the risk of take-home exposure at

the times relevant to this case. In Condon v Union Oil Co of California,

unpublished opinion of the California Court of Appeals, issued August 31, 2004

(Docket No. A102069), the court relied on expert testimony indicating that

in 1924 in the United States, it was recognized that workers handling
toxic substances should have separate lockers for work and street
clothes to prevent their families from being exposed to any toxic
dust from the workers’ clothes. [The expert] testified that in 1948, a
leading industrial hygienist in the oil industry recommended that
refinery workers change clothes prior to going home, and that the
refinery launder the work clothes to avoid contaminating the
worker’s home with carcinogenic materials. [Condon, supra, 2004
Cal App Unpub LEXIS 7975 at *13.]
In any event, it should be self-evident that a finding regarding

foreseeability must be based on the evidence specific to a particular case. And

here, plaintiffs presented evidence, which the jury clearly believed, that this

defendant knew of the hazards of asbestos at the relevant times. The focus

should be on what this defendant knew, not on what Exxon Mobil was found to

know in Altimore. By ascribing no weight to the evidence that plaintiffs

produced at trial and relying on another court’s findings regarding the evidence

produced at a different trial involving a different defendant, the majority upends

the jury’s finding and improperly decides a factual matter.

Nor should the analysis hinge on what date the first literature connecting

take-home exposure with clothes washing was published, the majority’s second

error. See ante at 23-24 (“[P]laintiffs’ own expert conceded that the first

published literature suggesting a ‘specific attribution to washing of clothes’ was

not published until 1965.”). And defendant asserts that no foreseeability can be

found before 1972—the year the Occupational Safety and Health Administration

(OSHA) began regulating the taking home of clothing exposed to asbestos. But

research on the dangers of exposure to asbestos had been going on for decades,

and warnings appeared far earlier. In fact, “[a]s early as 1916, industrial hygiene

texts recommended that plant owners should provide workers with the

opportunity to change in and out of work clothes to avoid bringing contaminants

home on their clothes.” Olivo, supra at 404. The question is not what year

literature was published regarding the dangers of washing contaminated clothing

or what year OSHA instituted regulations. Neither of those dates is dispositive if

it can be shown, which it apparently was, that defendant had some other source of

knowledge and information at the relevant time. Consequently, were the

foreseeability inquiry properly conducted and limited to the evidence produced at

this trial, this factor might have weighed in plaintiffs’ favor.

Importantly, though, and this pertains to the majority’s third error, the

question of foreseeability is a question addressable only on full appellate review,

of which we do not have the benefit. First, there is no stated standard of review

under which to substantively review the jury’s findings for correctness. Further,

the parties have not submitted the entire trial transcript, but instead have provided

only excerpts. While the portions that have been submitted contain some of

plaintiffs’ expert’s testimony regarding what defendant knew and what

information was available to defendant, the transcripts are repeatedly cut off

during what appears to be testimony shedding further light on the question of

foreseeability.6 Thus, a proper review of whether this defendant knew of the

6
The majority asserts that because the transcripts do not contain the full
discussion of foreseeability that occurred at trial, evidence regarding defendant’s
knowledge of the dangers of exposing workers to asbestos must not exist. Ante at
20 n 18. I find this an extremely backward way to go about the analysis. First, I
must mention again that the jury found foreseeability. I would not surmise, as
does the majority, that this finding was based on nothing. The majority must
believe that the jury was either unintelligent or deliberately failed to follow the
jury instructions. I find both conclusions insulting and refuse to make them.
Further, there is a perfect explanation of why the parties did not include the entire
transcript: this Court was not supposed to factually redecide the issue of
foreseeability. Rather, this Court should, if anything, consider what was found
about foreseeability in the course of weighing the duty factors. The difference
between weighing the jury’s finding with respect to foreseeability in the duty
analysis and reaching its own factual conclusions about foreseeability is a critical
difference the majority fails to grasp. See ante at 20 n 18.

The majority is free to thoroughly review the trial testimony excerpts as I
have done. On doing so, it would indeed find numerous instances of testimony
that support the jury’s findings. The record is far from devoid of such evidence.
(continued…)

risks posed by take-home exposure is impossible for this Court to conduct, and

the majority errs by nevertheless conducting it. This is yet another reason why it

is both irregular and improper for this Court to substantively decide this case.

