*1 Doug SATTERFIELD
BREEDING INSULATION
COMPANY et al. Tennessee, Supreme Court of at Knoxville. Jan. 2008 Session. Sept. *4 Winemiller,
John A. and John T. Lucas Knoxville, Tennessee, for appellant, Al- coa, Inc. Coleman, Knoxville,
Gregory P. Tennes- see, Doug for the Satterfield. appellee, Miller, Martin B. Bailey John L. Knoxville, Tennessee, and Mark A. Beh- rens, DC, Washington, for the Amici Curi- ae, Inc., Litigation Justice, Coalition for Chamber of Commerce of the United America, States of National Association Manufacturers, National Federation of In- Foundation, dependent Legal Business Chemistry Council, American Property *5 America, Casualty Insurers Association of and National Association of Mutual Insur- Companies. ance Patterson, Timothy Memphis, D. Ten- nessee, and J. LaFetra Deborah and Timo- thy Sandefur, Sacramento, California, for Curiae, the Amicus Pacific Legal Founda- tion.
OPINION KOCH, JR., J.,
WILLIAM C. delivered court, opinion in of the which BARKER, C.J., WILLIAM M. CLARK, CORNELIA A. and GARY R. WADE, JJ., joined. M. JANICE HOLDER, J., concurring a separate filed and dissenting opinion.
This appeal involves the efforts of the estate of a twenty-five-year-old woman who contracted mesothelioma recover damages for her death. While she was alive, the a negligence woman filed action against employer, alleging her father’s negligently the employer permitted had her father to wear his asbestos-contami- work, nated work clothes home from thereby regularly repeatedly exposing her to over an asbestos fibers extended whether, fact, died, period of time. After the woman is not to determine in County permitted Circuit Court for Blount its negligent defendant was whether person- father her to be substituted as caused woman’s death. Be- conduct representative al of her estate. The em- in re- complaint was dismissed cause the ployer judgment plead- motion, moved for a on the sponse a Tenn. R. P. 12.03 Civ. ings ground on narrow that it owed are opinion the facts contained in duty to its employee’s daughter. The trial challenged in complaint.1 those found granted The court the motion. deceased appealed woman’s father the dismissal of I. daughter’s claim. wrongful his death Alcoa, Inc.2 is manufac- an international Appeals Tennessee Court of reversed the products. aluminum turer of aluminum and Breeding trial court. Insu- Satterfield operates It facilities in various owns and E2006-00903-COA-R3-CV, lation No. States, in- throughout locations the United (Tenn.Ct.App. 2007 WL Apr.19, Alcoa, Al- facility Tennessee. cluding a 2007). granted employer’s applica- We containing coa uses materials permission for appeal tion to determine manufacturing operations. many of its whether deceased complaint woman’s 1930s, has been aware Since the Alcoa judgment can a motion withstand for substance, highly dangerous asbestos is pleadings. We have determined that closely research it has monitored the because, alleged does under facts into dangers posed asbestos. complaint, employer owed a 1940s, its Beginning opened Alcoa regularly to those who extended *6 which hygiene department own internal periods of time came into close contact facili- provided to Alcoa’s local directives asbestos-contaminated work handling materials regarding ties employees prevent clothes of its to them fre- containing asbestos. Because of exposed from to a being foreseeable quent asbestos containing use materials risk of harm. unreasonable in Alcoa was manufacturing processes, its only The appeal issue whether air contained aware that the in its factories complaint of a woman who succumbed its high and that levels asbestos fibers should have been dis- mesothelioma these employees being exposed were solely defendant missed because the did daily fibers on a basis. reasonably to act pre- in the 1960s being repeatedly her Alcoa became aware exposed
vent ex- fibers posed by asbestos regularly period dangers over extended in employees who were beyond time to her tended its the asbestos fibers on father’s with the materials purpose appeal work The of this constant contact clothes. direct by re- complaint perceptual 1. When lenses worn through has been in dismissed motion, response Tenn. R. to a Civ. P. 12.03 determine asked to viewing courts when complaint liberally we must construe the motion Civ. P. 12.03 whether a Tenn. R. plaintiff's by taking favor all factual alle- granted. been should have gations complaint by giving in the as true and plaintiff the benefit of all inferences Company America The Aluminum reasonably plead- that can from the drawn Alcoa, changed Inc. in its name to Rains, ed facts. Lanier Company of complaint named “Aluminum Club, (Tenn.2007); Country Cherokee Inc. (Alcoa, Inc.)” We the defendant. America as Knoxville, City company as in this to the "Alcoa” will refer case, (Tenn.2004). doing In this we are noth- opinion. ing reviewing pleaded more than facts containing gers posed by asbestos or the asbestos fibers asbestos before Mr. Satter- in the air. It learned even intermit- field became an employee, ap- failed to tent levels of prise employees low asbestos him or its other fibers resulted an increased risk of dangers specifically dis- of the asbestos time, At approximately danger ease. the same wearing associated with home their Alcoa also learned that living near work clothes. In asbestos-contaminated addition, facilities that provide made extensive use of mate- protective Alcoa failed rials containing were experienc- coveralls for employees, discouraged its rates, ing higher facilities, disease were the fami- the use of its on-site bathhouse ly employees members of its who were and did employees’ not offer to launder its being exposed regularly and repeatedly facility. Accordingly, work clothes at its the asbestos employees’ fibers on the work employees, including Alcoa’s Mr. Satter- field, clothes. day left plant each unaware of dangers posed by the asbestos fibers In the Occupational Safety and on their work contaminated clothes and (“OSHA”) Health promul- Administration without an effort making prevent Alcoa gated regulations prohibiting employees being exposed others from to the asbestos who had exposed been to asbestos from employees’ fibers on its clothes. taking their work clothes home to be laun- dered. Tests that Alcoa conducted at a On September Amanda Nicole facilities, number of its including those in Satterfield was born to Mr. Satterfield and Tennessee, that the revealed levels of as- Donna Satterfield. Because her birth was bestos fibers on the workers’ clothes were premature, required spend she was extremely high. first three months of her life at the Uni- versity Hospital Knoxville, Tennessee Doug began Satterfield working Tennessee. Mr. Satterfield visited his in- Alcoa, facility at Alcoa’s Tennessee. He daughter day fant she every hospital- years worked there for two until he en- hospital ized. He came to immediately tered the United Army States in 1975. *7 after work his wearing asbestos-contami- After years military service, three Mr. stayed nated work and clothes with his working Satterfield resumed at the Alcoa daughter until into evening. late the plant 1978. He continued to work for Thus, birth, day from the her Ms. Sat- until Alcoa at job assign- least 1984. His exposed terfield was to the asbestos fibers ments resulted in his to high on her father’s work clothes. levels of asbestos dust fibers on a daily basis. eventually Ms. Satterfield diagnosed was
Contrary regulations, to the 8, 2003, OSHA Al- with mesothelioma. On December coa failed to Mr. educate Satterfield she filed against Breeding suit Insulation its other employees regarding Company, (“Breeding”) the risk of Inc. and Alcoa in asbestos or how to handle County. materials con- the Circuit Court Knox for She taining asbestos. though alleged Even highly Alcoa’s that mesothelioma is a le- employees extensively worked thal materi- form of cancer that is almost exclu- containing asbestos, als sively these materials by exposure did caused to asbestos not contain warning labels or notices stat- that she contracted mesothelioma as a di- ing they that Despite contained asbestos. rect negligent result of the acts and omis- fact the that Alcoa aware Breeding was of the dan- sions of both and Alcoa.3 The alleged complaint 3. Ms. Satterfield her that Alcoa was aware asbestos was a that known Appeals opinion to the Court nessee Court of filed case transferred Circuit 11, reversing dismissal Ms. Satterfield’s County February Blount on for complaint concluding after that trial Ms. died from mesothelioma Satterfield had holding court erred Alcoa January grant- The trial court on no to Ms. Satterfield under owed Satterfield, the motion Mr. ed filed complaint. alleged facts in the Satterfield estate, representative of his daughter’s Co., Breeding No. E2006- Insulation trial plaintiff. to be substituted as 00903-COA-R3-CV, 2007 WL also court allowed Mr. Satterfield 2007). (Tenn.Ct.App. Apr.19, *4-10 complaint his assert daughter’s amend applica- Alcoa P. 11 R.App. filed a Tenn. negligent acts and omissions permission appeal. tion for Because caused his Breeding proximately Alcoa and similar strikingly issues related to “take- daughter’s death. expo- or home” “transmission” asbestos 16, 2005, filed a On December Alcoa sharply sure cases have divided courts judgment R. motion Tenn. Civ. P. 12.03 throughout country and because this Alcoa that “as pleadings. on asserted implicates principles case core Tennes- legal a matter of law it owed law, granted applica- tort Alcoa’s see’s we Following a Amanda Nicole