In this products liability case, the content of a sixty-some year old instruction manual for a heavy piece of naval equipment may be the quintessential smoking gun. We consider failure to warn claims in strict liability and negligence brought by the widow of a naval machinist against manufacturers of heavy-duty pumps. We are asked to determine the interesting question of whether a manufacturer can be liable for failing to warn about the risk of harm from exposure to asbestos-containing replacement parts that it neither manufactured nor placed into the stream of commerce, but which were integral to the operation of its product.
As this case reaches us after a summary judgment in favor of the defendants, "we consider whether the plaintiffs offered sufficient admissible evidence in their opposition to summary judgment to allow a jury to consider their claims of negligence and strict liability against the corporate defendants." Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 739, 625 A.2d 1005, 1012 (1993). We state the facts as alleged by the plaintiffs.
FACTS AND LEGAL PROCEEDINGS
Ruth Belche May ("Petitioner") is the widow of a machinist mate, Philip Royce May ("May"), who served on active duty in the United States Navy ("Navy") for 20 years, from 1956 until 1976. Air & Liquid Systems Corp., Warren Pumps LLC, and IMO Industries, Inc. ("Respondents") manufactured steam pumps that were sold to the Navy. The Navy used these pumps to move extremely hot and highly pressurized steam through the ship's steam propulsion system. In accordance with the Navy's specifications, the Respondents' pumps contained asbestos gaskets and packing when the Respondents first delivered the pumps to the Navy.
As a machinist mate, May worked in the engine room of Navy ships. May testified that he would go to the log room and consult the instruction manuals on any
May, however, was never exposed to the asbestos gaskets and packing that these Respondents used in their products. He was exposed only after other Navy mechanics, who performed maintenance on Respondents' pumps, replaced Respondents' gaskets and packing with new components acquired from third parties—also containing asbestos.
In January 2012, May learned he was suffering from mesothelioma, a form of cancer that is commonly caused by asbestos exposure.
Because we answer yes as to both questions, we shall reverse the judgment of the Court of Special Appeals and remand for further proceedings.
STANDARD OF REVIEW
A circuit court may grant a motion for summary judgment if there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(f). "The court is to consider the record in the light most favorable to the non-moving party and consider any reasonable inferences that may be drawn from the undisputed facts against the moving party." Mathews v. Cassidy Turley Md., Inc., 435 Md. 584, 598, 80 A.3d 269, 276 (2013). Because a circuit court's grant of summary judgment hinges on a question of law, not a dispute of fact, an appellate court is to review whether the circuit court was legally correct without according deference to that court's legal conclusions. Id.
In Twombley v. Fuller Brush Co., 221 Md. 476, 491-94, 158 A.2d 110, 118-19 (1960), we first recognized that a duty to warn can form the basis of a products liability action, and further developed the framework for this claim in Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975). In Moran, we articulated the balancing of interests that is involved, and emphasized the role of warnings as a low cost precaution:
Id. at 543-44, 332 A.2d at 15 (emphasis added).
Failure to warn claims may be brought under a negligence or strict liability theory. Robert D. Klein, A Comparison of the Restatement (Third) of Torts: Products Liability and the Maryland Law of Products Liability, 30 U. Balt. L.Rev. 273, 288 (2001) ("In Maryland, failure-to-warn cases have either proceeded as negligence causes of action or . . . as strict liability claims. . . ."); see Gourdine v. Crews, 405 Md. 722, 743, 955 A.2d 769, 782 (2008) ("Duty, thus, is an essential element of
If the asbestos dust that May inhaled was from the original gaskets and packing in the pumps sold by Respondents, this would be a straightforward negligent and strict liability failure to warn case. The novelty of this case is that Petitioner asserts liability against Respondents even though May was never exposed to asbestos dust from the original gaskets and packing. The original asbestos gaskets and packing that Respondents incorporated into the pumps they sold to the Navy had already been replaced by other gaskets and packing supplied by third parties long before May even began working for the Navy in 1956. This issue has been addressed in only a handful of cases, which we will discuss, infra.
Relying on Ford Motor Co. v. Wood, 119 Md.App. 1, 36 n. 7, 703 A.2d 1315, 1331 n. 7 (1998), Respondents contend that a manufacturer has a duty to warn only of products that it has placed into the stream of commerce "regardless of whether [its] duty to warn sounds in negligence or strict liability." But their argument depends quite heavily on the assumption that a component part (asbestos gaskets and packing) should be separated from the product sold (the pump). In other words, Respondents see the product sold as the asbestos gaskets and packing, not the pump into which they were incorporated. We will test that assumption as we move through our analysis. We analyze the negligent and strict liability failure to warn issues in turn, even though the analytical basis for each overlaps with the other.
