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Ramsey v. Georgia Southern University Advanced Development Center

Supreme Court of Delaware

June 27, 2018

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.

          Submitted: April 18, 2018

          Court Below: Superior Court of the State of Delaware C.A. No. N14C-01-287 ASB

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          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, reverse the Superior Court's grants of summary judgment, and hold that a household member who regularly launders an employee's asbestos-covered clothing, like the plaintiff-spouse here, may sue her spouse's employer for its failure to provide warnings and safe laundering instructions. Consistent with our prior reasoning, however, the spouse cannot recover if the employer made adequate arrangements on-site to address the harms that may result from laundering asbestos-covered clothes, or gave the employee the information needed to protect himself or others who launder his clothes. In other words, the employer is in a safe harbor so long as it adequately addressed the harm at the workplace or gave its employee warnings and safe laundering instructions.

         Under this liability regime, we take into fair account the legitimate concerns about exposing asbestos product manufacturers to uncabined liability to myriad plaintiffs in take-home asbestos exposure cases. But, as important, we make sure that foreseeable plaintiffs who suffer serious injury have a basis for recovery, if they can prove out all the other elements of their claims.

         This duty scheme is consistent with long-standing principles of law that support liability for harm to others caused by a failure to exercise a minimal level of care in preventing a risk of harm: in a case like this, by failing to provide warnings and safe laundering instructions. Circumscribing the duties recognized here to what our courts have recognized is feasible ensures that the parade of horribles the defendant-manufacturers envision will never march.

         I.

         For purposes of this appeal, the facts we accept as well-pled from the dismissed complaint are simpler than the legal questions the parties' dispute about them pose. Robert Ramsey worked for Haveg Industries, Inc. (the "Employer") at its industrial plant for 24 years, from 1967 to 1992.[9] From 1967 to 1979, Mr. Ramsey worked as a maintenance worker and regularly handled asbestos products manufactured by Georgia Southern University Herty Advanced Development Center ("Herty") and Hollingsworth and Vose Company (together with Herty, the "Manufacturers") as part of his job of making pipes and pipe fittings.[10]

         The complaint alleges that the Employer used the Manufacturers' products in industrial processes that generated asbestos dust that settled on Mr. Ramsey's work uniform when he left work each day wearing his uniform.[11] Throughout this period, Mr. Ramsey's wife, Dorothy Ramsey, was the person who did the Ramsey family's laundry and regularly washed Mr. Ramsey's asbestos-covered uniform.[12] Mrs. Ramsey eventually suffered and died from lung cancer in 2015.[13]

         The facts of this case could give rise to some confusion. The focus of this opinion is on whether the asbestos product manufacturers who sold asbestos products to Mr. Ramsey's employer, Haveg, are liable to Mrs. Ramsey. The confusion is possible because Haveg was itself a manufacturer, who took the asbestos products the asbestos product manufacturers sold to it, and used them in manufacturing other products. For the sake of clarity, we refer to the defendants who sold the asbestos products to Haveg as the asbestos product manufacturers, or simply, the "Manufacturers." To distinguish its role, we refer to Haveg as the "Employer," because it was Mr. Ramsey's employer and the party that shaped the conditions under which he worked with the asbestos products.

         A.

         Before her death, Mrs. Ramsey sued the Manufacturers, alleging that their negligence caused her illness, because they knew of the dangers of asbestos exposure, did not "adequately warn [her] . . . of the risks of asbestos," did not "adequately package, distribute and use asbestos in a manner which would minimize the escape of asbestos fibers," and did not "take adequate steps to remedy" these failures.[14]

         The Manufacturers moved for summary judgment, [15] arguing they had no duty to warn Mrs. Ramsey of the dangers of take-home asbestos exposure under two of this Court's prior cases, Price v. E.I. DuPont de Nemours & Co.[16] and Riedel v. ICI Americas Inc.[17] To understand the parties' contending arguments in this case, and the reason the Superior Court ruled as it did in addressing them, it is critical to understand what Price and Riedel decided.

         B.