Satterfield.” permission appeal. tion for We have 30, 2006, January on the trial hearing trial erred by determined that the court 31, 2006, court filed an order on March complaint dismissing Satterfield’s Ms. dismissing complaint4 Ms. on Satterfield’s Appeals properly re- Court of ground provision that “there is no court’s versed trial dismissal (either Legisla- through Tennessee law alleged in complaint. on the facts Based interpretation) imposes ture Court duty of rea- complaint, Alcoa owed a party Alcoa a to a third legal on sonable care to Ms. Satterfield. of this under the facts and circumstances Breeding case.” Insulation Satterfield II. L-14000, *1 No. WL form, pivotal its most succinct (Blount 2006). Ct. Cir. Mar. whether, under this case is question 10, 2006, complaint, volun- April alleged On Mr. Satterfield in Ms. Satterfield’s facts care claims tarily dismissed Ms. Satterfield’s Alcoa owed a of reasonable that it Thereafter, Alcoa did against Breeding. April Ms. Satterfield. asserts Satterfield, It his to Ms. Mr. on behalf of not owe Satterfield. on it estate, imposing the trial such daughter’s appealed from contends that *8 an affirmative ob- improperly Ms. claims would create court’s dismissal of Satterfield’s 19, any 2007, despite to against April ligation Alcoa. the Ten- act absence On rare, that, abdomen). Although early mesothelioma is carcinogen and as human as 1960s, Alcoa also that aware of cancer associated common form most light exposure to asbestos intermittent exposure.”). with asbestos higher contracting were at a mesothe- risk Institute, lioma. See National Cancer also misunderstanding, we will In order to avoid Sheet, Questions Exposure: and Fact Asbestos complaint as Satterfield’s to the "Ms. refer Answers, http://www.cancer.gov/cancertopics/ complaint” though her was substi- even father 5, (last Aug. visited factsheet/Risk/asbestos following death. plaintiff her The tuted as 2008) ("Studies shown following of Alcoa’s relates to discussion lung cancer the risk of increase Satterfield, duty it not to Mr. owed to Ms. (a relatively rare cancer of and mesothelioma Satterfield. the thin that line the chest membranes relationship by Alcoa and of law to courts. West special between ei- be determined v. E. ther Ms. or her On Tenn. Pioneer Oil S.W.3d Satterfield father. Daniel, (Tenn.2005); hand, other Mr. Satterfield that his Bradshaw insists (Tenn.1993). Thus, daughter’s if complaint premised on the S.W.2d Ms. assumption that Alcoa Ms. Alcoa does owe a Satter- owed Satter- field, field a her claim must fail. of reasonable care because it created an unreasonable and foreseeable
risk harm to her. B. legal obligation is a to con Duty
A. form person to a reasonable standard of underlying dispute in this case is protect against care in order others fundamentally one characterization and Burroughs risks of harm. unreasonable classification. Has engaged Alcoa an (Tenn. Magee, 118 S.W.3d affirmative act that created an unreason- 2003); Assocs., Staples v. CBL & able and foreseeable risk of harm to Ms. (Tenn.2000). a general As Satterfield? If Alcoa did create such a rule, persons have a others to harm, risk of countervailing legal are there engaging refrain in affirmative acts principles policy or considerations person that a recognize reasonable “should determining warrant that Alcoa neverthe- as involving an unreasonable risk of caus Or, less owed no Ms. Satterfield? ing an invasion an interest of another” alternatively, does this case involve an or acts “which an unreasonable involve[] by omission Alcoa in failing to control the risk of harm to another.” Restatement Satterfield, actions of employee? Mr. its (Second) 284, 302, §§ of Torts so, If then does Alcoa have the sort of (1965). Thus, all, if an “acts at individual special relationship with Mr. either Satter- [he or must exercise reasonable care she] or field Ms. Satterfield that gives rise to a make his acts safe others.” [or her] duty to Mr. restrain or to pro- Satterfield (Second) b, § 4 Restatement of Torts cmt. tect Ms. Satterfield? The answers to negligence 8. The core of is the violation questions emerge these from consider- requirement by engaging “behav precedent ations of public policy, as recognized involving ior which as should as well the basic of Tennes- foundations danger Page unreasonable others.” W. tort see’s law. Keeton, on the Law Prosser Keeton (5th ed.1984) § Torts at 169 [hereinaf claim, prevail To on a negligence ter “Prosser and Keeton ”]. (1) plaintiff must establish care (2) not, however, owed the defendant to do plaintiff; require These rules falling persons always reasonably conduct the defendant act below the se- Rather, amounting safety they standard of care a breach of cure others. (3) (4) loss; duty; injury or causa serve a limited more role restraints fact; tion in proximate legal upon person’s actions that create unrea- *9 Valley cause. v. Forge Ins. sonable and foreseeable risks harm to Naifeh Life 758, (Tenn.2006); point 771 others. Expounding upon more Draper field, ago, v. than a Francis H. century Wester 181 S.W.3d Professor (Tenn.2005). Although originally that is no distinc- not re Bohlen asserted “[t]here law, quired English deeply under the common tion more rooted in the common an than that be- has become essential element of law and more fundamental claims, non-feasance, question a and be- negligence all as well as tween misfeasance working positive man who undertaken a definite tween active misconduct The has inaction, injury brings to and a action passive others course of continuous thus steps to to positive failure take benefit into human himself relation other others, protect or to from harm not possible them zone of dan- beings within the by any wrongful of the created act defen- ger, requiring precau- to an extent that primacy dant.” of this distinc- While to against bodily persons harm such tion debate, certainly subject is it tion to man the cir- which a reasonable under in the played significant has role forma- If to do would take. he fails cumstances is negligence beyond tion the law of so, as this is characterized misfeasance. dispute.
reasonable words, always In an actor is under other other are to see that only Professor Bohlen not scholar unrea- immediately exposed to an not enlightening offer an artic- eloquent to and acts. the other risk from his On sonable ulation of the between misfea- distinction action, hand, previous course and nonfeasance. Dean Keeton and sance others, may have creating itself risks explained Dean Prosser the distinction as socially into certain brought actor follows: with others which recognized relations of the the determination existence require a character as to are of such a duty, through there runs much of them from protect affirmative acts the law a distinction action and between required person which the thus risks [Tjhere very early inaction.... arose creating. The failure part act had no difference, deeply still rooted the law such an act described perform of negligence, between “misfeasance” non-feasance. is to say, “nonfeasance”—that be- Kime, Posey Harper & M. Fowler V. working posi- tween active misconduct Another, the Conduct Duty to Control injury passive tive others inaction [hereinafter 43 Yale L.J. protect or a to take them steps failure “Harper & Kime”].7 from harm. The for the distinc- reason may tion said to in the fact that be lie between misfea The distinction ‘misfeasance’ the has created defendant easily mis can and nonfeasance be sance plaintiff, a new harm the while risk of astray by can be led understood. One he at least made his ‘nonfeasance’ has act negligent thinking that a defendant’s worse, merely situation no and has failed “as an affirmative must characterized by interfering to benefit him his af- exist, appreci rather than act fairs. entire is the defendant’s ating must § constitute Prosser Keeton at 373.6 Simi- course of conduct harm and creating act a risk of larly, Harper and affirmative Professor Fowler V. act or consist of an Judge Posey negligence M. Kime offered follow- risk.”8 ing explanation: creating an unreasonable omission Bohlen, Duty Tinsley, 970 S.W.2d 5. Francis H. The Moral to Aid Newton (Tenn.Ct.App.1997). Liability, Others as a Basis Tort 56 U. Pa. (1908). L.Rev. previously upon Pro- 7. This Court has relied Judge explana- Harper’s and Kime’s fessor recognized ac- 6. Tennessee's courts have Daniel, at 871. tion. Bradshaw v. analysis be- credited this of the distinction See, (Third) Physical tween misfeasance and nonfeasance. Torts: 8. Restatement Liab. Note, c, Daniel, Reporter's § e.g., cmt. 854 S.W.2d at Harm Bradshaw
357 328; gee, A is the at v. Dan point classic illustration 118 S.W.3d Bradshaw iel, example of a driver who to his S.W.2d at 870. As for nonfea- apply fails 854 sance, hitting generally or her brakes to avoid a Tennessee’s courts have pedestrian walking though impose in a to to act duty crosswalk. Even declined a or to Daniel, driver’s Bradshaw v. 854 negligent failing apply to rescue. S.W.2d act— omission, 870; brakes —is an care- Newton v. 970 at Tinsley, “driver’s stated, apply negligent Simply less failure to the brakes 492. do not ordi driving, narily protect a negligent not failure to rescue.”9 have to act to others dangers mis- Accordingly, distinguishing except between from or risks for those that they feasance and can be ac- nonfeasance best themselves have created. Biscan v. Brown, (Tenn. complished, focusing an on whether 160 S.W.3d 2005); “specific Atnip, individual’s failure to exercise Nichols v. is an (Tenn.Ct.App.1992).
