_______________________________ 

_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 from washing the work clothes of her stepfather who 

worked for independent contractors who were hired by defendant to reline the 

interiors of blast furnaces with materials that contained asbestos. A jury found in 
 

 

favor of plaintiffs. Pursuant to MCR 7.305(B), the Fourteenth District Court of 

Appeals of Texas certified the following question to this Court: 

Whether, under Michigan law, Ford, as owner of the property 

on which asbestos-containing products were located, owed to 

Carolyn Miller, who was never on or near that property, a legal duty 

specified in the jury charge submitted by the trial court,[1] to protect 

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 independent 

contractor. 

Having granted the request to answer 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 use ordinary care.” Therefore, the 

legal duty specified in the jury charge submitted by the trial court 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 participated 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 (2005) (Markman, J., dissenting). 

Moreover, we see no constitutional distinction in whether a certified question has 

come to this Court from another state’s supreme 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 Young, like Justice Weaver, has 

written that this Court lacks the authority to answer certified questions, but his 

position did not carry the day. See Melson, supra at 1226 (Young, J., concurring). 

(continued...) 

2
 
 

law, Ford, as owner of the property on which asbestos-containing products were 

located, did not owe to Carolyn 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 who was working on that property as the 

employee of independent contractors, where there was no further relationship 

between defendant and Miller. Having answered the certified question, we now 

return the matter to the Fourteenth District Court of Appeals of Texas for such 

further proceedings as that court deems appropriate. 

I. FACTS AND PROCEDURAL HISTORY 

Plaintiffs allege that the decedent, Carolyn Miller, died from mesothelioma, 

an incurable and fatal form of lung cancer, that she contracted from washing the 

(...continued) 

Five justices, including Justice Cavanagh, disagreed. Just as Justice Cavanagh is 

within his rights as a supporter 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 question, because this 

is now a part of our state’s “judicial power.” 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 similar objections to Justice Young’s 

participation in these previous cases in which he and 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 determination 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 justice of this Court. 

3
 
 

work clothes of her stepfather, Cleveland “John” Roland.3

 From 1954 through 

1965, Roland worked for independent contractors who were hired on various 

occasions by defendant to reline 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 contained asbestos. 

There is no dispute that Miller was never on or near defendant’s premises. Miller 

was diagnosed with mesothelioma in 1999 and died in 2000. After the Texas trial 

court denied defendant’s motion for a directed 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 and over plaintiffs’ objections, 

the Fourteenth District Court of Appeals of Texas certified the above-quoted 

question to this Court. We granted the request to answer the question and heard 

oral argument. 477 Mich 1277 (2006). 

3

 Plaintiffs are the personal representative of the decedent’s estate and the 

decedent’s stepfather, husband, daughter, and mother. 

4

 The jury awarded Miller’s estate $4.5 million 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 injuries on a premises liability 

theory. 

4
 
 

 

II. STANDARD OF REVIEW
 

Whether a defendant owes a duty to a plaintiff to avoid 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 that the substantive law of Michigan 

governs plaintiffs’ claims.6

 In Michigan, “the question whether the defendant 

owes an actionable legal duty to the plaintiff is one of law which the court decides 

after assessing the competing policy considerations for and against recognizing the 

asserted duty.” Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 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 Prosser, Torts (4th ed), § 

5

 As plaintiffs concede, this is a negligence action, not a premises liability 

action. 

6

 Although defendant has raised a number of issues on appeal, including 

whether John Roland was even exposed to asbestos at defendant’s plant, the only 

issue before us concerns defendant’s duty to Carolyn Miller. 

5
 
 

53, pp 325-326.7

 Thus, the ultimate inquiry in determining whether a legal duty 

should be imposed is whether the 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 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 determination of whether a 

legal duty exists is a question of whether the relationship between the actor and the 

plaintiff gives rise to any legal 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 protect 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 whether it is appropriate 

public policy to impose liability for particular conduct . . . .”). 

6
 
 

 

Keeton, Torts (5th ed), § 56, p 385. “Only if the law recognizes a duty to act with 

due care arising from the relationship of the parties does it subject the defendant to 

liability for negligent conduct.” Friedman, supra at 22. “Duty . . . ‘concerns “the 

problem of the relation between individuals 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, Torts (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 whether the defendant owed the plaintiff a legal duty. We 

concluded that because there was only a limited relationship between the parties, 

only a limited duty could be imposed on the defendant. More specifically, we 

concluded that because there was only a limited relationship between the 

defendant physician performing the independent medical 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 causing 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 individual from a harm by a third person, 

that duty to exercise reasonable care arises from a ‘special relationship’ either 

between the defendant and the victim, or the defendant and the third party who 

caused the injury.”). 