Moving on, I differ greatly with the majority regarding the outcome of

what it deems the “ultimate inquiry”: “whether the social benefits of imposing a

duty outweigh the social costs of imposing a duty.” Ante at 20. First, this

question should also be viewed in the extremely narrow confines of this

particular case. Specifically, the Texas court has asked whether this defendant

had a duty to Carolyn Miller. Holding that this defendant had a duty to Carolyn

Miller would not create a universal cause of action for every potential take-home

exposure case. Thus, the majority needlessly invokes the sky-is-falling genre of

arguments advanced by commentators who have been openly critical of asbestos

litigation and tort recovery in general. See ante at 21-22. Quite simply, there has

(…continued)

But I cannot in good conscience render a definitive conclusion regarding
foreseeability for the mere fact that the transcript is incomplete.

The fact that the majority believes that other factors are more important
than foreseeability, ante at 20 n 18, does not mitigate the fact that the majority
decides the question of foreseeability using an incorrect process. Moreover, I do
not see anything left for the Texas court’s determination, contrary to the majority’s
statement that “[t]his is a matter for the Texas Court of Appeals, not this Court.”
Id. In my reading, the majority decides that the risk was not foreseeable to
defendant. See id. However, because this Court’s answer to a certified question is
purely advisory and does not constitute binding precedent, the Texas court is free
to draw its own conclusions with respect to the meaning, or applicability, of the
majority opinion.

been no showing in this case that were defendant found to have a duty, “a

potentially limitless pool of plaintiffs” or “‘an almost infinite universe of

potential plaintiffs’” would be created. Ante at 23-24 (citation omitted). In fact,

one of the very commentators the majority quotes recently wrote that “after years

of downward spiral, the asbestos litigation tide finally may be turning.” Behrens

& Goldberg, The asbestos litigation crisis: The tide appears to be turning, 12

Conn Ins L J 477, 478 (2006).7

And several courts have adequately addressed the majority’s concern with

reasoning I find persuasive. One explained that the public policy concerns would

“dissipate” because it was only recognizing a duty based on “the particularized

foreseeability of harm to plaintiff’s wife, who ordinarily would perform typical

household chores that would include laundering the work clothes worn by her

husband.” Olivo, supra at 405. Another recognized that a rule could be properly

tailored so as to avoid creating this majority’s feared “infinite universe of

7
Interestingly, this same article attributes the “asbestos litigation crisis” not
to those who, like plaintiffs’ decedent, are or were truly ill, but to what the authors
describe as healthy plaintiffs who have been “unearth[ed]” by profitable “mass
screenings programs.” Behrens, supra at 479. The authors observe that “‘the
“asbestos litigation crisis” would never have arisen and would not exist today’ if
not for the claims filed by the unimpaired.” Id., quoting Brickman, Lawyers’
ethics and fiduciary obligation in the brave new world of aggregative litigation,
26 Wm & Mary Environmental L & Pol’y R 243, 273 (2001). If this is correct,
the majority’s striving to shelter defendant from liability in the case of someone
who did truly ail is unnecessary. According to the majority’s own authority, it is
not people like Carolyn Miller who are the “problem.”

potential plaintiffs”: “[L]imitless liability would not be created in this case if we

found a duty under these particular facts and circumstances.” Chaisson v

Avondale Industries, Inc, 947 So 2d 171, 182 (La App, 2006), clarified 947 So 2d

171 (2007).8

But even so, the majority’s conclusion that the social costs of imposing a

duty outweigh the social benefits requires elevating corporate vitality over the

health and well-being of humanity. The majority’s statements regarding the

social burden abound with tales of corporate bankruptcy, litigation crises, and the

costs in dollars that have stemmed from exposing workers to asbestos.9 See ante

at 21-22. But the majority is strangely silent with respect to the toll that asbestos

exposure has taken on human life. By focusing solely on the losses suffered by

businesses, the majority fails to account for the social benefits that would ensue

from ensuring that people who are exposed to detrimental substances and who,

consequently, suffer ruined health, life-altering and life-ending diseases, and the

8
And I would note that the absence of any evidence that Roland rode a bus
home from work every day should alleviate the majority’s concern that fellow
passengers could sue defendant under my rationale. See ante at 19 n 17.
9
I emphasize this because my sense from reading the majority’s opinion is
that the majority believes that blame for the financial toll asbestos exposure has
taken lies with the people who have been injured and who have sued rather than
with those who exposed them to the product. This, to me, would be a gross
misunderstanding.

loss of family members, are compensated.10 When workers are protected from

deadly substances, society benefits. When corporations are held accountable for

the consequences their processes have on those who toil to make the corporations

viable, society benefits. When our justice system fairly places the burden of

responsibility for dangerous products on the offending party, rather than the one

who suffers, society benefits.

