Lead Opinion
In this products liability case, the content of a sixty-some year old instruction manual for a heavy piece of naval equipment may be the quintessential smoking gun. We consider failure to warn claims in strict liability and negligence brought by the widow of a naval machinist against manufacturers of heavy-duty pumps. We are asked to determine the interesting question of whether a manufacturer can be liable for failing to warn about the risk of harm from exposure to asbestos-containing replacement parts that it neither manufactured nor placed into the stream of commerce, but which were integral to the operation of its product.
As this case reaches us after a summary judgment in favor of the defendants, “we consider whether the plaintiffs offered sufficient admissible evidence in their opposition to summary judgment to allow a jury to consider their claims of negligence and strict liability against the corporate defendants.” Beatty v. Trailmaster Prods., Inc.,
FACTS AND LEGAL PROCEEDINGS
Ruth Belche May (“Petitioner”) is the widow of a machinist mate, Philip Royce May (“May”), who served on active duty in the United States Navy (“Navy”) for 20 years, from 1956 until 1976. Air & Liquid Systems Corp., Warren Pumps LLC, and IMO Industries, Inc. (“Respondents”) manufactured steam pumps that were sold to the Navy. The Navy used these pumps to move extremely hot and highly pressurized steam through the ship’s steam propulsion system. In accordance with the Navy’s specifications, the Respondents’ pumps contained asbestos gaskets and packing when the Respondents
As a machinist mate, May worked in the engine room of Navy ships. May testified that he would go to the log room and consult the instruction manuals on any piece of equipment he serviced.
May, however, was never exposed to the asbestos gaskets and packing that these Respondents used in their products. He was exposed only after other Navy mechanics, who performed maintenance on Respondents’ pumps, replaced Respondents’ gaskets and packing with new components acquired from third parties — also containing asbestos.
In January 2012, May learned he was suffering from mesothelioma, a form of cancer that is commonly caused by asbestos exposure.
(1) Can Respondents be liable in negligence for injuries sustained by May?
(2) Can Respondents be strictly liable for injuries sustained by May?
Because we answer yes as to both questions, we shall reverse the judgment of the Court of Special Appeals and remand for further proceedings.
STANDARD OF REVIEW
A circuit court may grant a motion for summary judgment if there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(f). “The court is to consider the record in the light most favorable to the non-moving party and consider any reasonable inferences that may be drawn from the undisputed facts against the moving party.” Mathews v. Cassidy Turley Md., Inc.,
DISCUSSION
In Twombley v. Fuller Brush Co.,
*9 To begin with we note that a manufacturer’s duty to produce a safe product, with appropriate warnings and instructions when necessary, is no different from the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others. 2 Fowler Harper & Fleming James, The Law of Torts, § 28.3 (1956); William Prosser, The Law of Torts, § 31 (4th ed.1971). Whether any such unreasonable risk exists in a given situation depends on balancing the probability and seriousness of harm, if care is not exercised, against the costs of taking appropriate precautions. 2 Harper & James, supra, §§ 16.9, 28.4; Restatement (Second), Torts §§ 291-93, 298 (1965). However, we observe that in cases such as this the cost of giving an adequate warning is usually so minimal, amounting only to the expense of adding some more printing to a label, that this balancing process "will almost always weigh in favor of an obligation to warn of latent dangers, if the manufacturer is otherwise required to do so.
Id. at 543^14,
Failure to warn claims may be brought under a negligence or strict liability theory. Robert D. Klein, A Comparison of the Restatement (Third) of Torts: Products Liability and the Maryland Law of Products Liability, 30 U. Balt. L.Rev. 273, 288 (2001) (“In Maryland, failure-to-warn cases have either proceeded as negligence causes of action or ... as strict liability claims----”); see Gourdine v. Crews,
If the asbestos dust that May inhaled was from the original gaskets and packing in the pumps sold by Respondents, this would be a straightforward negligent and strict liability failure to warn case. The novelty of this case is that Petitioner asserts liability against Respondents even though May was never exposed to asbestos dust from the original gaskets and packing. The original asbestos gaskets and packing that Respondents incorporated into the pumps they sold to the Navy had already been replaced by other gaskets and packing
Relying on Ford Motor Co. v. Wood,
I. Negligent Failure to Warn
Duty to Warn and Patton Factors
A prima facie products liability failure to warn claim grounded in negligence requires a showing of duty of care. See Moran,
*11 the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Patton v. U.S. Rugby Football,
Here, the crux of Respondents’ argument is that they “did not owe [ ] May a duty of care for the fundamental reason that they did not manufacture or sell the injurious asbestos parts.” Respondents take umbrage at the notion that they can be liable for injuries from a replacement part that they never touched.
