________________ _______________

________________ _______________ Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 25, 2007 In re CERTIFIED QUESTION FROM THE FOURTEENTH DISTRICT COURT OF APPEALS OF TEXAS,

GLENN MILLER, ESTATE OF CAROLYN MILLER, SHAWN DEAN, JOHN ROLAND, and ALMA ROLAND, Plaintiffs,
v No. 131517 FORD MOTOR COMPANY, Defendant.

BEFORE THE ENTIRE BENCH MARKMAN, J. Plaintiffs filed suit in Texas against defendant, alleging that the decedent contracted mesothelioma fro m washing the work clothe s of her stepfather who worked for independent contractors who were hired by defenda nt to reline the interiors of blast furnaces w ith materials that contained asbestos. A jury found infavor of plaintiffs. Pursua nt to MCR 7.305(B), the Four teenth District Court of Appeals of Texas certified the fo llowing question to this Court: Whether, under Michigan law, Ford, as owner of the property on which asbestos-contai ning products were located, owed to Carolyn Miller, who was never on or near that property, a legal duty specified in the jury charg e submitted by the trial court, [1] to protect her from exposure to any asbest os fibers carried home on the clothing of a member of Caro lyn Miller’s hous ehold w ho was working on that property as th e employee of an independent contractor. Having granted the request to answ er the certified question, and having heard oral argument, we answer the question in the negative. 2 Under Michigan

1 The jury was asked to decide whether defendant was negligent and was instructed that “[n]egligence is the failure to us e ordinary care.” Therefore, the legal duty specified in the jury charge s ubmitted by the trial c ourt was the duty to use ordinary care.

2 Justice Weaver restates her belief that this Court lacks the authority to answer certified questions, but she has not prevailed on this issue. See, e.g., In re Certified Question ( Kenneth Henes Special Projects Procurement v Continental Biomass Industries, Inc ), 468 Mich 109; 659 NW2d 597 (2003); In re Certified Question ( Wayne Co v Philip Morris, Inc ), 465 Mich 537, 543-545; 638 NW2d 409 (2002), certified questions in which Justice Weaver partic ipated in this Court’s substantive decisions. For one justice’s response to Justice Weaver’s constitutional arguments, see In re Certified Question ( Melson v Prime Ins Syndicate, Inc ), 472 Mich 1225, 1231-1242 (200 5) (Markman, J., dissenting). Moreover, we see no constitutional distin ction in whether a certified question has come to this Court from another state’s sup reme court or from its court of appeals. See MCR 7.305(B) (allowing this Court to consider certified questions from a “federal court, state appellate court, or tribal court”). Concerning Justice Cavanagh’s solicitude for Justice Young’s “constitutional conscience,” post at 1-2, Justice Yo ung, like Justice Weaver, has written that this Court lacks the authority to answer certifie d questions, but his position did not carry the day. See Melson, supra at 1226 (Young, J., concurring). (continued...)

2law, Ford, as owner of th e property on which asbestos-containing products were located, did not owe to Caro lyn Miller, who was never on or near that property, a legal duty to protect her from exposure to any asbestos fibers carried home on the clothing of a member of her household wh o was working on th at property as the employee of independent contractors, where there wa s no further relationship between defendant and Mill er. Having answered the cer tified question, we now return the matter to the Fourteenth Distri ct Court of Appeals of Texas for such further proceedings as that court deems appropriate.
I. FACTS AND PROCEDURAL HISTORY Plaintiffs allege that th e decedent, Carolyn Miller, died from mesothelioma, an incurable and fatal form of lung can cer, that she contracted from washing the

(...continued) Five justices, including Jus tice Cavanagh, disagreed. Just as Justice Cavanagh is within his rights as a su pporter of certified questions not to answer a certified question in a particular case (his position here), Justice Young as an opponent of certified questions is within his rights to answer a certified ques tion, because this is now a part of our state’s “judicial pow er.” Indeed, Justice Young has previously answered certified questions and, in fact, authored a majority opinion responding to a certified question. Kenneth Henes, supra . Justice Young also joined Justice Cavanagh’s opinion in Wayne Co, supra . This is obviously all well known to Justice Cavanagh, who made no sim ilar objections to Justice Young’s participation in these prev ious cases in which he an d Justice Young were in agreement on the results. In respecting that the law is the law even where he disagrees with that law, Justice Young’s determinatio n to respect the majority position of this Court and to participate in certified questions is the only honorable position that could be taken by a ju stice of this Court.

3work clothes of her stepfath er, Cleveland “John” Roland. 3 From 1954 through 1965, Roland worked for independent contractors wh o were hired on various occasions by defendant to re line the interiors of blast furnaces used to melt iron ore at the Ford Rouge plant in Dearborn, Michigan. Plaintiffs allege that the materials used to reline the interiors of the blast furnaces c ontained asbestos. There is no dispute that Miller was never on or near defendant’s premises. Miller was diagnosed with mesothelio ma in 1999 and died in 2 000. After the Texas trial court denied defendant’s motion for a di rected verdict, a Texas jury awarded plaintiffs $9.5 million for Carolyn Miller’s death on the basis of a theory of negligence. 4 After the trial court denied defendant’s motion for judgment notwithstanding the verdict, defendant filed an appeal in the Fourteenth District Court of Appeals of Texas. At defendant’s request a nd over plaintiffs’ objections, the Fourteenth District Court of Appeals of Texas certified the above-quoted question to this Court. We granted th e request to answer th e question and heard oral argument. 477 Mich 1277 (2006).

3 Plaintiffs are the personal representa tive of the decedent’s estate and the decedent’s stepfather, husband , daughter, and mother.

4 The jury awarded Miller’s estate $4.5 milli on and Miller’s husband, daughter, and mother a total of $5 million for Miller’s death. The jury also awarded $500,000 to John Roland for his own in juries on a premises liability theory.

4II. STANDARD OF REVIEW Whether a defendant owes a duty to a plaintiff to av oid negligent conduct is a question of law that is reviewed de novo. 5 Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004), citing Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995).
III. ANALYSIS
A. LEGAL DUTY IN GENERAL There is no dispute among the parties th at the substantive law of Michigan governs plaintiffs’ claims. 6 In Michigan, “the ques tion whether the defendant owes an actionable legal duty to the plain tiff is one of law wh ich the court decides after assessing the competing policy consid erations for and agai nst recognizing the asserted duty.” Friedman v Dozorc, 412 Mich 1, 22; 312 NW 2d 585 (1981). That is, “‘“[d]uty” is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’” Buczkowski v McKay, 441 Mich 96, 100- 101; 490 NW2d 330 (1992), quoting Friedman, supra at 22 n 9, quoting Pross er, Torts (4th ed), §

5 As plaintiffs concede, this is a ne gligence action, not a premises liability action.

6 Although defendant has raised a num ber of issues on appeal, including whether John Roland was even exposed to asbestos at d efendant’s plant, the only issue before us concerns defenda nt’s duty to Carolyn Miller.

553, pp 325-326. 7 Thus, the ultimate inquiry in determining whether a legal duty should be imposed is wheth er the social benefits of im posing a duty outweigh the social costs of imposing a duty. The inquiry involves considering, among any other relevant considerations, “‘the relati onship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’” Dyer, supra at 49, quoting Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997), citing Buczkowski, supra at 100. The most important factor to be considered is the relationship of the parties. “[A] duty arises out of the existence of a relationship ‘between the parties of such a character that social policy justifies’ its imposition.’” Dyer, supra at 49, quoting Prosser & Keeton, Torts (5th ed), § 56, p 374. “‘The determin ation of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any le gal obligation on the actor’s part to act for the benefit of the subsequently injured person.’” Buczkowski, supra at 101 n 5, quoting Rodriguez v Sportsmen’s Congress, 159 Mich App 265, 270; 406 NW2d 207 (1987). “The duty to prot ect others against harm from third persons is based on a relationship between the parties.” Buczkowski, supra at 103, citing Prosser &

7 See also Buczkowski, supra at 101 n 5, quoting Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 419; 224 NW2d 843 (1975) (Levin, J., dissenting) (“[T]he duty question turns on policy considerations . . . .”); Smith v Allendale Mut Ins Co, 410 Mich 685, 716 n 24; 303 NW2d 702 (1981) (“In imposing tort liability . . . a court is . . . concerned with whet her it is appropriate public policy to impose liability for particular conduct . . . .”).

6Keeton, Torts (5th ed), § 56 , p 385. “Only if the law reco gnizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to liability for neglig ent conduct.” Friedman, supra at 22. “Duty . . . ‘concerns “the problem of the relation between indivi duals which imposes upon one a legal obligation for the benefit of the other.”’” Buczkowski, supra at 100, quoting Friedman, supra at 22, quoting Prosser & Keeton, To rts (5th ed), § 53, p 356. See also Buczkowski, supra at 100 (referring to “duty” as “the relational obligation between the plaintiff and the defendant”). 8
In Dyer, this Court focused exclusively on the relationship between the parties to determine wheth er the defendant owed the plaintiff a legal duty. We concluded that because there was only a limited relations hip between the parties, only a limited duty c ould be imposed on the defen dant. More specifically, we concluded that because there was only a limited relationship between the defendant physician perform ing the independent medica l examination (IME) and the plaintiff patient, the physician only owed a limited duty to the patient, i.e., a duty to perform an IME in a manner not ca using physical harm to the patient. In reaching this decision, we explained that “the duty of care in a medical

8 See also Simko, supra at 655 (“In legal malpractice actions, a duty exists, as a matter of law, if there is an attorney-client relationship.”); Murdock, supra at 54 (“Where there is a duty to protect an i ndividual from a harm by a third person, that duty to exercise reas onable care arises from a ‘speci al relationship’ either between the defendant and the victim, or the defendant and the third party who caused the injury.”).