Unlike the majority, I would find a tremendous social benefit in imposing

corporate accountability, and I would conclude that the social benefits of

corporate responsibility and a valued, healthy society easily outweigh the burden

of imposing a duty on corporations to mitigate the risk of take-home exposure,

especially in light of the fact that they have been required to do so anyway for the

last 35 years.

And the majority proclaims that “[n]ot every death or serious injury,

however genuinely ‘tremendous,’ is legally compensable by someone else.” Ante

at 24 n 20. This is true, but with respect to this case, it is a direct consequence of

the majority’s holding that an employer who allowed a contaminated worker to

10
And the majority’s dire global predictions omit mention of the fact that
take-home exposure cases represent only about six percent of total asbestos cases.
Plaintiffs’ brief on appeal, 30, citing Roggli, et al., Malignant Mesothelioma and
Occupational Exposure to Asbestos: A Clinicopathological Correlation of 1445
Cases, 26 Ultrastructural Pathology 55 (2002). For two other recent examples of
an improperly skewed analysis of corporate cost versus social benefit, see Greene
v A P Products, Ltd, 475 Mich 502; 717 NW2d 855 (2006), and Henry v The Dow
Chemical Co, 473 Mich 63; 701 NW2d 684 (2005).

expose his family to a deadly substance had no duty to act differently. It is not

that the death is inherently not compensable. Rather, it is after such a holding

that the death is not compensable. But the majority fails to comprehend that who

must compensate this victim of harm is determined by its own creation and

interpretation of law. The majority should not disregard its singular role in

preventing compensation and then shrug off the consequences of that role by

saying, in essence, “Sorry, not everything is compensable.”

And I would not impose liability simply “because Carolyn Miller died” or

allow a plaintiff to prevail “no matter how attenuated or remote the relationship

between the parties, if a plaintiff has suffered a death, or presumably any kind of

serious injury . . . .” Ante at 24 n 20. Readers will see through these empty

allegations simply by reading this dissent, in which it is thoroughly explained

why each factor in the analysis of whether a duty should be imposed weighs in

plaintiffs’ favor. And readers perusing the opinions of other states that have

found a duty in similar circumstances may reject out of hand the majority’s

assertions that “[t]his is simply not the law . . . in any other state. Nor could it be

the law in any reasonably functioning society that desires that social resources be

devoted to something other than litigation.” Ante at 24 n 20. For instance, a

Louisiana court easily found a duty for reasons similar to mine:

In considering the moral, social, and economical factors of
imposing a duty, we find that public policy also weighs in favor of
finding a duty. First, the economic impact of imposing a duty on
Zachry is minimal. The fact that this case presents res nova
determinations for this Court demonstrates the small number of

cases. Second, there is a public policy need to prevent future harm
like this from occurring. If courts allow employers to turn a blind
eye to potential work hazards simply because they are hired by
someone else, companies may be more likely to rely upon others’
representations and perform no safety inspections of their own.
Third, the possibility of limitless liability is of no concern because
finding a duty in this case would not create a categorical duty rule,
but one based upon the facts and circumstances of this case. Fourth,
the historical precedent and development of institutional guidelines
show that courts are holding companies liable for negligence based
on unsafe work conditions. This desire for accountability is also
shown in the strengthening of OSHA [Occupational Safety and
Health Administration] regulations to allow for minimal asbestos
exposure to workers and none to household members. Finally,
public policy favors a duty in this case where a “construction
contractor” took no independent steps to protect its employees’
family members from household exposure to hazardous materials.
[Chaisson, supra at 183-184.]
Indeed, not even our federal government believes that requiring employers

to protect workers and their families from asbestos exposure is too cumbersome a

burden. In fact, quite the opposite is true. OSHA has promulgated stringent

requirements on employers whose employees encounter asbestos in the work

environment. See 29 CFR 1926.1101. In no uncertain terms, OSHA has set forth

strict procedures to decontaminate workers who handle asbestos on the job.