Petitioner argues that the foreseeability of harm to a navy machinist who must replace the asbestos-containing components inside the pump “weighs heavily in favor of imposing a duty” to warn on Respondents. Our well-settled law reflects that the foreseeability of harm factor weighs heavily in favor of imposing a duty. See Remsburg v. Montgomery,
But foreseeability alone is not sufficient to establish a duty. Remsburg,
(i) The “degree of certainty that the plaintiff suffered the injury ” also weighs in favor of imposing a duty here. Patton,
(ii) The “closeness of the connection between the defendant’s conduct and the injury suffered ” may prove to be the turning point for determining duty. Id. To be sure, the asbestos components Respondents placed in the pumps had been replaced by other equivalent parts supplied by third parties, and in that sense the Respondents’ conduct is somewhat removed from the injury. In our discussion of strict liability, we will address whether the replacement of these components constituted a “substantial change.” Here, though, we frame our analysis in the language of negligence, and focus on the sale of the pump and the conduct of Respondents in
A federal district court decision, relying on New York state cases, proves to be instructive.
Where additional circumstances strengthen the connection between the manufacturer’s product and the third party’s defective one, a duty to warn may arise. For example, the First Department has held that a manufacturer has a duty to warn against the dangers of a third-party product if the third-party product is necessary for the manufacturer’s product to function. See Rogers v. Sears, Roebuck and Co.,268 A.D.2d 245 ,701 N.Y.S.2d 359 , 359-60 (1st Dep’t 2000) (manufacturer of barbeque grill could have duty to warn against dangers of third-party-*14 manufactured propane tank where grill could not be used without tank).
Id. at 801 (emphasis added).
Indeed, the court specifically considered the liability of a pump manufacturer who knew that asbestos would be incorporated in its pump:
Furthermore, a duty to warn may arise if the manufacturer knows that its product will be outfitted with a third party’s defective product pursuant to contract specifications. Berkowitz v. A.C. & S., Inc.,288 A.D.2d 148 ,733 N.Y.S.2d 410 , 411-12 (1st Dep’t 2001) (pump manufacturer might have duty to warn of dangers of asbestos exposure where “government provided certain specifications involving insulation” and manufacturer knew insulation would contain asbestos)[.]
Id.
Similar reasoning guided a federal district court in Illinois that, applying maritime law, carved out an exception to what it called the “bare metal defense”
In general, consistent with the bare metal defense, a manufacturer is not liable for materials it did not supply. But a duty may attach where the defendant manufactured a product that, by necessity, contained asbestos components,*15 where the asbestos-containing material was essential to the proper functioning of the defendant’s product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.
Quirin,
The present case, on appeal from a summary judgment, falls within the exception, carved out by the New York and Illinois cases, to the “bare metal defense.” Significantly, the record contains evidence supporting a reasonable inference that asbestos was the only available insulating material that could be used in the gaskets and packing in high-temperature operations. May testified that the pump manufacturers “had no other type of gasket at that time that would work, except the asbestos sheet gasket.” He stated that the pumps in question, which would pump matter reaching temperatures of 185 degrees or higher, needed asbestos gaskets — as opposed to other types of gaskets such as rubber, cork, paper, and vegetable fiber — because the “temperature of the heat is so much[,] it would burn [these other materials] up.”
In response to interrogatories, Air & Liquid Systems wrote that “[i]n the 1980s, gaskets and packing materials containing asbestos became generally unavailable while, at the same time, suitable replacement products ... were becoming available.” This indicates that suitable non-asbestos components did not exist when Respondents sold their pumps to the Navy in the 1940s and 1950s. Moreover, Henry Hartz, an IMO Industries engineer, testified that “there was a scramble in the industry to find something that would replace asbestos.” Thus, even if nothing “inherent in the pump design itself ‘required asbestos’ ” as Respondents contend, the asbestos gaskets and packing still needed to be replaced by other asbestos gaskets and packing because no other suitable material could be used with pumps that transported high-heat material.
