Austin v. Raybestos-Manhattan, Inc., RAYBESTOS-MANHATTA

• Decision Date: 17 January 1984
• Docket Number: INC,RAYBESTOS-MANHATTA
• Citation: 471 A.2d 280
• Parties: Margaret AUSTIN v.
• Court: Maine Supreme Court

Page 280

471 A.2d 280

Margaret AUSTIN v. RAYBESTOS-MANHATTAN, INC.

Supreme Judicial Court of Maine.

Argued Oct. 17, 1983.

Decided Jan. 17, 1984.

McTeague, Higbee, Libner, Reitman & Priest, Maurice A. Libner (orally), Brunswick, for plaintiff.

Thompson, McNaboe & Ashley, Thomas R. McNaboe (orally), Leonard W. Langer, Mark G. Furey, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ.

McKUSICK, Chief Justice.

Invoking the mechanism for state-federal judicial co-operation authorized by 4 M.R.S.A. § 57 (Supp.1982-1983) and M.R.Civ.P. 76B, the United States District Court for the District of Maine has certified to our court the following question of Maine law:

Is Maine's comparative negligence statute, 14 M.R.S.A. § 156 [1980], applicable to plaintiff's claim in this action based on 14 M.R.S.A. § 221 [1980]?

Our answer is yes, but in only the limited way described in this opinion.

I. Factual and Statutory Background

The certified question has arisen in the course of a federal suit prosecuted by Margaret Austin, the administratrix of Blaine Austin's estate, against Raybestos-Manhattan, Inc., and other asbestos manufacturers. Subject matter jurisdiction of the federal court is founded solely on diversity of citizenship. Thus, the substantive law of Maine governs the action.

Blaine Austin worked as a painter and cleaner at Bath Iron Works from 1952 through the fall of 1976. In the course of his employment he was exposed to asbestos, and in October, 1977, he died from pleural mesothelioma, an asbestos-induced cancer of the lungs. Defendant Raybestos-Manhattan sold some of the asbestos to which Austin was exposed.

Plaintiff's federal complaint stated a cause of action based on negligence and also one based on strict liability under 14 M.R.S.A. § 221. ¹ At trial the federal district court directed a verdict for the defendants on the strict liability count. In doing so, the federal judge relied upon a dictum of Burke v. Hamilton Beach Division, 424 A.2d 145, 148 (Me.1981), to the effect that section 221 did not apply to claims involving a defective and unreasonably dangerous product sold prior to the date in 1973 when that strict liability section went into effect. On the negligence count, the jury made special findings that Raybestos-Manhattan was guilty of negligence that proximately caused Mr. Austin's cancer and death, but also found that his own contributory negligence ² was equal to, or greater than, the negligence of that defendant. Pursuant to the comparative negligence statute, 14 M.R.S.A. § 156, the court entered judgment for defendant Raybestos-Manhattan.

By the time plaintiff Austin's appeal to the First Circuit Court of Appeals was decided, we had held in Adams v. Buffalo Forge Co., 443 A.2d 932 (Me.1982), exactly contrary to the earlier Hamilton Beach dictum. However, the district court's error in directing a defendant's verdict was harmless, the First Circuit held, if under Maine law Mr. Austin's contributory negligence was a defense to the strict liability claim. Accordingly, the First Circuit remanded the case to the district court. Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.), cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). On remand, the federal district court certified to this court the above-quoted question of Maine law.

Maine's comparative negligence statute, ³ 14 M.R.S.A. § 156, was enacted in 1965. See P.L. 1965, ch. 424 (effective Sept. 3, 1965). Section 156 provides, in pertinent part:

Where any person suffers death or damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that death or damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the jury thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

....

Fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this section, give rise to the defense of contributory negligence.