I. Negligent Failure to Warn
Duty to Warn and
A prima facie products liability failure to warn claim grounded in negligence requires a showing of duty of care. See Moran, 273 Md. at 543-44, 332 A.2d at 15 (describing Section 388 of the Restatement (Second) of Torts (1965) "as a general principle in the duty to warn area"); see also Nissen Corp. v. Miller, 323 Md. 613, 619, 594 A.2d 564, 566-67 (1991) (explaining that "[t]he negligence count of a products liability claim comports with longstanding common law tort principles"). In determining the existence of a duty of care, we consider the following non-exclusive factors:
Patton v. U.S. Rugby Football, 381 Md. 627, 637, 851 A.2d 566, 571 (2004) (citing Ashburn v. Anne Arundel Cnty., 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986)).
Here, the crux of Respondents' argument is that they "did not owe [ ] May a duty of care for the fundamental reason that they did not manufacture or sell the injurious asbestos parts." Respondents take umbrage at the notion that they can
Petitioner argues that the foreseeability of harm to a navy machinist who must replace the asbestos-containing components inside the pump "weighs heavily in favor of imposing a duty" to warn on Respondents. Our well-settled law reflects that the foreseeability of harm factor weighs heavily in favor of imposing a duty. See Remsburg v. Montgomery, 376 Md. 568, 583, 831 A.2d 18, 26 (2003) (foreseeability is "among the most important" factors considered in imposing a duty). Moreover, where a manufacturer's product contains asbestos components and those components must be replaced periodically with new asbestos components, the risk of harm to a machinist removing the old and installing the new is highly foreseeable. Notably, one federal court was "not convinced" that a manufacturer should avoid liability under a failure to warn claim "where it designed its products to be used with asbestos-containing materials and actually incorporated asbestos-containing materials into the products it sold." Quirin v. Lorillard Tobacco Co., 17 F.Supp.3d 760, 771 (N.D.Ill. 2014).
But foreseeability alone is not sufficient to establish a duty. Remsburg, 376 Md. at 583, 831 A.2d at 26 ("While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law."). Other factors must be considered. Bearing in mind the prominence of foreseeability of injury, we turn to those factors.
(i) The "
(ii) The "
A federal district court decision, relying on New York state cases, proves to be
Id. at 801 (emphasis added).
Indeed, the court specifically considered the liability of a pump manufacturer who knew that asbestos would be incorporated in its pump:
Similar reasoning guided a federal district court in Illinois that, applying maritime
Quirin, 17 F.Supp.3d at 769-70 (emphasis added). That court denied the manufacturer's motion for summary judgment. Id. at 772.
The present case, on appeal from a summary judgment, falls within the exception, carved out by the New York and Illinois cases, to the "bare metal defense." Significantly, the record contains evidence supporting a reasonable inference that asbestos was the only available insulating material that could be used in the gaskets and packing in high-temperature operations. May testified that the pump manufacturers "had no other type of gasket at that time that would work, except the asbestos sheet gasket." He stated that the pumps in question, which would pump matter reaching temperatures of 185 degrees or higher, needed asbestos gaskets—as opposed to other types of gaskets such as rubber, cork, paper, and vegetable fiber—because the "temperature of the heat is so much[,] it would burn [these other materials] up."
In response to interrogatories, Air & Liquid Systems wrote that "[i]n the 1980s, gaskets and packing materials containing asbestos became generally unavailable while, at the same time, suitable replacement products . . . were becoming available." This indicates that suitable non-asbestos components did not exist when Respondents sold their pumps to the Navy in the 1940s and 1950s. Moreover, Henry Hartz, an IMO Industries engineer, testified that "there was a scramble in the industry to find something that would replace asbestos." Thus, even if nothing "inherent in the pump design itself `required asbestos'" as Respondents contend, the asbestos gaskets and packing still needed to be replaced by other asbestos gaskets and packing because no other suitable material could be used with pumps that transported high-heat material.
This evidence, taken together, is sufficient to permit a reasonable inference that asbestos was crucial to operation of the pumps at such high temperatures. We agree with the decisions described above that when the noxious component of the product is essential to its intended operation, the connection factor is strengthened, and strongly favors finding a duty to warn.
(iii) The "
(v) The "
(vi) The "
Respondents, however, frame this factor as whether insurance for the risk could be procured today and cite Coates v. Southern Maryland Electric Cooperative, Inc., for the proposition that this factor is forward-looking. 354 Md. 499, 731 A.2d 931 (1999). The issue in Coates was whether a utility company owed a duty to plaintiffs, who crashed into a utility pole in a car accident. Id. at 503, 731 A.2d at 933. Respondents assert that one reason the court in Coates rejected the proposed duty was because it was concerned that imposing a duty would "quickly remove the availability of affordable liability insurance for utilities." Id. at 524, 731 A.2d. at 944. The horse is already out of the barn on this one—most, if not all, insurance policies now contain asbestos exclusions. Respondents even recognize this point when they declare "that liability for coverage for asbestos risks has been unavailable in the market at any price" since the mid-1980s. Thus, the availability of insurance counsels in favor of imposing a duty.