7malpractice action has its basis in the rel ationship between the physician and the patient.” Dyer, supra at 50. Because we found th at only a limited relationship existed, we did not even address the ot her factors, i.e., th e foreseeability of the harm, the burden on the defendant, or th e nature of the risk presented. Consideration of the other factors was unnecessary becau se when there is only a limited relationship between the parties, only a limited duty can be imposed.
In Buczkowski, this Court similarly focused exclusively on the relationship between the parties to det ermine whether the defendant owed the plaintiff a legal duty. We concl uded that because there was no rela tionship between th e parties, no duty could be imposed on the defendant. More specifically, this Court concluded that because there was no relationship be tween the retailer who sold the shotgun ammunition to the intoxicated customer and the bystander who was injured by the use of the ammunition, the ret ailer owed no duty to the bystander. We explained, “Our ultimate decision turns on whether a sufficient rela tionship exists between a retailer and a third party to impose a duty under these circumstances.” Buczkowski, supra at 103. Because we found th at no relationship existed, we again did not even address the other factors. This wa s unnecessary because when there is no relationship between the parties, no duty can be imposed. On the other hand, even when there is a relationship between the parties, a legal duty does not necessarily exist. In order to determ ine whether a duty exists, the other enumerated factors must also be considered. The foreseeability of the harm is one of these. Just as the existence of a relati onship between the parties is

8not dispositive, that the harm was foreseeab le is also not dispositive. A defendant does not have a duty to protect everybody from all foreseeable harms. Although foreseeability is a factor to be considered, “other considerations may be, and usually are, more important.” Id. at 101. “[T]he mere fact that an even t may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The even t which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. Also, to require the actor to act, some sort of relationship must ex ist between the actor and the other party which the law or so ciety views as sufficien tly strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law usually refers to as a duty on the part of the actor.” [ Id. at 101, quoting Samson v Saginaw Prof essional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975).] When the harm is not fores eeable, no duty can be imposed on the defendant. But when the harm is foreseeable, a dut y still does not necessarily exist. 9 To summarize, in determining whet her a defendant owes a duty to a plaintiff, competing policy factors must be considered. Such considerations include: the relationship of the parties, the foreseeability of th e harm, the burden that would be imposed on the defendant, and the nature of the risk presented. Where there is no relationshi p between the parties, no duty can be imposed, but

9 See Ross v Glaser, 220 Mich App 183, 196 n 1; 559 NW2d 331 (1996) (Markman, J., dissenti ng) (“foreseeability is a necessary condition of duty, but not always a sufficient condition to establish duty[;] [t]hat foreseeab ility alone is insufficient to establish du ty does not mean that a lack of foreseeability is insufficient to establish a lack of duty”). (Empha sis in the original.)

9where there is a relationship, the other fact ors must be consid ered to determine whether a duty sh ould be imposed. Li kewise, where the harm is not foreseeable, no duty can be imposed, but where the harm is foreseeab le, other factors must be considered to determine whether a duty should be imposed. Before a duty can be imposed, there must be a relationship betwee n the parties and the harm must have been foreseeable. Once it is determined that there is a relationship and that the harm was foreseeable, the burd en that would be imposed on the defendant and the nature of the risk presented must be assessed to determ ine whether a duty should be imposed. 10
B. DUTY WITH REGARD TO ASBESTOS LIABILITY Because this Court has never addre ssed whether property owners owe a duty to protect people w ho have never been on or near their property from

10 Plaintiffs and Justice Cavanagh rely on the following two statements found in Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967), “duty . . . may arise generally by operatio n of law under application of the basic rule of the common law, which imposes on every pers on engaged in the prosecution of any undertaking an obligation to use due care, or to so gov ern his actions as not to unreasonably endanger the p erson or property of others” and “e very person is under the general duty to so act , or to use that which he controls, as not to injure another.” However, they read these stat ements out of contex t. First, these statements immediately follow the stat ement that “[a]ctionable negligence presupposes the existence of a legal rel ationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law.” Id. at 260-261. Although Justi ce Cavanagh quotes this sent ence, he fails to give it any meaning. Second, the Court subse quently addressed whether a relationship existed between the parties before it concluded that a duty was owed. Therefore, contrary to plaintiffs’ and Ju stice Cavanagh’s suggestion, Clark does not stand for the proposition that ev erybody owes a duty to everybody else.

10exposure to asbestos carried home on a hous ehold member’s clothi ng, it is helpful to review the decisions of other courts that have addressed this issue.
In CSX Transportation, Inc v Williams, 278 Ga 888, 891; 608 SE2d 208 (2005), the Supreme Court of Georgia, answering a certified question from the United States Court of Appeals for the El eventh Circuit, held that “an employer does not owe a duty of care to a third-pa rty, non-employee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace.” That court explained: “‘[I]n fixing the bound s of duty, not only logic and science, but policy play an important role .’ However, it must also be recognized that there is a responsib ility to consider the larger social consequences of the no tion of duty and to correspondingly tailor that notion so that the illegal conseque nces of wrongs are limited to a controllable degree. The recogn ition of a common-law cause of action under the circumstances of th is case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite univ erse of potential plaintiffs. Accordingly, we decline to prom ulgate a policy which would extend the common law so as to bring the . . . plaintiff[s] within a class of people whose interests are entitled to protectio n from the defendant’s conduct.” [ Id. at 890, quoting Widera v Ettco Wire & Cable Corp, 204 AD2d 306, 307-30 8; 611 NYS2d 569 (19 94) (other citations omitted).] [11]
In In re New York City Asbestos Litigation, 5 NY3d 486; 840 NE2d 115; 806 NYS2d 146 (2005), New Yo rk’s highest court held that the defendant owed

11 As in Michigan, “mere foreseeab ility was rejected by [the Georgia Supreme] Court as a basis for exte nding a duty of care . . . .” CSX Transportation, supra at 890.

11no duty to the defendant’s employee’s wife, who was allegedly injured from exposure to asbestos that the employee introduced into the family home on soiled work clothes that the plaintiff wife laundered. That court explained: “[I]n determining whether a du ty exists, courts must be mindful of the precedential, and cons equential, future effects of their rulings, and limit the lega l consequences of wro ngs to a controllable degree” . . . . “Foreseeability , alone, does not define duty . . . .” . . . A specific duty is required because otherwise, a defen dant would be subjected “to limitless liability to an indeterminate class of persons conceivably injured” by its neglig ent acts . . . . “Moreover, any extension of the scope of duty must be tailo red to reflect accurately the extent that its social be nefits outweigh its costs.” [ Id. at 493, quoting Hamilton v Beretta USA Corp, 96 NY2d 222, 232; 750 NE2d 1055; 727 NY S2d 7 (2001) (other citations and internal quotation marks omitted).] The court was concerned ab out “limitless liability” and questioned why, if a duty was owed to an employee’s spouse, a du ty would not also be owed to the employee’s babysitter or an employee of a neig hborhood laundry. In re New York City Asbestos Litigation, supra at 498. [W]e must consider the likely consequences of adopting the expanded duty urged by plaintiffs . While logic might suggest (and plaintiffs maintain) that the inci dence of asbestos-related disease allegedly caused by the kind of s econdhand exposure at issue in this case is rather low, e xperience counsels that the number of new plaintiffs’ claims would not nece ssarily reflect that reality. [ Id .] The court explained, “[T]he ‘specter of li mitless liability’ is banished only when ‘the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship.’ Here, there is no relati onship between the [d efendant] and [the defendant’s employee’s wife].” Id. , quoting Hamilton, supra at 233. The court

12held that because there was no relati onship between the defendant and the defendant’s employee’s wife, no duty could be imposed.
In Adams v Owens-Illinois, Inc, 119 Md App 395; 705 A2d 58 (1998), the Maryland Court of Special Appeals held that the defendant did not owe a duty to the defendant’s employee’s wife who was a llegedly exposed to asbestos from her husband’s clothes. The court explained: If liability for exposure to asbe stos could be premised on Mary Wild’s handling of her hus band’s clothing, presumably Bethlehem would owe a duty to ot hers who came in close contact with Edwin Wild, including ot her family members , automobile passengers, and co-workers. Beth lehem owed no duty to strangers based upon providing a safe workplace for employees. [ Id. at 411.] In Zimko v American Cyanamid, 905 So 2d 465, 482 (La App, 2005), the Louisiana Court of Appeals, “recogniz[ing] the nove lty of the duty,” held that the defendant owed a duty to the defenda nt’s employee’s son who was allegedly exposed to asbestos from his father’s wo rk clothes that he brought home. However, the Louisiana court relied excl usively on a New York intermediate appellate court decision that was subseq uently reversed by New York’s highest court. As explaine d by New York’s highe st court, “The [ Zimko ] court summarized [New York’s interm ediate appellate court’s] decision . . . and, without providing an independent analysis, conc luded that the fath er’s employer owed a duty of care to the son.” In re New York City As bestos Litigation, supra at 496. Because the court in Zimko relied exclusively on a deci sion that has since been reversed, we do not find Zimko persuasive.

13After New York’s highest court revers ed the decision by New York’s intermediate appellate court in In re New York City of Asbestos Litigation , the Louisiana Court of Appeals reaffirmed its decision in Zimko

. Chaisson v Avondale Industries, Inc, 947 So 2d 171 (La App, 2006). However, “ Louisiana relies more heavily upon fo reseeability in its duty/risk analysis . . . .” Id. at 182. Unlike Louisiana, Michigan relies more on the relations hip between the parties than foreseeability in de termining whether a duty exists. In addition, in Louisiana, unlike in Michigan, “a ‘no dut y’ defense in a negligence case is seldom appropriate,” Zimko, supra at 482; “resolution of a negligence case based on a finding that a defendant has ‘no duty’ should be reserved for the exceptional situation,” id. at 482-483, such as “cases involving ‘failure to act, injuries to unborn victims, negligentl y inflicted mental anguish or purely economic harm unaccomp anied by physical trauma to the claimant or his property,’” id. at 482 n 19 (citation and emphasis omi tted). In Michigan, however, “[o]nly if the law recognizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to lia bility for negligent conduct.” Friedman, supra at 22. See also Murdock, supra at 53 (“Only after finding that a duty exists may the factfind er determine whether, in light of the particular facts of the case, there was a brea ch of the duty.”). For these reasons, we do not find Chaisson persuasive.
In Olivo v Owens-Illinois, Inc, 186 NJ 394; 895 A2d 1143 (2006), the New Jersey Supreme Court held th at if the defendant owed a duty to th e worker, the

14defendant owed a duty to the wife of the worker who was exposed to asbestos when she washed the clothes of her hus band, who was hired by an independent contractor to perform work at the defendant’s premises. 12 However, as explained by the New York Court of Appeals, “ Olivo is distinguishable legally in that New Jersey, unlike New York, relies heavily on foreseeability in its duty analysis.” In re New York City Asbe stos Litigation, supra at 497. In Olivo, supra at 402, the New Jersey Supreme Court described “foreseeability of h arm” as “‘“a crucial element in determining whet her imposition of a duty on an alleged tortfeasor is appropriate.”’” (Citations omitted.) It further explained, “in respect of a landowner’s liability, whether a duty of care can be owed to one who is injured from a dangerous condition on the premises, to which th e victim is exposed off

premises, devolves to a que stion of foreseeability of the risk of harm to that individual or identifiable class of individuals.” Id. at 403. However, as explained above, Michigan, like Ne w York, relies more on the relationship between the

12 It is important to note that the co urt did not hol d that the defendant owed the worker’s wife a duty. In fact, it held th at if the defendant owed no duty to the worker, the defendant nece ssarily owed no duty to the worker’s wife. Olivo, supra at 408 (If “no duty is owed to Anthony[,] . . . no derivative duty can be imposed on [defendant] for Eleanor in respect of th e exposure she experi enced from asbestos borne home on Anthony’s work clothing. ”). The court remanded the case because a question of fact existed regarding whether th e defendant owed the worker a duty because the worker was an employee of an inde pendent contractor.