reasonable care error of commission 661 omission,” or by focusing but rather on general regard Tennessee’s rule to whether the individual’s entire course nonfeasance is consistent with the Restate- Thus, conduct created risk of harm.10 position ment’s fact ... “[t]he even though specific negligent act actor realizes should realize action omission, constitute an of the entirety part necessary his for another’s aid conduct may still be misfeasance that cre- or does not itself protection impose ated a risk of harm.11 upon him a such take action.” (Second) § Restatement of Torts
The distinction between misfea general long-standing prin- 116. This and sance and nonfeasance is far aca law, ciple of tort often termed either the demic. It practical significance, has “no to act rule” “no duty or the regularly Tennessee’s courts employ has subject rescue rule” been to considera- when called upon decide whether enduring ble and criticism.12 See, Daniel, exists. e.g., Bradshaw 854 S.W.2d at Tinsley, Newton v. A compelling argument opposition S.W.2d at regard 492. With misfea the no to act or to rule rescue rests sance, that, this Court has held that “all persons comfortably “on the perception as a use sense, reasonable care to matter of inarticulate common it is foreseeably refrain from person conduct that will one wrong for to stand anoth- cause injury to others.” v. Ma Burroughs injury easily er suffers that could 1, 2005) (Proposed Final Draft No. Others, [hereinaf- Duties to Protect Aid or Affirmative (Third) ter (1991); "Restatement of Torts”]. L.Rev. 867 1991 Wis. James Barr Ames, Morals, Harv. L.Rev. 97 Law Goldberg Benjamin Zipur- 9. & John C.P. C. (1908) "Ames”]; Thomas C. [hereinafter Gal- (Third) sky, The Restatement and the Place of Jr., ligan, Aiding Mythopsy- A Altruism: Law, Duty Negligence 54 Vand. L.Rev. J.L. Analysis, U. Mich. Reform cholegal (2001) Zipur- "Goldberg [hereinafter & (1994); Heyman, Steven J. Foundations sky”]. Rescue, Duty 47 Vand. L.Rev. 673 c, (1994) Silver, (Third) "Heyman”]; Jay § 10. [hereinafter Restatement of Torts cmt. at 711. Duty The to Rescue: A Reexamination (1985); Mary 26 Wm. & L.Rev. 423 Proposal, c, (Third) § cmt. Restatement Torts Weinrib, Duty Ernest J. Case at 712. Rescue, [hereinafter Yale L.J. 247 “Weinrib”]. Adler, See, John M. e.g., Relying Upon Strangers: Reasonableness Some Observa- Law tions About the Cmrent State Common *11 io act rule. not An swimmer who or to rescue The reason is expert prevented.”13 watching on the a child or lack of consideration. intransigency stands shore passerby bridge contrary, or a on the who Quite drown the rule survives to a a rope to throw to cannot be bothered to of because its limitations continue be in the waters below person distress importance Im- considerable and value. that demonstrate the stand as illustrations posing strays or a to act to rescue exemplified can be unreasonableness individ- dangerously into interference with de- by a failure rescue. Even staunch By duty to liberty.15 adhering ual to a no to act or to rescue fenders of no rule, not act or to rescue the courts are failure must to do so rule concede but in- rendering the common law amoral circumstances, only in certain not be may, prioritizing liberty stead are over altruism unreasonable, negli- a measure normal for where the defendant did circumstances conduct, actually gent “outrageous.”14 but of a not create the risk harm.16 While person subject fails to act Nevertheless, may who well be courts, in- common-law censure, act courts, public not all failures to pre- cluding Tennessee’s force served, inviolably, prohibited should be though punished not Weinrib, ing society. 260. the whole order It is true 90 Yale L.J. at See also who, Heyman, ("Perhaps having 47 Vand. L.Rev. at that the man abundance wealth, argument for the most common a fellow creature to die suffers feet, man, view that hunger is based on the individuals is a rescue at his bad worse —a others.”). obligation man, have a moral to aid probably, many for than of those pun- provided very whom we have severe Theory where, Lia- Epstein, Richard A. A Strict But we are ishment. unable to see bility, Legal [here- 2 J. Stud. legally punishable, if such a we make man "Epstein"]. inafter we man who can draw the line. If the rich beggar’s life at the cost refuses to save Epstein explained 15. Professor has murderer, poor copper is the a little just degree beggary also to man one above one as a matter statu- decides that [o]nce be if he to invite the a murderer omits duty, tory or an individual is common law partake rice? beggar his hard earned required act under some circumstances to Again: rich a murderer for If the man is at his own another, for the exclusive benefit of cost refusing beggar's at the cost to save the life very in a then it is hard set out copper, he be a murder- a little also to principled the limits of social inter- manner beggar's er save life at if he refuses to liberty.... if ference with individual Even rupees? ... It will cost of thousand ... rule out with modest ambi- starts ought hardly surgeon tions, be maintained that a confine it is difficult to it to those refusing to to be treated as a murderer for simple Take a case first. X as limits. go perform Calcutta to charity Meerut private you representative of a asks although absolutely operation, should $10 in order to save life of some surgeon only per- ravaged certain that this starving country by war. child in a it, and that perform who could available but the son in India There are other donors person who performed, if needy it were number of children exceeds "nothing” die. money required means it would number. The you legal obligation Macaulay, Report Upon the Indian you. Are under a B. Thomas Code, Macaulay give $10? lend it 493- Or to interest-free? Penal in Works Lord Stud, ed., (H. 1866) Jeremy Epstein, Legal Trevelyan (quoted 2 J. at 198-99. Waldron, point Macaulay the same in his Lord made the Road: Samaritans On Good Duties, Penal Code when he Compelling discussion The Indian Clara L.Rev. Santa (2000)). remarked: 1069 n. 45 in some of the cases We are sensible that Calnan, Fault(s) Negligence put appear to 16.Alan which we have our rule Law, Quinnipiac L.Rev. But we do not think that it be too lenient. severe, (2007). disturb- can be made more without
359 space law.17 Failure to leave sufficient the current to act or to no rescue may outside the the rule, dictates of law have an is still perfect, superior while not private adverse effect on the exercise of course.21
judgment which to develop- is critical ment of a person’s capacities.18 moral C. society While be may outraged at the ground reasonable Searching for act, conduct of someone who fails to there viewpoints between competing sur is no concomitant that persons sense who rounding the no to act or to rescue required fail to act pay should be finan- rule, Tennessee’s courts have maintained compensation cial because harm was general rule have carved out ex but by not person’s caused failure to act.19 ceptions mitigate against some of its expert or the swimmer indifferent See, applications. e.g., harshest Bradshaw passerby bridge worthy Daniel, Newton v. social approbation, compensa- but financial Tinsley, 970 492. excep S.W.2d at These
tion failing for to avert a danger act special tions arise when certain relation by caused unwilling hardly rescuer ships exist between the defendant and ei addition, seems In appropriate.20 it has ther is person who the source of the been asserted that recognizing danger person foreseeably or the who is act or to problems rescue rule could create Brown, risk from Biscan v. danger. comprehensibility, verifiability, and con- 478-79; formability, as well 160 S.W.3d at Bradshaw v. as administrative diffi- Dan culties, iel, to such an extent that maintaining 854 at 871.22 These relation Schiff, Good, 17. Damien century ago, Samaritans: 20. Bad More than one the Kansas Ugly: Comparative Analysis, and A Law Supreme Court observed: 77, Roger (2005). Williams U.L.Rev. negligent discharge It is the omission or Furthermore, legal only duties which come within the truly] [no one everything believes that sphere judicial cognizance. For with- everything immoral-not even that can be holding suffering, relief from the for failure generally agreed to be immoral-should be respond worthy charity, to the calls illegal, legal theory and a task for central faltering brotherly for in the bestowment of say will be to to draw how that line. unfortunate, penalties love on the are found ..., constructing legal legal account men, higher not in the laws of but in that theorist must take into account our interest law, the violation which is condemned freedom, personal our interest in not conscience, the voice of whose sentence of others, harming many ourselves or oth- punishment for the recreant act is swift and highly complex Many er factors. of these sure. factors, involving weigh- will be moral 649, Ry. harms, Cappier, Union 66 Kan. liberties, Pac. P. ing rights and so (1903); Harold F. but see McNiece forth. Nussbaum, Thornton, “Only & Grey Martha John V. Duties in Matter"? Affirmative Tort, Sex, (1949). Analysis Richard Posner’s 58 Yale LJ. 1280 n. 52 Cost-Benefit (1992). 59 U. Chi. L.Rev. Henderson, Jr., 21. James A. Process Con- Note, Obligation Duty Professional Tort, straints in 67 Cornell L.Rev. Psychiatrist to Rescue: When Must Protect (1982) [hereinafter "Henderson”]. Victim?, His Patient’s Intended 91 Yale L.J. (1982) (citing 1433 n. 20 William God- 22. Tennessee's courts are neither the first nor win, Enquiry Concerning Political Justice and only recognize exceptions courts to to the Happiness Its Virtue on General Influence rule. act or to rescue Academics (Isaac ed., 1976) (1793)). Krammick "Eighteenth-[C]entury have noted that courts Benditt, Liability exceptions Failing Theodore M. Rescue, carved out to the no rule (1982). upon higher 1 Law & Phil. based duties 'owed sur- Accordingly, pro Tennessee law
ships an affirmative either to create always vides that while “an actor is bound who person control the is the source of the creating acts prevent his an unrea danger protect person or to who *13 others, is the sonable risk to he under (Second) endangered. of See Restatement duty prevent affirmative to act to another 314A, B; 315, 118,122.23 §§ at Torts sustaining only from harm when certain by recognition The courts of Tennessee’s recognized which socially relations exist exceptions these to the no to act or to legal duty.” constitute the basis for such rescue rule is consistent with decisions of Jordan, 815, Turner v. 957 S.W.2d 818 post the During other state courts. World (Tenn.1997) Daniel, (quoting v. Bradshaw era, exceptions II War the number of 871); Atnip, v. 844 854 S.W.2d Nichols rule the no to act or rescue based words, ap S.W.2d at 661.26 In other special expanded.24 has relationships largely courts proach of Tennessee’s is many justifica- potential While there are consistent with Restatement view departures for from the gener- tions these [n]ormally, there is affirmative where rule, straightforward al of among most interests act affects the of anoth which of justifications par- is the nature er, to be negligent is a not there relationship sufficiently ticular creates a doing with of the act. On respect is significant obligation hand, there an en- negligence of the other where expectation of reasonable action in a failure to act for forceable the actor consists another, of protection rather or assistance than unreasonable indifference.25 solicitors, relationships. geons, See Lim- apothecaries, innkeep- and medical treatment ” 73, Ctr., ers' well as common carriers. Mi- 79-80 baugh Med. Coffee Koenig, Taming chael Rustad & H. (Tenn.2001). L. Thomas The Civil the Tort Monster: American Justice System Battleground Theory, Social 68 as a Peters, Jr., of Rethinking Phillip 25. G. See 1, (2002) 42 [hereinafter Brook. L.Rev. "Rus- Boundary Between Wrongful Bridging the Life: Ames, 22 Koenig”]; tad & see also Harv. 397, Law, Family 431 Tul. L.Rev. Tort and 67 (excluding L.Rev. at 111-12 discus- Comment, (1992); Heinzerling, Ac- Lisa E. duty to propriety of the no act or sion Liability 1983 tionable Inaction: Section for which, by to rescue rule “cases in reason of 1048, Act, 1063 n. L.Rev. Failure to 53 U. Chi. parties like some relation between the that of (1986); generally Irwin v. Town 82 see child, invalid, master father and nurse 1292, Ware, 745, N.E.2d 1300 Mass. 467 392 others, recognized and servant and there is (1984) (asserting the rela- that the nature of act.”). legal duty to imposition tionships are such of a Adler, guidelines foreseeable); 23. can create based on the Upon “Courts Relying John M. customary patterns of behavior associated Strangers: Some Observa- Reasonableness of Henderson, relationship.” with 67 Cor- each Law State Common tions About Current nell at 940 