7
 
malpractice action has its basis in the relationship between the physician and the 

patient.” Dyer, supra at 50. Because we found that only a limited relationship 

existed, we did not even address the other factors, i.e., the foreseeability of the 

harm, the burden on the defendant, or the nature of the risk presented. 

Consideration of the other factors was unnecessary because 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 determine whether the defendant owed the plaintiff a legal 

duty. We concluded that because there was no relationship between the parties, no 

duty could be imposed on the defendant. More specifically, this Court concluded 

that because there was no relationship between the retailer who sold the shotgun 

ammunition to the intoxicated customer and the bystander who was injured by the 

use of the ammunition, the retailer owed no duty to the bystander. We explained, 

“Our ultimate decision turns on whether a sufficient relationship exists between a 

retailer and a third party to impose a duty under these circumstances.” 

Buczkowski, supra at 103. Because we found that no relationship existed, we 

again did not even address the other factors. This was 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 determine 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 relationship between the parties is 

8
 
 

 

not dispositive, that the harm was foreseeable 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 event may be foreseeable does not 

impose a duty upon the defendant to take some kind of action 

accordingly. The event 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 exist between the actor and the other 

party which the law or society views as sufficiently 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 Professional Bldg, Inc, 393 Mich 

393, 406; 224 NW2d 843 (1975).] 

When the harm is not foreseeable, no duty can be imposed on the defendant. But 

when the harm is foreseeable, a duty still does not necessarily exist.9 

To summarize, in determining whether 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 the harm, the burden 

that would be imposed on the defendant, and the nature of the risk presented. 

Where there is no relationship 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., dissenting) (“foreseeability is a necessary condition of duty, but not 

always a sufficient condition to establish duty[;] [t]hat foreseeability alone is 

insufficient to establish duty does not mean that a lack of foreseeability is 

insufficient to establish a lack of duty”). (Emphasis in the original.) 

9
 
 

 

where there is a relationship, the other factors must be considered to determine 

whether a duty should be imposed. Likewise, where the harm is not foreseeable, 

no duty can be imposed, but where the harm is foreseeable, other factors must be 

considered to determine whether a duty should be imposed. Before a duty can be 

imposed, there must be a relationship between 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 burden that would be imposed on the defendant and the 

nature of the risk presented must be assessed to determine whether a duty should 

be imposed.10 

B. DUTY WITH REGARD TO ASBESTOS LIABILITY 

Because this Court has never addressed whether property owners owe a 

duty to protect people who 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 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 obligation to use due care, or to so govern his actions as not to 

unreasonably endanger the person or property of others” and “every 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 statements out of context. First, these 

statements immediately follow the statement that “[a]ctionable negligence 

presupposes the existence of a legal relationship 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 Justice Cavanagh quotes this sentence, he fails to give it 

any meaning. Second, the Court subsequently addressed whether a relationship 

existed between the parties before it concluded that a duty was owed. Therefore, 

contrary to plaintiffs’ and Justice Cavanagh’s suggestion, Clark does not stand for 

the proposition that everybody owes a duty to everybody else. 

10
 
 

exposure to asbestos carried home on a household member’s clothing, 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 Eleventh Circuit, held that “an employer 

does not owe a duty of care to a third-party, 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 bounds of duty, not only logic and science, 

but policy play an important role.’ However, it must also be 

recognized that there is a responsibility to consider the 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. The recognition of a common-law cause of 

action under the circumstances of this case would, in our opinion, 

expand traditional tort concepts beyond manageable bounds and 

create an almost infinite universe of potential plaintiffs. 

Accordingly, we decline to promulgate 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 protection from the defendant’s 

conduct.” [Id. at 890, quoting Widera v Ettco Wire & Cable Corp, 

204 AD2d 306, 307-308; 611 NYS2d 569 (1994) (other citations 

omitted).][11] 

In In re New York City Asbestos Litigation, 5 NY3d 486; 840 NE2d 115; 

806 NYS2d 146 (2005), New York’s highest court held that the defendant owed 

11 As in Michigan, “mere foreseeability was rejected by [the Georgia 

Supreme] Court as a basis for extending a duty of care . . . .” CSX Transportation, 

supra at 890. 