15parties than foreseeab ility of harm when determ ining whether a duty exists. 13 For this reason, we do not find Olivo persuasive. 14
C. APPLICATION TO THIS CASE As explained above, under Michig an law, the ultim ate inquiry in determining whether a legal duty should be imposed is whether th e social benefits of imposing a duty outweigh the social costs of imposing a duty. The inquiry involves considering, among any other relevant considerations: “‘the relationship of the parties, the fores eeability of the harm, the burde n on the defendant, and the nature of the risk presented.’” Dyer, supra at 49 (citations omitted). In the instant case, th e relationship between M iller and defendant was highly tenuous-- defendant hi red an independen t contractor who hired Roland who

13 We recognize that New York law differs from Michigan law in that New York does not consider fo reseeability at all in determin ing whether a duty should be imposed, while we do give some consideration to this factor. See In re New York City Asbestos Litigation, supra at 494 (“foreseeability bears on the scope of a duty, not whether a duty ex ists in the first place”).

14 For the same reason, the Califor nia Court of Appeals decision in Condon v Union Oil Compan y of California, 2004 Cal App Unpub LE XIS 7975 (Cal App, 2004), is not persuasive. The court in that case relied exclusively on the forseeability factor. It stated, “Since it wa s known that a worker’s clothing could be a source of contamination to oth ers, then it was fores eeable that family members who were exposed to this clothi ng would also be in danger of being exposed.” Id. at *13. In addition, Satterfield v Breeding Insulation Co, Inc, 2007 Tenn App LEXIS 230, *25 (Tenn App, 2007), whic h held that the defendant employer could be liable for the plainti ff’s injuries caused by asbestos being taken home on her father’s clothes, is not persuasive because “[i ]n Tennessee, [unlike in Michigan,] ‘the foreseeability prong [of th e balancing test] is paramount because “foreseeability is the test of ne gligence.”’” (Citations omitted.)

16lived in a house with M iller, his stepdaughter, wh o sometimes washed his clothes. 15 Miller had never been on or ne ar defendant’s property and had no further relationship with defendant. Therefore, the “relationship between the parties” prong of the duty test, which is the most important prong in this state, strongly suggests that no du ty should be imposed. 16

15 Although Justice Cavanagh attempts to downplay the importance of the relationship prong, he is una ble to cite a single decision in which this Court has found that a duty existed where a relationship did not exist. Moreover, it is noteworthy that, although Justice Cavanagh does not dispute that relationship, or lack thereof, constitutes a factor that must be considered, he says nothing at all about the relationship, or lack thereof, between Miller and the defendant in this case, other than a conclu sory statement that there was a relationship between Roland and defendant and that such a relations hip should “e xtend[]” to Miller. Post at 6.

16 Plaintiffs rely on Shepard v Redford Community Hosp , 151 Mich App 242; 390 NW2d 239 (1986). In Shepard, the plaintiff went to the defendant hospital and was diagnosed as suffering fr om an upper respiratory problem. In fact, the plaintiff was suffering from spinal meningitis. The plai ntiff’s son became infected with spinal mening itis and died. The Court of Appeals held that the defendant hospital owed th e plaintiff’s son a duty because it had a physician

patient relationship wi th the plaintiff. Shepard is distinguishable from the instant case because in Shepard there was a physician-patient relationship between the plaintiff mother and th e defendant, while in the inst ant case there was not even an employer-employee relationshi p between the stepfather and defendant. Because Shepard is distinguishable, we do not need to address whether it was decided correctly; however, we do note that the Court of Appeals concluded that a duty was owed based solely on the ex istence of a relationship. See Shepard, supra at 246 (“Because defendant had a special relati onship with plaintiff, we concl ude that defendant owed a duty of reas onable care to [plaintiff’s s on]”). As we explained above, although the nonexistence of a relationship preclude s the imposition of a duty, the existence of a relationship doe s not require the imposition of a duty. Instead, where the existence of a relationshi p is found, the other factors must be considered before a duty can be imposed.

17The “burden [that would be impos ed] on the defendant” prong also suggests that no duty should be imposed because protecting every person with whom a business’s employees and the em ployees of its independent contractors come into contact, or even with whom their clothes come into contact, would impose an extraordinarily onero us and unworkable burden. 17

17 Justice Cavanagh contends that “the potential burden must be examined in this limited context , not extrapolated to all other imaginable poten tial litigants.” Post at 7 (emphasis added). He contends furt her that this questi on “should also be viewed in the extremely narrow co nfines of this particular case.” Post at 12. However, this is not how a court of la w properly determines the existence, or nonexistence, of a legal duty, for such a determination will appl y not only in the instant case but in the next 500 cases as well. One cannot assess “social benefits” and “social costs” by cons idering only a “particular” case or without considering other “potential litigants.” Unlike Jus tice Cavanagh, we refuse to consider whether to impose a new legal duty withou t regard to the consequences of such a decision for future cases. As New York’s highest court explained: Plaintiffs assure us that this will not lead to “limitless liability” because the new duty may be confined to members of the household of the employer’s empl oyee, or to members of the household of those who come onto the landlord’s premises. This line is not so easy to draw, howe ver. For example, an employer would certainly owe the new dut y to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week . But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for exampl e, the babysitter (or maybe an employee of a neighborhood laun dry) launders the family members’ clothes. In short, as we pointed out in Hamilton , the “specter of limitless liability” is bani shed only when “the class of potential plaintiffs to whom the duty is owed is circu mscribed by the (continued...)

18Given what we know about asbestos today, i.e., that there is a causal relationship between exposure to asbestos and mesothelioma, and assuming that defendant directed the inde pendent contractor to work with asbestos-containing materials, the “nature of th e risk” was serious. Therefore, the “nature of the risk” prong suggests that a duty should be imposed. However, the “foreseeability of the h arm” prong suggests that no duty should be imposed. From 1954 to 1965 , the period during wh ich Roland worked at defendant’s plant, we did not know what we know today about the hazards of asbestos. See Exxon Mobil Corp v Altimore, 2007 Tex App LEXIS 2971 (Tex App, 2007) (holding that because the Occupational H ealth and Safety Administration did not pr omulgate regulations pr ohibiting employers from allowing workers who had b een exposed to asbestos to wear their wo rk clothes home until 1972, the risk of “take home” as bestos exposure was not foreseeable to Exxon Mobil before 1 972, and, thus, Exxon Mobil did not owe a duty to the

(...continued) relationship.” [ In re New York City As bestos Litigation, supra at 498, quoting Hamilton, supra at 233.] Unlike Justice Cavanagh, the New York plai ntiffs at least recognized that their burden in urging the crea tion of a new dut y required an assessment of the consequences arising from such a duty for future cases. Moreover, Justice Cavanagh fails to offer a ny principled way of dis tinguishing the claims of household members from other potential cl aimants-- for instance, a person who sat next to Roland on the bus every day after work-- based on “the social benefit of a healthy people.” Post at 21.

19plaintiff, who was allegedl y exposed to asbestos brou ght home on her husband’s clothes from 1942 to 1972). Further, plain tiffs’ own expert conceded that the first published literature suggesting a “specific attribution to washing of clothes” was not published until 1965. Joint Appendix at 897a. Therefore, the risk of “take home” asbestos exposure was, in all lik elihood, not foreseeab le by defendant while Roland was working at defenda nt’s premises from 1954 to 1965. 18 Because the ultimate inquiry in det ermining whether a duty should be imposed involves balancing the social ben efits of imposing a duty with the social costs of imposing a duty, we cannot deci de whether a duty should be imposed without “assessing the co mpeting policy considerations . . . .” Friedman, supra at 22. We must be “concerned with wheth er it is appropriate public policy to impose

18 Justice Cavanagh critici zes us for relying on Altimore rather than on “the evidence produced at trial.” Post at 8. However, he fails to point to any “evidence produced at trial” that sugges ts that the harm was foreseeab le. He states that “the transcripts are repeatedly cut off during what appears to be testimony shedding further light on the ques tion of foreseeability.” Post at 11. If there are missing pages to the transcript that contain “t estimony shedding further light on the question of foreseeability,” plaintiffs obviously could have included those pages. This is a matter for the Four teenth District Court of Ap peals of Texas, not this Court. That court has certified a questi on of law and we have answered that question of law on the basis of the inform ation that has been presented to us. Also, contrary to Justice Cavanagh’s contention, it should come as no surprise to the par ties that we are addressing foreseeability given that it is well

established law in Michigan that fores eeability is a factor to be considered in determining whether a legal duty should be imposed. Nevertheless, “other considerations may be, and us ually are, more important.” Buczkowski, supra at 101.

20liability . . . .” Smith, supra at 716 n 24. “‘“[I]n fixi ng the bounds of duty, not only logic and science, but policy play an important role.”’” CSX Transportation,

supra at 890, quoting Widera, supra at 307 (other citations omitted). “‘[T]here is a responsibility to consider th e larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree.’” CSX Transportation, supra at 890, quoting Widera, supra at 307. “‘[I]n determining whether a duty exists, courts must be mindful of the precedential . . . effects of their rulings, and limit the legal consequences of wrongs to a cont rollable degree.’” In re New York City Asbestos Litigation, supra at 493, quoting Hamilton, supra at 232 (other citations and internal quotation marks omitted). “‘Moreo ver, any extension of the scope of duty must be tailored to reflect accu rately the extent that its so cial benefits outweigh its
costs.’” Id. As the United States Supreme Court has recognized, this country is experiencing an “asbestos-litigation crisis” as a result of the “‘elephantine mass of asbestos cases’ lodged in state and federal courts . . . .” Norfolk & W R Co v Ayers, 538 US 135, 166; 123 S Ct 1210; 155 L Ed 2d 261 (2003) (citation omitted). Asbestos claims have given ri se to one of the mo st costly products

liability crises ever with in our nation’s legal system. “Asbestos claims continue to pour in at an extraordinary rate [and] scores of employers have been forced into bankruptcy.” Behrens & Cruz-Alvarez, A potential new fron tier in asbestos litigation: Premises owner liability for “take home” exposure claims , 21 Mealey’s

21Litig Rep Abs 1, 4 (2006). Some commentators have sa id that “[b]efore it ends, the litigation may cost up to $195 billion — on top of th e $70 billion spent through
2002.” Id. These same commentat ors have explained: Premises owner liability for “take home” expo sure injuries represents the latest frontier in as bestos litigation. These actions clearly involve highly sympathetic plai ntiffs. Yet, as several leading courts have appreciated, the law should not be driven by emotion or mere foreseeability. Broader pub lic policy impacts must be considered, including th e very real possibility that imposition of an expansive new duty on premises ow ners for off-site exposures would exacerbate the current “asbestos- litigation crisis.” Plaintiffs’ attorneys could begin naming countless employers directly in asbestos and other mass tort act ions brought by remotely exposed persons such as extended famil y members, renters, house guests, carpool members, bus drivers, and workers at commercial enterprises visited by the worker when he or she was wearing dirty work clothes . . . . Furthermore, adoption of a new duty rule for employers could bring about a perverse result: nonemployees with secondary exposures could have greater rights to sue a nd potentially reap far greater recoveries than employees. Namely, secondarily exposed nonemployees could obtain noneconomic damages, such as pain and suffering, and possibly even punitiv e damages; these awards are not generally available to inju red employees under workers’ compensation. [ Id. at 5.] In Henry v Dow Chemical Co, 473 Mich 63; 701 NW2d 684 (2005), this Court held that mere exposure to a ne gligently released dioxin, a synthetic chemical that is potentially hazardous to human health, does not give rise to a negligence action. We explained: [W]e have on occasion allowed for the development of the common law as circumstances and co nsiderations of public policy have required. But as Justice Young has recently observed, our common-law jurisprudence has b een guided by a number of prudential principl es. See Young, A judicial traditionalist confronts