These rigorous measures reflect OSHA’s awareness that the deadly and

communicable nature of asbestos fiber merits mandating an involved process to

prevent the spread of asbestos fiber:

(1) Requirements for employees performing Class I asbestos
jobs involving over 25 linear or 10 square feet of TSI [thermal
system insulation] or surfacing ACM [asbestos-containing material]
and PACM [presumed asbestos-containing material].
(i) Decontamination areas. The employer shall establish a
decontamination area that is adjacent and connected to the regulated

area for the decontamination of such employees. The
decontamination area shall consist of an equipment room, shower
area, and clean room in series. The employer shall ensure that
employees enter and exit the regulated area through the
decontamination area.
(A) Equipment room. The equipment room shall be supplied
with impermeable, labeled bags and containers for the containment
and disposal of contaminated protective equipment.
(B) Shower area. Shower facilities shall be provided which
comply with 29 CFR 1910.141(d)(3), unless the employer can
demonstrate that they are not feasible. The showers shall be
adjacent both to the equipment room and the clean room, unless the
employer can demonstrate that this location is not feasible. Where
the employer can demonstrate that it is not feasible to locate the
shower between the equipment room and the clean room, or where
the work is performed outdoors, the employers shall ensure that
employees:
(1) Remove asbestos contamination from their worksuits in
the equipment room using a HEPA [high-efficiency particulate air
filter] vacuum before proceeding to a shower that is not adjacent to
the work area; or
(2) Remove their contaminated worksuits in the equipment
room, then don clean worksuits, and proceed to a shower that is not
adjacent to the work area.
(C) Clean change room. The clean room shall be equipped
with a locker or appropriate storage container for each employee’s
use. When the employer can demonstrate that it is not feasible to
provide a clean change area adjacent to the work area or where the
work is performed outdoors, the employer may permit employees
engaged in Class I asbestos jobs to clean their protective clothing
with a portable HEPA-equipped vacuum before such employees
leave the regulated area. Following showering, such employees
however must then change into street clothing in clean change areas
provided by the employer which otherwise meet the requirements of
this section.
(ii) Decontamination area entry procedures. The employer
shall ensure that employees:
(A) Enter the decontamination area through the clean room;

(B) Remove and deposit street clothing within a locker
provided for their use; and
(C) Put on protective clothing and respiratory protection
before leaving the clean room.
(D) Before entering the regulated area, the employer shall
ensure that employees pass through the equipment room.
(iii) Decontamination area exit procedures. The employer
shall ensure that:
(A) Before leaving the regulated area, employees shall
remove all gross contamination and debris from their protective
clothing.
(B) Employees shall remove their protective clothing in the
equipment room and deposit the clothing in labeled impermeable
bags or containers.
(C) Employees shall not remove their respirators in the
equipment room.
(D) Employees shall shower prior to entering the clean room.
(E) After showering, employees shall enter the clean room
before changing into street clothes.
* * *

(2) Requirements for Class I work involving less than 25
linear or 10 square feet of TSI or surfacing ACM and PACM, and
for Class II and Class III asbestos work operations where exposures
exceed a PEL [permissible exposure limit] or where there is no
negative exposure assessment produced before the operation.
(i) The employer shall establish an equipment room or area
that is adjacent to the regulated area for the decontamination of
employees and their equipment which is contaminated with asbestos
which shall consist of an area covered by a impermeable drop cloth
on the floor or horizontal working surface.
(ii) The area must be of sufficient size as to accommodate
cleaning of equipment and removing personal protective equipment
without spreading contamination beyond the area (as determined by
visible accumulations).

(iii) Work clothing must be cleaned with a HEPA vacuum
before it is removed.
(iv) All equipment and surfaces of containers filled with
ACM must be cleaned prior to removing them from the equipment
room or area.
(v) The employer shall ensure that employees enter and exit
the regulated area through the equipment room or area.
(3) Requirements for Class IV work. Employers shall ensure
that employees performing Class IV work within a regulated area
comply with the hygiene practice required of employees performing
work which has a higher classification within that regulated area.
Otherwise employers of employees cleaning up debris and material
which is TSI or surfacing ACM or identified as PACM shall provide
decontamination facilities for such employees which are required by
paragraph (j)(2) of this section. [29 CFR 1926.1101(j)(1)-(3).]
(2) Laundering.
(i) The employer shall ensure that laundering of contaminated
clothing is done so as to prevent the release of airborne asbestos in
excess of the TWA [time-weighted average limit] or excursion limit
prescribed in paragraph (c) of this section.
(ii) Any employer who gives contaminated clothing to
another person for laundering shall inform such person of the
requirement in paragraph (i)(2)(i) of this section to effectively
prevent the release of airborne asbestos in excess of the TWA and
excursion limit prescribed in paragraph (c) of this section.
(3) Contaminated clothing. Contaminated clothing shall be
transported in sealed impermeable bags, or other closed,
impermeable containers, and be labeled in accordance with
paragraph (k) of this section. [29 CFR 1926.1101(i)(2)-(3).]
These requirements were instituted despite the financial and other costs to