         In 2009, this Court considered the negligence claim of Lillian Riedel, who experienced take-home asbestos exposure when laundering her husband's asbestos-covered work uniform during the 28 years he worked at ICI Americas, Inc., a manufacturer of explosives, chemicals, pharmaceuticals, and insulation.[18] Mrs. Riedel alleged that ICI's "negligence in failing to take reasonable measures to prevent its employees from leaving the workplace with asbestos covered clothing, or to warn her or her husband of the hazards of 'take home' asbestos exposure, was the proximate cause of her asbestosis . . . ."[19]

         ICI moved for summary judgment, arguing it did not owe Mrs. Riedel a duty because she was never on ICI's premises, and her injury occurred at home.[20] ICI rejected the notion that a duty arises "because one's actions or inactions may foreseeably cause injury to another," contending instead that a duty arises where "the relationship between the plaintiff and the defendant is such that the law should impose a duty upon the defendant to 'protect the plaintiff from the harm that caused [her] injuries.'"[21]

Mrs. Riedel argued in response that ICI misconstrued her claim: she was not suing ICI in its capacity as a premises owner, but rather, "as the employer of someone (her husband) with whom she cohabited" whose "unsafe work practices . . . allowed her husband to bring home friable asbestos on his work clothing."[22] And "given ICI's extensive knowledge of the hazards of asbestos, a jury could conclude that ICI knew or should have known that, in the absence of appropriate safety measures or warnings, workers exposed to asbestos on its work sites could carry that asbestos home on their clothing and thereby expose members of the household to a dangerous carcinogen."[23] Viewing the facts in the light most favorable to Mrs. Riedel, the Superior Court assumed that:

Mr. Riedel was exposed to asbestos while working at ICI, that some of the asbestos would collect on his work clothes during the course of the day, that he wore those same asbestos-covered clothes home after work, . . . that Mrs. Riedel was exposed to friable asbestos while laundering these work clothes[, ] . . . that ICI did not warn either Mr. or Mrs. Riedel of the dangers of take home asbestos exposure, nor did it institute practices to prevent employees from leaving its work sites with asbestos dust on their clothing until some time after Mr. Riedel began working there[, and] . . . that Mrs. Riedel has contracted asbestosis and asbestos related pleural disease as a result of her exposure to asbestos on her husband's work clothes.[24]

         The Superior Court determined that the question of whether ICI owed Mrs. Riedel a duty depended on their relationship because "Delaware law requires the plaintiff to demonstrate the existence of a legally significant relationship between the plaintiff and the defendant before the common law 'will impose a legal obligation upon [the defendant] for the benefit of the [plaintiff].'"[25] The Superior Court then considered and rejected three potential bases of a legally significant relationship between Mrs. Riedel and ICI: the Restatement's "employer-based provisions" and "landowner-based provisions (including the so-called 'safe workplace doctrine')," both of which it found to be inapplicable because Mrs. Riedel "never stepped foot on the employer's property, "[26] and the Restatement's special relationship provision, which it also found to be inapplicable because of the lack of relationship "either between Mrs. Riedel and ICI or Mr. Riedel and ICI, that would justify the imposition of a duty upon ICI to control the conduct of its employee while acting outside the scope of his employment and off the ICI premises."[27] The Superior Court, "unaware of any basis in Delaware law upon which to impose a duty upon ICI to Mrs. Riedel as the employer of her spouse," granted summary judgment in favor of ICI.[28]

         Mrs. Riedel appealed, arguing that the Superior Court erred in focusing on her lack of a relationship with ICI, and that ICI's active release of asbestos was sufficient to create a duty of care.[29] This Court concluded that Mrs. Riedel presented a theory of nonfeasance to the Superior Court, but a theory of misfeasance on appeal. This was a critical difference because under the Restatement, one who commits misfeasance has "a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act," but one who commits nonfeasance has no duty of care, absent "a special relation between the actor and the other which gives rise to the duty."[30] If Mrs. Riedel had alleged nonfeasance, establishing that she had a special relationship with ICI was a prerequisite to a finding that ICI owed her a duty of care. But if she had alleged misfeasance, she could rely on the general duty of care that arises from affirmative conduct, without first having to establish the existence of a special relationship.

