In re Certified Question from 14TH Dist., Docket No. 131517. Calendar No. 2.

• Court: Supreme Court of Michigan
• Citation: 740 N.W.2d 206,479 Mich. 498
• Docket Number: Docket No. 131517. Calendar No. 2.
• Parties: 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. Ford Motor Company, Defendant.
• Decision Date: 25 July 2007

740 N.W.2d 206 479 Mich. 498 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.
Ford Motor Company, Defendant. Docket No. 131517. Calendar No. 2. Supreme Court of Michigan. Argued May 10, 2007. Decided July 25, 2007.

[740 N.W.2d 208]

Neil A. Kay, Waters & Kraus L.L.P. (by Charles S. Siegal, Leslie C. Maclean, and Loren Jacobson), Clark, Depew & Tracey (by Sean Tracey and Craig Depew), and Michael P. Fleming, P.C. (by Michael Fleming), West Bloomfield; Dallas, Texas, Houston, Texas, Conroe, Texas, for the plaintiffs.

Dickinson Wright P.L.L.C. (by Kathleen A. Lang and Phillip J. De Rosier), Robert W. Powell, and Craig A. Morgan, Detroit, Dearborn; Austin, Texas, for the defendant.

Lipson, Neilson, Cole, Seltzer & Garin, P.C. (by C. Thomas Ludden), and Deborah J. La Fetra and Timothy Sandefur, for amici curiae Pacific Legal Foundation. Bloomfield Hills; Sacramento, California.

Plunkett & Cooney, P.C. (by Mary Massaron Ross), Detroit, for amici curiae Michigan Defense Trial Counsel.

Michael B. Serling, P.C. (by Michael B. Serling), and the Lanier Law Firm (by C. Taylor Campbell), and Kay Gunderson Reeves, Birmingham; Houston, Texas, Dallas, Texas for amici curiae International Union of Bricklayers and Allied Craftworkers, Trowel Trades, Local No. 1. of Michigan.

Clark Hill P.L.C. (by F.R. Damm and Paul C. Smith), Detroit, for amici curiae Michigan Manufactures Association.

Charfoos & Christensen, P.C. (by David R. Parker), Detroit, for amici curiae Michigan Trial Lawyers Association.

Shook, Hardy & Bacon L.L.P. (by Victor E. Schwartz, Mark A. Behrens, Christopher E. Appel, and Dana M. Mehrer) (Crowell & Moring L.L.P. by Paul W. Kalish, Robin S. Conrad, Amar D. Sarwal, Ann W. Spragens, Robert J. Hurns, Sherman Joyce, Jan Amundson, Quentin Riegel, Karen R. Harned, Elizabeth A. Guadio, Donald D. Evans, and Gregg Dykstra, of counsel), Washington, D.C.; Kansas City, Missouri; Washington, D.C., Washington, D.C.; Des Plaines, Illinois; Washington, D.C., Washington, D.C., Washington, D.C.; Arlington, Virginia; Indianapolis, Indiana, for amici curiae Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, National Federation of Independent Business Legal Foundation, American Chemistry

[740 N.W.2d 209]

Council, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and American Tort Reform Association.

MARKMAN, J.

479 Mich. 501

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

479 Mich. 502

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 law,

479 Mich. 503

Ford, as owner of the property on which asbestos-containing products were located, did not owe to Carolyn Miller, who was

740 N.W.2d 210

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 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

479 Mich. 504

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, 725 N.W.2d 53 (2006).

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 N.W.2d 311 (2004), citing Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 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

479 Mich. 505

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 N.W.2d 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.

740 N.W.2d 211

McKay, 441 Mich. 96, 100-101, 490 N.W.2d 330 (1992), quoting Friedman, supra at 22 n. 9, 312 N.W.2d 585, quoting Prosser, Torts (4th ed.), § 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, 679 N.W.2d 311, quoting Murdock v. Higgins, 454 Mich. 46, 53, 559 N.W.2d 639 (1997), citing Buczkowski, supra at 100, 490 N.W.2d 330.

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, 679 N.W.2d 311, 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

479 Mich. 506

of the subsequently injured person.'" Buczkowski, supra at 101 n. 5, 490 N.W.2d 330, quoting Rodriguez v. Sportsmen's Congress, 159 Mich. App. 265, 270, 406 N.W.2d 207 (1987). "The duty to protect others against harm from third persons is based on a relationship between the parties." Buczkowski, supra at 103, 490 N.W.2d 330, citing Prosser & 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, 312 N.W.2d 585. "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, 490 N.W.2d 330, quoting Friedman, supra at 22, 312 N.W.2d 585, quoting Prosser & Keeton, Torts (5th ed.), § 53, p. 356. See also Buczkowski, supra at 100, 490 N.W.2d 330 (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

479 Mich. 507

this decision, we

740 N.W.2d 212

explained that "the duty of care in a medical malpractice action has its basis in the relationship between the physician and the patient." Dyer, supra at 50, 679 N.W.2d 311. 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....