Balancing the Factors
As we have said, in negligence cases involving personal injury, the principal determinant of duty is foreseeability. Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 416, 879 A.2d 1088, 1093 (2005); Jacques v. First Nat'l Bank of Md., 307 Md. 527, 534-35, 515 A.2d 756, 759-60 (1986). The foreseeability of harm to workers servicing pumps with asbestos gaskets and packing is especially strong where a manufacturer knows or should know that these components are necessary to the proper functioning of its product and must be replaced periodically. Evaluating the other factors, we consider that four factors favor imposing a duty, one is neutral, and only one slightly tips against imposing a duty. When these factors are considered along with the predominant foreseeability factor, finding a duty becomes the clear choice. Thus, we conclude that the duty to warn in this context exists in the limited circumstances when (1) a manufacturer's product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know of the risks from exposure to asbestos.
We have recognized that "[a]t its core, the determination of whether a duty exists represents a policy question of whether the specific plaintiff is entitled to protection from the acts of the defendant." Gourdine, 405 Md. at 745, 955 A.2d at 783; see Patton, 381 Md. at 637, 851 A.2d at 571 ("In determining whether a duty exists, `it is important to consider the policy reasons supporting a cause of action in negligence.'") (quoting Valentine v. On Target, Inc., 353 Md. 544, 550, 727 A.2d 947, 950 (1999)).
Respondents warn that imposing liability here would be poor public policy and inflict "crushing transaction costs for the ongoing support of litigation against defendants who did not manufacture or sell the
We have seriously considered the California Supreme Court's decision in O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987 (2012)—a case cited frequently by Respondents as a seminal case supporting their claim that manufacturers cannot be held liable for harm arising from asbestos-containing component parts supplied by third parties.
The California Supreme Court explicitly held that "a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product
Moreover, the court based its decision at least in part on its reading of the factual
Applying our four-part test in this case, it is undisputed that Respondents sold pumps with asbestos-containing components to the Navy. In contrast to O'Neil where "the evidence did not establish that defendants' products needed asbestos-containing components or insulation to function properly," 135 Cal.Rptr.3d 288, 266 P.3d at 1004, the record here contains evidence that Respondents' pumps required asbestos-containing components to function because no other suitable material could be used in high temperature applications. This case is similar to Quirin, where the court distinguished the record before it from that in O'Neil in concluding that manufacturers had a duty to warn. See Quirin, 17 F.Supp.3d at 770 ("[I]n contrast [to O'Neil], the record contains sufficient evidence for a reasonable jury to conclude that [the manufacturer's] valves required asbestos-containing components to function in the high-heat applications for which they were marketed."). The Quirin, court noted that although the manufacturer cited evidence that non-asbestos materials could be used with its product, "nothing in the record indicate[d] that such materials were suitable for high-heat applications." Id. (emphasis added). Respondents' manuals also contained sections on maintenance that detailed how to replace gaskets and packing, as well as a section on how to order replacement parts—but no warning about the danger of asbestos. May testified that he removed "hundreds and hundreds and hundreds of gaskets" in the over 18 years he served in the Navy.
In addition, the record contains sufficient evidence for a reasonable jury to conclude that warnings, had they been given, would have reached May. May testified that he would go to the log room and consult the instruction manuals on any piece of equipment he serviced. Moreover, as Respondents' state of knowledge about the dangers of asbestos was not the subject of their motion for summary judgment, we do not address the sufficiency of evidence adduced by Petitioner on this issue. See Higginbotham v. Pub. Serv. Comm'n of Md., 412 Md. 112, 147, 985 A.2d 1183, 1203 (2009) ("It is a `rule of Maryland procedure that, in appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment.'") (emphasis omitted) (quoting Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 729 (2001)). Summary judgment on Petitioner's negligent failure to warn claims was thus inappropriate.