22the common law , 8 Texas Rev L & Pol 29 9, 305-310 (2004). Among them has been our attempt to “avoid capricious departures from bedrock legal rules as such tectonic shifts might produce unforeseen and undesirab le consequences,” id. at 307, a principle that is quite applicable to the present case. Plaintiffs have asked us to recognize a cause of action that departs drastically from our traditi onal notions of a valid negligence claim. [19] Beyond this enormous shif t in our tort jurisprudence, judicial recognition of plaintiffs’ claim may also have undesirable effects that neither we nor the partie s can satisfactorily predict. For example, recognizing a cause of action based solely on exposure— one without a requirement of a present injury—would create a potentially limitless pool of plaintiffs. [ Id. at 83 (citations and emphasis omitted).] Just as recognizing a cause of action based solely on exposure would create a potentially limitless pool of plainti ffs, so too would imposing a duty on a landowner to anybody who co mes into contact with so mebody who has been on the landowner’s property. “We would be unwise, to sa y the least, to alter the common law in the manner requested by pl aintiffs when it is unclear what the consequences of such a deci sion may be and when we ha ve strong suspicions . . . that they may well be disastrous.” Id. at 88 (citation omitted). “The recognition of a common-law cause of action under the circ umstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an

19 In response to the “asbe stos-litigation crisis,” this Court adopted an administrative order precluding trial c ourts from “‘bundling’ asbestos-related cases for settlement or trial.” Administ rative Order No. 2006-6, 476 Mich xliv. One of the purposes of this order was to ensure that asbestos litigants are subject to traditional legal standard s. Therefore, it would be in consistent for us now to suggest that traditional legal standards should not apply to asbestos litigants.

23almost infinite universe of potential plaintiffs. 20 Accordingly, we decline to promulgate a policy which would extend th e common law so as to bring the . . . plaintiff[s] within a class of people whos e interests are entitled to protection from the defendant’s conduct.” CSX Transportation, supra at 890 (citation omitted). 21

20 Justice Cavanagh would im pose a duty here because the social benefit of compensating somebody for a loved one’s death is “tremendous.” Post at 15. We certainly do not quarrel with him in this characterizati on. However, we do not believe that this automatically allows cour ts to ignore the soci al costs of imposing a duty. Although every death, or serious injury, is indeed “tremendous,” this is no warrant for placing responsib ility upon an inappropriat e defendant. Not every death or serious injury, however genuinel y “tremendous,” is legally compensable by someone else. Under Justice Cavana gh’s approach, no matter how attenuated or remote the relationship between parties, if a plaintiff has suffered a death, or presumably any kind of serious injury, he or she would prev ail. This is simply not the law in Michigan or in any other state. Nor co uld it be the law in any reasonably functioning societ y that desires that its resources be devoted to something other than litiga tion. Justice Cavanagh w ould impose liability here because Carolyn Miller died. One need not fa il to recognize the gravity of this occurrence to recogn ize that additional analysis is required under traditional legal rules.

21 Plaintiffs and Justice Cavanagh rely heavily on Olivo, supra at 405, which held that any duty ow ed to the members of a wo rker’s househol d constitutes a “derivative duty,” i.e., one derived from the duty owed to the worker himself. Thus, even under Olivo, no duty is owed to a worker’s household me mbers unless a duty is owed to the worker himself. Justice Cavanagh, however, concludes that defendant owed Miller a duty without considering whether defendant owed Roland a duty. Because Ro land was an employee of an independent contractor, defendant would have owed him a duty under Michigan law only if it could be shown that the “common work area” doctrine was satisfied and that defendant “retained control” over th e work being performed. Ormsby v Capital Welding, Inc, 471 Mich 45, 55; 684 NW2d 320 (2004). To our knowledge, there was no evidence presented establishi ng the “‘unusually high de gree of control’” over the relining projects required by Ormsby, supra at 55 (citation omitted). Indeed, the jury instructions given on this point s eem inconsistent with Michigan law. (continued...)

24Finally, plaintiffs argue that und er the “inherently dangerous activity” doctrine, property owners may owe a dut y to somebody who has never been on their property even where they do not ow e a duty to their own employees or the employees of an inde pendent contractor that they have hired. Plaintiffs are correct that under the “inherently dangerous activ ity” doctrine, property owners may owe a duty to a person who has never been on their property even though they owe no duty to their employees or the employees of their independent contractors. DeShambo v Anderson, 471 Mich 27, 38; 684 NW2d 33 2 (2004). However, the “inherently dangerous activity” do ctrine is not at all appli cable to the in stant case. “[U]nder this doctrine, the landowner must itself owe some duty to the specific third party, . . . the neglig ent act that causes the injury cannot be collateral to the work contracted for, and . . . the injury that occurs mu st be reasonably expected by the landowner.” Id. at 34. First, for the reasons discu ssed above, defendant owed no duty to Miller. In addition, the “inherently dangerous activity ” doctrine only applies to persons on the defendant’s property, passi ng by the property, or on neighboring pr operty. See Detroit v Corey, 9 Mich 165 (1861) (a pass erby fell into a ditch); Darmstaetter v Moynahan, 27 Mich 188 (1873) (a passerby ran into a wall of ice); McWilliams v
(...continued) However, given that we conc lude that defendant owed no duty to Miller regardless of whether defendant owed a duty to Roland, it is not n ecessary for us to decide whether defendant owed a duty to Roland.

25Detroit Central Mills Co, 31 Mich 274 (1875) (a passerby was run over by a railroad car); Rogers v Parker, 159 Mich 278; 123 NW 1 109 (1909) (a fire spread to neighboring land); Inglis v Millersburg Driving Ass’n, 169 Mich 311; 136 NW 443 (1912) (a fire spread to th e plaintiff’s adjoining land); Olah v Katz, 234 Mich 112; 207 NW 892 (1926) (a neigh boring child fell in a hole); Wight v H G Christman Co, 244 Mich 208; 221 NW 314 (1928) (sparks from a steam shovel started an adjacent house on fire); Watkins v Gabriel Steel Co, 260 Mich 692; 245 NW 801 (1932) (a worker fell from third st ory as a result of improperly fastened steel joists); Tillson v Consumers Power Co, 269 Mich 53; 256 NW 801 (1934) (excavation on property caused dama ge to an adjacent property); Grinnell v Carbide & Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937) (a boat exploded, seriously injuring its passengers); Barlow v Krieghoff Co, 310 Mich 195; 16 NW2d 715 (1944) (a ch ild fell into a bucket of hot tar on an adjacent lot); McDonough v Ge n Motors Corp, 388 Mich 430; 201 NW 2d 609 (1972) (a boom fell on a worker); see also DeShambo, supra, at 33 (“‘“[A] man who orders a work to be executed, from which, in the natural course of th ings, injurious consequences to his neighbor must be expected to arise, unle ss means are adopted by which such consequences may be averted, is bound to see the doing of that which is necessary to prevent mischief, and ca nnot relieve himself of his responsibility by employing some one else.”’”) (citations omitted; emphasis in the original); Prosser & Keeton, Torts (5th ed), § 71, p 5 14 (inherently dangerous activity doctrine is limited to activity that poses a “specific risk or set of risks to those in the vicinity ”)

26(emphasis added). The “inherently danger ous activity” doctrine has never been applied to extend a property owner’s duty to somebo dy completely disconnected from the property. 22 Second, “the negligent act that causes the injury cannot be collateral to the work contracted for . . . .” DeShambo, supra at 34 (emphasis added). Here, the work contracted for was the relining of blast furnaces. Plaintiffs argue that defendant was negligent in providing the workers with materials that contained asbestos. This allege dly negligent act-- provid ing unsafe materials-- was “collateral” to the work co ntracted for-- the relining of the blast furnaces. Finally, “the injury th at occurs must be reasonably expected by the landowner.” Id. at 34. As discussed above, the risk of “take home” asbestos exposure, in all likelihood , was not reasonably expe cted by defendant while Roland was working at defe ndant’s plant from 1954 to 1965. For these reasons, the “inherently dangerous activity doctrine” does not apply here.

22 Further, the “inherently dangerous ac tivity” doctrine only applies to non

delegable duties. DeShambo, supra at 34 (the inherently dangerous activity doctrine is “founded on the existence of a duty on behalf of the landowner, or employer of an independent contractor, and the duty must be of the type that is nondelegable”). The removal of asbestos containing ma terials is certainly not a nondelegable duty. Otherwise, a hom eowner who hired a person to remove asbestos from his house could be held liable to somebody who that person exposed to asbestos. This cannot be the case. Ho meowners must be able to delegate this duty to professionals who are specifically trained in removing asbestos without fear of liability.

27IV. CONCLUSION In Michigan, “the question whether th e defendant owes an actionable legal duty to the plaintiff is one of law wh ich the court decides after assessing the competing policy considerations for and ag ainst recognizing the asserted duty.” Friedman, supra at 22. The social benefits of imposing a duty must outweigh the social costs of doing so. The inquiry invo lves considering, among any other relevant considerations: “‘the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’” Dyer,

supra at 49, quoting Murdock, supra at 53, citing Buczkowski, supra at 100. However, the most important factor p ertains to the relationship between the parties. Because any relationship be tween Miller and defendant was highly tenuous, the harm was, in all likelihood, not foreseeable, the burden on defendant would be onerous an d unworkable, and the impositio n of a duty, under these circumstances, would “‘expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs,’” CSX Transportation, supra at 890 (citation omitted), we conclude that a legal duty should not be imposed. Fo r these reasons, we answer the certified question in the negative. That is, we hold that, under Michigan law, defendant, as owner of the property on which asbestos -containing products were locat ed, did not owe to the deceased, who was never on or near that pr operty, a legal duty to protect her from exposure to any asbestos fibers carried ho me on the clothing of a member of her household who was working on that pr operty as the employee of independent

28contractors, where there was no further rel ationship between defendant and the deceased. Having answered the certified que stion, we now return the matter to the Fourteenth District Court of Appeals of Texas for such further proceedings as that court deems appropriate.

Stephen J. Markman Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr.

29v S T A T E O F M I C H I G A N
SUPREME COURT

In re CERTIFIED QUESTION FROM THE FOURTEENTH DISTRICT COURT OF APPEALS OF TEXAS.

GLENN MILLER, ESTATE OF CAROLYN MILLER, SHAWN DEAN, JOHN ROLAND, and AL MA ROLAND, Plaintiffs,
No. 131517 FORD MOTOR COMPANY, Defendant.