(iii) The “extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care ” is negligible in this case. Patton,
(iv) Moral blame. See Patton,
(v) The “policy of preventing future harm ” is a neutral factor. See Patton,
(vi) The “availability, cost and prevalence of insurance.” Id. Petitioner highlights that duty is determined at the time of sale and that insurance was generally available to cover the risks of asbestos at the time Respondents sold their pumps to the Navy. Petitioner accentuates that not only was insurance for these risks available, but also that Respondents obtained insurance coverage. Indeed, Respondents implicitly acknowledge in their brief that they have some pre-1986 insurance coverage available to them.
Respondents, however, frame this factor as whether insurance for the risk could be procured today and cite Coates v. Southern Maryland Electric Cooperative, Inc., for the proposition that this factor is forward-looking.
Balancing the Factors
As we have said, in negligence cases involving personal injury, the principal determinant of duty is foreseeability. Doe v. Pharmacia & Upjohn Co., Inc.,
We have recognized that “[a]t its core, the determination of whether a duty exists represents a policy question of whether the specific plaintiff is entitled to protection from the acts of the defendant.” Gourdine,
Respondents warn that imposing liability here would be poor public policy and inflict “crushing transaction costs for the ongoing support of litigation against defendants who did not manufacture or sell the asbestos components encountered by plaintiffs.” As for public policy in this context, we look not to a defendant’s litigation costs, but rather, the well-settled principles of tort law, and its foremost question of duty. Here we impose a duty on a manufacturer to warn when its product not only has asbestos components, but also cannot function properly without these hazardous components, and a machinist will be exposed to the asbestos during necessary, periodic replacement of the parts with other asbestos-containing parts. This is a narrow and limited duty. Cabining the duty in this
We have seriously considered the California Supreme Court’s decision in O’Neil v. Crane Co.,
The California Supreme Court explicitly held that “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substan
Moreover, the court based its decision at least in part on its reading of the factual record to mean that the manufacturer’s pumps and valves did not need asbestos-containing components to function properly. Id.
Applying our four-part test in this case, it is undisputed that Respondents sold pumps with asbestos-containing components to the Navy. In contrast to O’Neil where “the evidence did not establish that defendants’ products needed asbestos-containing components or insulation to function properly,”
In addition, the record contains sufficient evidence for a reasonable jury to conclude that warnings, had they been given, would have reached May. May testified that he would go to the log room and consult the instruction manuals on any piece of equipment he serviced. Moreover, as Respondents’ state of knowledge about the dangers of asbestos was not the subject of their motion for summary judgment, we do not address the sufficiency of evidence adduced by Petitioner on this issue. See Higginbotham v. Pub. Serv. Comm’n of Md.,
II. Strict Liability Failure to Warn
In Phipps v. General Motors Corp.,
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
In Owens-Illinois, Inc. v. Zenobia, we considered Comment j of the Restatement § 402A applicable to failure to warn claims predicated on strict liability.
Consequently, we recognized that “in a failure to warn case governed by the Restatement § 402A and Comment j, negligence concepts to some extent have been grafted onto strict liability.” Zenobia,
Because of the intersections between strict liability and negligent failure to warn claims, we conclude that a manufacturer has a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce in strict liability in the same narrow circumstances as in negligence. That is, a manufacturer will have a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce in strict liability only where (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know of the risks from exposure to asbestos.
Petitioner asserts and Respondents do not deny that the asbestos gaskets and packing that replaced the component
Our four elements necessary to establish duty in this context, stated above, ensure compliance with the substantial modification doctrine. Part of the first element — that a manufacturer’s product contains asbestos — requires that a manufacturer’s product be defective when it leaves the manufacturer’s hands. The second element — the product will not function properly without using asbestos — requires that the manufacturer’s product remains defective when the user of that product suffers harm. The necessary replacement of asbestos components with identical components cannot be said to constitute a substantial modification. Consequently, our test for determining whether a manufacturer has a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce incorporates the substantial modification doctrine.