n. L.Rev. 187. Others, or Protect Duties to Aid Affirmative 867, (critiquing the L.Rev. 886-98 1991 Wis. Koenig, 24. Brook. L.Rev. at Rustad & 68 advocating exception in special relationship Cal., Regents see also Tarasoff ofUniv. rescue); E. Victor general for a to act or Cal.3d Cal.Rptr. P.2d Lorber, Defining Duty & Leah Schwartz (1976) (stating n. that "the courts Surgi- Religious Others: Institutions to Protect the number instances which increased Machetes, Instruments, Required, Are cal Not imposed are affirmative duties direct (describing L.Rev. U. Cin. rejection [no of the common law to res- catego- exception special relationship rule, by expanding special list of cue] but thereof). ries relationships justify departure which will rule”). courts have been from that Tennessee Kime, particularly vigilant regard impo- Harper to the & Yale L.J. affirmative duties in the context of sition of normally liability A. there unless relation the actor some between and the many opinions state courts con- other, or some action on the antecedent insightful analyses tain well-reasoned actor,27 part of the created a duty has implicated legal principles in these protection act the other’s or assis- so-called “take-home” asbestos tance. cases. the outcomes in these though Even (Second) Torts, Restatement Ch. differ, principled disagreements cases their Note, Topic Scope at 66.28 captured synthesized par- are in two ticularly edifying cases. recent *14 III. year, Michigan Supreme Last the Court country Courts across the have disa- presently addressed question the before as to greed principles how these broad of majority this Court. The of the court held tort law should be to used determine liability imposed that no could be the on an employer duty whether a to per- owes employer relationship of a the absence develop who sons asbestos-related illnesses plaintiff between the and the employer. exposure after to asbestos fibers on its Question In re Fourteenth Certified employees’ clothing. Although the courts Tex., 498, Ct.App. Dist. 479 Mich. 740 of conclusions,29 reached have inconsistent (2007). 206, majority N.W.2d 213 rea pattern begun emerge. has to The courts soned that the ultimately the recognize existence of a defendant, of on property as owner when duty faced with similar facts to this asbestos-containing products which were have case focused on foreseeability deceased, located, did not owe to the resulting harm employer’s from the failure who was never or near that property, on to warn of or precautions pre- to take legal protect expo- her from exposure. hand, vent the On the other any sure to finding asbestos fibers carried home courts that no exists have on the of a relationship clothing focused on the member of her lack of a —or relationship working household who was on that employer —between injured party. property employee of indepen- See re as the Asbestos 04C-07-099-ASB, contractors, Litig., C.A. No. dent where there 2007 4571196, Dee.21, at (Del.Super.Ct. relationship WL *3 further between defendant 2007). and the deceased. provides merely
27. Tennessee law that a of rea of one omits to act who are more through gratuitous restricted, care sonable arise general are and in confined assumption. Bennett Trevecca v. Nazarene special situations where there is a relation Univ., (Tenn.2007); 216 S.W.3d Bis between the actor and other which Brown, 482-83; v. Ridley can at duty. gives rise to the Co., 727, 738, v. & O.R. Tenn. Mobile a, (Second) § Restatement Torts 302 cmt. (1905); S.W. Nidiffer Clinchfield at 82. R.R., (Tenn.Ct.App. 1980). 29.See Martin v. Elec. No. Gen. 02-201- DLB, (E.D.Ky. 2007 WL at *5 Reiterating general point, the same 2007) Sept.5, (noting that "[c]ourts across (Second) provides Torts Restatement also country significantly disagreed have on liability extension of in household asbestos general, anyone who does an affirma- [i]n exposure frequently cases and reached act tive is under a others to exercise opposite based on each state’s conclusions protect the care of a man reasonable legal duty.”). law and how the defines a law against them an risk of harm unreasonable arising to them out the act. The duties Question from, principles employer’s In re Fourteenth on Certified Tex., 740 at 222. Ct.App. Dist. N.W.2d from the acts of protect plaintiff third dissent, noted, F. vigorous Rather, In a Michael Justice as the court parties. Cavanagh rebuttal: following offered employ- claim was based on the plaintiffs unreasonably risky acts-operating er’s own severely majority’s curtailed view
[T]he factory its an unsafe manner-that direct- “relationship” seems be based injuries. ly proximately caused her rather premises liability its view law Inc., Saberhagen Holdings, Rochon ordinary negli- than on the principles (and Wash.App. 2007 WL *3. gence. the latter the for- Under well, employer The court also held had although mer as is not issue here), injuries person prevent not visit the foreseeable harmed need property oper- of the This caused its misfeasance because its injuring party. employer exposed case an plant involves who ation of its created unreasonable asbestos, a worker to that the knowing risk of harm asbestos to oth- toxic could asbestos fibers were regular ers who came in contact its *15 home, exposing earned thus the work- Saberhagen v. Hold- employees. Rochon family Inc., er’s these to asbestos. Under Wash.App. 2007 WL ings, circumstances, difficulty I have no con- 2325214,at *3.
cluding a relationship —that jury found em- [the defendant had to B. to ployee] step-daugh- [the —extended courts, like the While otherwise, To ter]. conclude as does Court, found, Michigan that have Supreme majority, ignores negligence prin- basic law, that have no employers as a matter of gives ciples employers and carte blanche take-home expose to workers to communicable toxic cases, special rely absence of a upon the taking any substances measure without misplaced relationship, argument this is prevent whatsoever those substances it has devel under tort law as Tennessee harming others. This I cannot do. This has rec oped years. over Court Indeed, as later in this dis- discussed ognized that a of reasonable care sent, government our also refuses po arises a defendant’s conduct whenever grant pass. free an and foreseeable risk ses unreasonable Question from, In re Fourteenth Certified persons property. harm to McCall v. Tex., Ct.App. at 225 Dist. N.W.2d (Tenn.1995). Wilder, S.W.2d J., (Cavanagh, dissenting). Thus, new Restate like the drafters Washing- past year, Also within the (Third) prin containing ment of Torts argu- Appeals ton Court addressed physical for ciples applicable liability liability ment that does not ex- “employer harm, view that we are of the homes, employees’ spouses tend to and actor victim are [e]ven when premises liability does extend out- not complete and have no relation- strangers premises.” Saberhagen Rochon side the v. ordinary duty of ship, the for the Inc., 58579-7-1, basis Holdings, No. WL cre- ... reasonable care conduct (Wash.Ct.App. Aug.13, at *3 2007). Thus, a a relation- ates risk to another. employ- The noted that the court ship ordinarily is not what defines the argument point er’s missed central no-duty; line conduct plaintiffs the case cause of between because premises liability creating on to another is. depend action did risk (Third) (the § Mr. intoxicat- gasoline Restatement Torts Re- Tarver Note, c, driver). porter’s cmt. at 721. Because the plaintiffs’ allegations ed The requirement privity longer plays a duty of any do not around revolve claims, role in negligence defen- “[w]hen defendant control the conduct of a dant physical through causes harm misfea- Instead, are customer. the claims negligence— sance-—affirmative acts of predicated employ- defendant’s nonfeasance, [or rather than he she] contributing acts in ees’ affirmative foreseeably injured person liable to the and unrea- creation of foreseeable Dobbs, 2 Dan B. harm.” Law harm, i.e., providing sonable risk of mo- (2001). § Torts at 870 bility a drunk driver he other- which had, creating wise would not have thus simple a case Whether involves roadways. a risk to on the complicated automobile accident or a toxic tort, currently provides Tennessee law West v. E. Tenn. Pioneer Oil one owes to refrain from en gaging in conduct that creates unrea C.
sonable and foreseeable of harm to risk Draper Westerfield, others. According complaint, Ms. Satterfield’s Brown, Biscan v. 160 S.W.3d at employees Alcoa’s worked materials 478; Burroughs v. Magee, 118 S.W.3d at Em- containing daily asbestos on a basis. 328-29; Wilder, McCall S.W.2d at Satterfield, ployees, including Mr. worked improper under conditions unsafe *16 which internal safety require- violated Our in decision West v. East Tennessee result, ments a and OSHA standards. As Pioneer Co. principle. Oil illustrates this employees’ significant the clothes collected That required case us to determine wheth- though er amounts of asbestos fibers. Even a convenience store had a to the Alcoa of occupants dangerous a was aware the amounts injured vehicle were who clothes, employees’ when an intoxicated struck asbestos on its Alcoa motorist their employees employees vehicle the did not inform its that the ma- after store’s had helped obviously terials were they handling the intoxicated that contained motorist fuel shortly posed by his vehicle asbestos or risks before accident. of the The employees store asserted that fibers to intoxicated or to others. and, only danger compounded motorist a was customer there- was even further be- fore, special relationship that no cause employees existed Alcoa dissuaded its from facilities, using between the store and the intoxicated driv- on-site bathhouse er that be require would sufficient to failed to coveralls wash its provide or to store to employees employees’ factory. control the intoxicated work clothes at driver’s alleged conduct. West v. E. Tenn. Pio- Under the in facts Ms. Satterfield’s neer Oil complaint, alleged S.W.3d at 551. Alcoa’s cre- misfeasance significant ated a risk of harm to Ms. We did not hold that the convenience Satterfield. liability predicated store’s on the exis- tence of a special relationship between the Despite protestations to the Alcoa’s con Instead, store and the intoxicated driver. trary, a act this is not failure to ease we held that interfere, wherein a defendant “declined to way plain- responsible defendant misconstrues the ... was in for the no situation, upon
tiffs’ as a ... being “spe- perilous claims based did not increase the relationship” away cial arising peril, nothing per from the sale ... took from the any ... simply per- ... ‘misfeasance’ extend jeopardy, instead] son in [but may reasonably a benefit.”30 The rules son harm failed to confer to whom rescue, establishing protect, anticipated as a result the defendant’s parties, ...; or control the conduct of third it is conduct while ‘nonfeasance’ underlying argument, basis Alcoa's necessary find some definite relation are all subsets of the same no affirmative parties, of such a character between special relationship act a absent policy justifies imposition social rule, however, inapplicable rule.31 That § a to act.” Prosser and Keeton Instead, to this case. this case involves Alcoa in engaged misfeasance risk through created misfeasance. Rochon of harm to Ms. Satter- set in motion a risk Inc., 140 Saberhagen Holdings, v. Wash. complaint field. Because Ms. Satterfield’s 2325214, at *3 n. App. 2007 WL & tort claim of rests on basic misfea- Question see also re analyze sance, necessary to it is not Certified from Tex., Ct.App. Fourteenth Dist. also had duties aris- detail whether Alcoa J., (Cavanagh, dissenting). at 225 N.W.2d ing special relationships with third Thus, Saberhagen Hold Rochon parties. Inc.,
ings, case does outcome not to act on the turn on failure act IV. instead, it turns on the party, third but Satterfield’s Concluding that Ms. injurious employer’s own misfeasance—its misfeasance complaint alleges Alcoa’s facility act operating affirmative its does her to contract mesothelioma caused dangerous manner that such an unsafe Tennes into whether inquiry end outside asbestos fibers were transmitted Alcoa owed recognizes see facility regular who came others allega factual on the Ms. Satterfield based and extended close contact with asbes Determinations complaint. tions in her of its work clothes em tos-contaminated scope of a regarding existence ployees. Saberhagen Holdings, Rochon “society’s particular legal duty also reflect Inc., 58579-7-I, No. WL *17 require and social contemporary policies *3;32 Question see also In re Certified right the of individuals concerning ments Tex., Ct.App. Dist. 740 Fourteenth of protected general public to be and the J., (Cavanagh, dissenting).33 at 225 N.W.2d or conduct.” Bradshaw from another’s act ah, Daniel, After at 870. v. 854 S.W.2d by v.