         Applying this framework, this Court found that Mrs. Riedel had, at least implicitly, pressed her claim below as one of nonfeasance, and not misfeasance. Acknowledging that "the trial judge did not explicitly address whether Mrs. Riedel alleged misfeasance or nonfeasance," this Court observed that the Superior Court "considered Mrs. Riedel's claim in a manner consistent with the (Second) Restatement's analysis of nonfeasance."[31] This Court agreed with the Superior Court's conclusion that the allegations of misconduct Mrs. Riedel presented were "fairly described as allegations of nonfeasance."[32]

         This Court determined that before the Superior Court, "Mrs. Riedel characterized ICI's alleged negligence as a failure either to prevent Mr. Riedel from taking asbestos home or to warn the Riedels of the dangers associated with Mr. Riedel wearing his work clothes home from the workplace."[33] Mrs. Riedel never argued to the Superior Court that ICI had committed some affirmative act that constituted misfeasance; rather, she "viewed ICI's negligence as a failure to control its employees," and sought to impose vicarious responsibility on ICI on the theory that "the principal, ICI, should be liable for the acts of its agent, Mr. Riedel."[34] She supported this argument with an analogy to case law recognizing, in certain circumstances, a psychiatrist's duty to protect third parties from his patient's conduct based on the special relationship between a doctor and patient.[35] She presented her take-home asbestos exposure claim in this way and distinguished it from the environmental exposure claims she brought against defendants other than ICI.[36]

         This Court found that Mrs. Riedel had presented the "vastly different theory of negligence" that "'ICI's asbestos release on its employee's clothes'" is, in fact, an act of misfeasance, just like the "'release of a deadly toxin via another vector such as the air . . . .'"[37] But this Court was "not persuaded by Mrs. Riedel's assertion that she pled misfeasance," because although Mrs. Riedel's complaint alleged "misfeasance in relation to Mr. Riedel (by exposing him to asbestos)," which she claimed occurred because ICI "'controlled the safety and working conditions and/or promoted the use of asbestos, at the sites where [her] husband worked, '" the complaint's allegation that ICI "fail[ed] to control Mr. Riedel" constituted "nonfeasance in relation to Mrs. Riedel . . . ."[38] For those reasons, the Court declined to consider Mrs. Riedel's argument on appeal that "ICI's affirmative release of asbestos into the environment constitute[d] misfeasance," and held that under Supreme Court Rule 8, she was procedurally barred from arguing a theory of misfeasance for the first time on appeal.[39]

         Having held that Mrs. Riedel had only fairly presented a nonfeasance theory, the Supreme Court then addressed whether the Superior Court had properly rejected her assertion that as a spouse of an ICI employee, she was in a special relationship with it. The Court affirmed because the only basis Mrs. Riedel offered to establish a special relationship, "ICI's occasional publication of a newsletter providing tips for its employees and their families to stay safe at home," was not "evidence that ICI undertook to warn its employees' families of all dangers" and was otherwise insufficient to establish a special relationship.[40]

         C.

         Two years later, in Price, another take-home asbestos exposure case, this Court considered a similar set of facts in the context of Patricia Price's appeal of the Superior Court's denial of her motion to amend her complaint to plead a theory of misfeasance, instead of nonfeasance, which she filed after this Court issued its decision in Riedel.[41] Mrs. Price had sued the DuPont Company, alleging that her exposure to take-home asbestos during the 34 years her husband worked at a company facility caused her to develop bilateral interstitial fibrosis and bilateral pleural thickening of the lungs.[42] Mrs. Price alleged that "DuPont knew or should have know[n] that persons within the Price home would be exposed to these asbestos fibers"; "that 'it was foreseeable that its employees' families . . . would handle the clothing'"; and "that DuPont's conduct was 'affirmative, active misconduct because it was only through the direct orders and desires of the DuPont Company that the fibers were released within its plant and . . . escaped beyond the plant to pollute" her home.[43] The Superior Court denied the motion to amend as futile because her proposed amendments sought to reshape her claim of nonfeasance into one of misfeasance, even though the underlying negligent conduct remained the same.[44]Mrs. Price appealed that decision to this Court.[45]

         This Court was closely divided on the key legal question: is an employer who causes its employee to work with products that create asbestos dust that settles on the employee's clothes fairly charged with misfeasance or nonfeasance for that conduct when the asbestos dust harms a person who launders the employee's clothes? The majority of this Court embraced the nonfeasance answer, in a chain of reasoning that went this way.