If such claimant is found by the jury to be equally at fault, the claimant shall not recover. ⁴

Maine's strict liability statute, 14 M.R.S.A. § 221, was enacted in 1973. See P.L.1973, ch. 466 (effective Oct. 3, 1973). Under that statute, a plaintiff may recover for injuries resulting from an unreasonably dangerous, defective product without having to prove negligence on the part of the defendant in preparing or selling that product. Section 221 reads in full as follows:

One who sells any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it is sold. This section applies although the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Our analysis of the applicability of the comparative negligence statute to a strict liability action starts where Wing v. Morse, 300 A.2d 491 (Me.1973), left off. Section 156 is applicable at all only "[w]here any person suffers death or damage as a result partly of his own fault and partly of the fault of any other person or persons." For section 156 to apply, both the plaintiff (or her decedent) and the defendant must be at "fault," as fault is defined in that section. As Wing v. Morse, 300 A.2d at 499, noted, however, the term "fault" is used in two different senses in the introductory clause that defines the scope of section 156. In the first instance, in referring to the fault of a plaintiff, the term "fault" identifies matters of defense; in the second, in referring to the fault of a defendant, the term identifies grounds for liability. Id. The third sentence of section 156, which defines fault, contains not one, but two definitions. To read the statute otherwise would be to create liability for fault that at common law does not give rise to liability but merely to the defense of contributory negligence. Id. That consequence is avoided when the definitional sentence is read to define a defendant's fault as "negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort," and a plaintiff's fault as "negligence, breach of statutory duty or other act or omission which ... would, apart from [section 156], give rise to the defense of contributory negligence." See G. Williams, Joint Torts and Contributory Negligence § 76, at 318 (1951). We now analyze how these principles of Wing v. Morse apply to the defendant and the plaintiff in a strict products liability action.

II. The "Fault" of a Strict Liability Defendant

First, we conclude that any defendant who is subject to liability under section 221 is thereby determined to be at "fault" within the intendment of section 156. That section defines a defendant's fault to include, in addition to negligence, both a "breach of statutory duty" and any "other act or omission which gives rise to a liability in tort." A strict liability claim under section 221 does allege "fault" under either branch of the statutory definition of that term as applied to defendants.

"Breach of statutory duty. " An examination of the origins of our comparative negligence statute dispels any doubt of the propriety of applying the first phrase "breach of statutory duty" to the product sales that are made tortious by section 221. The relevant portions of section 156 were taken directly from the English Law Reform (Contributory Negligence) Act 1945, 8 & 9 Geo. 6, ch. 28. ⁵ See Wing v. Morse, 300 A.2d at 497. See also 2 Legis.Rec. 2588, 2589 (1965) (statements of Reps. Brennan and Berman). Where our legislature has adopted a statute from another jurisdiction, that jurisdiction's precedents are useful in interpreting our own statute. See Tibbetts v. Tibbetts, 406 A.2d 70, 76 (Me.1979); Mt. Vernon Telephone Co. v. Franklin Farmers' Co-op., 113 Me. 46, 92 A. 934 (1915). Although many English statutes create only an action for statutory negligence, see, e.g., Lochgelly Iron and Coal Co. v. M'Mullan, [1934] A.C. 1, many others impose strict liability for breach of a statutory duty. See Salmond & Heuston on the Law of Torts 236 (18th ed. 1981). The latter statutory actions have been distinguished from claims for negligence. See 35 Halsbury's Statutes of England 541 (3d ed. 1977). In John Summers & Sons, Ltd. v. Frost, [1955] 1 All E.R. 870, holding that the statutory duty to provide secure fencing for any dangerous part of factory machinery was strict, all five judges of the House of Lords approved the application of the contributory negligence defense against the strict liability imposed by the statute. See also London Passenger Transport Board v. Upson, [1949] 1 All E.R. 60. ⁶ Thus, prior to the time that Maine in 1965 took over almost verbatim the comparative fault provisions of the Law Reform Act of 1945, it was well established in English law that those provisions applied to strict liability imposed upon a "breach of statutory duty." This legislative history of our section 156 teaches us that a defendant's strict liability under a statute such as section 221 constitutes "fault" for purposes of comparing the responsibility of the parties.

"Act or omission which gives rise to a liability in tort. " The alternative definition of a defendant's "fault" even more clearly brings a strict products liability...