As
East
illustrated
West
expres
an
concept
largely
is
Co.,
of
liability
Tennessee Pioneer Oil
for
According
policy
sion of
considerations.34
the con
misfeasance
not cabined within
existence and
ly,
of the
rela
our consideration
particular
fines of boxes created
also include
of Alcoa’s
must
contrary, “[liability
scope
To the
tionships.
Ames,
Cavanagh's dis-
33.
to Justice
Our reference
30.
Harv. L.Rev. at 112.
that these
upon
is based
a shared view
sent
Butler,
Connolly
31.
Shared Re-
See Kathleen
ex-
"transmission” asbestos
"take-home” or
Extems,
sponsibility:
Duty
Legal
questions
general
posure
upon
of
cases turn
(2003).
L.Rev.
W. Va.
premis-
third-party or
negligence rather than
liability.
es
making
argument, which
ulti-
this
adopted
Washington
mately
by the
Court of
Keeton, 53,
§
at 358.
and
upon
Prosser
Appeals,
employee
in
drew
Rochon
opinion
and articulated
the well-reasoned
Appeals
present
the Court of
case
by Judge
authored
Franks.
Wilder,
analysis
public
property.”
of the relevant
con-
v.
policy
sons or
McCall
conducting
at
Burroughs
S.W.2d
153. When
Magee,
siderations.
v.
considered,
analysis,
courts have
at 329.
S.W.3d
(1)
among other factors:
the foreseeable
erroneous, however,
It would be
to as-
injury
or
probability
the harm
occur-
concept
sume that the
freef-
is a
(2)
ring;
possible magnitude
of the
loating application
public policy, drifting
(3)
harm
potential
injury;
impor-
or
on the
of a
prevailing winds like the seeds
social
the activity
tance or
value of
en-
dandelion. Like the
sister
courts
our
(4)
defendant;
gaged
the useful-
states, Tennessee’s courts have not become
(5)
defendant;
ness of the conduct to the
liquor
policy
intoxicated
public
so
feasibility
of alternative conduct that is
analysis that we
lost our appreciation
have
(6)
safer;
the relative costs and burdens
moderating
sobering
for the
influences
(7)
conduct;
associated with that safer
principles regarding
well-tested
conduct;
relative usefulness of the safer
imposition
duty.35
safety
the relative
of alternative
Burroughs Magee,
conduct.
A.
Wilder,
329;
McCall v.
913 S.W.2d at
today, prior
In most cases
court deci- 153.
already
sions
statutes have
established
firmly
With these factors
the doctrines and rules
defen-
governing a
mind,
balancing
Tennessee’s courts use a
dant’s conduct.36 Generally, the presence
approach
partic
determine
whether
or absence of a
given
than
rather
ular
should
to a
give
risk
rise
debate, discussion,
a matter of reasoned
E.
reasonable care. West v. Tenn. Pioneer
law, however,
contention. The common
Co.,
551;
Oil
S.W.3d at
Burroughs v.
grow
must and does
to accommodate new
A
Magee,
When the existence of a particular
Burroughs Magee,
duty is not given
or when the
of the
*18
rules
Wilder,
McCall v.
harm, foreseeability certainly is able degree less of While there been Co., Upjohn 890 required. critiques Pittman v. skillful the role that fore- and of (Tenn.1994). 425, During 433 seeability determining S.W.2d plays whether a balancing process, permissible it is for exists,39 duty majority contin- courts contemporary courts consider values compo- to use a foreseeability ue central of Tennessee’s citizens.37 analyses.40 Foreseeability nent of their a proven has to be useful hub from which is every balancing "While factor organizing principles can main- central foreseeability has significant, factor tained, at the time allowing while same for paramount importance taken on in Tennes prudent modification and reformation of Ostrow, 713, 716- see. Hale v. 166 S.W.3d principles. Despite those the difficulties (Tenn.2005); Brown, 160 17 v. Biscan stumbles, significant experience and important S.W.3d at 480. This factor so maintaining has been that a most courts injury if rea could not have been foreseeability addressing role when foreseen, sonably not arise a does regarding the existence and questions even if causation-in-fact has been estab than it im- Co., scope assists —more lished. Doe v. Constr. 845 Linder (Tenn.1992).38 pedes application development 173, 178 Converse —the negligence. law of ly, foreseeability alone is insufficient Square v. duty. McClung create a Delta (Tenn. role the concept 891, P’ship,
Ltd. 904 1996). foreseeability plays in the context of a Thus, negligence on a prevail claim, court’s determination of existence risk plaintiff must show that the not, scope of a differs from role the foreseeable, showing but that itself, duty. concept plays when the fact-finder is ad sufficient create foreseeable, dressing Instead, proximate courts causation.41 For if a risk is exist, balancing analysis. the defendant’s “conduct then undertake See, Cardi, Revisited, Prosser, Palsgraf e.g., Purging 52 W. Jonathan Fore- 37. L. 39. William (2005). 1, seeability, (1953) Vand. 739 Palsgraf 58 L.Rev. (quoting Mich. L.Rev. 15 339, Long 248 N.Y. 162 N.E. Island R.R. Adams, Babel 40. James R. From to Reason: 99, J., (Andrews, (1928) dissenting)); see 104 Issue, Duty 31 An Examination Lannon, 43, Bell, P.2d also Taco Inc. v. 744 25, (1999); McGeorge W. Jonathan L.Rev. 46 (Colo.1987) (stating question 46 that "the Cardi, Reconstructing Foreseeability, 46 B.C. imposed partic- whether a should be 921, (2005). L.Rev. 923 essentially under ular case is one fairness contemporary standards-whether reasonable See, Corp., e.g., McCain v. Fla. Power agree recognize a would 500, (Fla. 1992); Di So.2d Cosala exists”). that it 508, (1982); Kay, 91 N.J. A.2d S.P., Inc., Ill.App.3d Bodkin v. 5401 justified fore- Wendell Holmes Oliver 263 Ill.Dec. N.E.2d requirement "The re- seeability as follows: Lodge, (quoting Inn Motor Inc. v. Colonial quirement requirement of an act is the Gay, Ill.App.3d 223 Ill.Dec. *19 Regents a choice. the should have made defendant (1997)); v. N.E.2d 413 Knoll Bd. of introducing only possible purpose Neb., But of the N.W.2d 258 Neb. 601 Univ. of of power make of (1999); element is to the Light moral Stage Mack v. Altmans avoiding complained of a of the evil condition ing 98 A.D.2d 470 N.Y.S.2d power where the liability. (N.Y.App.Div.1984); Goldberg Zipursky, There is no such & "[a]lthough (noting Wendell evil cannot be foreseen.” Oliver Vand. at 728 L.Rev. instances, (Mark Holmes, foreseeability DeWolfe in both the The Common Law is invoked different."). ed., Co.1963) (1881). being questions quite & asked are Howe Little Brown must create a risk even asbestos recognizable quantities of harm to small of and that [plaintiff] individually, being by the or asbestos transmitted to a class of fibers were Nevertheless, persons as, example, employees all its de- persons with to others. — spite superior knowledge in a its given danger area of which extensive the —of asbestos, dangers allegedly of the of Alcoa [plaintiff] is a member.” Restatement (1) (Second) employees they failed to inform c, § its of Torts 281 cmt. at 4-5. working containing were materials as- However, with any because almost outcome is (2) bestos; foreseen, provide employees failed to its possible and can be the mere fact require protective with or to to wear them particular that a might outcome be con (3) clothes; covering actively on their dis- give ceivable is not sufficient to to a rise couraged employees’ its use of on-site duty. purpose determining For the of changing bathhouse facilities for or clean- exists, whether a the courts’ consider (4) ing; employees inform its failed to ation of foreseeability limited to assess of the the fi- dangers posed ing probability whether there some bers on their clothes. work Under these likelihood of harm that is enough serious circumstances, it was foreseeable that Ms. person induce a pre reasonable take Satterfield would come into close contact context, cautions to avoid it.42 In this with Mr. Satterfield’s work clothes on an courts are not concerned the ultimate extended repeated basis. reasonableness, reasonableness, or lack of Rather, of the defendant’s conduct. C. courts are simply ascertaining “whether Because the risk Ms. Satter- obligated [the] defendant was vigi field being exposed to the asbestos fibers lant of a certain sort harm to plaintiff.” on her father’s work clothes was foresee 43
able, analysis considering shifts (1) balancing B. factors: foreseeable probability injury of the harm or occur Viewing allegations in Ms. (2) ring; possible magnitude of the complaint Satterfield’s light most (3) potential injury; impor harm or her, favorable to it is not difficult to con activity tance or social value en clude that Ms. Satterfield falls within a (4) defendant; gaged in by the the useful could, class of persons that with reason (5) defendant; ness of the conduct to able foreseeability, be harmed feasibility of alternative conduct that is to asbestos. That class includes (6) safer; costs and relative burdens regularly who periods and for extended (7) conduct; associated with the safer time came into close contact with the as conduct; relative usefulness the safer work bestos-contaminated clothes of Al safety the relative of alternative employees. coa’s Burroughs Magee, conduct. 118 S.W.3d alleged Under the facts Ms. Satter- Wilder, at McCall v. field’s complaint, Alcoa was aware of the 153. presence significant quantities of asbes- tos employees’ considering fibers on its work clothes. When these fac tors, It was the dangers posed by also aware of care not to courts should take invade Inc., Lopez Coop., Goldberg Zipursky, See v. Three Rivers Elec. & 54 Vand. L.Rev. (Mo.2000); Knoll Bd. 728-29. Neb., Regents Univ. N.W.2d at *20 762-64. allegedly a jury.44 neg- A court’s func- ed connection between its province the the jury’s. ligent ability provide a and its to em- tion is more limited than a As acts matter, produce products. gate- ployment court serves a or to useful practical a as may if it For it has not demonstrated that keeper only example, exclude a claim law, finds, exposure a that to asbestos that is as matter of the defen- sort largely case a duty plaintiff.45 dant does not owe a to the involved this unavoid- manufacturing operations. as able its part For claims that-should not be excluded law, ultimately jury’s a matter of it is on the complaint, Ms. other Satterfield’s to function determine whether the defen- hand, greatly that could have asserts Alcoa duty actually its of reason- dant breached exposure. the risk of asbestos It reduced able care. being exposed risk to asserts that her on her father’s work clothes alleged the facts Ms. Satter- asbestos While had complaint permit greatly not could reduced Alcoa may precise field’s a have been (1) provided warnings employ- to its full extent of the risk to basic assessment (2) asbestos, Satterfield, certainly