Ramsey v. Ga. S. Univ. Advanced Dev. Ctr.

• Decision Date: 27 June 2018
• Docket Number: No. 305, 2017,305, 2017
• Citation: 189 A.3d 1255
• Parties: Elizabeth RAMSEY, Personal Representative of the Estate of Dorothy Ramsey, Deceased, Plaintiff Below, Appellant, v. GEORGIA SOUTHERN UNIVERSITY ADVANCED DEVELOPMENT CENTER and Hollingsworth and Vose Company, Defendants Below, Appellees.
• Court: Supreme Court of Delaware

189 A.3d 1255

Elizabeth RAMSEY, Personal Representative of the Estate of Dorothy Ramsey, Deceased, Plaintiff Below, Appellant,

v.GEORGIA SOUTHERN UNIVERSITY ADVANCED DEVELOPMENT CENTER and Hollingsworth and Vose Company, Defendants Below, Appellees.

No. 305, 2017

Supreme Court of Delaware.

Submitted: April 18, 2018

Decided: June 27, 2018

Raeann Warner, Esquire (Argued ), JACOBS & CRUMPLAR, P.A., Wilmington, Delaware, for Appellant, Elizabeth Ramsey, Personal Representative of the Estate of Dorothy Ramsey, Deceased.

Eileen M. Ford, Esquire (Argued ), Megan T. Mantzavinos, Esquire, MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C., Wilmington, Delaware, for Appellee, Georgia Southern University Advanced Development Center.

Robert S. Goldman, Esquire, Lisa C. McLaughlin, Esquire, PHILLIPS, GOLDMAN, McLAUGHLIN & HALL, P.A., Wilmington, Delaware; Sarah P. Kelly, Esquire (Argued ), NUTTER, McCLENNEN & FISH, LLP, Boston, Massachusetts, for Appellee, Hollingsworth and Vose Company.

David W. deBruin, Esquire, THE deBRUIN FIRM LLC, Wilmington, Delaware, for Amici Curiae Delaware Trial Lawyers Association and American Association for Justice.

Peggy L. Ableman, Esquire, McCARTER & ENGLISH, LLP, for Amici Curiae Coalition for Litigation Justice, Inc., National Association of Manufacturers, and NFIB Small Business Legal Center; Mark A. Behrens, Esquire, Christopher E. Appel, Esquire, SHOOK, HARDY & BACON L.L.P., Washington, D.C., for Amicus Curiae Coalition for Litigation Justice, Inc.; Linda E. Kelly, Esquire, Quentin Riegel, Esquire, Leland P. Frost, Esquire, MANUFACTURERS' CENTER FOR LEGAL ACTION, Washington, D.C., for Amicus Curiae National Association of Manufacturers; Karen R. Harned, Esquire, Elizabeth Milito, Esquire, NFIB SMALL BUSINESS LEGAL CENTER, Washington, D.C., for Amicus Curiae NFIB Small Business Legal Center.

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

STRINE, Chief Justice:

This case requires us to consider some mundane realities and their implications for our tort law. If you want clean clothes, you need to launder them. If you want clean clothes and you work in an industrial facility that exposes you to dust from the processes carried out in the facility, you need to launder your clothes more often. If you are like many families in that situation, someone in your household, often a spouse, has the task of doing the laundry. And if you are the one with that task, and the dusty clothes you launder weekly or more for many years contain asbestos dust brought home from your spouse's workplace, your exposure to that asbestos dust could cause you to suffer serious injury and even death.

This is a "take-home"¹ asbestos case in which an employee's now-deceased wife sued the companies who supplied asbestos products to her husband's employer. Her husband's employer caused him to work with those products, and the asbestos in them came home on his clothes. The wife's theory of recovery against the asbestos product manufacturers is simple: under § 388 of the Restatement (Second) of Torts (the "Restatement"), which this State has embraced, an asbestos product manufacturer has a duty to warn foreseeable users of the dangers of its products, to the extent the asbestos product manufacturer has actual or constructive knowledge of that danger, and when it is unlikely that the user will discover the dangerous condition.² The legal question underlying this appeal is deceptively simple: May the spouse of an employee harmed by take-home asbestos exposure sue an asbestos product manufacturer and recover if it failed to provide warnings and safe laundering instructions to her spouse's employer, so he could protect himself or whoever laundered his clothes?