We are not persuaded by Respondents’ argument that the asbestos gaskets and packing themselves are the “product” for purposes of strict liability analysis. Common sense tells us that the pumps were what Respondents sold to the Navy, and the gaskets and packing are included within that product.
We have studied Ford Motor Co. v. Wood and the out-of-state cases cited by Respondents refusing to impose any liability when the offensive product was a replacement from a third party.
We must stress that a manufacturer is generally not strictly liable for products it has not manufactured or placed into the stream of commerce. As the Court in Phipps cautioned: “Despite the use of the term ‘strict liability’ the seller is not an insurer, as absolute liability is not imposed on the seller for any injury resulting from the use of his product.”
CONCLUSION
This Court concludes that a manufacturer will have a duty to warn under negligence and strict liability when (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know the risks from exposure to asbestos.
We agree with Petitioner that Maryland law strikes a balance between the need for persons injured by products to obtain compensation and justice and the canon that product manufacturers are not absolute insurers of their products. To strike this balance, we preserve the rule that a company is not generally liable for asbestos-containing parts it does not manufacture or place into the stream of commerce, but recognize that narrow circumstances exist where a manufacturer can be liable for products it has not touched. Accordingly, we reverse the Court of Special Appeals’ affirmance of summary judgment on Petitioner’s duty to warn negligent claim and strict liability failure to warn claim.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS
. Gaskets are mechanical seals that prevent the leakage of gas or fluids from valves. Packing is insulation inserted between a valve stem and valve cover to maintain a seal. It is not clear from the record whether the Respondents themselves manufactured the original asbestos gaskets and packing or whether they bought them from third parties and incorporated these parts into their final product. Regardless, Respondents placed asbestos gaskets and packing into the stream of commerce when they first sold steam pumps to the Navy.
. Respondents dispute what inference should be drawn from May’s testimony that he reviewed the instruction manuals, and contend that it cannot be inferred that May relied on the manuals for the purpose of determining whether replacement gaskets and packing for any pump should contain asbestos. As this appeal is from a grant of summary judgment, May, the non-moving party, is entitled to the benefit of all reasonable inferences to be drawn from the evidence. Educ. Testing Serv. v. Hildebrant,
. Air & Liquid Systems Corp., Warren Pumps LLC, and IMO Industries, Inc. filed one brief for purposes of this appeal. We therefore look to testimony in the record as evidence admissible against all Respondents solely for purposes of this appeal.
. Included in the record is expert deposition testimony, filed by Petitioner in opposition to summary judgment, saying that "all of [May’s] exposures to asbestos above background levels [were] causes of Mr. May’s mesothelioma.” The expert explained that “this is a dose dependent disease and it relates to cumulative exposures, and these are medical causes of his mesothelioma.”
. Other defendants included the manufacturers of the asbestos-containing replacement parts that May replaced and installed.
. At the Circuit Court, Respondents contested medical causation, but that was not the issue relied upon by the trial judge as a ground for granting the motions. Medical causation remains an open issue on remand.
. May died in April 2014.
. Kennedy v. Mobay Corp.,
. The court applied maritime law to the negligence claims of a machinist mate who was diagnosed with mesothelioma following exposure to asbestos on a Navy vessel. Quinn v. Lorillard Tobacco Co.,
. Because medical causation was an issue raised by Respondents at the Circuit Court, that will remain an open issue on remand.
. Indeed, the danger posed by removing asbestos-containing gaskets and packing put into the stream of commerce by a manufacturer is exactly the same as the danger posed by removing gaskets and packing that a manufacturer has not touched.
. Although the New York Court of Appeals has not directly addressed the issue, it will consider whether manufacturers can be liable for failure to warn about hazards in products that they have not placed into the stream of commerce in a case stemming from an appeal as of right. See In re New York City Asbestos Litig. (Dummitt v. A.W. Chesterton),
. As the court explained:
[TJhere is no evidence that Pacific boilers required asbestos insulation to function. Indeed, an employee manual from 1925 indicated that asbestos was only one of several materials that could be used to insulate Crane products. (See Doc. 20, Ex. 21 at 7) (identifying "asbestos ..., magnesia, felt, cork, wood fibre and hair" as possible insulators).