dangers a ees re- they support about the Ms. quired handling the materials con- that risk to her real safer conclusion (3) asbestos, provided coveralls to light taining of the and substantial. debilitat- (4) employees can to ing employees, required and fatal be caused its illnesses fibers,46 change leaving to clothes exposure mag- their before asbestos (5) employees’ its potential workplace, nitude of the harm to laundered Ms. Satter- site, encouraged its work on great. field was clothes employees to use the on-site bathhouse argues manufacturing op- Alcoa that its leaving work. facilities before jobs provide erations create useful record, many of recognizing present products and that that it owes Based on Satterfield’s a to like Ms. Satterfield will the measures described Ms. ability complaint protect on its their impact have an adverse workers appear asbestos jobs prod- exposure useful families from provide produce and to without im- con- to be and efficacious ucts. This assertion warrants serious feasible on Al- However, at least at costs or burdens stage posing prohibitive sideration. however, Alcoa coa.47 For its has proceeding, part, of the Alcoa has articulat- person can Burroughs Magee, that a reasonable draw 44. See S.W.3d at 339 conclusion J., (Holder, concurring dissenting). evidence is the defendant did from the plaintiff. not owe a a complaint whether 45. The determination of though Michigan Supreme because the defendant Court should dismissed 46. Even plaintiff employer a an ultimately did not owe to the must be declined hold that family using analysis required by pro- employees’ members made to its owed a Thus, on posture exposed case. a fibers its cedural of the when who were clothes, challenged by Tenn. that the employees’ a R. Civ. P. conceded na- claim motion, case, 12.02(6) enough impose in this 12.03 or ture risk was serious of the determine, Question al- Four- duty. court must based the facts a In re Certified Tex., leged complaint, Ct.App. whether the 740 N.W.2d at in the defendant teenth Dist. plaintiff. When a claim is owes motion, challenged by a R. Civ. P. Tenn. determine, today argues cannot that “a business must based on the undis- Alcoa the court facts, exposures liability guard against claims of puted whether the defendant owes century ago.” Finally, occurred half plaintiff. when a claim is to the motion, undoubtedly employer that an challenged by P. it is true R. Civ. While Tenn. prevent only nothing to whether can do the court must determine *21 explanation why any could offered or all of asserts that manufacturers face precautions these were not feasible or how bankruptcy jobs and a substantial loss of they would have had a deleterious effect if are they exposed could result ability its provide jobs produce on Third, liability. Al- burden of additional products. useful that finding coa claims that it has a to persons expose like Ms. Satterfield will in alleged Based on the facts Ms. Satter- premises owners to host of similar complaint, was a knowledge- field’s Alcoa plaintiffs. claims other sophisticated company and that able (1) fully aware that it used materials con-
taining in manufacturing oper- asbestos its A. (2) ations, high that volumes of asbestos There can be little that doubt being were deposited employ- fibers its products liability there is liti an asbestos clothes, exposure ees’ work gation crisis in United States.48 The asbestos fibers created a substantial health United Court Supreme States has noted In light knowledge, risk. of this Alcoa had mass of “elephantine asbestos to use care prevent reasonable customary judicial cases ... admin defies only not exposure asbestos to its fibers legislation.” istration and national calls for employees but also to those who came into Corp., Ortiz v. Fibreboard U.S. regular employees’ close contact its with 2295, 144 119 S.Ct. L.Ed.2d 715 contaminated work over an clothes extend- (1999). legislative for While calls action period ed of time. produced much debate and have re in proposals, sulted various remedial V. fury any sound has resulted Alcoa articulates for additional reasons significant legislation.49 national declining to hold that it has a stand at First, Unimpaired like claimants the cen- persons Ms. Satterfield. it ar- ter of the gues litigation asbestos cri- litigation current asbestos compiled surveys sis.50 crisis the United will Estimates fund- States be wors- if employers suggest ed ened that have utilized as- asbestos defendants manufacturing exposed sixty-six ninety percent bestos are to between costly Second, litigation. additional claim- unimpaired.51 Alcoa claimants are These Brickman, fifty years argument ago, occurred 50. misses Lester Theory On the Class’s Litigation: The regard the mark to our consideration of Theories Asbestos Discon- Scholarship Reality, nect Between it owed a whether who were (2003). Pepp. L.Rev. repeatedly exposed to fibers on its employees’ clothing period. an extended al., Stephen 51. J. Carroll et Litiga- Asbestos usefulness, inquiry feasibility, into the (2002), avail- Compensation tion Costs and cost, and burden of safer conduct relates to http://www.rand.org/pubs/ able allegedly employer’s negli- the time when the (last documented_briefings/DB397/DB397.pdf gent place. conduct took 5, 2008); July visited E. Victor see also al., Schwartz et A Letter to the Nation’s Trial Carrington, generally, e.g., Paul D. As- See Judges: Cases How to Serious Asbestos Protect Consequences bestos Lessons: The Asbestos Assets, Wisely Manage Cancer Claimants and (2007). Litig. 26 Rev. Litigation, 584-95 (2006); 30 Am. J. 297 & n. Trial Advoc. Anand, Note, Demanding Due Katherine M. Smith, Douglas G. Mass Tort Constitutionality § Resolution Process: The System, 41 U.C. Bankruptcy Injunction in the Channeling Claims and Trust Mechanisms (2008). L.Rev. Discharge Davis Effectively That Asbestos Claims in *22 370 The efforts reform asbestos persons exposed
ants are who have been various usually mark- asbestos and who have some litigation have been directed toward stem- impaired exposure, er of who are not but large part ming the tide of lawsuits likely and by asbestos-related disease seriously ill claimants are able ensure never will The enormous number of be.52 not out to recover and are drowned by unimpaired claims that have been filed unimpaired claimants.56 Victims of meso- mildly unexpect- impaired persons or are regularly pre- thelioma identified as claims, ed.53 As a result of these the funds cisely type of claimants whose claims gravely compensate persons available to It is protected.57 surprising should be affected has been by exposure put that individuals with mesothelioma are more seri- depleted,54 and the with a because mesothelioma category such to asbes- ous illnesses caused rarely fatal illness that is serious and in the tos have “lost been shuffle.”55 population in the general occurs liability argument Alcoa’s should be closely exposure to as- with associated foreclosed as a matter of law because of precisely Ms. Satterfield bestos.58 litigation might the current asbestos crisis claims should be type of claimant whose regard recognizing have resonance with than inhibited. permitted rather claimants unimpaired where magnitude significantly of the harm is less. B. However, hollow rings regard it does contends that claimant, Alcoa also Satterfield, has like Ms. who died and that not manufacture asbestos mesothelioma. 539589, 16, 1996); (E.D.Pa. Sept. see Dame 80 Notre *1 Chapter Reorganization, 11 1187, al., (2005). L.Rev. & n. 143 1212 also Steven Hantler et Is “Crisis” in B. 38 Imagined?, System Real the Civil lustice Parham, & 52. Mark A. Behrens Monica G. 1121, (2005); 28 Loy. 1163-64 L.A. L.Rev. Preserving Stewardship the Sick: Assets for for Litig. Rep. 22 11 No. Andrews Asbestos Through Pro- Asbestos Victims Inactive Docket (2006). L.Rev, 1, (2001) (quot- Tech 5 grams, 33 Tex. ing Compensation The Fairness Asbestos 336, Behrens, See, Baylor 54 L.Rev. at e.g., 56. Hearings Act of the House 1999: Before 344-57; Goldberg, & Phil A. Behrens Comm, Mark (1999) Judiciary, Cong. 5 on the 106th Ap- Tide Litigation Crisis: The The Asbestos Jr.)); Edley, (testimony Christopher Prof. 477, Conn. L.J. 12 Ins. Turning, pears to be Reeves, Note, H. Mark generally Makes see Rothstein, (2005-06); Paul F. What 488-95 Moderate, Targeted Sense to How Federal Me: Can Face the Never-End- Courts Do in the Legislation Solve the Na- Tort Could Reform 1, Crisis, Crisis, 10-14 56 Vand. 71 Miss. L.J. Litigation ing tion’s Asbestos Asbestos 1949, (2003) (discussing the (2001) L.Rev. 1961-64 "Rothstein”]. [hereinafter involving original unim- for rationale suits therewith). paired plaintiffs problems Behrens, See, Baylor L.Rev. e.g., 57. Rothstein, at 11-12. 71 Miss. L.J. Behrens, 53. Mark A. Proposals Some Helping Courts Sick Claimants Interested Grodsky, See, A. Jamie e.g., Genomics Solving Liti- Serious Problems in Asbestos Risk-Injury Dismantling the Di- Torts: Toxic Baylor L.Rev. gation, vide, 240- 1730-31 & n. 59 Stan. L.Rev. ''Behrens”]. [hereinafter (2007); Hanlon & Anne Sme- M. Patrick Brickman, 54. Lester Analysis An the Finan- tak, Surv. Changes, 62 N.Y.U. Ann. Asbestos Impact The in Asbes- cial S. 852: Fairness Schuck, (2007); Peter H. Am. L. Cardozo Injury of2005, Act tos Resolution Registries in First: Worst Should Go Deferral (2005). L.Rev. Pol'y & Pub. Litigation, 15 Harv. J.L. Asbestos (1992). Litigation Liability In re Products Asbestos (No. VI), No. 1996 WL Civ. A. MDL that was sophisticated manufacturers who use materials contain- manufacturer of, ing manufacturing pro- of, asbestos in their been aware or should have aware *23 cess will face enormous financial burdens if could result the risk to others that from they exposed liability are for illnesses exposure fibers. to asbestos Under the by exposure caused to asbestos fibers in complaint, in Alcoa knew alleged facts manufacturing processes. their We find employees’ sig- its contained work clothes argument unpersuasive. this If the finan- fibers, nificant and it quantities of asbestos injuries cial burden compensating these danger transmitting understood the employers’ shoulders, is lifted from the these others. It is asbestos fibers to not Rather, does not vanish into the ether. readily apparent, though the facts of a persons the burden will fall on like Ms. future contrary case warrant find- particular Satterfield. public We see ing, injury that such transmission would policy imposing reason to favor these costs reasonably school offi- foreseeable upon persons have who been harmed cials or home owners.