         In the first step, the Price majority found that Riedel held that a plaintiff who alleged that an employer's failure to prevent an employee "from taking asbestos fibers home or to warn" the employee and his spouse of the dangers of asbestos had a viable claim for nonfeasance.[46] To this point, the Price majority stated that although this Court in Riedel "did not decide the substantive issue directly, but rather, affirmed the judgment pursuant to Supreme Court Rule 8," the Riedel Court "did explain unequivocally that the facts underlying Mrs. Riedel's claim constituted nonfeasance" when it stated:

At trial, Mrs. Riedel characterized ICI's alleged negligence as a failure either to prevent Mr. Riedel from taking asbestos home or to warn the Riedels of the dangers associated with Mr. Riedel wearing his work clothes home from the workplace. That is, to the trial judge Mrs. Riedel presented a theory of nonfeasance.[47]

         In the second step, the Price majority observed that "[t]he conduct Mrs. Price complains of here is indistinguishable from the conduct about which Mrs. Riedel complained."[48] Those allegations were that:

(1) Mr. Price, an employee of DuPont, worked with and around products containing asbestos for 34 years, (2) asbestos fibers settled on his skin, clothing, and vehicle, (3) DuPont did not provide locker rooms, uniforms, or warnings to the Prices regarding the dangers of asbestos, (4) DuPont did not prevent Mr. Price from transporting the asbestos fibers home on his skin, clothing, and vehicle, and (5) Mrs. Price, because she lived with Mr. Price and washed his clothes, developed several diseases from her exposure to the asbestos he brought home from work.[49]

         The Price majority found that "[t]hese allegations generate a reasonable inference that DuPont wrongfully (negligently) failed either to prevent Mr. Price from taking asbestos home or to warn the Prices of the dangers associated with Mr. Price wearing his work clothes home. That, according to our Riedel opinion, is pure nonfeasance- nothing more."[50]

         In the final step, the Price majority determined that because "nonfeasance and misfeasance describe substantively different conduct, nonfeasance cannot constitute misfeasance."[51] That is, the Price majority held that conduct could not be both misfeasance and nonfeasance; it had to be one or the other. The Price majority then concluded that "Dupont's failures to prevent Mr. Price from taking asbestos fibers home or to warn the Prices about the dangers of asbestos do not rise to the level of affirmative misconduct required to allege a claim of misfeasance. No amount of semantics can turn nonfeasance into misfeasance or vice versa."[52]

         Based on this reasoning, the Price majority affirmed the Superior Court's denial of Mrs. Price's motion to amend her complaint because her proposed amended complaint still pled nonfeasance, and she had not offered any new facts sufficient to establish the existence of a special relationship, as required to sustain an allegation of nonfeasance against her husband's employer.[53]

         The Price dissent, by contrast, had a different read of what this Court decided in Riedel, and argued that because "[t]he Riedel Court never decided whether Riedel's claim was properly characterized as nonfeasance," the majority had transformed a decision applying a procedural rule "into a decision on the very issue Riedel did not consider-whether a so-called 'take home' asbestos claim is properly characterized as a claim of misfeasance or nonfeasance."[54] The Price dissent, considering the substantive issue it found that Riedel had not addressed and drawing on examples from the Restatement and Prosser and Keeton's treatise, illustrated the typical fact pattern of a situation constituting nonfeasance:

A classic example of conduct properly analyzed as nonfeasance arises when a passerby sees someone drowning but does nothing to aid the victim. Absent a special relationship, the law generally would not impose a duty on the passerby because he did not create a new risk of harm to the swimmer. Instead, the swimmer fell "into peril through no conduct of the actor." The passerby merely failed to act; he made the swimmer's situation no worse.[55]

         Citing the distinction between misfeasance and nonfeasance articulated by Prosser and Keeton, the Price dissent contended that "DuPont's conduct is properly analyzed as misfeasance because, unlike the passerby, DuPont performed an 'affirmative act' that 'created a new risk of harm, '" which was "the release of asbestos in the workplace," conduct that precluded any argument "that the employee came into peril through no conduct of DuPont, or that DuPont 'made [the employee's] situation no worse.'"[56] The Price dissent found support for this conclusion in the fact that "[o]ther jurisdictions that have addressed whether 'take home' asbestos claims constitute misfeasance or nonfeasance have found them to constitute misfeasance."[57]

