Gaulding v. Celotex Corp.

• Decision Date: 14 April 1988
• Docket Number: No. 11-87-104-CV,11-87-104-CV
• Citation: 748 S.W.2d 627
• Parties: John Allen GAULDING et al., Appellants, v. The CELOTEX CORPORATION et al., Appellees.
• Court: Texas Court of Appeals

Page 627

748 S.W.2d 627

John Allen GAULDING et al., Appellants, v. The CELOTEX CORPORATION et al., Appellees.

No. 11-87-104-CV.

Court of Appeals of Texas Eastland.

April 14, 1988.

Rehearing Denied May 12, 1988.

Brent M. Rosenthal & Lisa A. Blue, Baron & Budd, Dallas, for appellants.

Kevin J. Cook & Gary D. Elliston, DeHay & Blanchard, Dallas, for appellees.

OPINION

DICKENSON, Justice.

This is a summary judgment case. Plaintiffs ¹ sued five corporations, ² seeking to hold them liable for the personal injuries and death of their mother, Ethel H. Gaulding. Plaintiffs' mother died on March 19, 1984, from lung cancer caused by asbestos from asbestos board which was purchased and installed in their parents' home on or about June of 1956. After plaintiffs judicially admitted that they "cannot identify the manufacturer of the asbestos-containing board in question" and agreed that "it is impossible to identify the manufacturer," the trial court granted the motions for summary judgment filed by all of the defendants. We affirm. ³

Plaintiffs present a single point of error which reads in full as shown The District Court erred in granting Defendants' Motions for Summary Judgment on the issue of causation, because theories of collective liability viable in Texas relieve the Plaintiffs of the burden of establishing the precise cause of injury.

A. Various theories, such as alternative liability, market-share liability, enterprise liability, and concert of action have been developed by other jurisdictions to enable a plaintiff injured by a toxic substance manufactured or sold in identical form by several companies to recover damages from each and any of such companies without the necessity of proving the identity of the manufacturer or seller of the precise substance to which the plaintiff was exposed.

B. Policy interests well-grounded in Texas tort law require the fashioning of a theory of collective liability to apply to cases such as the case at bar in which an innocent plaintiff could have been injured by one of several tortfeasors.

This point of error is overruled because this Court agrees with the trial court that "alternative liability," "collective liability," "market share liability," "enterprise liability," and "concert of action" have not been adopted as law in the State of Texas and, consequently, there are no genuine issues of material fact. ⁴

Plaintiffs concede the general rule that the burden of proof is on the plaintiff to prove that the tortious conduct of the defendant caused harm to the plaintiff. Plaintiffs cite the following cases as a basis for shifting this burden of proof: Abel v. Eli Lilly and Company, 418 Mich. 311, 343 N.W.2d 164 (1984); Bichler v. Eli Lilly and Company, 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982); Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980); Hall v. E.I. DuPont de Nemours and Co., Inc., 345 F.Supp. 353 (E.D.N.Y.1972).

Plaintiffs concede that:

No Texas court has considered whether Texas law prohibits, permits, or requires the imposition of collective liability in a case in which a Plaintiff is unable to identify the precise tortfeasor but can only identify a class of possible tortfeasors. (Emphasis added)

This Court declines plaintiffs' invitation to permit the imposition of collective liability against a "class of possible tortfeasors." The asbestos board was purchased secondhand more than 30 years ago, and plaintiffs concede that it would be "impossible to identify the manufacturer." We note that the Supreme Court of Oklahoma recently rejected the approach urged upon us by plaintiffs. ⁵ See Case v. Fibreboard Corporation, 743 P.2d 1062 at 1067 (Okla.1987), where the Supreme Court of Oklahoma responded to a certified question of law from the United States Court of Appeals for the Tenth Circuit by stating:

Although plaintiffs in asbestos related injury cases may not be able in all cases to identify potential defendants, the public policy favoring recovery on the part of an innocent plaintiff does not justify the abrogation of the rights of a potential defendant to have a causative link proven between that d...