Manufacturers Face Liability for Failing to Predict the Future

Manufacturers like the law to be clear. The rules about organizational structure, taxation, employee rights and benefits, importing and exporting, permits and financing, to name a few, are critical to investing in, building and operating a business that will provide steady jobs for workers and a reasonable return for investors.

In law school, potential lawyers learn about black letter law. Black letter law is clearly stated and so well accepted that it can be printed in hornbooks with the knowledge that it can be relied upon to fairly express obligations and liabilities. In product liability cases, black letter law says that a person carrying on an activity that involves some hazard does not have to warn others about that hazard unless it is reasonably foreseeable that they will be harmed by it. And that’s where black letter law starts turning shades of grey. What is reasonably foreseeable?

Early this month, the California Supreme Court ruled that it is reasonably foreseeable that workers exposed to asbestos fibers at work may act as carriers that could harm household members. As a result, the employer or the owner of the property where the employee worked is liable for any injuries caused by the asbestos. This is directly counter to what most state courts allow. The court did, however, expressly limit the legal principle to members of the worker’s household.

Presumably carpool members, house guests or others who routinely come near an employee after work are not foreseeably affected. The court had to make a somewhat arbitrary decision to exclude them, and that’s where it had to face its own dilemma with trying to make the law clear.

The Manufacturers’ Center for Legal Action filed an amicus brief in this case arguing that the line be drawn at the workplace. In fact, the Georgia Supreme Court drew that very line in a similar ruling the day before the California decision. Admittedly, the Georgia case involved the manufacturer of the asbestos, and not the employer of the plaintiff. Nevertheless, the decision recognized that the duty to warn third parties about hazards in such circumstances would “expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs.”

California’s policy will test how big that universe really is. There are many situations that can be imagined, and arguably be made foreseeable by a plaintiff’s lawyer, where household members could be exposed to a hazard brought home from work. As scientists becomes more able to pinpoint the source and nature of hazards, more liability becomes foreseeable, even if the chance of injury is very small. The Georgia court recognized that it is unreasonable to impose a duty to warn remote third parties, “as the mechanism and scope of such warnings would be endless.” California imposes that duty to warn household members, and it is reasonably foreseeable that more litigation is coming.

Quentin Riegel

Quentin Riegel

Vice President and Deputy General Counsel at National Association of Manufacturers
Quentin Riegel is the vice president and deputy general counsel for the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Mr. Riegel works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. He also serves as general counsel for the Council on Competitiveness, a group of CEOs, university presidents and labor leaders working to ensure America's competitiveness. Mr. Riegel has been in the General Counsel's office since 1980.
Quentin Riegel

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