Surre v. Foster Wheeler LLC,
. Respondents give short shrift to the Berkowitz decision cited by the court in Surre, highlighting Surre’s characterization of Berkowitz as "a one-paragraph opinion with no clear holding.” See Surre,
Berkowitz involved more than a mere possibility that asbestos might be used, and the case hardly stands for the broad proposition that a manufacturer has a duty to warn whenever it is foreseeable that its product will be used in conjunction with a defective one. Rather, the specifications [in Berkowitz ] apparently prescribed the use of asbestos.
Id. at 802-03 (emphasis in original) (citing Berkowitz v. A.C. & S., Inc.,
. The court explained the “bare metal defense” as a position that "manufacturers ... are not liable for the dangers of asbestos-containing replacement parts supplied by a third party.” Quirin,
. Respondents cast blame on the Navy and rely in part on the expert report of Rear Admiral David P. Sargent, Jr. for the proposition that May's injury is not properly attributable to them. In his expert report,
. Schwartz v. Abex Corp.,
. Several courts point out that O’Neil does not stand for the proposition that a manufacturer can never be liable for component parts it has not manufactured or placed into the stream of commerce. See, e.g., Willis v. Buffalo Pumps Inc.,
. The court put it this way later in the opinion:
We reaffirm that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer's product. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm, either because the defendant's own product contributed substantially to the harm, or because the defendant participated substantially in creating a harmful combined use of the products.
O’Neil v. Crane Co.,
. To the extent that Respondents argue that May would not have heeded any warnings had they been printed in the instruction manuals, there is a presumption that a plaintiff will heed any warning given. See U.S. Gypsum Co. v. Mayor & City Council of Balt.,
. This is not to say that strict liability and negligent failure to warn claims are equivalent. See Mazda Motor of Am.., Inc. v. Rogowski,
These two theories of liability are also distinct from a practical standpoint. In Zenobia, we observed that the availability of contributory negligence as a defense is an important difference between strict liability and negligent failure to warn claims:
We note that despite the overlap of negligence principles in a strict liability failure to warn case, strict liability differs from a negligence*25 cause of action in that contributory negligence is not a defense to a strict liability claim. Ellsworth v. Sherne Lingerie, Inc.,303 Md. 581 , 597-98,495 A.2d 348 , 356-57 (1985). In addition, in light of the other comments to § 402A of the Restatement (Second) of Torts, which apply in defective design, defective construction, and failure to warn cases, there are some differences between a negligent failure to warn case and a failure to warn based upon § 402A and Comment j.
. The dissent asserts that there is no need to weigh the factors articulated in Patton to determine whether Respondents owed May a
. See Lindstrom v. A-C Prod. Liab. Trust,
Petitioner and Respondents discuss three Washington Supreme Court decisions in their dispute over whether a manufacturer can be strictly liable for asbestos-containing replacement parts that it did not place into the stream of commerce. Compare Simonetta v. Viad Corp.,
The most recent of these cases favors a duty to warn, but it does not overrule the earlier cases concluding that no duty exists. See Macias,
Dissenting Opinion
Dissenting Opinion by
which BATTAGLIA, J., joins.
Respectfully, I dissent. I would affirm the judgment of the Court of Special Appeals. In this case, Petitioner contends that, in a products liability case, a manufacturer may be liable for an individual’s injuries caused by a third party’s replacement parts; and Petitioner points out that other jurisdictions have held that there is a duty to warn in such circumstances.
Respondents respond that they are not liable in tort for any injury caused by exposure to asbestos from other manufacturers’ products; i.e., Respondents cannot be held liable for replacement parts or any later-added parts made and sold by others. Respondents contend that “Maryland courts[,] applying [ ] strict liability principles^] have never held a manufacturer liable for injury caused by another manufacturer’s product, even when foreseeably used with the manufacturer’s own product.” (Emphasis omitted). Stated otherwise, Respondents assert that, as the Court of Special Appeals did, this Court should reject the imposition of strict liability on a manufacturer for harm caused by another’s product. And, I agree.