11
 
no 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 duty exists, courts must be 

mindful of the precedential, and consequential, future effects of their 

rulings, and limit the legal consequences of wrongs to a controllable 

degree” . . . . “Foreseeability, alone, does not define duty . . . .” . . . 

A specific duty is required because otherwise, a defendant would be 

subjected “to limitless liability to an indeterminate class of persons 

conceivably injured” by its negligent acts . . . . “Moreover, any 

extension of the scope of duty must be tailored to reflect accurately 

the extent that its social benefits outweigh its costs.” [Id. at 493, 

quoting Hamilton v Beretta USA Corp, 96 NY2d 222, 232; 750 

NE2d 1055; 727 NYS2d 7 (2001) (other citations and internal 

quotation marks omitted).] 

The court was concerned about “limitless liability” and questioned why, if a duty 

was owed to an employee’s spouse, a duty would not also be owed to the 

employee’s babysitter or an employee of a neighborhood 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 incidence of asbestos-related disease 

allegedly caused by the kind of secondhand exposure at issue in this 

case is rather low, experience counsels that the number of new 

plaintiffs’ claims would not necessarily reflect that reality. [Id.] 

The court explained, “[T]he ‘specter of limitless 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 relationship between the [defendant] and [the 

defendant’s employee’s wife].” Id., quoting Hamilton, supra at 233. The court 

12
 
held that because there was no relationship 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 allegedly exposed to asbestos from her 

husband’s clothes. The court explained: 

If liability for exposure to asbestos could be premised on 

Mary Wild’s handling of her husband’s clothing, presumably 

Bethlehem would owe a duty to others who came in close contact 

with Edwin Wild, including other family members, automobile 

passengers, and co-workers. Bethlehem 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 novelty of the duty,” held that the 

defendant owed a duty to the defendant’s employee’s son who was allegedly 

exposed to asbestos from his father’s work clothes that he brought home. 

However, the Louisiana court relied exclusively on a New York intermediate 

appellate court decision that was subsequently reversed by New York’s highest 

court. As explained by New York’s highest court, “The [Zimko] court 

summarized [New York’s intermediate appellate court’s] decision . . . and, without 

providing an independent analysis, concluded that the father’s employer owed a 

duty of care to the son.” In re New York City Asbestos Litigation, supra at 496. 

Because the court in Zimko relied exclusively on a decision that has since been 

reversed, we do not find Zimko persuasive. 

13
 
After New York’s highest court reversed 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 foreseeability in its duty/risk analysis . . . .” Id. at 182. 

Unlike Louisiana, Michigan relies more on the relationship between the parties 

than foreseeability in determining whether a duty exists. 

In addition, in Louisiana, unlike in Michigan, “a ‘no duty’ 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, negligently inflicted mental anguish or 

purely economic harm unaccompanied by physical trauma to the claimant or his 

property,’” id. at 482 n 19 (citation and emphasis omitted). 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 liability for negligent 

conduct.” Friedman, supra at 22. See also Murdock, supra at 53 (“Only after 

finding that a duty exists may the factfinder determine whether, in light of the 

particular facts of the case, there was a breach 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 that if the defendant owed a duty to the worker, the 

14
 
 

defendant owed a duty to the wife of the worker who was exposed to asbestos 

when she washed the clothes of her husband, 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 Asbestos Litigation, supra at 497. In Olivo, supra at 402, the 

New Jersey Supreme Court described “foreseeability of harm” as “‘“a crucial 

element in determining whether 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 the victim is exposed offpremises, devolves to a question of foreseeability of the risk of harm to that 

individual or identifiable class of individuals.” Id. at 403. However, as explained 

above, Michigan, like New York, relies more on the relationship between the 

12 It is important to note that the court did not hold that the defendant owed 

the worker’s wife a duty. In fact, it held that if the defendant owed no duty to the 

worker, the defendant necessarily 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 the exposure she experienced from asbestos 

borne home on Anthony’s work clothing.”). The court remanded the case because 

a question of fact existed regarding whether the defendant owed the worker a duty 

because the worker was an employee of an independent contractor. 