CAVANAGH, J. ( dissenting ). I dissent from the majority opinion because I do not believe that this Court should substantively decide this appeal. In fact, w ithout the participation of Justice Young, who strongl y believes that this Court lacks the constitutional authority to answer the certified question, 1 this Court would not have answered

1 See In re Certified Question (Veliz v Cintas Corp) , 474 Mich 1228 (2006) (Young, J., concurring); In re Certified Question (Mel son v Prime Ins Syndicate, Inc) , 472 Mich 1225 (2005) (You ng, J., concurring).the question. I would point out the curi osity that Justice Young’s constitutional conscience would allow him to subordinate his deeply he ld belief to provide the fourth vote to answer the question in th is case. Despite the fact that he has participated in answering certified questions before, the fact rem ains that had he not provided the d eciding vote to answer this certified question, he would have caused the Court not to an swer the question, which su rely would have aligned much better with his view against providing a foreign court with a “didactic exegesis on our law” than answering it. See In re Certified Question (Veliz v Cintas Corp) , 474 Mich 1228 (2006) (Young, J ., concurring). This situation differs from the previous cases in which Justice Young participated because in those cases, there were enou gh votes to answer the question regardless of his participation. In other words, his vote in those cases had no impact on the fact that the question was answered. 2 In any event, I further disagree that Michigan la w compels the result the majority reaches. Contrary to the majority’s conclu sion, defendant could be found to owe a duty to Caro lyn Miller with respect to asbestos contamination through take-home exposure. Regarding our role in this case, it is my view that

2 Compare this to Melson , supra , wherein Justice Young could have provided, but did not provide, the fourth vote to answer the question. Thus, I fail to see the same laudability of this inconsistent and un predictable behavior that Justice Markman does. See ante at 3 n 2.

2the question certified to us by the Texas court improperly asks us to decide the specific case pending before that court. The Texas court asked [w]hether, under Michigan law, Ford, as owner of property on which asbestos-containing products were located, owed to Carolyn Miller, who was never on or near that propert y, a legal duty specified in the jury charge submitted by the trial court, to pr otect her from exposure to any asbestos fibers carried home on the clothing of a member of Carolyn Miller’s household who was working on that property as the employee of an inde pendent contractor. By this wording, the Texas court has asked this Court to decide the case without the benefit of examining it on direct appeal under an applicable standard of review. Moreover, in my view, this state’s well-developed negligence precedents would enable th e Texas court to decide the case before it without resort to an advisory opinion or a substantive decision from this Court. The answer to the Texa s court’s formulation of the certified question depends on the intricacies of this specific case, and b ecause of these complexities I would decline to answer the question. I do not believe that we should entangle ourselves in an appeal pending in a nother state by determining whether this defendant owed a duty to Carolyn Miller. If anything, we shou ld be determining only whether Michigan law would permit th e Texas court to hold that defendant owed a duty to Caroly n Miller. But by d eciding the case, this Court oversteps its advisory role and decides issues of fact without the benefit of full review. However, because the ma jority decides the case, I must register my disagreement with its analys is. Contrary to the majori ty’s position, I would hold that a duty can be imposed in the present case. I am guided first and foremost by

3traditional principles of negligen ce set forth by this Court in Clark v Dalman , 379 Mich 251, 260-261; 150 NW2d 755 (1967): Actionable negligence presuppos es the existence of a legal relationship between parties by whic h the injured p arty is owed a duty by the other, and such duty mu st be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obl igation to use due care, or to so govern his actions as not to un reasonably endange r the person or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls , as not to injure another. Pinnix v . Toomey , (1955), 242 NC 358, 362 (87 SE2d 893). Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it ma y be a general one owed by the defendant to the public, of which th e plaintiff is a part. [Emphasis added.] The majority ignores these fundamental principles, and I do not find its attempt to diminish their import, ante at 10 n 10, persuasive. Further, the majority misstates other aspects of Mich igan law. For instance, although the majority spends considerable time opining that, in a du ty analysis, “[t]he most important factor to be considered is the relationship of the parties,” ante at 6, 16

- 17, this is not a bright-line rule in this state, and it is not true in every factual situation. In Buczkowski v McKay , 441 Mich 96, 101; 490 NW2d 330 (1992), this Court recognized that “[c]ourts take a variety of approaches in determining the existence of a duty, u tilizing a wide array of vari ables in the process. Frequently, the first component examined by the court is th e foreseeability of the risk. However, other considerations may be, and usually are, more important.”

4The fact that the relations hip between the parties is a component of a duty analysis and may, at times, be given mo re weight than anoth er of the components certainly does not mean that the relati onship is the most important inquiry. 3 How heavily to weigh each of the several factor s depends on the p recise situation at hand. 4 Many variables are c onsidered in a duty analysis. As the Buczkowski Court noted: Dean Prosser described the severa l variables that consistently go to the heart of a court’s det ermination of duty as including: foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blam e attached to the conduct, policy of preventin g future harm, and, finally, the burdens and consequences of im posing a duty and the resulting liability for breach. [ Id. at 101 n 4, quoting Pr osser & Keeton, Torts (5th ed), § 53, p 359 n 24.] Each of these factors is significant, a nd the majority inco rrectly represents the law in this state by asserting that the rel ationship between the parties is the most important. Only by subord inating these factors to that of relationship is the majority able to discount every opinion of another state in which a duty was found with respect to take-home exposure.

3 It should be noted that in Buczkowski , the nature of th e injured person’s claim involved the criminal act of a third pa rty. Here, no third-party conduct is involved. The analysis , therefore, will not be id entical to that in Buczkowski

. 4 For a recent case in which the rela tionship of the parties was hardly mentioned but in which fores eeability was this same majority’s paramount focus, see Brown v Brown , 478 Mich ___; ___ NW2d ___ (Docket No. 270689, decided July 11, 2007).

5With respect to relationship, the ma jority states that because Carolyn Miller was never “on or near defendant ’s property,” the relationship prong “certainly suggests that no duty should be imposed.” Ante at 17. But the majority’s severely curtailed view of “rela tionship” seems to be based on its view of premises liability law rat her than on the principles of ordinary negligence. Under the latter (and the former as well, a lthough that is not at issue here), a harmed person need not vis it the property of the inju ring party. This case involves an employer who exposed a worker to asbestos, knowing that the asbestos fibers were toxic and could be carried home, thus ex posing the worker’s family to asbestos. Und er these circumstances, I have no difficulty concluding that the relationship—that a jury foun d defendant had to Cleveland “John” Roland—extended to Caroly n Miller. To conclude otherwise, as does the majority, ignores basic negl igence principles and gi ves employers carte blanche to expose workers to communicable toxic substances without taking any measure whatsoever to prev ent those substances from harmin g others. This I cannot do. Indeed, as discussed later in this dissent, our government also refuses to grant this free pass. Moreover, I disagree that the burden defendant would bear by shouldering a duty with respect to Caroly n Miller is so great that innocent people must suffer without recourse. Our fed eral government has stated that it “is aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos expo sure.” 51 Fed Reg

622615 (1986). In assessing whether defe ndant should have a duty, I would find that the extreme toxicity of asbestos we ighs heavily in favor of finding that defendant had a duty to protect those w hom defendant put at risk by exposing them to it. The majority also serious ly overstates what the consequences of imposing a burden on defendant would truly be by asserting th at, if a duty were imposed, businesses would have to “protect[] every person with whom a business’s employees and the employees of its independent contractors come into contact, or even with whom their clothes come into contact . . . .” Ante at 18. That is incorrect. The certified question is specific to this case in that it asks whether this defendant should be found to have a duty owed to C arolyn Miller. Thus, the potential burden must be examined in this limited context, not extrapolated to all other imaginable potential litigants. 5 And again, as will be discussed in this dissent, defendant now has a regulatory duty to minimize the potential for take

home exposure. Thus, holdin g that defendant had a duty to this particular person

5 In response to the majority, ante at 18 n 17, I did not write the certified question. The Texas appellate court wrot e the certified question, and it wrote it in probably the most specific way possible. The majority oversteps the bounds of the question by considering factors that are not at issue in this case. And there is nothing novel about deciding th e legal question of duty as it pertains to a particular set of parties. Although duty is a questi on of law, it will always be answered in the context of a unique set of circumstan ces. The factors used in a duty analysis make that clear; for instance, the relationship of these parties and whether the harm was foreseeable to this defendant are considered.

7would not impose nearly the burden the ma jority claims. Questions of duty specifically entail drawing lines, and un der a properly tailored rule, the duty could be appropriat ely limited. Thus, the major ity mischaracterizes the burden and concludes, on the basis of unwarran ted extremism, that the burden is too great. I would not c onclude that the burden of imposing a duty on defendant, whose actions led to Carolyn Miller’s exposure to a toxic substance, would be too large to bear. I further take issue with the majority’s conclusi on regarding foreseeability. In its analysis, the major ity commits three errors. Firs t, it reasons that because foreseeability was not found with respect to Exxon Mobil in Exxon Mobil Corp v Altimore , unpublished opinion of the Texas Co urt of Appeals, issued April 19, 2007 (Docket No. 14-04-01133 -CV), “the risk of ‘take home’ asbestos exposure was, in all likelihood, no t foreseeable by defendant while [John] Roland was working at defendant’s prem ises from 1954 to 1965.” Ante at 20. But the Altimore court based its holding on the evidence produced at tria l, as it should have. See Altimore , supra , 2007 Tex App LEXIS 2971 at *36. This Court’s conclusion, too, should be based on the evid ence produced at tria l. It is improper for this majority to rely on another court’s holding to determine whether this defendant in the present case knew or should have known of the risk. It may be of interest to the reader th at in a different cas e involving Exxon Mobil, the evidence showed that Exxon Mobil was fu lly aware of the possibility of take-home exposure:

8Exxon Mobil was aware by 1937 th at exposure, of sufficient duration and intensity, to asbe stos dust or raw asbestos was associated with asbestosis. Mo reover, a report prepared in 1937 specifically for the petroleum industry, detailed the hazards associated with “occupa tional dust,” including asbestos particles, which was prevalent at petroleum plants. [ Olivo v Owens-Illinois, Inc , 186 NJ 394, 404; 895 A2d 1143 (2006).] The majority’s mention of only the case in which Exxon was not found to know of the risk is curious. It is also worth noting that it has not proved unusual to find that an employer knew or should ha ve known about the risk of take-home exposure at the times relevant to this case. In Condon v Union O il Co of California , unpublished opinion of the California Co urt of Appeals, issued August 31, 2004 (Docket No. A102069), the court relied on expert testimony indicating that in 1924 in the United States, it wa s recognized that workers handling toxic substances should have se parate lockers for work and street clothes to prevent th eir families from being exposed to any toxic dust from the workers’ clothes. [The expert] testified that in 1948, a leading industrial hygienist in the oil industry recommended that refinery workers change clothes pr ior to going home, and that the refinery launder the work clothe s to avoid contaminating the worker’s home with carcinogenic materials. [ Condon, supra, 2004 Cal App Unpub LEXIS 7975 at *13.] In any event, it should be self-e vident that a finding regarding foreseeability must be based on the evidence specific to a particular case. And here, plaintiffs presented evidence, whic h the jury clearly believed, that this defendant knew of the hazard s of asbestos at the rel evant times. The focus should be on what this defendant knew, not on what Exxon Mobil was found to know in Altimore . By ascribing no weight to the evidence that plaintiffs

9produced at trial and relying on anoth er court’s findings reg arding the evidence produced at a different trial involving a different defendant, the majority upends the jury’s finding and improp erly decides a factual matter. Nor should the analysis hinge on what date the first literature connecting take-home exposure with clothes washin g was published, the majority’s second
error. See ante at 23-24 (“[P]laintiffs’ own ex pert conceded that the first published literature suggesting a ‘specific attribution to washi ng of clothes’ was not published until 1965.”). And defendant asserts that no foreseeability can be found before 1972—the year the Occupational Safety and Health Administration (OSHA) began regulating the taking home of clothing exposed to asbestos. But research on the dangers of exposure to as bestos had been go ing on for decades, and warnings appeared far earlier. In fact , “[a]s early as 1916, industrial hygiene texts recommended that plant owners should provide wo rkers with the opportunity to change in a nd out of work clothes to a void bringing contaminants home on their clothes.” Olivo , supra at 404. The questio n is not what year literature was published regarding the danger s of washing contaminated clothing or what year OSHA instituted regulations. Neither of those dates is dispositive if it can be shown, which it apparently was, that defendant had some other source of knowledge and information at the relevant time. Consequently, were the foreseeability inquiry properly conducted a nd limited to the evid ence produced at this trial, this factor might ha ve weighed in plaintiffs’ favor.