businesses of implementing them. Although these regulations were not in place

when John Roland and Carolyn Miller were exposed to asbestos, their existence

demonstrates how seriously our government considered the social detriments of

asbestos exposure when it imposed these obligations on businesses. While the

majority views the alleged projected financial costs of take-home exposure

liability as too heavy a social burden, I would conclude that whatever those costs

may be, they pale in comparison to the social benefit of a healthy people.

Further, in a duty analysis, the extremely toxic nature of asbestos and the

fact that the risk of injury can be reduced must be given proper weight because

duty is a function of the level of risk. As the Tennessee Court of Appeals

explained:

The foreseeability of [the plaintiff’s] injury is further
buttressed by the severe gravity of the possible harm—mesothelioma
and subsequent death. “[T]he degree of foreseeability needed to
establish a duty of care decreases in proportion to the magnitude of
the foreseeable harm. ‘As the gravity of the possible harm increases,
the apparent likelihood of its occurrence need be correspondingly
less to generate a duty of precaution.’” Pittman v. Upjohn Co., 890
S.W.2d 425, 433 (Tenn. 1994) (quoting Prosser [& Keeton, Torts
(5th ed)], § 31, at 171. [Satterfield v Breeding Insulation Co, Inc,
unpublished opinion per curiam of the Tennessee Court of Appeals,
issued April 19, 2007 (Docket No. E2006-00903-COA-R3-CV).]
Although the majority states that the nature of the risk weighs in plaintiffs’

favor, it seems to struggle with giving that factor the weight it deserves. The

data, research, and studies definitively establishing a causal relationship are too

numerous to mention, but I would point the majority to OSHA’s final standards

regarding asbestos in the workplace, in which the toxic ramifications of asbestos

exposure were painstakingly detailed. See Occupational Exposure to Asbestos,

Tremolite, Anthophyllite, and Actinolite, 51 Fed Reg 22612 (1986). The

following are but a few of the conclusions explained in that lengthy document:

OSHA has followed these guidelines in making a
determination that the risk of material health impairment resulting
from occupational exposure to asbestos is significant. The
epidemiological and toxicological evidence and testimony presented
in the November notice and in Section IV (Health Effects) of this
preamble clearly show that exposure to asbestos is carcinogenic to
humans and additionally causes disabling fibrotic lung disease.
* * *

Clinical evidence of the adverse effects associated with
exposure to asbestos, tremolite, anthophyllite, and actinolite, is
present in the form of several well-conducted epidemiological
studies of occupationally exposed workers, family contacts of
workers, and persons living near asbestos, tremolite, anthophyllite,
and actinolite mines. These studies have shown a definite
association between exposure to asbestos, tremolite, anthophyllite,
and actinolite and an increased incidence of lung cancer, pleural and
peritoneal mesothelioma, gastrointestinal cancer, and asbestosis.
The latter is a disabling fibrotic lung disease that is caused only by
exposure to asbestos. Exposure to asbestos, tremolite, anthophyllite,
and actinolite has also been associated with an increased incidence
of esophageal, kidney, laryngeal, pharyngeal, and buccal cavity
cancers. [51 Fed Reg 22646, 22755.]
In fact, “a joint NIOSH-OSHA Asbestos Work Group stated that there was no

level of exposure to asbestos below which clinical effects did not occur . . . .” Id.

at 22616.

The severely dangerous character of asbestos should factor much more

heavily in the analysis of whether defendant had a duty to mitigate the risk

involved. The measures to prevent take-home exposure essentially boil down to

ensuring that workers shower and change clothes after encountering asbestos.

Just those simple actions have the potential to completely eliminate the risk of

take-home exposure. But the majority makes this difficult to discern by grossly

overstating the burden of imposing a duty. It concerns itself not with the gravity

of the health risks or even with the relatively marginal costs of prevention.

Instead, the majority’s central focal point is this statement: “Asbestos claims have

given rise to one of the most costly products-liability crises ever within our

nation’s legal system.” Ante at 21.