II. Strict Liability Failure to Warn
In Phipps v. General Motors Corp., 278 Md. 337, 352-53, 363 A.2d 955, 963 (1976), Maryland embraced the concept of strict liability as a basis for products liability and expressly adopted the elements contained in the Restatement (Second) of Torts § 402A (1965). Section 402A provides in pertinent part:
In Owens-Illinois, Inc. v. Zenobia, we considered Comment j of the Restatement § 402A applicable to failure to warn claims predicated on strict liability. 325 Md. 420, 436, 601 A.2d 633, 641 (1992) ("The Phipps opinion expressly indicated that our adoption of § 402A included the official comments.") (citing Phipps, 278 Md. at 346, 363 A.2d at 959-60). Comment j explains that a seller is only required to give a warning "if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge" of the product's dangerous propensity. Restatement (Second) of Torts § 402A cmt. j. Relying on Comment j, the Court in Zenobia thus determined that knowledge is an essential element of a strict liability failure to warn claim. 325 Md. at 420, 601 A.2d at 641.
Consequently, we recognized that "in a failure to warn case governed by the Restatement § 402A and Comment j, negligence concepts to some extent have been grafted onto strict liability." Zenobia, 325 Md. at 435, 601 A.2d at 640; see David G. Owen, Products Liability Law § 10.4, at 668 (3d ed. 2015) ("[C]omments j and k[ ] address the duty to warn in negligence terms and effectively provide that the duty to warn under § 402A is limited to foreseeable risks."). More recently, we acknowledged that "negligence concepts and those of strict liability have `morphed together'. . . in failure to warn cases." Gourdine, 405 Md. at 743, 955 A.2d at 782; id. ("Duty, thus, is an essential element of both negligence and strict liability causes of action for failure to warn.").
Because of the intersections between strict liability and negligent failure to warn claims, we conclude that a manufacturer has a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce in strict liability in the same narrow circumstances as in negligence. That is, a manufacturer will have a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce in strict liability only where (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know of the risks from exposure to asbestos.
In strict liability, Respondents' theory that no duty arises when the defendant never touched the offending asbestos components is equivalent to the defense that
Petitioner asserts and Respondents do not deny that the asbestos gaskets and packing that replaced the component parts in the original pumps sold by Respondents were identical to the original components.
Our four elements necessary to establish duty in this context, stated above, ensure compliance with the substantial modification doctrine. Part of the first element—that a manufacturer's product contains asbestos—requires that a manufacturer's product be defective when it leaves the manufacturer's hands. The second element—the product will not function properly without using asbestos—requires that the manufacturer's product remains defective when the user of that product suffers harm. The necessary replacement of asbestos components with identical components cannot be said to constitute a substantial modification. Consequently, our test for determining whether a manufacturer has a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce incorporates the substantial modification doctrine.
We are not persuaded by Respondents' argument that the asbestos gaskets and packing themselves are the "product" for purposes of strict liability analysis. Common sense tells us that the pumps were what Respondents sold to the Navy, and the gaskets and packing are included within that product.
We have studied Ford Motor Co. v. Wood and the out-of-state cases cited by Respondents refusing to impose any liability when the offensive product was a replacement from a third party.
We must stress that a manufacturer is generally not strictly liable for products it has not manufactured or placed into the stream of commerce. As the Court in Phipps cautioned: "Despite the use of the term `strict liability' the seller is not an insurer, as absolute liability is not imposed on the seller for any injury resulting from the use of his product." 278 Md. at 351-52, 363 A.2d at 963. Our holding that a manufacturer has a duty in strict liability to warn of asbestos-containing replacement components that it has not placed into the stream of commerce in limited circumstances is in accord with the recognition that the reach of strict liability is not boundless. Mindful of the Court's admonition in Phipps that a seller is not an insurer, we carefully decline to extend the duty to warn to all instances when a manufacturer can foresee that a defective component may be used with its product.
This Court concludes that a manufacturer will have a duty to warn under negligence and strict liability when (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know the risks from exposure to asbestos.
We agree with Petitioner that Maryland law strikes a balance between the need for persons injured by products to obtain compensation and justice and the canon that product manufacturers are not absolute insurers of their products. To strike this balance, we preserve the rule that a company is not generally liable for asbestos-containing parts it does not manufacture or place into the stream of commerce, but recognize that narrow circumstances exist where a manufacturer can be liable for products it has not touched. Accordingly, we reverse the Court of Special Appeals' affirmance of summary judgment on Petitioner's duty to warn negligent claim and strict liability failure to warn claim.
BATTAGLIA and WATTS, JJ., dissent.
Dissenting Opinion by WATTS, J., which BATTAGLIA, J., joins.
Respectfully, I dissent. I would affirm the judgment of the Court of Special Appeals. In this case, Petitioner contends that, in a products liability case, a manufacturer may be liable for an individual's injuries caused by a third party's replacement parts; and Petitioner points out that other jurisdictions have held that there is a duty to warn in such circumstances.