I would hold that manufacturers of products cannot be held liable for failing to warn of the dangers of replacement or later-added parts that they neither manufactured nor placed into the stream of commerce. Thus, here, having undisputedly neither manufactured, marketed, sold, nor otherwise placed into the stream of commerce the replacement or later-added parts that led to Mr. May’s exposure to asbestos and subsequent injury, Respondents cannot be held liable for a failure to warn of the dangers of those asbestos-containing products. As discussed in Phipps v. Gen. Motors Corp.,
In Phipps,
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
We noted that one of the justifications for imposing strict liability in tort on manufacturers was that “the cost of injuries caused by defective products should in equity be borne by the manufacturers that put such products on the market[.]” Id. at 343,
[T]he justification for [ ] strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of*33 protection at the hands of someone, and the proper persons to afford it are those who market the products.
Id. at 352,
This core principle was reaffirmed in Ford Motor Co. v. Wood,
As an alternative ground to uphold the jury’s verdict, Mrs. Wood contended that, “regardless of who manufactured the replacement parts, there was sufficient evidence from which the jury could infer that Ford had a duty to warn of the dangers involved in replacing the brakes and clutches on its vehicles.” Id. at 33,
justified because the assembler derives an economic benefit from the sale of a product that incorporates the component; the assembler has the ability to test and inspect the component when it is within its possession; and, by including the component with its finished product, the assembler represents to the consumer and ultimate user that the component is safe.
Id. at 34,
Conversely, the Court of Special Appeals observed that other courts had “noted that such justifications are not ad
[T]he need to preserve a bright line in the law of strict products liability (that is, a chain of title rule) is evident. For example, if an assembler were strictly liable for an “identical” replacement part purchased from a third party, the court would be forced to conduct an inquiry into whether the original and the replacement parts were manufactured by the same company.... If so, whether the original and replacement parts were sufficiently similar? ... If so, whether the original and replacement parts were manufactured utilizing a similar process and similar materials? If so, at what point in time did endorsement by the assembler of the component manufacturer come to an end, if ever? Each of these questions would have to be answered in order to support liability under an “endorsement” theory, notwithstanding the other justifications for strict liability.
Id. at 35,
Wood remains persuasive, good law on this point — and, indeed, is simply a restatement of a very basic principle of
Wood is dispositive of this case for the simple reason that the Mays had no evidence that any of the [Respondent]manufacturers manufactured, marketed, sold, or otherwise placed into the stream of commerce any of the asbestos-containing gaskets or packing to which Mr. May was exposed. It was undisputed that Mr. May was exposed to asbestos only because of his exposure to replacement parts that the [Respondent-]manufacturer[s] neither made nor [otherwise] placed into the stream of commerce. The circuit court, therefore, correctly directed the entry of summary judgment in favor of those [Respondents] and against the Mays.
May v. Air & Liquid Sys. Corp.,
Petitioner would have this Court expand strict liability to those who are neither the seller nor the manufacturer of an injury-causing product. In my view, to adopt Petitioner’s position would be to impermissibly expand strict liability in all products liability cases — not just those involving asbestos products — and blur beyond recognition the existing bright line that, to be strictly liable, the defendant must have either manufactured or sold the injury-causing product. Indeed, to adopt Petitioner’s view would lead to numerous questions and analyses that would further complicate an already complex litigation process, including inquiry as to whether the original and replacement parts are sufficiently similar, whether they are manufactured in a similar fashion with similar materials, whether the manufacturer knew of or anticipated the use of replacement parts, whether the replacement parts were integral to the product’s operation, and whether any other types of suitable replacement parts were available. This Court should not countenance such an expansive inquiry to impose
Equally as significant, holding as Petitioner urges would overturn decades of strict liability law in Maryland established in the wake of Phipps. As a matter of public policy, a defendant who neither manufactures, sells, nor otherwise places a product into the stream of commerce generally is not in a “position to take precautions and protect against the defect.” Phipps,
Contrary to the Majority’s analysis, in cases factually similar to the instant case, other courts have declined to hold a manufacturer liable for injury caused by another manufacturer’s replacement or later-added part. For example, in O’Neil v. Crane Co.,
Recognizing [the] plaintiffs’ claims would represent an unprecedented expansion of strict products liability. We decline to do so. California law has long provided that manufacturers, distributors, and retailers have a duty to ensure the safety of their products[,] and will be held strictly liable for injuries caused by a defect in their products. Yet, we have never held that these responsibilities extend to preventing injuries caused by other products that might foreseeably be used in conjunction with a defendant’s product. Nor have we held that manufacturers must warn about potential hazards in replacement parts made by others whe[re], as here, the dangerous feature of these parts was not integral to the product’s design. The broad rule [that the] plaintiffs urge would not further the purposes of strict liability. Nor would public policy be served by requiring manufacturers to warn about the dangerous propensities of products [that] they do not design, make, or sell.