15
 
 

parties than foreseeability of harm when determining whether a duty exists.13 For 

this reason, we do not find Olivo persuasive.14 

C. APPLICATION TO THIS CASE 

As explained above, under Michigan law, the ultimate inquiry in 

determining whether a legal duty should be imposed is whether the 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 foreseeability of the harm, the burden on the defendant, and the 

nature of the risk presented.’” Dyer, supra at 49 (citations omitted). 

In the instant case, the relationship between Miller and defendant was 

highly tenuous-- defendant hired an independent contractor who hired Roland who 

13 We recognize that New York law differs from Michigan law in that New 

York does not consider foreseeability at all in determining 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 exists in the first place”). 

14 For the same reason, the California Court of Appeals decision in Condon 

v Union Oil Company of California, 2004 Cal App Unpub LEXIS 7975 (Cal App, 

2004), is not persuasive. The court in that case relied exclusively on the 

forseeability factor. It stated, “Since it was known that a worker’s clothing could 

be a source of contamination to others, then it was foreseeable that family 

members who were exposed to this clothing 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), which held that the defendant 

employer could be liable for the plaintiff’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 the balancing test] is paramount because 

“foreseeability is the test of negligence.”’” (Citations omitted.) 

16
 
 

 

lived in a house with Miller, his stepdaughter, who sometimes washed his 

clothes.15 Miller had never been on or near 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 duty should be imposed.16 

15 Although Justice Cavanagh attempts to downplay the importance of the 

relationship prong, he is unable 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 conclusory statement that there was a relationship between 

Roland and defendant and that such a relationship should “extend[]” 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 from an upper respiratory problem. In 

fact, the plaintiff was suffering from spinal meningitis. The plaintiff’s son became 

infected with spinal meningitis and died. The Court of Appeals held that the 

defendant hospital owed the plaintiff’s son a duty because it had a physicianpatient relationship with the plaintiff. Shepard is distinguishable from the instant 

case because in Shepard there was a physician-patient relationship between the 

plaintiff mother and the defendant, while in the instant case there was not even an 

employer-employee relationship 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 existence of a relationship. See Shepard, supra at 

246 (“Because defendant had a special relationship with plaintiff, we conclude that 

defendant owed a duty of reasonable care to [plaintiff’s son]”). As we explained 

above, although the nonexistence of a relationship precludes the imposition of a 

duty, the existence of a relationship does not require the imposition of a duty. 

Instead, where the existence of a relationship is found, the other factors must be 

considered before a duty can be imposed. 

17
 
 

 

The “burden [that would be imposed] on the defendant” prong also 

suggests that no duty should be imposed because protecting 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, would 

impose an extraordinarily onerous 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 potential litigants.” 

Post at 7 (emphasis added). He contends further that this question “should also be 

viewed in the extremely narrow confines of this particular case.” Post at 12. 

However, this is not how a court of law properly determines the existence, or 

nonexistence, of a legal duty, for such a determination will apply not only in the 

instant case but in the next 500 cases as well. One cannot assess “social benefits” 

and “social costs” by considering only a “particular” case or without considering 

other “potential litigants.” Unlike Justice Cavanagh, we refuse to consider 

whether to impose a new legal duty without 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 employee, or to members of the 

household of those who come onto the landlord’s premises. This 

line is not so easy to draw, however. For example, an employer 

would certainly owe the new duty 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 example, the babysitter (or maybe an 

employee of a neighborhood laundry) launders the family members’ 

clothes. In short, as we pointed out in Hamilton, the “specter of 

limitless liability” is banished only when “the class of potential 

plaintiffs to whom the duty is owed is circumscribed by the 

(continued...) 

18
 
 

Given 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 independent contractor to work with asbestos-containing 

materials, the “nature of the risk” was serious. Therefore, the “nature of the risk” 

prong suggests that a duty should be imposed. 

However, the “foreseeability of the harm” prong suggests that no duty 

should be imposed. From 1954 to 1965, the period during which 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 Health and Safety 

Administration did not promulgate regulations prohibiting employers from 

allowing workers who had been exposed to asbestos to wear their work clothes 

home until 1972, the risk of “take home” asbestos exposure was not foreseeable to 

Exxon Mobil before 1972, and, thus, Exxon Mobil did not owe a duty to the 

(...continued) 

relationship.” [In re New York City Asbestos Litigation, supra at 

498, quoting Hamilton, supra at 233.] 