         The Price dissent rejected the majority's focus on remedial efforts like "DuPont's failure to provide Mr. Price a breathing mask," and argued that "[r]egardless of the remedial steps [DuPont] might have taken, the fact remains that [DuPont]'s release of asbestos into the workplace caused harm to Mr. Price," making that conduct misfeasance that "is not transformed into nonfeasance" by identifying actions that DuPont could have taken to remedy Mr. Price's exposure after the fact of his exposure.[58] In support of its reasoning, the dissent cited § 284(a) of the Restatement, under which negligent conduct may be "an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another . . . ."[59]

         The Price dissent acknowledged that DuPont "harmed Mr. Price directly, without any act by another," and "harmed Mrs. Price only because Mr. Price unknowingly brought the asbestos home with him," but asserted that the "same analysis should apply to Mrs. Price's claim" because "that difference has no bearing on whether DuPont acted or failed to act."[60] Rather, the dissent argued, Mrs. Price's exposure to harm through her husband, rather than by direct exposure, "bears on the separate question of whether it was foreseeable that [DuPont's] conduct would harm Mrs. Price," not on whether DuPont's conduct constituted misfeasance in the first place.[61] In the dissent's view, the question of foreseeability was key because

[c]onsistent with the Restatement, Delaware tort law uses foreseeability to determine whether one person owes a duty to another. Thus, whether the law will impose a duty on DuPont will turn on whether the harm to Mrs. Price was foreseeable-whether DuPont should have recognized that its release of asbestos created an "unreasonable risk of [invading]" Mrs. Price's interests.[62]

         The dissent summarized Mrs. Price's amended complaint as alleging:

(1) Mr. Price worked at DuPont; (2) DuPont knew or should have known asbestos was dangerous to human health; (3) DuPont knew or should have known asbestos had a tendency to release fibers that would be transported to its employees' homes; (4) DuPont exposed Mr. Price to asbestos despite that knowledge; and (5) it thereby knowingly and wrongfully exposed Mrs. Price to asbestos, which made her ill.[63]

         It concluded that "[a]ssuming those allegations to be true, the injury to Mrs. Price was foreseeable," requiring reversal of the Superior Court's decision.[64]

         II.

         Riedel, and even more particularly, Price, thus framed the key basis for the Manufacturers' challenge to the viability of Mrs. Ramsey's complaint in the motions for summary judgment below. Because the Manufacturers only sold products to the Employer, they argued that they were even more distant from his wife, Mrs. Ramsey, than the Employer, and that as a matter of simple logic, they could not owe a duty to her if the Employer did not.[65] The Manufacturers construed Price and Riedel as holding that the "failure to prevent an employee from taking home asbestos fibers or warning of the dangers of asbestos 'do[es] not rise to the level of affirmative misconduct required to allege a claim of misfeasance, '"[66] and that Mrs. Ramsey's allegations that they failed to warn of the dangers of their products constituted nonfeasance.[67] The Manufacturers argued that, under Price and Riedel, where an employer or a manufacturer "'merely omits to act, '"[68] there is no duty absent a special relationship, [69] and because Mrs. Ramsey had not established the existence of a special relationship, they owed her no duty.[70]

         Mrs. Ramsey argued in response that the Manufacturers' position was grounded in a categorical legal error because the conclusions of Price and Riedel, dealing with an employer's possible liability, were inapplicable to asbestos product manufacturers because "relationship has no significance to a manufacturer or distributor of a product."[71] Distinguishing her claim against the Manufacturers from the claims against employers in Price and Riedel, Mrs. Ramsey clarified that she had not alleged "that [the Manufacturers] failed to warn [her] about a danger someone else created, as in Riedel and Price but that [the Manufacturers] made and sold a dangerous product without warning and placed it into the stream of commerce which injured [her]."[72]

         But rather than argue that this distinction required that the Manufacturers' liability be determined only by principles of negligence-based products liability law, Mrs. Ramsey first sought to show that her theory of harm was consistent with Price and Riedel by arguing that the Manufacturers "affirmatively acted to make and release into the stream of commerce asbestos-containing products," thereby committing misfeasance that, under Price and Riedel, meant that the Manufacturers' "duty to others is automatic."[73]