10Importantly, though, and this pertains to the majority’s third error, the question of foreseeability is a question a ddressable only on full appellate review, of which we do not have the benefit. First, there is no stated standard of review under which to substantively review the jury’s findings for correctness. Further, the parties have not submitted the entire tria l transcript, but instead have provided only excerpts. While the portions that have been submitted contain some of plaintiffs’ expert’s testimony regardi ng what defendant knew and what information was available to defendant, the transcripts are repeatedly cut off during what appears to be testimony shed ding further light on the question of foreseeability. 6 Thus, a proper review of whet her this defendant knew of the

6 The majority asserts th at because the transcript s do not contain the full discussion of foreseeability th at occurred at trial, ev idence regarding defendant’s knowledge of the dangers of exposing workers to asbestos must not exist. Ante at 20 n 18. I find this an extremely backward way to go ab out the analysis. First, I must mention again that the jury found foreseeability . I would not surmise, as does the majority, that this finding was based on nothing. The major ity must believe that the jury was either unintelligent or delib erately failed to follow the jury instructions. I find both conclusions insulting an d refuse to make them. Further, there is a perfect e xplanation of why the partie s did not include the entire transcript: this Court was not su pposed to factually redecide the issue of foreseeability . Rather, this Court should, if anything, consider what was found about foreseeability in the course of weighing the duty factors. The difference between weighing the jury’s finding with respect to fores eeability in the duty analysis and reaching its own factual conclusions about fo reseeability is a critical difference the majority fa ils to grasp. See ante at 20 n 18. The majority is free to thoroughly revie w the trial testimony excerpts as I have done. On doing so, it would indeed find numerous instances of testimony that support the jury’s findi ngs. The record is far from devoid of such evidence. (continued...)

11risks posed by take-home exposure is impo ssible for this Court to conduct, and the majority errs by nevertheless conducting it. This is yet another reason why it is both irregular and improper for this Cour t to substantively decide this case. Moving on, I differ greatly with the majority regarding the outcome of what it deems the “ultimate inquiry”: “w hether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” Ante at 20. First, this question should also be viewed in th e extremely narrow co nfines of this particular case. Specifically, the Texas court has asked whet her this defendant had a duty to Caroly n Miller. Holding that this defendant had a duty to Carolyn Miller would not create a universal cause of action for every po tential take-home exposure case. Thus, the ma jority needlessly invokes the sky-is-falling genre of arguments advanced by commentators who have been openly critical of asbestos litigation and tort recov ery in general. See ante at 21-22. Quite simply, there has
(...continued) But I cannot in good cons cience render a definitive conclusion regarding foreseeability for the m ere fact that the trans cript is incomplete. The fact that the majority believes that other factors are more important than foreseeability, ante at 20 n 18, does not mitigat e the fact that the majority decides the question of fores eeability using an incorrect pr ocess. Moreover, I do not see anything left for th e Texas court’s det ermination, contrary to the majority’s statement that “[t]his is a matter for the Texas Court of Appeals, not this Court.” Id. In my reading, the majority decide s that the risk was not foreseeable to defendant. See id. However, because this Court’ s answer to a certified question is purely advisory and does no t constitute binding precedent, the Texas court is free to draw its own conclusions with respect to the meaning, or applicability, of the majority opinion.

12been no showing in this case that were defendant found to have a duty, “a potentially limitless pool of plaintiffs” or “‘an almost infi nite universe of potential plaintiffs’” would be created. Ante at 23-24 (citation omitted). In fact, one of the very commentator s the majority quotes recently wrote that “after years of downward spiral, the asbe stos litigation tide finally may be turning.” Behrens & Goldberg, The asbestos litigation crisis: The tide appears to be turning , 12 Conn Ins L J 477, 478 (2006). 7 And several courts have adequately a ddressed the majority’s concern with reasoning I find persuasive. One explaine d that the public policy concerns would “dissipate” because it was only recognizin g a duty based on “the particularized foreseeability of harm to pl aintiff’s wife, who ordinari ly would perfo rm typical household chores that would include laundering the work clothes worn by her husband.” Olivo , supra at 405. Another recognized that a rule could be properly tailored so as to avoid creating this majority’s feared “infinite universe of

7 Interestingly, this same article attri butes the “asbestos li tigation crisis” not to those who, like plaintiffs ’ decedent, are or were truly ill, but to what the authors describe as healthy plain tiffs who have been “uneart h[ed]” by prof itable “mass screenings programs.” Behrens, supra at 479. The authors observe that “‘the “asbestos litigation crisis” w ould never have ari sen and would not exist today’ if not for the claims file d by the unimpaired.” Id. , quoting Brickman, Lawyers’ ethics and fiduciary obligation in the br ave new world of aggregative litigation , 26 Wm & Mary Envir onmental L & Pol’y R 243, 273 (2001). If this is correct, the majority’s striving to shelter defendant from liability in the case of someone who did truly ail is unnecessary. Accordin g to the majority’s own authority, it is not people like Carolyn M iller who are the “problem.”

13potential plaintiffs”: “[L]imitless liability would not be created in this case if we found a duty under these particul ar facts and circumstances.” Chaisson v Avondale Industries, Inc , 947 So 2d 171, 182 (La App, 2006), cl arified 947 So 2d 171 (2007). 8 But even so, the ma jority’s conclusion that th e social costs of imposing a duty outweigh the social benefits requires elevating corporate vitality over the health and well-being of humanity. The majo rity’s statemen ts regarding the social burden abound with tales of corpo rate bankruptcy, litigation crises, and the costs in dollars that have stemmed from exposing workers to asbestos

. 9 See ante at 21-22. But the majority is strangely silent with respect to the toll that asbestos exposure has taken on human life. By focusing solely on th e losses suffered by businesses, the majority fails to account for the social benefits that would ensue from ensuring that people who are exposed to detrimen tal substances and who, consequently, suffer ruined health, life-altering and li fe-ending diseases, and the

8 And I would note that th e absence of any evidence that Roland rode a bus home from work every day should alleviat e the majority’s c oncern that fellow passengers could sue defendant under my rationale. See ante at 19 n 17.

9 I emphasize this because my sense fro m reading the majority’s opinion is that the majority believes th at blame for the financial toll asbestos exposure has taken lies with the people who have been injured and who have sued rather than with those who exposed them to the prod uct. This, to me, would be a gross misunderstanding.

14loss of family member s, are compensated. 10 When workers are protected from deadly substances, society benefits. Wh en corporations are he ld accountable for the consequences their proce sses have on those who toil to make the corporations viable, society benefits. When our justice system fai rly places the burden of responsibility for dangerous pr oducts on the offending p arty, rather than the one who suffers, society benefits. Unlike the major ity, I would find a tremendous social benefit in imposing corporate accountability, and I would conc lude that the social benefits of corporate responsibility and a valued, healthy society eas ily outweigh the burden of imposing a duty on cor porations to mitigate the ri sk of take-home exposure, especially in light of the fact that they have been require d to do so an yway for the last 35 years. And the majority proclaims that “[n ]ot every death or serious injury, however genuinely ‘tremendo us,’ is legally compensa ble by someone else.” Ante at 24 n 20. This is true, but with respect to this case, it is a direct consequence of the majority’s hold ing that an employer who allo wed a contaminated worker to

10 And the majority’s dire global pred ictions omit mention of the fact that take-home exposure cases represent only about six percent of total asbestos cases. Plaintiffs’ brief on appeal, 30, citing Roggli, et al., Malignant Mesothelioma and Occupational Exposure to As bestos: A Clinicopathol ogical Correlation of 1445 Cases , 26 Ultrastructural Pathol ogy 55 (2002). For two other recent examples of an improperly skewed analys is of corporate cost versus social benefit, see Greene v A P Products, Ltd , 475 Mich 502; 717 NW2d 855 (2006), and Henry v The Dow Chemical Co , 473 Mich 63; 701 NW2d 684 (2005).

15expose his family to a dead ly substance had no duty to act differently. It is not that the death is inherently not compensable. Rather, it is after such a holding that the death is not compensable. But the majority fails to comprehend that who must compensate this victim of harm is determined by its own creation and interpretation of law. The majority sh ould not disregard its singular role in preventing compensation and then shrug of f the consequences of that role by saying, in essence, “Sorry, not everything is compensable.” And I would not impose lia bility simply “because Carolyn Miller died” or allow a plaintiff to preva il “no matter how attenuated or remote the relationship between the parties, if a pl aintiff has suffered a death, or presumably any kind of serious injury . . . .” Ante at 24 n 20. Readers w ill see through these empty allegations simply by reading this dissent , in which it is thoroughly explained why each factor in the analysis of wheth er a duty should be imposed weighs in plaintiffs’ favor. And readers perusing th e opinions of other states that have found a duty in si milar circumstances may reject out of hand the majority’s assertions that “[t]his is simply not the law . . . in any other state. Nor could it be the law in any reasonably functioning societ y that desires that social resources be devoted to something ot her than litigation.” Ante at 24 n 20. For instance, a Louisiana court easily found a dut y for reasons similar to mine: In considering the moral, social , and economical factors of imposing a duty, we find that public policy also weighs in favor of finding a duty. First, the economi c impact of imposing a duty on Zachry is minimal. The fact that this case presents res nova determinations for this Court de monstrates the small number of