by exposure to rather than upon asbestos
the manufacturers who used in asbestos D. processes. their manufacturing Further- Finally, Alcoa this argues Court more, alleged based on the facts in Ms. should recognize the existence of a Satterfield’s Alcoa complaint, is far from duty to persons like Ms. Satterfield be- an uninformed manufacturer who had the cause doing “contrary so would be to the using misfortune of materials containing emerging authority in weight of the United asbestos in its manufacturing process. matter,
States.” As an initial
it is not
C.
entirely clear that the various decisions of
courts in other
a clear weight
states reflect
Alcoa also
that if it
asserts
is found to be
of authority
rejection
standing behind
persons
liable to
Satterfield,
like Ms.
all
of finding
have a
in
employers
premises owners,
including schools and
take-home or
owners,
expo-
transmission asbestos
home
exposed
will be
liability
Louisiana,59
sure cases.
in
Courts
New
who were
Jersey,60 California,61
Washington62
never on
premises.
their
This concern is
recognized
have
the existence of a
misplaced
First,
for two reasons.
opinion
present
under circumstances similar to the
is not
to premises
addressed
liabil-
ity
case. A
law but
Texas state court63 and United
applicable
rather to the law
in a
general
Kentucky,64
States
in
negligence
sitting
misfeasance
District Court
case. See
Inc.,
in diversity jurisdiction,
Rochon v.
did not foreclose
Saberhagen Holdings,
1008,
Wash.App.
2325214,
imposition
2007 WL
at *2-
of a
take-home ex-
Second,
5.
viewing the facts in
light
posure
cases but
instead found that
Satterfield,
injuries
most favorable to
Alcoa
respective
Ms.
cases were not
Indus., Inc.,
Inc.,
Holdings,
Chaisson v.
Saberhagen
Avondale
62. Rochon v.
171,
(La.Ct.App.2006);
Zimko Wash.App.
1008,
2325214,
So.2d
183-84
WL
*2-4.
Cyanamid,
v. Am.
(La.
So.2d
483-84
Ct.App.2005).
Alcoa,
Behringer,
Inc.
(Tex.App.2007).
460-62
Inc.,
Owens-Ill.,
60. Olivo v.
186 N.J.
(2006).
A.2d
64. Martin v. Gen. Elec.
2007 WL
Cal.,
61. Condon v. Union Oil Co.
2004 WL
at *1-9.
2004).
(Cal.Ct.App. Aug.31,
at *3-5
they
distinguished
opinion by
were
be-
York
foreseeable because
caused
New
Jersey Supreme
finding
fore
defendants were aware of
New
Court
dangers
beyond
ground
of asbestos transmission
existed on the
workplace.65
Georgia,66
Ma-
Courts
York,
Jersey, unlike New
New
relies
York,69
ryland,67 Michigan,68 New
and De-
foreseeability
heavily on
its
anal-
that no
laware70
concluded
ex-
Moreover,
Olivo
ysis.
can be distin-
confirming
ists. Rather than
existence
guished factually in that
the landowner
“emerging weight
authority” sup-
of an
prevent
nothing
did
workers
Alcoa’s
our research re-
porting
position,
clothing
bringing asbestos-covered
*24
into
pronounced
authority
with
split
veals
family
important
compo-
home-an
to the
issue of this case.
regard
central
duty analysis-where-
nent
that court’s
here,
Authority provided
as
the Port
Furthermore,
the distinctions that
employee],
laundry
[the
services
explanations
have been drawn and the
that
York
which is relevant under New
law
by
refusing
have been
the courts
offered
Port Authority
to whether
recognize
to the one we
similar
any
that
breached
recognize today,
anything,
if
our
bolster
family
plaintiff
member].
owed [the
by
that
cases relied upon
conclusion
City
Litig.,
In re
York
New
Asbestos
provide
guidance
not
806
helpful
Alcoa do
New
146,
City
in In re
York
example,
volved was foresee- able. though recog- Even the cases that have on our
Based review of we opinions recognize today nized the have addressing by courts other states employee’s family involved claims an Inc., Owens-Ill., appropriate.” Litig., Olivo v. 73. In 2007 WL at re Asbestos A.2d 1148. at *11. opinion City 72.The in the York In re New Williams, Transp., 74. See Inc. v. CSX Litigation Asbestos case the em- indicates that S.E.2d at 209-10. ployee appeared ignored steps by employer taken ensure Owens-Ill., Inc., 75. See Adams v. 705 A.2d transmission of asbestos fibers did occur 66. beyond premises. the work Based on the alleged complaint, in Ms. facts Satterfield’s Question dangers was Mr. Satterfield unaware of the of 76. In re Fourteenth Certified from Tex., working or that he asbestos with materi- Ct.App. Dist. N.W.2d at 211-13. asbestos, actively contained als that and Alcoa discouraged employees using its from the on- Breeding, 2007 WL Satterfield Accordingly, site bathhouse facilities. unlike at *9. employee litigation, in the New York Ms. complaint provides Satterfield’s basis for no Breeding, 2007 WL Satterfield concluding that Mr. Satterfield circumvented at *9. precautions against Alcoa's the transmission fibers. drivers, members,79 members, necessarily have not re- bus and workers they jected plaintiffs. sup- enterprises claims other commercial visited against recognizing of its port argument dirty wearing worker he or she was when one, any duty in like this Alcoa as- cases Question In re work clothes.” Certified that no basis to limit principled serts exists Tex., 740 Ct.App. Fourteenth Dist. from employee’s members of However, light at 219. of the N.W.2d living in the family immediate employees magnitude potential from ex- of the harm recognizing house and thus posure to asbestos and the means available family eventually will re- these members harm, prevent reduce we see no in the of a re- recognition sult members, baby- prevent carpool reason to babysitters, housekeepers, home gard sitters, help pursuing or the domestic contractors, neigh- repair and next-door negligence against employer claims point Alcoa makes a valid with re- bors. they develop after should mesothelioma gard restricting family being regularly close repeatedly members. employee’s with an asbestos-con- contact work clothes over an extended taminated magic
There is talisman period of time.80 persons from the harmful effects protects simply because to asbestos Supe also note the Delaware We they do not the same or are live under roof poten regarding rior Court’s concern employee’s family by not a member of the liability arise tially limitless that could It is marriage. blood or foreseeable *26 requiring employers to undertake repeated, regular, the adverse effects of every potential protect warn or otherwise and extended to asbestos on an expo ly off-premises foreseeable victim employee’s injure clothes could these work Litig., In sure re Asbestos to asbestos. does persons. policy Public not warrant agree at *12. WL We duty finding there is no owed to such duty persons to warn all foreseeable who duty recog persons. Accordingly, the we fibers on an might exposed asbestos be today who regularly nize extends to those too be employee’s work clothes would into contact repeatedly come close However, imposition great a burden. employee’s contaminated work with regard to duty of a of reasonable care with time, period clothes over an extended handling employ safe of asbestos fibers on live regardless they whether in the em transmission prevent ees’ clothes to work family ployee’s or are member. home a burden. others is not such Michigan Su We note of a Recognizing the existence allowing preme Court has cautioned that to avoid reasonable care to exercise liability in like this one could result cases con harm to another involves by risk of brought remotely tort in “mass actions policy. family public of fairness and as siderations exposed such extended law, members, renters, guests, carpool Alcoa has house Under Tennessee Cal., claims actions. These sorts of See Union Oil Co. o mass tort Condon v. f *5; public WL Chaisson v. Avondale of the require reconsideration would Indus., Inc., 183-84; So.2d at Zimko case. policy questions addressed in this Cyanamid, Am. 905 So.2d Olivo mag- foreclosing liability, the such While not Owens-Ill, Inc., A.2d at 1149. the em- harm and burden on nitude of the signif- be ployer circumstances would in these 80. Our interpreted ruling today should not be icantly different. approving by unimpaired persons claims prevent injury HOLDER, J., foreseeable from an unrea- concurring JANICE M. and dissenting. of harm sonable risk it had itself created. Under the alleged facts in Ms. I fully majority’s concur in the conclu- complaint, Satterfield’s Alcoa failed to in- sion that Alcoa owed a to Ms. Satter- employees, form its including Mr. Satter- field steps prevent to take reasonable field, of the risks associated with suffering her from harm as a result of the risks created provide operation failed to them Alcoa’s meaningful I facility. separately express my write alternatives to wearing home their contam- any foreseeability belief that discussion of inated work clothes. Based these alle- the context of upon encroaches gations, Alcoa created a risk that persons so, role of the finder of fact. doing I who came into close and regular contact will explain the considerations that I be- over an period extended of time with its lieve are relevant to a analysis. employees’ work exposed clothes would be previously This Court has stated that to the asbestos fibers on the clothes. The duty depends upon existence of a fair proportional duty we recognize presence relationship of a between the today is neither impractical. limitless nor plaintiff justifies and the defendant that imposition legal of a obligation on one VII. parties. E.g., of the Staples v. CBL & Assocs., Inc., (Tenn.2000) We have determined that Ms. Satter- (Holder, J., concurring); Bradshaw v. complaint field’s upon states a claim which Daniel, (Tenn. relief can granted. Accordingly, the 1993). II III majority Sections of the trial court erred granting a judg- Alcoa opinion properly clarify that a to act ment pleadings, on the and the Court of reasonably generally arises out of the de Appeals correctly reversed that order. risk-creating fendant’s conduct rather than Based on the facts in Ms. Satterfield’s relationship parties. between the Ac *27 complaint, conclude, we cannot as a matter misfeasance, i.e., cordingly, in cases of law, of that Alcoa did duty not owe a to cases in which allegedly the defendant has Ms. Satterfield. ruling Our does not fore- risk, a created there is no need to examine possibility close the that Ms. Satterfield’s the relationship parties. between the See estate will present not be able to sufficient v. E. West Tenn. Pioneer Oil 172 Thus, evidence support to her claim. Alcoa (Tenn.2005). 545, S.W.3d 551 The exis certainly is challenge any free to element a relationship parties tence of between the of Ms. Satterfield’s claim via a motion for becomes analysis duty relevant to our of summary judgment or motion for directed only plaintiff if the alleges that he or she verdict. Accordingly, we affirm the Court was harmed as a result of the defendant’s Appeals of and remand the case to the words, nonfeasance. In other the relation trial court for further proceedings consis- ship parties important only between the is tent opinion. with this taxWe the costs of insofar provide exception to appeal Alcoa, to Inc. for which execu- the no-duty-to-rescue rule. tion, if necessary, may issue. Although majority’s I concur in the clar- issues,