         Next, in defining the Manufacturers' duty arising from their acts of misfeasance, Mrs. Ramsey looked to § 388 of the Restatement and our case law defining a manufacturer's duty to warn.[74] Under these principles, the Manufacturers' act of manufacturing a dangerous asbestos product created a duty to warn Mrs. Ramsey, a foreseeable plaintiff, of the danger of exposure to that product.[75] In other words, Mrs. Ramsey argued that an asbestos product manufacturer was, by dint of the simple fact that it was a manufacturer, more responsible to employees and others exposed to its asbestos products than the employers who purchased and used the asbestos products.[76] She did so despite the reality that the Manufacturers were not in any direct relationship with Mr. Ramsey.[77]

         Straining to escape the negative consequences of Price and Riedel for her case, Mrs. Ramsey effectively hedged her argument, urging the Superior Court to disregard as inapplicable to her claims the threshold misfeasance-nonfeasance question because "privity and special relationship[s] are not required in product liability law, "[78] while also arguing that, because the Manufacturers' conduct constituted "acts that were active, not passive; misfeasance, not nonfeasance, "[79] they "had a duty under Delaware law to protect others from harmful events reasonably foreseeable."[80] Mrs. Ramsey thus attempted to situate her claims in a products liability analysis and distance them from Price and Riedel, while also showing that finding that the Manufacturers' actions constituted misfeasance was consistent with those cases. Mrs. Ramsey's strategy took into account the reality that our Superior Court had to follow Price and Riedel, and that she therefore could only survive the Manufacturers' motions for summary judgment by navigating around them.

         Presented with these arguments, [81] the Superior Court examined the holdings in Price and Riedel, extended the reasoning of those employer liability cases to Mrs. Ramsey's claim against the Manufacturers, and granted summary judgment in their favor, finding that the Manufacturers had not committed misfeasance as to Mrs. Ramsey, only nonfeasance, and did not owe Mrs. Ramsey a duty of care.[82]

         In so doing, the Superior Court first reviewed our case law governing a manufacturer's duty of care and found that rather than arguing the Manufacturers owed her a duty of care under § 388, Mrs. Ramsey "cursorily cite[d] to a comment under this section," discussed distinguishable cases, and "fail[ed] to provide ample authority to support her argument that this general duty of care extends, ipso facto, to the context of take-home asbestos exposure cases involving manufacturers."[83]

         Next, considering the applicability of Price and Riedel to the Manufacturers, the Superior Court focused its analysis on the nature of the relationship between the employer and the employee's spouse, noting that "[b]oth decisions appear to rest implicitly on the employer's role as a landowner and the employee's status as an invitee onto the employer's property."[84] The Superior Court observed that as to the employee, the employer's conduct-its "alleged failure to warn or make safe a dangerous condition on its property"-constituted misfeasance.[85] But the Superior Court found "that [the] same logic did not extend to the imposition of a duty on the employer to the employee's spouse," and "the employer's alleged 'conduct' towards the employee's spouse constituted claims of nonfeasance" because the employee's spouse "neither entered onto, nor lived next to, the employer's facility."[86] The Superior Court concluded that the "Price and Riedel Courts held that the employer did not engage in affirmative conduct that worked positive injury on the spouses of its employees; rather, they failed to act to protect a distant third party who never entered onto their property, "[87] and applied that conclusion to the claims of Mrs. Ramsey, who, like the plaintiffs in Price and Riedel, was not injured on the employer's property, but rather, by take-home asbestos transported there on her husband's uniform.[88] The Superior Court reasoned that recognizing a manufacturer's duty of care to an employee's spouse would create the "paradoxical result" that "the defendant with a closer relationship to the plaintiff," Mr. Ramsey's employer, "owes no duty of care . . . while a distant third party-the manufacturer- would be held to a general duty of care."[89] It thus declined to find that the Manufacturers owed Mrs. Ramsey a duty of care based on misfeasance, and granted the Manufacturers' motions for summary judgment because Mrs. Ramsey had not offered any facts establishing a special relationship sufficient to sustain her claims of nonfeasance.[90]

         III.

         Before this Court, Mrs. Ramsey appeals the Superior Court's grants of summary judgment in favor of the Manufacturers, arguing that it erred in finding that the Manufacturers did not have a duty to warn of the dangers of their asbestos products under § 388.[91] In resolving the contending positions of the parties, it is useful to keep in mind certain principles of Delaware law that both parties accept.