16cases. Second, there is a public po licy need to prev ent future harm like this from occurring. If courts allow employers to turn a blind eye to potential work hazards simply because they are hired by someone else, companies may be more likely to rel y upon others’ representations and perform no safet y inspections of their own. Third, the possibility of limitless liability is of no concern because finding a duty in this case woul d not create a categorical duty rule, but one based upon the facts and circums tances of this case. Fourth, the historical precedent and devel opment of institutional guidelines show that courts are holding comp anies liable for negligence based on unsafe work conditions. This desire for accountability is also shown in the strengt hening of OSHA [Occ upational Safety and Health Administration] regulations to allow for minimal asbestos exposure to workers and none to household members. Finally, public policy favors a duty in this case where a “construction contractor” took no i ndependent steps to pr otect its employees’ family members from household expos ure to hazardous materials. [ Chaisson , supra at 183-184.] Indeed, not even our federal government believes that requiring employers to protect workers and th eir families from asbestos exposure is too cumbersome a burden. In fact, quite the opposite is true. OSHA has prom ulgated stringent requirements on employers whose employ ees encounter asbestos in the work environment. See 29 CFR 1926.1101. In no uncertain terms, OSHA has set forth strict procedures to deco ntaminate workers who handle asbestos on the job. These rigorous measures reflect OSHA ’s awareness that the deadly and communicable nature of asbestos fiber m erits mandating an involved process to prevent the spread of asbestos fiber: (1) Requirements for employees performing Class I asbestos jobs involving over 25 linear or 10 square feet of TSI [thermal system insulation] or surfacing AC M [asbestos-containing material] and PACM [presumed asbest os-containing material]. (i) Decontamination areas . The employer shall establish a decontamination area that is adjacen t and connected to the regulated

17area for the decontamination of such employees. The decontamination area shall consist of an equipment room, shower area, and clean room in series. The employer shall ensure that employees enter and exit th e regulated area through the decontamination area. (A) Equipment room . The equipment room shall be supplied with impermeable, labeled bags a nd containers for the containment and disposal of contaminat ed protective equipment. (B) Shower area . Shower facilities sha ll be provi ded which comply with 29 CFR 1910.141 (d)(3), unless the employer can demonstrate that they are not feas ible. The showers shall be adjacent both to the equipment room and the clean room, unless the employer can demonstrate that this location is not feasible. Where the employer can demonstrate that it is not feasible to locate the shower between the equipment room and the clean room, or where the work is performed outdoors, the employ ers shall ensure that employees: ( 1 ) Remove asbestos contamina tion from their worksuits in the equipment room using a HEPA [high-efficiency particulate air filter] vacuum before pr oceeding to a shower that is not adjacent to the work area; or ( 2 ) Remove their contaminated worksuits in the equipment room, then don clean wo rksuits, and proceed to a shower that is not adjacent to the work area. (C) Clean change room . The clean room shall be equipped with a locker or appropriate storage container for each employee’s use. When the employer can demons trate that it is not feasible to provide a clean change area adjacent to the work area or where the work is performed ou tdoors, the employer may permit employees engaged in Class I asbestos jobs to clean their protective clothing with a portable HEPA-equipped vacuum before su ch employees leave the regulated area. Follo wing showering, such employees however must then change into st reet clothing in clean change areas provided by the employer which ot herwise meet the requirements of this section. (ii) Decontamination area entry procedures . The employer shall ensure that employees: (A) Enter the decontaminati on area through the clean room;

18(B) Remove and deposit street clothing within a locker provided for their use; and (C) Put on protective clothi ng and respiratory protection before leaving the clean room. (D) Before entering the regul ated area, the employer shall ensure that employees pass th rough the equipment room. (iii) Decontamination area exit procedures . The employer shall ensure that: (A) Before leaving the regulated area, employees shall remove all gross contamination an d debris from their protective clothing. (B) Employees shall remove thei r protective clothing in the equipment room and deposit the cl othing in labeled impermeable bags or containers. (C) Employees shall not remove their respirators in the equipment room. (D) Employees shall shower prior to entering the clean room. (E) After showering, employees shall enter the clean room before changing into street clothes. * * * (2) Requirements for Class I work involving less than 25 linear or 10 square feet of TSI or surfacing ACM and PACM, and for Class II and Class III asbestos work operations where exposures exceed a PEL [permissible exposu re limit] or where there is no negative exposure assessment produced before the operation. (i) The employer shall establis h an equipment room or area that is adjacent to the regulated area for the decontamination of employees and their equi pment which is contamin ated with asbestos which shall consist of an area cov ered by a impermeable drop cloth on the floor or horiz ontal working surface. (ii) The area must be of su fficient size as to accommodate cleaning of equipment and removi ng personal protective equipment without spreading contamination beyond the area (as determined by visible accumulations).

19(iii) Work clothing must be cleaned with a HEPA vacuum before it is removed. (iv) All equipment and surfaces of containers filled with ACM must be cleaned prior to removing them from the equipment room or area. (v) The employer shall ensure th at employees enter and exit the regulated area through th e equipment room or area. (3) Requirements for Class IV work . Employers shall ensure that employees performing Class IV work within a regulated area comply with the hygiene practice required of employees performing work which has a higher classifica tion within that regulated area. Otherwise employers of employees cleaning up debris and material which is TSI or surfacing ACM or identified as PACM shall provide decontamination facilities for such employees which are required by paragraph (j)(2) of this section. [29 CFR 1926.1101(j)(1)-(3).] (2) Laundering

. (i) The employer shall ensure that laundering of contaminated clothing is done so as to prevent the release of airborne asbestos in excess of the TWA [time-weighted av erage limit] or excursion limit prescribed in paragraph (c) of this section. (ii) Any employer who gives contaminated clothing to another person for laun dering shall inform such person of the requirement in paragraph (i)(2)(i) of this section to effectively prevent the release of airborne as bestos in excess of the TWA and excursion limit prescrib ed in paragraph (c) of this section. (3) Contaminated clothing . Contaminated clothing shall be transported in sealed imperm eable bags, or other closed, impermeable containers, and be labeled in accordance with paragraph (k) of this section. [29 CFR 1926.1101(i)(2)-(3).] These requirements were instituted despite the financial and other costs to businesses of implementing them. Althou gh these regulations were not in place when John Roland and Carolyn Miller w ere exposed to asbest os, their existence demonstrates how seriously our g overnment considered the social detriments of

20asbestos exposure when it imposed these obligations on businesses. While the majority views the alleged projected fi nancial costs of take-home exposure liability as too heavy a social burden, I would conclude that whatever those costs may be, they pale in comparison to th e social benefit of a healthy people. Further, in a duty analys is, the extremely toxic nature of asbestos and the fact that the risk of injury can be reduced must be given proper weight because duty is a function of the level of risk . As the Tennessee Court of Appeals explained: The foreseeability of [the plai ntiff’s] injury is further buttressed by the severe gravity of the possible harm—mesothelioma and subsequent death. “[T]he degree of foreseeab ility needed to establish a duty of care decreases in proportion to th e magnitude of the foreseeable harm. ‘As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.’” Pittman v. Upjohn Co. , 890 S.W.2d 425, 433 (Tenn. 1994) (q uoting Prosser [& Keeton, Torts (5th ed)], § 31, at 171. [ Satterfield v Breedi ng Insulation Co, Inc , unpublished opinion per curiam of the Tennessee Court of Appeals, issued April 19, 2007 (Docket No. E2006-00903-COA-R3-CV).] Although the majority states that the nature of the ri sk weighs in plaintiffs’ favor, it seems to struggle with giving th at factor the weight it deserves. The data, research, and studies definitively establishing a causal relationship are too numerous to mention, but I would point th e majority to OSHA ’s final standards regarding asbestos in the workplace, in which the toxic ramifications of asbestos exposure were painstakingly detailed. See Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actino lite, 51 Fed Reg 22612 (1986). The following are but a few of the conclusion s explained in that lengthy document:

21OSHA has followed these guidelines in making a determination that the risk of ma terial health impairment resulting from occupational exposure to as bestos is significant. The epidemiological and toxicological evidence and testimony presented in the November notice and in Sec tion IV (Health Effects) of this preamble clearly show that exposu re to asbestos is carcinogenic to humans and additionally causes disa bling fibrotic lung disease. * * * Clinical evidence of the a dverse effects associated with exposure to asbestos, tremolite, anthophyllite, and actinolite, is present in the form of several well-conducted epidemiological studies of occupationally exposed workers, family contacts of workers, and persons living near asbestos, tremolite, anthophyllite, and actinolite mines. These st udies have shown a definite association between exposure to asbestos, tremolite, anthophyllite, and actinolite and an increased incide nce of lung can cer, pleural and peritoneal mesothelioma, gastroin testinal cancer, and asbestosis. The latter is a disabling fibrotic lu ng disease that is caused only by exposure to asbestos. Exposure to asbestos, tremolite, anthophyllite, and actinolite has also been associ ated with an in creased incidence of esophageal, kidney, laryngeal , pharyngeal, and buccal cavity cancers. [51 Fed Re g 22646, 22755.] In fact, “a joint NIOSH-OSHA Asbestos Work Group st ated that there was no level of exposure to asbestos below which clinical effects did not occur . . . .” Id.
at 22616. The severely dangerous character of asbestos should factor much more heavily in the analys is of whether defendant had a duty to mitigate the risk involved. Th e measures to prevent take-home ex posure essentiall y boil down to ensuring that workers shower and change clothes after encountering asbestos. Just those simple actions ha ve the potential to completely elimin ate the risk of take-home exposure. But th e majority makes this diffi cult to discern by grossly overstating the burden of imposi ng a duty. It concerns itself not with the gravity

22of the health risks or even with the relatively margin al costs of prevention. Instead, the majority’s central focal point is this st atement: “Asbestos claims have given rise to one of the most costly products-liab ility crises ever within our nation’s legal system.” Ante at 21. It is a sad day for our citizens indeed when, confronted with a substance that is so dangerous that compensating vi ctims for their losses has had such hefty financial consequences, this Cour t tilts the scales of justice to lessen liability. The analysis should be the opposite. The more dangerous the product, the more critical it is to impose a duty of prot ection. If protection and accountability increase, litigation eventua lly decreases because, obviously, the protections reduce injury. I am persuaded by the reasoning from cour ts in our sister states that have held that imposing a duty on an employ er to mitigate the risk of take-home exposure is reasonable. Like the court in Zimko v American Cyanamid , 905 So 2d 465 (La App, 2005), I would conclude that, assuming defendant knew or should have known of the dangers of take-home exposure, “‘it is hardly a quantum leap to extend th e duty of care owed to empl oyees to members of the employee’s household who predictably co me into routine contact with the employee’s clothing. Such persons wo uld certainly fall within the “range of reasonable apprehension” created by d efendant’s alleged negligence.’” Id. at 483, quoting In re New York City Asbestos Litigation , 14 AD3d 112, 121; 786 NYS2d 26 (2004). And as the court stated in Olivo :

23“The inquiry should be not wh at common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just .” [ Olivo , supra at 402, quoting Hopkins v Fox & Lazo Realtors , 132 NJ 426, 438; 625 A2d 1110 (1993) (emphasis added).] Fortunately, the majority does not foreclose the possibility of finding a duty with respect to take-home exposu re under different circumstances. But I would hold that, under close examination of the circumsta nces of this case, and accepting the jury’s finding that defendant knew or sh ould have k nown of the risk of take-home exposure, imposing a duty on defendant would be, without doubt, fair and just. A ccordingly, I dissent.