Respondents respond that they are not liable in tort for any injury caused by exposure to asbestos from other manufacturers' products; i.e., Respondents cannot be held liable for replacement parts or any later-added parts made and sold by others. Respondents contend that "Maryland courts[,] applying  strict liability principles[,] have never held a manufacturer liable for injury caused by another manufacturer's product, even when foreseeably used with the manufacturer's own product." (Emphasis omitted). Stated otherwise, Respondents assert that, as the Court of Special Appeals did, this Court should reject the imposition of strict liability on a manufacturer for harm caused by another's product. And, I agree.
I would hold that manufacturers of products cannot be held liable for failing to warn of the dangers of replacement or later-added parts that they neither manufactured nor placed into the stream of commerce. Thus, here, having undisputedly neither manufactured, marketed, sold, nor otherwise placed into the stream of commerce the replacement or later-added parts that led to Mr. May's exposure to asbestos and subsequent injury, Respondents cannot be held liable for a failure to warn of the dangers of those asbestos-containing products. As discussed in Phipps v. Gen. Motors Corp., 278 Md. 337, 340-41, 363 A.2d 955, 957 (1976) and as set forth in Restatement (Second) of Torts § 402A (1965)—and as developed through Maryland case law—strict liability is tied to a person or entity that is a seller or manufacturer of a product. Indeed, in Phipps, at no point did this Court suggest that strict liability was applicable to a person or entity outside of the stream of commerce, i.e., to a non-seller or non-manufacturer of the injury-causing product. And, Restatement (Second) of Torts § 402(A) is entitled "Special Liability of
In Phipps, 278 Md. at 353, 363 A.2d at 963, for the first time, this Court adopted the theory of strict liability set forth in the Restatement (Second) of Torts § 402A, which states:
(Emphasis added). This Court stated that, to recover in strict liability, a plaintiff must establish that "(1) the product was in defective condition at the time that it left the possession or control of the
We noted that one of the justifications for imposing strict liability in tort on manufacturers was that "the cost of injuries caused by defective products should in equity be borne by the
Id. at 352, 363 A.2d at 963 (emphasis added) (internal quotation mark omitted). More recently, in Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 510, 16 A.3d 159, 167 (2011), this Court quoted the following proposition of law: "Maryland courts apply traditional products liability law[,] which requires the plaintiff to prove that the defendant
This core principle was reaffirmed in Ford Motor Co. v. Wood, 119 Md.App. 1,
As an alternative ground to uphold the jury's verdict, Mrs. Wood contended that, "regardless of who manufactured the replacement parts, there was sufficient evidence from which the jury could infer that Ford had a duty to warn of the dangers involved in replacing the brakes and clutches on its vehicles." Id. at 33, 703 A.2d at 1330. The Court of Special Appeals rejected that contention, first holding that Mrs. Wood had not tried the case on that theory and, as such, Ford had not been afforded the opportunity to defend against that theory. See id. at 33, 703 A.2d at 1330. The Court of Special Appeals also held that, even had the case been tried on such a theory, Ford would not be "liable for unreasonably dangerous replacement component parts that it neither manufactured nor placed into the stream of commerce." Id. at 34, 703 A.2d at 1331. The Court of Special Appeals surveyed the law on the issue and noted that, "[a]s a general matter, . . . courts that ha[d] considered the issue ha[d] held that a vehicle manufacturer may be held liable in damages for component parts manufactured by another only if the vehicle manufacturer incorporated the defective component into its finished product." Id. at 34, 703 A.2d at 1331 (citations omitted). The Court of Special Appeals observed that such "assembler's liability" was
Id. at 34, 703 A.2d at 1331 (citations omitted).
Conversely, the Court of Special Appeals observed that other courts had "noted
Id. at 35, 703 A.2d at 1331 (citation omitted) (alteration and ellipses in original). Accordingly, the Court of Special Appeals declined to hold that Ford had "a duty to warn of the dangers of a product that it did not manufacture, market, sell, or otherwise place into the stream of commerce." Id. at 37, 703 A.2d at 1332. The Court of Special Appeals further noted that, "regardless of whether Ford's duty to warn sounds in negligence or strict liability, it has a duty to warn only by virtue of its
May v. Air & Liquid Sys. Corp., 219 Md.App. 424, 432, 100 A.3d 1284, 1288 (2014) (footnote omitted). Simply put, to be strictly liable in tort one must be a seller or manufacturer of the product—original, replacement, or later-added—that caused injury. I would affirm this bedrock principle today.