If one looks at the Restatement alone, this is a straightforward question with a straightforward answer. When a manufacturer supplies an asbestos product that it knows will be used in a downstream industrial process, it knows that if an employee involved in that later process gets dust from the asbestos product on his clothes, there is a danger of harmful exposure if care is not taken to limit exposure during the laundering process. Because it is common for an employee to have a household member, like a spouse, do the laundry, the plaintiff-spouse here is a foreseeable plaintiff and should be able to recover if the asbestos product manufacturer did not provide safe laundering instructions to the employer so the employer could in turn instruct its employees, who could then protect themselves and those who laundered their clothes.

But the defendant-manufacturers in this case resist this logic largely because of a strand of our case law addressing take-home asbestos claims against employers. In those cases, we held that an employer could not be liable in tort to the employee's spouse who laundered his asbestos-covered clothes repeatedly for years, even though the employer controlled the conditions under which the employee was exposed to asbestos dust in the workplace, and thus the extent to which the asbestos dust got on his clothes.³ The rationale for that holding was that, although the employer was the party that caused the clothes to become covered in asbestos dust, it did not engage in "misfeasance" under tort law, but only "nonfeasance," and therefore could not be liable to the employee's spouse, because it owed only the employee, and not his spouse, a duty of care.⁴ Based on this case law, the defendant-manufacturers argue that it does not make sense to immunize the employer from liability to the employee's spouse, but to hold the asbestos product manufacturers responsible, when it was the employer who shaped the conditions under which the employee worked with the asbestos products; failed to ensure that the employee's clothes were safely laundered on-site; and failed to give the employee safe laundering instructions for laundering his clothes at home, and the asbestos product manufacturers, by contrast, had no relationship with the employee and no control over his workplace exposure. Relatedly, the defendant-manufacturers suggest that if we hold that an employee's spouse can state a claim in a case like this, a menagerie of plaintiff classes will emerge, claiming to have been exposed to asbestos dust during encounters with employees of industrial facilities that used asbestos products.

These arguments have force. But their logic is best addressed by adhering to the basic principles that have long applied in this area of law, and by taking care to define what is required as reasonable care by an asbestos product manufacturer in this context.

Proceeding in this manner, we resist the defendant-manufacturers' invitation to act as if the test applicable to their conduct is identical to the test applicable to parties, such as employers or retailers, who might use or sell their asbestos products downstream. Instead, we adhere to § 388 of the Restatement, which has long governed whether manufacturers can be held liable for negligent failure to warn under our law. When applying § 388, the mundane realities of life make the spouses of employees who launder asbestos-covered clothes foreseeable plaintiffs to whom the manufacturers can be held liable. Taking into account, though, the argument that the asbestos product manufacturers are not in a position to warn employees directly, much less the other people who might launder employees' clothes, we circumscribe the conditions under which manufacturers can be held liable, applying established principles of our law. Under our law, an employee who is injured by asbestos products used in his workplace cannot ordinarily recover if the asbestos product manufacturer provided adequate warnings to the employer about the product's dangers and safe use.⁵ In that circumstance, the employee must rely on his employer to have passed on and followed the warnings and instructions. Likewise, in this context, so long as an asbestos product manufacturer has provided sufficient warnings to the employer about the dangers of the product and safe laundering instructions for how clothes exposed to the product should be laundered to avoid unsafe exposure, the manufacturer cannot be held liable to an employee's spouse. That is, so long as the asbestos product manufacturer provides safe laundering instructions to the employer, it will face no liability to an employee's spouse, or to any other person the employee entrusted to do his laundry.

We agree with the defendant-manufacturers that making them uniquely subject to suit in cases like this is difficult to rationalize. It is neither fair nor efficient to immunize employers who control employee exposure, are best positioned to inform employees of the risks of laundering asbestos-covered clothes, and are positioned to prevent dangerous at-home laundering altogether by requiring that employees' clothes stay on-site and be cleaned under conditions controlled for safety by the employer. The problem for the defendant-manufacturers, however, is that their argument underscores the potency of the plaintiff-spouse's position that our case law addressing employer liability in this context is not optimal, but does not counsel for immunity for them. That case law, to our mind, slights the importance of the employer's role as the active force that caused its employees to work with asbestos products under conditions that it shaped. By those actions, the employer engaged in misfeasance under the Restatement and other respected sources, because its affirmative acts created a risk of harm.⁶ A simple example shows why this is so. It might be nonfeasance to fail to tell someone that he has a "please kick me sign" on his back.⁷ It is misfeasance, however, if you are the one who put the sign there and then failed to tell the victim of your prank when he was about to stroll by a crowd of people wearing heavy boots.⁸ We therefore overrule our prior cases, to the extent necessary,...