         For starters, it is plain that if the plaintiff in this case was Mr. Ramsey, and not his wife, he could state a claim against the Manufacturers for any harm resulting from his own exposure to the asbestos in their products, despite the fact that none of them had a direct relationship with him.[92]

         Under Delaware law, which embraces § 388 of the Restatement, [93] an asbestos product manufacturer whose products are later used in a facility can be held liable to an employee in that facility if the manufacturer has actual or constructive knowledge of the dangers of its product, has no reason to believe that users will realize the dangerous condition of the product, and does not warn users of the product's dangerous condition.[94] But, precisely because it is impractical to expect a manufacturer to warn employees it does not employ and does not know, a manufacturer can discharge its duty to warn, and thereby avoid liability, by warning and providing safe handling instructions to the employer to whom it sold the dangerous product.[95] "'Modern life would be intolerable unless one were permitted to rely to a certain extent on others' doing what they normally do, particularly if it is their duty to do so.' An employer has a duty as well as an economic interest in not exposing its employees to unnecessary dangers."[96] Thus,

when a supplier provides a product it knows to be dangerous to a purchaser/employer whom the supplier knows or reasonably believes is aware of that danger, there is no duty on the part of the supplier to warn the employees of that purchaser unless the supplier knows or has reason to suspect that the requisite warning will fail to reach the employees, the users of the product.[97]

         Because it is critical to developing fair and efficient liability rules for asbestos product manufacturers to understand the key role of employers, it is helpful to consider how the principles of the common law and the Restatement address the Employer's responsibility to provide employees like Mr. Ramsey with a safe workplace, and to warn them of any dangers attendant to their responsibilities. In so doing, we acknowledge the important complicating reality that in Delaware, as in many states, [98] an employer has no exposure in tort to employees for workplace injuries, even those causing death.[99] Instead, an employer is expected to provide workmen's compensation for those injuries, regardless of fault, [100] and the employee relinquishes his right to bring a negligence suit against the employer.[101] But, as in corporate law, the fact that a party is not exposed to damages liability does not mean that the party has no duty.[102] Under both common law and statutory principles, an employer has a responsibility to take reasonable measures to provide a safe workplace for its employees.[103]

         The established nature of this basic duty is underscored by cases addressing the duty of an employer to provide a safe workplace to the employees of independent contractors working on its premises. Under decisions of our courts embracing § 343 of the Restatement, [104] an employee of an independent contractor working in the workplace of another employer may hold that employer liable when the independent contractor employee is "injured as a result of the work (and negligence) of others including, arguably, the landowner," unless the independent contractor employee is "injured by the very hazards created by their own work on the property-the work they were contracted by the landowner to perform."[105] This limitation is based on the reality that "the contractor possesses superior knowledge of the dangers inherent in the work" it was hired to perform.[106]

         Together, these principles explain why an employer has an independent duty to warn its own employees of the dangers of exposure to asbestos products. First, the employer has a "common law duty . . . to provide a safe working place for the employee."[107] As a landowner, the employer also has an obligation to create a safe workplace for business invitees on its premises, such as its own employees.[108] And just as the independent contractor employer is uniquely responsible for the injuries of its independent contractor employees where those injuries result from a hazard the independent contractor created by virtue of the work it was contracted to perform, so too would an employer be responsible for injuries to its employees that result from the employer's creation of a danger on its premises, including its use of dangerous asbestos products in an unsafe manner.[109]

         For all these reasons, it is plain that the law expects employers to take reasonable steps to provide a safe workplace to all who work on their premises, including their own employees, and to provide them with adequate safety instructions and warnings, including any warnings relating to the dangers of working with asbestos products and handling clothes covered in asbestos dust.

         In light of these principles, the conundrum that the Manufacturers complain about in this case cannot rest on any argument that they did not owe a duty to warn the Employer of the dangers of their products, including the dangers that could ensue if clothes exposed to their asbestos products were not laundered in a manner that protected the person doing the laundering. Under law the Manufacturers do not dispute, [110] they owed that duty. Granted, they would also be able to argue that if they warned the Employer as their customer and as the employer who determined how their asbestos products were to be used, then they were entitled to rely on the Employer's duty to take heed of that warning and to share it with its employees as a defense against any suit against them.[111]

         Instead, the conundrum that the Manufacturers point to is this: how can a manufacturer be held liable for failing to provide a warning to an employee's spouse if the employer is immune for its own failure to do so?[112] Or to be even more specific, if Mrs. Ramsey could not recover against the Employer, how can she recover against the Manufacturers who had no control over Mr. Ramsey's exposure and no relationship with him?