Petitioner would have this Court expand strict liability to those who are neither the seller nor the manufacturer of an injury-causing product. In my view, to adopt Petitioner's position would be to impermissibly expand strict liability in all products liability cases—not just those involving asbestos products—and blur beyond recognition
Equally as significant, holding as Petitioner urges would overturn decades of strict liability law in Maryland established in the wake of Phipps. As a matter of public policy, a defendant who neither manufactures, sells, nor otherwise places a product into the stream of commerce generally is not in a "position to take precautions and protect against the defect." Phipps, 278 Md. at 353, 363 A.2d at 963. Nor is such a defendant able to "stand behind" a good that it did not manufacture or sell. Id. at 352, 363 A.2d at 963 (citation omitted). In other words, the justifications supporting imposition of strict liability—or liability for negligence, for that matter, see Wood, 119 Md.App. at 36 n. 7, 703 A.2d at 1331 n. 7—on a seller or manufacturer of an injury-causing product in a failure-to-warn case are absent where the defendant is neither the seller nor the manufacturer of the product. See, e.g., Gourdine v. Crews, 405 Md. 722, 743, 955 A.2d 769, 782 (2008) ("[N]egligence concepts and those of strict liability have `morphed together' . . . in failure[-]to[-]warn cases." (Citations omitted)).
Contrary to the Majority's analysis, in cases factually similar to the instant case, other courts have declined to hold a manufacturer liable for injury caused by another manufacturer's replacement or later-added part. For example, in O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987, 991 (2012), the Supreme Court of California held that "a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless the defendant's own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined used of the products." In O'Neil, id., Crane Co. and Warren Pumps, LLC (a Respondent in this case) "made valves and pumps used in Navy warships" and "were sued  for a wrongful death allegedly caused by asbestos released from external insulation and internal gaskets and packing, all of which were made by third parties and added to the pumps and valves post[-]sale." It was "undisputed that [the] defendants never manufactured or sold any of the asbestos-containing materials to which [the] plaintiffs' decedent was exposed." Id. In refusing to hold that the defendants were liable, the Supreme Court of California explained:
Id. (emphasis in original). At the conclusion of the opinion, the Supreme Court of California reiterated that it was "reaffirm[ing] that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer's product." Id. 135 Cal.Rptr.3d 288, 266 P.3d at 1005.
As another example, in Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493, 495 (2008), the defendants (including IMO Industries, Inc., a Respondent in this case) manufactured valves and pumps for Navy ships and, after the valves and pumps were installed, "the [N]avy applied asbestos-containing insulation to them"; the defendants had not "manufactured, sold, or otherwise supplied the asbestos insulation applied to their products." The Supreme Court of Washington held "that the defendant-manufacturers had no duty under common law products liability principles to warn of exposure to asbestos in the thermal insulation applied to their products by the [N]avy because a manufacturer generally has no duty to warn of hazards associated with another manufacturer's products." Id. at 503. The Supreme Court of Washington also held that there was "insufficient evidence to create a[n] issue of [material] fact with respect to whether the manufacturers had a duty to warn of the hazards of asbestos-containing packing and gaskets in or connected to their pumps and valves, and[,] as a matter of law[,] they had no duty to warn of these hazards." Id. at 503-04. The Supreme Court of Washington stated that "the policy underpinnings for strict liability. . . do not apply when a manufacturer has not placed the product in the stream of commerce." Id. at 498 (citations omitted).
Similarly, in Simonetta v. Viad Corporation, 165 Wn.2d 341, 197 P.3d 127, 129, 138 (2008), the Supreme Court of Washington held that a manufacturer could not be held liable in strict liability or negligence for failing to warn of the dangers of asbestos exposure resulting from the application of another manufacturer's insulation to the original manufacturer's product (an evaporator on a Navy ship). Specifically, the Supreme Court of Washington concluded that the original manufacturer could not "be held responsible for the asbestos contained in another manufacturer's product[,]" and because the original manufacturer "was not in the chain of distribution of the dangerous product, . . . it had no duty to warn under negligence, [and could not] be strictly liable for failure to warn." Id. at 138 (footnote omitted).
These cases, coupled with Maryland case law and the justifications supporting the imposition of strict products liability, as this Court adopted in Phipps, 278 Md. at 352-53, 363 A.2d at 963, convince me that, here, Respondents in this case had no duty to warn of the hazards of asbestos exposure associated with replacement or later-added parts that they neither manufactured, sold, nor otherwise placed into the stream of commerce.