It is a sad day for our citizens indeed when, confronted with a substance

that is so dangerous that compensating victims for their losses has had such hefty

financial consequences, this Court tilts the scales of justice to lessen liability.

The analysis should be the opposite. The more dangerous the product, the more

critical it is to impose a duty of protection. If protection and accountability

increase, litigation eventually decreases because, obviously, the protections

reduce injury.

I am persuaded by the reasoning from courts in our sister states that have

held that imposing a duty on an employer to mitigate the risk of take-home

exposure is reasonable. Like the court in Zimko v American Cyanamid, 905 So

2d 465 (La App, 2005), I would conclude that, assuming defendant knew or

should have known of the dangers of take-home exposure, “‘it is hardly a

quantum leap to extend the duty of care owed to employees to members of the

employee’s household who predictably come into routine contact with the

employee’s clothing. Such persons would certainly fall within the “range of

reasonable apprehension” created by defendant’s alleged negligence.’” Id. at

483, quoting In re New York City Asbestos Litigation, 14 AD3d 112, 121; 786

NYS2d 26 (2004). And as the court stated in Olivo:

“The inquiry should be not what common law classification
or amalgam of classifications most closely characterizes the
relationship of the parties, but . . . whether in light of the actual
relationship between the parties under all of the surrounding
circumstances the imposition . . . of a general duty to exercise
reasonable care in preventing foreseeable harm . . . is fair and just.”
[Olivo, supra at 402, quoting Hopkins v Fox & Lazo Realtors, 132
NJ 426, 438; 625 A2d 1110 (1993) (emphasis added).]
Fortunately, the majority does not foreclose the possibility of finding a

duty with respect to take-home exposure under different circumstances. But I

would hold that, under close examination of the circumstances of this case, and

accepting the jury’s finding that defendant knew or should have known of the

risk of take-home exposure, imposing a duty on defendant would be, without

doubt, fair and just. Accordingly, I dissent.

Michael F. Cavanagh
Marilyn Kelly

STATE OF MICHIGAN

SUPREME COURT

In re CERTIFIED QUESTION FROM
THE FOURTEENTH DISTRICT COURT
OF APPEALS OF TEXAS.

GLENN MILLER, ESTATE OF CAROLYN
MILLER, SHAWN DEAN, JOHN
ROLAND, and ALMA ROLAND,

Plaintiffs,

v No. 131517

FORD MOTOR COMPANY,

Defendant.

WEAVER, J. (dissenting).

I dissent from this Court’s decision to answer a question certified from the

Fourteenth District Court of Appeals of Texas.

I. CONSTITUTIONALITY

I would decline to answer the certified question in this matter because

Michigan Court Rule MCR 7.305(B) represents an improper expansion of this

Court’s limited power under the Michigan Constitution to answer certain certified

questions from the Governor and Legislature, and the majority’s use of MCR

7.305(B) to answer a question certified by another state’s intermediate appellate
court is unprecedented. I continue to question this Court’s authority to answer

such questions.1

Michigan Court Rule 7.305 addresses “certified questions.” MCR 7.305(B)

articulates the power the Michigan Supreme Court has created for itself to answer

certified questions from other courts, stating:

(1) When a federal court, a state appellate court, or tribal
court considers a question that Michigan law may resolve and that is
not controlled by Michigan Supreme Court precedent, the court may
on its own initiative or that of an interested party certify the question
to the Michigan Supreme Court.

MCR 7.305 is a modified version of the Uniform Certification of Questions of

Law Act (UCQLA), which provides states a model for court rules on certified

questions of law.2 The UCQLA has not been adopted by the people of Michigan

by constitutional amendment, nor has it been adopted by the Michigan Legislature.

1
See, e.g., Proposed Amendment of MCR 7.305, 462 Mich 1208 (2000)
(Weaver, J., dissenting); In re Certified Question (Wayne Co v Philip Morris, Inc),
622 NW2d 518 (Mich, 2001) (Weaver, J., dissenting); In re Certified Question
(Kenneth Henes Special Projects Procurement, Marketing & Consulting Corp v
Continental Biomass Industries, Inc), 468 Mich 109; 659 NW2d 597 (2003)
(Weaver, J., concurring in the result only); In re Certified Questions (Melson v
Prime Ins Syndicate, Inc), 472 Mich 1225 (2005) (Weaver, J., concurring).
2
The “power to answer” section of the UCQLA, 95 § 3, provides:

The [Supreme Court] of this State may answer a question of
law certified to it by a court of the United States or by [an appellate]
(continued…)

MCR 7.305(B) improperly expands this Court’s power by granting the

Michigan Supreme Court the authority to answer a certified question beyond the

scope authorized by the Michigan Constitution. Article 3, § 8 of the Michigan

Constitution states:

Either house of the legislature or the governor may request
the opinion of the supreme court on important questions of law upon
solemn occasions as to the constitutionality of legislation after it has
been enacted into law but before its effective date.