         For her part, Mrs. Ramsey makes a different policy point. She stresses the ordinary reality upon which her claim is based, which is that members of an employee's household may launder his clothes.[113] And if the conduct of manufacturers and employers causes asbestos to go home on employees' clothes without any warning or safe laundering instructions, it is foreseeable that people like Mrs. Ramsey will be injured. Recognizing the strength of the argument that the Manufacturers are less culpable than the Employer, who controlled her husband's exposure, Mrs. Ramsey argues that to the extent Price and Riedel get in the way, they should be overruled.[114] Precisely because the employer is the active force in determining the circumstances in which employees use and are exposed to asbestos products, Mrs. Ramsey argues that this Court erred in finding that cases like this involve nonfeasance, not misfeasance.[115]

         These are all good points, and they convince us that we cannot avoid Mrs. Ramsey's request that we revisit our holdings in Price and Riedel, lest our law i) subject manufacturers to liability in circumstances where employers should also be potentially responsible; and ii) deny recovery to plaintiffs in circumstances where they were exposed to serious harm, and the responsible parties failed to take reasonable care to prevent that harm.[116] We do not lightly revisit these prior decisions, and respect that they were grounded in a well-justified concern that there must be clear limits to the duty owed by employers and manufacturers in cases like these. But that concern, in our view, can be addressed by establishing with clarity the scope of the duty that manufacturers and employers owe in this context, and by building on our law's long-standing recognition that manufacturers may discharge their duty to warn by giving an adequate warning to the employer, who is presumed to owe its employees a duty of care.[117] By parity of reasoning, an employer must have a duty to pass that warning on or otherwise protect its employees from the risk of harm arising from laundering asbestos-covered clothes, or the limitation on the manufacturer's duty makes no principled sense. Although an employer should not be exposed to liability to its employee's spouse if it discharged its duty to instruct the employee about what was necessary to launder his clothes safely so that he could protect himself and anyone he entrusted with that task, on what principled basis should the employer be immune if it never warned the employee?

         Put simply, a fair and efficient accountability system can be established by limiting the duty of asbestos product manufacturers and employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. Manufacturers may discharge their duty by warning employers, and employers may discharge their duty by warning employees. If the manufacturer has done so, a spouse of an employee may not recover from the manufacturer. If the employer has done so and given the employee the information needed to protect his spouse, the spouse may not recover from the employer. But if the contrary is the case, and the asbestos product manufacturer and the employer's failure to warn left the employee without the information needed to protect his spouse, his spouse should be entitled to recover if she can prove the other elements of her claim.

         In her complaint and in her arguments below and to this Court, Mrs. Ramsey focused on two related, but distinct questions. The first is whether she is a foreseeable plaintiff to which the Manufacturers owed a duty to "take all reasonable precautions to protect [her] and persons like her against an event, serious asbestos-related harm, i.e., asbestos-related lung cancer, that a reasonably prudent [manufacturer] would protect against"?[118] The second is what was the duty of care the Manufacturers had to fulfill in terms of product warnings and safe laundering instructions? Mrs. Ramsey argued below that the Manufacturers' duty of care under § 388 required them to warn her directly of the dangers of laundering Mr. Ramsey's work clothes. We agree with Mrs. Ramsey's first argument, but find that her second argument goes too far.

         As we will discuss, Mrs. Ramsey is a plaintiff foreseeably affected by the Manufacturers' actions and should be entitled to recover. But that does not mean that her claim can be fairly grounded in a requirement that the Manufacturers, or even the Employer, had a duty to warn her directly. To the extent that Mrs. Ramsey argues that the "reasonable precautions"[119] required of the Manufacturers or the Employer included inquiring into employees' household dynamics, determining who is responsible for doing the family laundry, and delivering to that person a personalized warning, we find that those steps are unreasonable and not required by law. Instead, the Manufacturers' reasonable duty of care only required them to provide adequate warnings and safe laundering instructions to the Employer so it could provide this information to its employees in a manner tailored to their work circumstances and exposure to the Manufacturers' asbestos products.

         We now explain why this result makes sense in view of established principles of negligence liability, starting with those applicable to manufacturers.

         IV.

         Under § 388 of the Restatement and Delaware law, a manufacturer has a duty to warn users of the ...


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