Further advancing this conclusion is the circumstance that other courts, in cases involving non-asbestos products, have declined to impose liability for injury-causing products made by others that are outside of a manufacturer's chain of distribution, even if those injury-causing products are used in conjunction with the manufacturer's products. See, e.g., Dreyer v. Exel Indus., S.A., 326 Fed.Appx. 353, 354 (6th Cir.2009) ("Under Michigan law, [a] manufacturer or distributor of a paint sprayer [is not] liable for a user's burn injuries where the solvent [that was] used to clean the sprayer ignited[.]"); In re Deep Vein Thrombosis, 356 F.Supp.2d 1055, 1062, 1068, 1069 (N.D.Cal.2005) (An airplane manufacturer that "did not design, manufacturer, install, replace[,] or refurbish any  allegedly defective seating" had no duty to warn the airlines or the passengers about the defective seats.); Sanders v. Ingram Equip., Inc., 531 So.2d 879, 879-80 (Ala.1988) (In a case involving the manufacturer of a garbage packer, which was mounted onto a truck chassis that another had manufactured and where an injured resulted from a defect in the chassis, the Supreme Court of Alabama held "that a distributor or manufacturer of a nondefective component is not liable for defects in a product that it did not manufacture, sell, or otherwise place in the stream of commerce.") Shaw v. Gen. Motors Corp., 727 P.2d 387, 389 (Colo.App.1986) (A manufacturer of a truck cab and chassis was not
This Court's holding in Patton v. U.S. Rugby Football, 381 Md. 627, 637, 851 A.2d 566, 571 (2004) offers zero support for the conclusion that Respondents had a duty to warn. Petitioner contends that a fact-specific analysis, utilizing the factors set forth in Patton, id. at 637, 851 A.2d at 571, is required to determine whether a duty to warn exists. Petitioner argues that several factors weigh in favor of finding that Respondents owed a duty to warn to Mr. May, including: (1) the foreseeability of harm; (2) the degree of certainty that Mr. May suffered the injury; (3) the closeness of the connection between Respondents' conduct and Mr. May's injury; (4) the moral blame attached to Respondents' conduct; (5) the policy of preventing future harm; (6) the extent of the burden to Respondents and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost, and prevalence of insurance for the risk involved.
Respondents respond that there was no need to weigh the Patton factors to determine whether a duty to warn existed. Alternatively, Respondents contend that the Patton factors weigh against imposing a duty to warn on Respondents.
In Patton, 381 Md. at 630, 643, 851 A.2d at 567, 574-75, a negligence case, this Court held that a rugby player and spectator did not establish that a special relationship existed between themselves and the tournament organizers such that the tournament organizers owed them a duty of care. In Patton, id. at 630, 851 A.2d at 567, a rugby player and his father, a spectator, while at an amateur rugby tournament, were struck by lightning. The rugby player was seriously injured; the father died. See id. at 630, 851 A.2d at 567. The rugby player and his family sued the tournament organizers and others for negligence. See id. at 630, 851 A.2d at 567. This Court began its analysis by reiterating that, to make out a prima facie case in negligence, a plaintiff must prove, among other things, "that the defendant was under a duty to protect the plaintiff from injury[.]" Id. at 636, 851 A.2d at 570. We observed:
In determining the existence of a duty of care, we considered, among other things:
I agree with Respondents that the factors outlined in Patton are not determinative in this case and that there was, and is, no need to weigh the factors to determine whether Respondents owed Mr. May a duty to warn. Patton involved negligence, not strict products liability; as such, in Patton, we neither commented on nor added to the understanding of what is required to bring a case for strict products liability. In Patton, this Court did not state that the factors necessary to determine whether a duty of care exists in negligence extend to determining whether a manufacturer in a strict liability case has a duty to warn in connection with products that it does not manufacture, market, sell, or otherwise place into the stream of commerce.
In Patton, 381 Md. at 632, 851 A.2d at 568, the rugby player and his family brought a claim of simple negligence against tournament organizers and others based on an alleged "failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes." In Patton, this Court neither addressed nor discussed products liability, either strict liability failure to warn or negligent failure to warn; in short, there was no discussion in Patton regarding failure to warn in strict liability or negligent products liability cases. And if there had been such a discussion in Patton concerning failure to warn products liability, either strict liability or negligent, it would have been pure dicta with absolutely no precedential value. Thus, contrary to the Majority's assertion, see Maj. Op. at 25-26 n. 22, 129 A.3d at 998 n. 22, Patton does not offer support in determining whether Respondents owed a duty in this case.
In Gourdine, 405 Md. at 737-38, 955 A.2d at 779, this Court considered two counts of product liability, "negligence and strict liability, [in which] Ms. Gourdine allege[d] that Lilly owed a duty to Mr. Gourdine to warn Ms. Crews about the risks of the combination of [two prescription drugs]." In Gourdine, id. at 739, 955 A.2d at 779-80, quoting Moran v. Faberge, Inc., 273 Md. 538, 552, 332 A.2d 11, 20 (1975), the Court recognized a framework for analysis in negligent failure to warn cases, stating:
The Court stated that "[t]his framework substantially mirrors that of a strict liability action[.]" Gourdine, 405 Md. at 739, 955 A.2d at 780. In Gourdine, id. at 745-46, 955 A.2d at 783, although the Court later discussed one the Patton factors, namely, foreseeability, with respect to duty under the common law, the Court did not adopt the Patton factors as an analysis for negligent failure to warn.