ification of these I am unable to HOLDER, J., JANICE M. filed a agree majority’s with the remainder of the separate concurring dissenting and duty analysis. I Specifically, remain con- opinion. foreseeability cerned about the role
376 understanding traditionally juries. been majority’s of have entrusted to plays Sluder, duty. Foreseeability majority’s City enters the See Elizabethton v. 534 of First, 115, (Tenn.1976) fore- analysis ways. related (noting two 117 S.W.2d issue). seeability part majority’s of the forms foreseeability jury A collection explanation duty of when a arises. basic representing twelve a cross-sec people of “ example, majority ‘all For states any public tion of the is better suited than use care have a reasonable and ex judge make common-sense to refrain from conduct that will of judgment foreseeability. perience-based foresee- injury (quoting cause to others.’” Cardi, 799-800; Thomas supra, at see also ablei 323, 118 328 Burroughs Magee, v. S.W.3d Jr., Patterns Galligan, A Primer on the C. Bradshaw, (Tenn.2003); S.W.2d at Negligence, 53 La. L.Rev. 1527-28 of 870) added). Second, (emphasis foresee- of that the determination (arguing ability key component public is a of the proximate requires cause “visceral” ma- by test policy balancing employed of is fair and fact-specific judgment what jority. Burroughs, 118 S.W.3d juries equipped are suggesting that better Wilder, v. McCall S.W.2d judgments). make such (Tenn.1995). majority attempts support The stated, foreseeability IAs have often foreseeability by integration of injury properly of an or risk is more con foreseeability a differ arguing plays sidered an or element breach it does role in context than ent Ostrow, Hale proximate cause. of duty proxi the context of breach (Tenn.2005) J., (Holder, S.W.3d of its support position, mate cause. concurring Staples, 15 dissenting); majority propose cases that cites (Holder, J., ac concurring); foreseeability of a distinction between Cardi, Foresee Purging cord W. Jonathan and the of harm to others general threat ability: Duty New Vision and Ju specific harm foreseeability suf Proposed dicial Power in Restatement v. Fla. plaintiff. fered McCain (Third) Torts, 739, 744- 58 Vand. L.Rev. (Fla. Corp., Power 593 So.2d (2005). important This observation is 1992); Regents Knoll Bd. Univ. duty is primarily because existence Neb., 258 Neb. 601 N.W.2d determined courts as a matter of law (1999). cases, the for According to these cause proximate while breach of analysis while mer is relevant are inquiries fact-based be determined cause. proximate latter relevant *28 (Tenn. West, juries. by S.W.3d at 556 Knoll, McCain, 502-04; at So.2d 2005) that breach of (observing majority places The N.W.2d are proximate causation factual determina terms, “For stating, distinction in its own tions); (holding at 89 Staples, a determining whether purpose of law). a is matter of existence of exists, of the courts’ consideration By foreseeability into an incorporating assessing foreseeability limited to is analysis of duty, majority transforms a probability or like there is some whether legal ex question factual into a issue enough lihood of harm that is serious authority at the ex pands judges pre to take person induce a reasonable juries. pense Gipson Kasey, cautions to it.” avoid Cardi, (2007); Ariz. 150 P.3d be- I good agree While distinction supra, 741. It is with reason foreseeability general and prox specific breach of tween determinations of cause, foreseeability, theory, disagree made in I imate and therefore can be general foreseeability assertion that rel- making is on a razor thin distinction and duty. evant to Insofar as the encourages judges distinction to make factual deter- between forms of foreseeability can be duty. minations relevant to breach of The made, general foreseeability of harm majority’s formulation of the distinction is created the defendant’s conduct is rele- equally problematic requires because it determining vant to whether the defendant courts to evaluate “whether there is some is, behaved reasonably-that whether probability or likelihood of harm that defendant breached duty. his or her Car- serious enough per- induce a reasonable di, supra, at 746-47. The distinction precautions son to take to avoid it.” In should practical consequence, have little view, my any inquiry probability, into the however, because the jury should be re- likelihood, harm, foreseeability how- sponsible making for foreseeability both framed, ever the issue is requires courts to determinations. and, overly draw fine distinctions worse yet, to encroach upon proper function
However valid the distinction between juries. general specific foreseeability may be
in theory, difficult, the distinction is if not I foreseeability would eliminate from the impossible, apply in practice. Consid- duty analysis entirely and conclude that a er, instance, for present the facts in the duty of reasonable care arises whenever a operated case. Alcoa facility that used poses defendant’s conduct harm risk of materials containing asbestos and alleged- or property. approach This ly took precautions to ensure that em- consistent with the formulation of ployees did not transfer asbestos outside (Third) found the Restatement of Torts. facility on their clothes. According to According to the latest version the Re- the majority, these pose facts two differ- statement, ordinarily actor “[a]n has ent questions: “general” whether duty to exercise care reasonable when the harm people facility outside the physical actor’s conduct creates a risk of foreseeable and “specific” whether (Third) harm.” Restatement of Torts: Li- harm to daughter employ- one of its 7(a) ability Physical § Harm (Proposed ees was foreseeable. 2005) Final Draft No. [hereinafter Re- (Third) view, my these statement questions are so in- Under this Torts]. they approach, terrelated that virtually duty generally are the existence of a insepara- ble. If Alcoa would presumed long creates a as the plaintiff foreseeable risk to public by alleged members of the has that he or she was allowing employ- harmed ees to facility leave its defendant’s conduct. with asbestos on clothes, their then it also creates a foresee- Court, majority Like the I believe specific able risk to a person, daughter public that in some policy cases consider- of an employee. contrary is also true. ations warrant a conclusion If Alcoa’s behavior creates a foreseeable defendant plaintiff owes no to a de- daughter risk to the employee, it will spite the defendant’s creation of a risk of *29 also create a foreseeable risk to other majority, harm. Unlike the I would not public members of the who come contact public policy analysis base the on foresee- employees. with Alcoa’s To answer one ability. I would follow the Restatement question is also to answer the other. (Third) of Torts and conclude that “[i]n By requiring judges gener- cases, to determine exceptional when an articulated al foreseeability, majority’s opinion countervailing principle policy or warrants trial judges forces to base their denying limiting liability particular decision- or in a cases, represent that approach a decide that Torts and an class of court ordinary currently no duty superior balancing defendant has or that to the test modifica- requires by majority of reasonable care of the Court. employed (Third) of tion.” Restatement Torts Moreover, that the cur I am concerned 7(b). framework, no-duty § Under this foreseeability placed on emphasis rent a “only be when court rules would created the sort of presents opportunity for clear, categori- promulgate relatively can “free-floating” analysis majority that cal, bright-line applicable law a rules of concept avoid. of foresee wishes to Fur- class of Id. cmt. a. general cases.” and indef ability notoriously is a malleable thermore, no-duty rules be articu- “should Chusa, 48 concept. Thing inite See v. La directly obscuring lated without references 771 P.2d Cal.Rptr. Cal.3d foreseeability.” j. Id. cmt. that “there are (observing it, majority’s posi As I understand a can judicial days on court clear which foreseeability tion is that remains useful Hardie, Jr., forever”); H. foresee William public analysis be concept policy our Foreseeability: Murky Crystal A Ball for stabilizing principle cause it serves aas Liability, L.Rev. Predicting 23 Cumb. duty analysis that our from be prevents “[fjoresee- (1992/1993)(concluding that “free-floating.” coming “anarchic” or all elastic as to lose ability has become so view, however, shown my this Court has meaning”). consequence, As a reliance creating princi quite capable itself to be clarity and cer foreseeability reduces the no-duty without reference pled rules judges tainty negligence gives law and foreseeability. in Blair v. example, For similarly discretion situat such broad that (Tenn. 76-78 Campbell, may often treated different parties ed 1996), property we concluded that owners Cardi, 740-41, at 792-93. It is ly. supra, protect owe no a contractor af the broad discretion possible also defect that the contractor has property foreseeability by majority’s forded Head repair. undertaken to In Carson v. considerations analysis policy can mask the rick, (Tenn.1995), 685, 690 we 900 S.W.2d actually judicial decision- motivate concluded that citizens owe Cardi, making. Gipson, P.3d at respond care to officers police reasonable 740-41, 792-93; Galligan, supra, supra, a call for In Ezell v. ing to assistance. judges should (explaining that at 1523 (Tenn. Cockrell, clearly without public policy choices state 1995), pub we reaffirmed the doctrine like “foresee on malleable words relying cannot lic officials be held liable harms “unforseeable”). Adopting able” caused when the official breaches a public (Third) in would of Torts Restatement Each large. owed to the public clarity judicial transparency crease dis straightforward these cases contains judges frankly openly requiring that policy cussion of the consider relevant that un policy discuss considerations foreseeability or discussing ations without no-duty any determination. derlie encroaching upon jury’s role in resolv candid, acknowledge that I To be must Furthermore, ing disputes. factual each mi- understanding remains my firmly in common-law grounded decision is however, believe, firmly I nority position. judicial the sort of principles avoids in the context foreseeability analyzing majority. feared Accord excesses and that inherently problematic con ingly, I three cases are believe these (Third) presents of Torts recom the Restatement methodology sistent *30 (Third) that this my hope approach. a wiser It is mended Restatement approach eventually adopted will arrives, day Until that I
Tennessee. will remain unable to concur in this Court’s
duty jurisprudence. Accordingly, I re-
spectfully dissent.
BOARD OF PROFESSIONAL
RESPONSIBILITY CURRY, Edward I. III. Supreme Tennessee, Court of
at Nashville. Feb. 2008 Session. 3,Oct.