Michael F. Cavanagh Marilyn Kelly

24v S T A T E O F M I C H I G A N
SUPREME COURT

In re CERTIFIED QUESTION FROM THE FOURTEENTH DISTRICT COURT OF APPEALS OF TEXAS.

GLENN MILLER, ESTATE OF CAROLYN MILLER, SHAWN DEAN, JOHN ROLAND, and AL MA ROLAND, Plaintiffs,
No. 131517 FORD MOTOR COMPANY, Defendant.

WEAVER, J. ( dissenting). I dissent from this Court’s decision to answer a question certified from the Fourteenth District Court of Appeals of Texas.
I. CONSTITUTIONALITY I would decline to answer the certifie d question in this matter because Michigan Court Rule MCR 7.305(B) repre sents an improper expansion of this Court’s limited power under the Michigan Constitution to answer certain certified questions from the Governor and Legislat ure, and the majority’s use of MCR 7.305(B) to answer a question certified by another state’s intermediate appellatecourt is unprecedented. I continue to qu estion this Court’s au thority to answer such questions. 1
Michigan Court Rule 7.305 addresses “certified questions.” MCR 7.305(B) articulates the power the Mi chigan Supreme Court has creat ed for itself to answer certified questions from other courts, stating:
(1) When a federal court, a stat e appellate court, or tribal court considers a question that Michigan law may resolve and that is not controlled by Mich igan Supreme Court p recedent, the court may on its own initiative or that of an interested party certify the question to the Michigan Supreme Court.

MCR 7.305 is a modified version of the Uniform Certification of Questions of Law Act (UCQLA), which provides stat es a model for court rules on certified questions of law. 2 The UCQLA has not been adopte d by the people of Michigan by constitutional amendment, nor has it been adopted by the Mich igan Legislature.

1 See, e.g., Proposed Amendment of MCR 7. 305, 462 Mich 1208 (2000) (Weaver, J., dissenting); In re Certified Question (Way ne Co v Philip Morris, Inc) , 622 NW2d 518 (Mich, 2001) (Weaver, J., dissenting); In re Certified Question (Kenneth Henes Special Pr ojects Procurement, Mar keting & Consulting Corp v Continental Bioma ss Industries, Inc) , 468 Mich 109; 659 NW2d 597 (2003) (Weaver, J., concurring in the result only); In re Certified Questions (Melson v Prime Ins Syndicate, Inc) , 472 Mich 1225 (2005) (W eaver, J., concurring).

2 The “power to answer” section of the UCQLA, 95 § 3, provides:
The [Supreme Court] of this State may answer a question of law certified to it by a court of the United States or by [an appellate] (continued...)

2MCR 7.305(B) improperly expands this Court’s power by granting the Michigan Supreme Court th e authority to answer a ce rtified question beyond the scope authorized by the Mi chigan Constitution. Article 3, § 8 of the Michigan Constitution states:
Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitu tionality of legislation after it has been enacted into law but before its effective date.

MCR 7.305(B) goes beyond the duties articul ated in article 3, § 8 because it undeniably expands the scope of those wh o may request answers to questions of law, when the questions can be answered , and what types of questions may be answered.
MCR 7.305(B) broa dly permits “a federal court, state appellate court, or tribal court” to certify questions of law to the Supreme Court of Michigan, while

(...continued) [the highest] court of another Stat e [or of a tribe] [or of Canada, a Canadian province or territory, Mexi co, or a Mexican state], if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State. The UCQLA suggests that “an appellate court of anoth er State” or “the highest court of another State” may be the appropriate certifying bo dy. Further, the UCQLA suggests that the answ er to a certified question would be determinative.

3the Michigan Constitution only allows for advisory opin ions to issue in response to certain requests from the state Legislat ure or the Governor . Further, MCR 7.305(B) allows an issuing body to ask “a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent.” Article 3, § 8, on the other hand, constrains the question of la w to be one that is “important” and rests on the “constitutionality of legislation after it has b een enacted into law but before its effective date.” Moreover, MC R 7.305(B) lacks any limiting language on when the Court may answ er a certified question, leaving the door and the docket open to the whims of the majority. In contras t, the Michigan Constitution limits advisory opinions by the Sup reme Court, on the constitutionality of legislation, to be issued only on “sol emn occasions” and “aft er [legislation] has been enacted into law but be fore its effective date.” Const 1963 art 3, § 8. MCR 7.305 unduly expands the scope of this Court’s judicial powers. Furthermore, MCR 7.305( B) does not and canno t give binding effect to Michigan Supreme Court opinions answering certified questions. Any such answers are merely advisory and do not have binding or precedential value. Thus, this Court’s opinion answering the question certified by the Texas Court of Appeals has no more precedential value th an a brief submitted to that court. 3

3 As noted by Justice Levin in In re Certified Question (Bankey v Storer Broadcasting Co), 432 Mich 438, 467-471; 443 NW2d 112 (1989), (continued...)

4___________________ _______________ ____________ _________

___________________ _______________ _____________________ (...continued)
In the instant case, the respons e to the certified question will not determine the contr oversy. No binding or der or judgment will be entered. The response will not be made effective by a final judgment, decree or process of this Co urt. No decision of this Court that will be binding on the parties or that will be res judicata of an issue will be entered by the Court. The response does not end the controversy, and this Court has no way of enforcing its response to the certified question by appropriate means. * * * It appears that because the res ponse to the certified question in the instant case would not be determinative of the cause or controversy and, even if it were, the response cannot be enforced through an order or judgment of this Court, that the response to this certified question is not the exercise of judicial power but closer to an advisory opinion. The 1908 Constitution did not au thorize this Court to issue advisory opinions. The 1963 Cons titution authorizes the Court to provide the Legislature or the Governor with an advisory opinion. * * * Advisory opinions are not p recedentially bindi ng under the doctrine of stare decisis. 18

18 Advisory Opinion on Constitutionality of 1975 PA 227 , 396 Mich 465; 242 NW2d 3 (1976); Cassidy v McGovern , 415 Mich 483; 330 NW2d 22 (1982), “modifi ed” on other grounds DiFranco v Pickard , 427 Mich 32, 58; 3 98 NW2d 896 (1986).

5II. OTHER CONCERNS BEYOND CONSTITUTIONALITY

This Court’s decision to answer a cer tified question from another state’s intermediate appellate cour t is unprecedented. This Court’s decision to use MCR 7.305(B) to answer the certified question in this case exceeds how other states have answered certified questions. Alt hough MCR 7.305(B) grants this Court the authority to answer a certified question from “a federal court, state appellate court, or tribal court,” the power is not constitu tionally derived and go es beyond how any other state has ever applied certified question laws.
Forty-six states have adopted or created a modified version of the UCQLA, § 1-14 (1995) and not one single state has utilized the reach of its rule as broadly as the majority does here today. 4 By answering a certified question from an intermediate appellate court of another state, the majority does what no other

4 See Alabama, ARAP Rule 18; Alas R App Proc 407; Ariz Sup Ct R 27; Arkansas, AR S Ct & Ct A pp Rule 6-8; CAL Rule of Court 8.548; Colorado, CAR 21.1; Conn Practice Book § 82-1; Del Sup Ct R 41; Fla R App P 9150; Ga Sup Ct Rule 46; Hawaii, HRAP Rule 13; Idaho, IA R Rule 12.2; Ill Sup Ct Rule 13; Ind R App P 64; Iowa Code § 684A.1; Kansas, KSA § 60-3201; Ky CR Rule 76.37; La Sup Ct R XI; Me R App P 25; Md Courts and Judicial Pro ceedings Code Ann § 12-603; Massachusetts, ALM Sup C Rule 1:03; Michigan, MCR 7.305(B); Miss, MRAP 20(a); Mont Code An n, Ch 21, Rule 44; Ne braska, RRS Neb § 24-219; Nev RAP 5; NH Sup Ct Rule 34; NM RAP 12-607; ND R App P 47; Ohio S Ct R XVIII; Oklahoma, 20 Okl St § 1602; Oregon, OR S § 28.200; PA Su p Ct Internal Operating Proc 10; RI Sup Ct Art I, Rule 6; South Carolina, SCACR 228; SD Codified Laws § 15-24A-1; Tenn Sup Ct R 23, § 1; Te x R App P 58; Utah R App P 41; Vermont, VRAP Rule 14 ; Va Sup Ct R Pt 5, 5: 42; Washington, Rev Code Wash (ARCW) § 2.60.020; W VA Code § 51-1A-3; Wis Stat § 821.01; Wyoming, WRAP 11.01.

6state has done even when they have been explicitly granted the power to do so. Nineteen states, including Michigan, perm it another state to certify questions of law to the supreme court of that state. 5 Of those 19 states, eight restrict the asking court to the “court of last resort” or the “highest appellate court” of another state. 6 Five states, including Michigan, each allo ws “an” or “any appellate court” of another state to certify questions of law to the supreme court of that state—by reference an intermediate appellate court may be authorized to certify a question to the state supreme court. 7 From my research it appears that no state has ever answered a question certified to it by anot her state intermediate appellate court

. The majority’s decision t oday to answer a ques tion certified by the Texas Court of Appeals is unprecedented. It leaves to another time for one to ponder why the

5 See CAL Rule of Court 8.548; Conn P ractice Book § 82-1; Del Sup Ct R 41; Ga Sup Ct Rule 46; Iowa Code § 684A.1; Kans as, KSA § 60-3201; Ky CR Rule 76.37; Md Courts and Judici al Proceedings Code Ann § 12-603; Massachusetts, ALM Sup Ct Rule 1:03; Michigan, MCR 7.305(B); Mont Code Ann, Ch 21, Rule 44; NM RAP 12-607; ND R App P 47; Okla homa, 20 Okl St § 1602; Oregon, ORS § 28.200; South Caro lina, SCACR 228; Va Sup Ct R Pt 5, 5:42; W VA Code § 51-1A-3; Wis Stat § 821.01.

6 See CAL Rule of Court 8.548; Conn P ractice Book § 82-1; Del Sup Ct R 41; Ky CR Rule 76.37; Massachusetts, AL M Sup Ct Rule 1:03; Mont Code Ann, Ch 21, Rule 44; Va Sup Ct R Pt 5, 5:42; Wis Stat § 821.01.

7 See Ga Sup Ct Rule 46; Md Courts a nd Judicial Proceed ings Code Ann § 12-603; Michigan, MCR 7.305(B); NM RAP 12-607; Oklahoma, 20 Okl St § 1602.

7majority chooses to reach so far “deep in to the heart of Texas” to answer a question posed by the Texas Court of Appeals, an intermediate appellate court.

III. CONCLUSION I dissent from this Court’s decision to answer the certified question in this case because MCR 7.305(B) goes beyond this court’s constitutional authority to answer certified questions and the major ity’s decision to answer the certified question in this case is unpreceden ted and unnecessary. Elizabeth A. Weaver Kelly, J., concurred with part II of Justice Weaver’s opinion.

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