In any event, although the factors set forth in Patton need not be examined, addressing foreseeability, a factor that Petitioner contends "weighs heavily in favor of imposing a duty on" Respondents, leads to the determination that duty in this case
The foreseeability of harm caused by a replacement part—if, indeed, foreseeable—is neither dispositive of the question of whether a duty exists nor a predominant factor to be considered. See Maj. Op. at 19, 129 A.3d at 994. To adopt a pure foreseeability approach would be a slippery slope leading to limitless liability. See Wood, 119 Md.App. at 34, 703 A.2d at 1331 (The Court of Special Appeals held that Ford had no duty to warn of dangers associated with asbestos-containing replacement parts that others made or sold, even though such dangers were "associated with the foreseeable uses of its vehicles"; the Court noted that such an argument "obscure[d] the fact that [Mrs. Wood] really [was] attempting to hold Ford liable for unreasonably dangerous replacement component parts that it neither manufactured nor [otherwise] placed into the stream of commerce."); see also Faddish, 881 F.Supp.2d at 1371 ("[A] manufacturer's duty to warn, whether premised in negligence or strict liability theory, generally does not extend to hazards arising exclusively from other manufacturer's products, regardless of the foreseeability of the combined use and attendant risk." (Emphasis in original)); O'Neil, 135 Cal.Rptr.3d 288, 266 P.3d at 1004, 1005 ("California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together. . . . [T]he foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a nondefective product, or one whose arguably defective product does not actually cause harm." (Citation omitted)); Braaten, 198 P.3d at 501 ("[W]hether the manufacturers knew replacement parts would or might contain asbestos makes no difference because such knowledge does not matter[.]").
Faced with the untenability of a pure foreseeability analysis and the general inapplicability of the Patton factors, the Majority ultimately concludes:
Maj. Op. at 19, 129 A.3d at 994. Put simply, this holding has no support whatsoever in Maryland case law and is simply a recitation of the circumstances of the case.
In sum, for the above reasons, I would reaffirm the long-standing and heretofore unbroken principle that manufacturers of products cannot be held liable for failing to warn of the dangers of replacement or later-added parts that they neither manufactured
For the above reasons, respectfully, I dissent.
Judge BATTAGLIA has authorized me to state that she joins in this opinion.
Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797, 801 (S.D.N.Y. 2011).
Id. at 802-03 (emphasis in original) (citing Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148, 733 N.Y.S.2d 410, 412 (2001)).
O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987, 1005 (2012).
These two theories of liability are also distinct from a practical standpoint. In Zenobia, we observed that the availability of contributory negligence as a defense is an important difference between strict liability and negligent failure to warn claims:
325 Md. at 435 n. 7, 601 A.2d at 640 n. 7.
Petitioner and Respondents discuss three Washington Supreme Court decisions in their dispute over whether a manufacturer can be strictly liable for asbestos-containing replacement parts that it did not place into the stream of commerce. Compare Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127, 138 (2008) (holding "[b]ecause [product manufacturer] was not in the chain of distribution of the dangerous product, we conclude not only that it had no duty to warn under negligence, but also that it cannot be strictly liable for failure to warn"), and Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) (holding no duty to warn of the dangers of exposure to asbestos in products it did not manufacture and for which the manufacturer was not in the chain of distribution), with Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 282 P.3d 1069 (2012) (holding duty to warn of exposure to asbestos when manufacturers were not in the chain of distribution of the asbestos-containing products).
The most recent of these cases favors a duty to warn, but it does not overrule the earlier cases concluding that no duty exists. See Macias, 282 P.3d at 1083 ("While the chain-of-distribution requirement is undoubtedly the general rule . . . it is not absolute."). The opaqueness of Washington law makes it an uncertain predicate for either the majority or dissent. See Schwartz, 106 F.Supp.3d at 648 ("[I]t is not entirely clear from the rationale set forth in Macias whether and how a product manufacturer (such as a valve or pump manufacturer) would be liable under Washington law for internal component parts (such as replacement gaskets and packing) that it did not manufacture or supply that are used in connection with its product.").
Id. at 1077 (emphasis in original). Significantly, in Macias, id. at 1080, the Supreme Court of Washington—as the Majority acknowledges, see Maj. Op. at 27-28 n. 23, 129 A.3d at 999-1000 n. 23—did not overrule Simonetta and Braaten, and thus those cases remain good law. See Macias, 282 P.3d at 1080 ("The chain-of-distribution requirement has long been a part of this state's product liability law. . . . Simonetta and Braaten did not alter the common law principles. . . . In the present case, the holdings of these cases simply do not apply.").