(EDITOR’S NOTE: The D.C. Court of Appeals asked the Supreme Court of Maryland to answer the following question.)

“Under Maryland law, in a strict liability design defect claim, must a plaintiff who alleges that she was injured as a bystander (in contrast to a “user” or “consumer” as defined in Valk Manufacturing Company v. Rangaswamy, 537 A.2d 622, 629 (Md. Ct. Spec. App. 1988), rev’d on other grounds, 562 A.2d 1246 (Md. 1989)) prove an additional element—the element of duty—beyond the four “essential elements of an action in strict liability as set forth in [the Restatement (Second) of Torts] § 402A,” Phipps v. General Motors Co., 363 A.2d 955, 958 (Md. 1976), to recover, and if so, what factors are used to determine whether a duty is owed?”

In the Superior Court of the District of Columbia, the estate of Mrs. Allen, the now-deceased ex-wife of a deceased worker, brought a products liability action, with a strict liability for design defect claim, against defendants including Appellee General Electric, seeking damages for mesothelioma and lung cancer caused by take-home exposure to asbestos dust brought home on her husband’s work clothes. The trial court granted General Electric’s motion for summary judgment.

Appellant, Mrs. Allen’s estate, alleges that Mrs. Allen developed mesothelioma and lung cancer from take-home asbestos exposure on the work clothes of her former husband, Willard Phillips. Appellant’s action against General Electric alleges that Mr. Phillips applied asbestos-containing insulation to General Electric turbines during construction at Chalk Point power plant in Aquasco, Maryland from 1963 to 1964. General Electric was required to supply and install its turbines’ insulation, and contracted with Mr. Phillips’ employer, Walter E. Campbell Company, to do so.

No organization provided shower/changing facilities for insulators at Chalk Point; thus, Mr. Phillips wore his work clothes home every day. Prior to her death, Mrs. Allen had testified that during her marriage to Mr. Phillips, she laundered his dusty work clothing every other day, shaking them out in the process.

The Supreme Court of Maryland ruled that for a strict liability design defect claim in an asbestos exposure case, a household member alleging take-home exposure through no fault of her own, is not required to prove the additional element of duty in addition to the four elements of strict liability set forth in Phipps v. Gen. Motors Corp., 278 Md. 337 (1976).

The Supreme Court concluded that the elements of strict liability design defect are distinct from those of strict liability failure to warn and negligence claims. Case law addressing whether a defendant owes duty to a plaintiff with respect to strict liability failure to warn claim does not mandate duty must be proved as an element in an asbestos product strict liability design defect claim, even though concepts of negligence and strict liability have morphed together in failure to warn cases.

The Supreme Court also noted that the requirement that a plaintiff in Mrs. Allen’s position, i.e. alleging take-home exposure, be exposed to asbestos through no fault on her own part, goes toward making clear that sellers are not subject to liability for injuries caused by a claimant’s misconduct.

A copy of the decision is attached.