Id. (emphasis in original). At the conclusion of the opinion, the Supreme Court of California reiterated that it was “reaffirm[ing] that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer’s product.” Id.
As another example, in Braaten v. Saberhagen Holdings,
Similarly, in Simonetta v. Viad Corporation,
These cases, coupled with Maryland case law and the justifications supporting the imposition of strict products liability, as this Court adopted in Phipps,
This Court’s holding in Patton v. U.S. Rugby Football,
Respondents respond that there was no need to weigh the Patton factors to determine whether a duty to warn existed. Alternatively, Respondents contend that the Patton factors weigh against imposing a duty to warn on Respondents.
In Patton,
In determining the existence of a duty of care, we considered, among other things:
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost[,] and prevalence of insurance for the risk involved.
Id. at 637,
I agree with Respondents that the factors outlined in Patton are not determinative in this case and that there was, and is, no need to weigh the factors to determine whether Respondents owed Mr. May a duty to warn. Patton involved negligence, not strict products liability; as such, in Patton, we neither commented on nor added to the understanding of what is required to bring a case for strict products liability. In Patton, this Court did not state that the factors necessary to determine whether a duty of care exists in negligence extend to determining whether a manufacturer in a strict liability case has a duty to warn in connection with products that it does not manufacture, market, sell, or otherwise place into the stream of commerce.
In Patton,
In Gourdine,
Based on this negligence law we think that in the products liability domain a duty to warn is imposed on a manufacturer if the item it produces has an inherent and hidden danger about which the producer knows, or should know, could be a substantial factor in bringing injury to an individual or his property when the manufacturer’s product comes near to or in contact with the elements which are present normally in the environment where the product can reasonably be expected to be brought or used.
The Court stated that “[t]his framework substantially mirrors that of a strict liability action[.]” Gourdine,
In any event, although the factors set forth in Patton need not be examined, addressing foreseeability, a factor that Peti
The foreseeability of harm caused by a replacement part— if, indeed, foreseeable — is neither dispositive of the question of whether a duty exists nor a predominant factor to be considered. See Maj. Op. at 19,
Faced with the untenability of a pure foreseeability analysis and the general inapplicability of the Patton factors, the Majority ultimately concludes:
[T]he duty to warn in this context exists in the limited circumstances when[:] (1) a manufacturer’s product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know of the risks from exposure to asbestos.
Maj. Op. at 19,
In sum, for the above reasons, I would reaffirm the longstanding and heretofore unbroken principle that manufacturers of products cannot be held liable for failing to warn of the dangers of replacement or later-added parts that they neither manufactured nor otherwise placed into the stream of commerce. In my view, in this case, having neither manufactured, marketed, sold, nor otherwise placed into the stream of commerce the replacement or later-added parts that led to Mr. May’s exposure to asbestos and subsequent injury, Respondents cannot be held liable for a failure to warn of the dangers of those asbestos-containing products.
For the above reasons, respectfully, I dissent.
. Wood was abrogated in part on grounds not relevant here as stated in John Crane, Inc. v. Scribner,
. To be sure, in Macias v. Saberhagen Holdings, Inc.,
[T]his case comes within the general rule that a manufacturer in the chain of distribution is subject to liability for failure to warn of the hazards associated with use of its own products. Simonetta and Braaten do not control because unlike in those cases, where the*40 manufacturers’ products did not, in and of themselves, pose any inherent danger of exposure to asbestos, here when the products were used exactly as intended and cleaned for reuse exactly as intended they inherently and invariably posed the danger of exposure to asbestos.
Id. at 1077 (emphasis in original). Significantly, in Macias, id. at 1080, the Supreme Court of Washington — as the Majority acknowledges, see Maj. Op. at 27-28 n. 23,
. I am not persuaded by the various other arguments that Petitioner raises in an attempt to assert that Respondents liable for failing to warn