MCR 7.305(B) goes beyond the duties articulated in article 3, § 8 because it

undeniably expands the scope of those who may request answers to questions of

law, when the questions can be answered, and what types of questions may be

answered.

MCR 7.305(B) broadly permits “a federal court, state appellate court, or

tribal court” to certify questions of law to the Supreme Court of Michigan, while

(…continued)

[the highest] court of another State [or of a tribe] [or of Canada, a
Canadian province or territory, Mexico, or a Mexican state], if the
answer may be determinative of an issue in pending litigation in the
certifying court and there is no controlling appellate decision,
constitutional provision, or statute of this State.

The UCQLA suggests that “an appellate court of another State” or “the
highest court of another State” may be the appropriate certifying body. Further,
the UCQLA suggests that the answer to a certified question would be
determinative.

the Michigan Constitution only allows for advisory opinions to issue in response

to certain requests from the state Legislature or the Governor. Further, MCR

7.305(B) allows an issuing body to ask “a question that Michigan law may resolve

and that is not controlled by Michigan Supreme Court precedent.” Article 3, § 8,

on the other hand, constrains the question of law to be one that is “important” and

rests on the “constitutionality of legislation after it has been enacted into law but

before its effective date.” Moreover, MCR 7.305(B) lacks any limiting language

on when the Court may answer a certified question, leaving the door and the

docket open to the whims of the majority. In contrast, the Michigan Constitution

limits advisory opinions by the Supreme Court, on the constitutionality of

legislation, to be issued only on “solemn occasions” and “after [legislation] has

been enacted into law but before its effective date.” Const 1963 art 3, § 8. MCR

7.305 unduly expands the scope of this Court’s judicial powers.

Furthermore, MCR 7.305(B) does not and cannot give binding effect to

Michigan Supreme Court opinions answering certified questions. Any such

answers are merely advisory and do not have binding or precedential value.

Thus, this Court’s opinion answering the question certified by the Texas Court of

Appeals has no more precedential value than a brief submitted to that court. 3

3
As noted by Justice Levin in In re Certified Question (Bankey v Storer
Broadcasting Co), 432 Mich 438, 467-471; 443 NW2d 112 (1989),
(continued…)

(…continued)

In the instant case, the response to the certified question will
not determine the controversy. No binding order or judgment will
be entered. The response will not be made effective by a final
judgment, decree or process of this Court. No decision of this Court
that will be binding on the parties or that will be res judicata of an
issue will be entered by the Court. The response does not end the
controversy, and this Court has no way of enforcing its response to
the certified question by appropriate means.

* * *

It appears that because the response to the certified question
in the instant case would not be determinative of the cause or
controversy and, even if it were, the response cannot be enforced
through an order or judgment of this Court, that the response to this
certified question is not the exercise of judicial power but closer to
an advisory opinion.

The 1908 Constitution did not authorize this Court to issue
advisory opinions. The 1963 Constitution authorizes the Court to
provide the Legislature or the Governor with an advisory opinion.

* * *

Advisory opinions are not precedentially binding under the
doctrine of stare decisis.18

_______________________________________________________
18
Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich
465; 242 NW2d 3 (1976); Cassidy v McGovern, 415 Mich 483; 330
NW2d 22 (1982), “modified” on other grounds DiFranco v Pickard,
427 Mich 32, 58; 398 NW2d 896 (1986).

_______________________________________________________

II. OTHER CONCERNS BEYOND CONSTITUTIONALITY

This Court’s decision to answer a certified question from another state’s

intermediate appellate court is unprecedented. This Court’s decision to use MCR

7.305(B) to answer the certified question in this case exceeds how other states

have answered certified questions. Although MCR 7.305(B) grants this Court the

authority to answer a certified question from “a federal court, state appellate court,

or tribal court,” the power is not constitutionally derived and goes beyond how any

other state has ever applied certified question laws.

Forty-six states have adopted or created a modified version of the

UCQLA, § 1-14 (1995) and not one single state has utilized the reach of its rule as

broadly as the majority does here today.4 By answering a certified question from

an intermediate appellate court of another state, the majority does what no other

4
See Alabama, ARAP Rule 18; Alas R App Proc 407; Ariz Sup Ct R 27;
Arkansas, AR S Ct & Ct App Rule 6-8; CAL Rule of Court 8.548; Colorado, CAR
21.1; Conn Practice Book § 82-1; Del Sup Ct R 41; Fla R App P 9150; Ga Sup Ct
Rule 46; Hawaii, HRAP Rule 13; Idaho, IAR Rule 12.2; Ill Sup Ct Rule 13; Ind R
App P 64; Iowa Code § 684A.1; Kansas, KSA § 60-3201; Ky CR Rule 76.37; La
Sup Ct R XI; Me R App P 25; Md Courts and Judicial Proceedings Code Ann §
12-603; Massachusetts, ALM Sup C Rule 1:03; Michigan, MCR 7.305(B); Miss,
MRAP 20(a); Mont Code Ann, Ch 21, Rule 44; Nebraska, RRS Neb § 24-219;
Nev RAP 5; NH Sup Ct Rule 34; NM RAP 12-607; ND R App P 47; Ohio S Ct R
XVIII; Oklahoma, 20 Okl St § 1602; Oregon, ORS § 28.200; PA Sup Ct Internal
Operating Proc 10; RI Sup Ct Art I, Rule 6; South Carolina, SCACR 228; SD
Codified Laws § 15-24A-1; Tenn Sup Ct R 23, § 1; Tex R App P 58; Utah R App
P 41; Vermont, VRAP Rule 14; Va Sup Ct R Pt 5, 5:42; Washington, Rev Code
Wash (ARCW) § 2.60.020; W VA Code § 51-1A-3; Wis Stat § 821.01; Wyoming,
WRAP 11.01.

state has done even when they have been explicitly granted the power to do so.

Nineteen states, including Michigan, permit another state to certify questions of

law to the supreme court of that state.5 Of those 19 states, eight restrict the asking

court to the “court of last resort” or the “highest appellate court” of another state.6

Five states, including Michigan, each allows “an” or “any appellate court” of

another state to certify questions of law to the supreme court of that state—by

reference an intermediate appellate court may be authorized to certify a question to

the state supreme court.7 From my research it appears that no state has ever

answered a question certified to it by another state intermediate appellate court.

The majority’s decision today to answer a question certified by the Texas Court of

Appeals is unprecedented. It leaves to another time for one to ponder why the

5
See CAL Rule of Court 8.548; Conn Practice Book § 82-1; Del Sup Ct R
41; Ga Sup Ct Rule 46; Iowa Code § 684A.1; Kansas, KSA § 60-3201; Ky CR
Rule 76.37; Md Courts and Judicial Proceedings Code Ann § 12-603;
Massachusetts, ALM Sup Ct Rule 1:03; Michigan, MCR 7.305(B); Mont Code
Ann, Ch 21, Rule 44; NM RAP 12-607; ND R App P 47; Oklahoma, 20 Okl St §
1602; Oregon, ORS § 28.200; South Carolina, SCACR 228; Va Sup Ct R Pt 5,
5:42; W VA Code § 51-1A-3; Wis Stat § 821.01.
6
See CAL Rule of Court 8.548; Conn Practice Book § 82-1; Del Sup Ct R
41; Ky CR Rule 76.37; Massachusetts, ALM Sup Ct Rule 1:03; Mont Code Ann,
Ch 21, Rule 44; Va Sup Ct R Pt 5, 5:42; Wis Stat § 821.01.
7
See Ga Sup Ct Rule 46; Md Courts and Judicial Proceedings Code Ann §
12-603; Michigan, MCR 7.305(B); NM RAP 12-607; Oklahoma, 20 Okl St §
1602.

majority chooses to reach so far “deep into the heart of Texas” to answer a

question posed by the Texas Court of Appeals, an intermediate appellate court.

III. CONCLUSION

I dissent from this Court’s decision to answer the certified question in this

case because MCR 7.305(B) goes beyond this court’s constitutional authority to

answer certified questions and the majority’s decision to answer the certified

question in this case is unprecedented and unnecessary.

Elizabeth A. Weaver

Kelly, J., concurred with part II of Justice Weaver’s opinion.