Unlike Justice Cavanagh, the New York plaintiffs at least recognized that their 

burden in urging the creation of a new duty required an assessment of the 

consequences arising from such a duty for future cases. Moreover, Justice 

Cavanagh fails to offer any principled way of distinguishing the claims of 

household members from other potential claimants-- 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. 

19
 
 

 

plaintiff, who was allegedly exposed to asbestos brought home on her husband’s 

clothes from 1942 to 1972). Further, plaintiffs’ 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 likelihood, not foreseeable by defendant 

while Roland was working at defendant’s premises from 1954 to 1965.18 

Because the ultimate inquiry in determining whether a duty should be 

imposed involves balancing the social benefits of imposing a duty with the social 

costs of imposing a duty, we cannot decide whether a duty should be imposed 

without “assessing the competing policy considerations . . . .” Friedman, supra at 

22. We must be “concerned with whether it is appropriate public policy to impose 

18 Justice Cavanagh criticizes 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 suggests that the harm was foreseeable. He states that “the 

transcripts are repeatedly cut off during what appears to be testimony shedding 

further light on the question of foreseeability.” Post at 11. If there are missing 

pages to the transcript that contain “testimony shedding further light on the 

question of foreseeability,” plaintiffs obviously could have included those pages. 

This is a matter for the Fourteenth District Court of Appeals of Texas, not this 

Court. That court has certified a question of law and we have answered that 

question of law on the basis of the information that has been presented to us. 

Also, contrary to Justice Cavanagh’s contention, it should come as no 

surprise to the parties that we are addressing foreseeability given that it is wellestablished law in Michigan that foreseeability is a factor to be considered in 

determining whether a legal duty should be imposed. Nevertheless, “other 

considerations may be, and usually are, more important.” Buczkowski, supra at 

101. 

20
 
liability . . . .” Smith, supra at 716 n 24. “‘“[I]n fixing 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 the 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 controllable degree.’” In re New York City Asbestos 

Litigation, supra at 493, quoting Hamilton, supra at 232 (other citations and 

internal quotation marks omitted). “‘Moreover, any extension of the scope of duty 

must be tailored to reflect accurately the extent that its social 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 rise to one of the most costly productsliability crises ever within 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 frontier in asbestos 

litigation: Premises owner liability for “take home” exposure claims, 21 Mealey’s 

21
 
Litig Rep Abs 1, 4 (2006). Some commentators have said that “[b]efore it ends, 

the litigation may cost up to $195 billion — on top of the $70 billion spent through 

2002.” Id. These same commentators have explained: 

Premises owner liability for “take home” exposure injuries 

represents the latest frontier in asbestos litigation. These actions 

clearly involve highly sympathetic plaintiffs. Yet, as several leading 

courts have appreciated, the law should not be driven by emotion or 

mere foreseeability. Broader public policy impacts must be 

considered, including the very real possibility that imposition of an 

expansive new duty on premises owners 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 actions brought by remotely exposed 

persons such as extended family 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 and potentially reap far 

greater recoveries than employees. Namely, secondarily exposed 

nonemployees could obtain noneconomic damages, such as pain and 

suffering, and possibly even punitive damages; these awards are not 

generally available to injured 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 negligently 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 considerations of public policy 

have required. But as Justice Young has recently observed, our 

common-law jurisprudence has been guided by a number of 

prudential principles. See Young, A judicial traditionalist confronts 

22
 
 

the common law, 8 Texas Rev L & Pol 299, 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 undesirable 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 traditional notions of a valid negligence 

claim.[19] Beyond this enormous shift in our tort jurisprudence, 

judicial recognition of plaintiffs’ claim may also have undesirable 

effects that neither we nor the parties 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 plaintiffs, so too would imposing a duty on a 

landowner to anybody who comes into contact with somebody who has been on 

the landowner’s property. “We would be unwise, to say the least, to alter the 

common law in the manner requested by plaintiffs when it is unclear what the 

consequences of such a decision may be and when we have strong suspicions . . . 

that they may well be disastrous.” Id. at 88 (citation omitted). “The recognition of 

a common-law cause of action under the circumstances of this case would, in our 

opinion, expand traditional tort concepts beyond manageable bounds and create an 

19 In response to the “asbestos-litigation crisis,” this Court adopted an 

administrative order precluding trial courts from “‘bundling’ asbestos-related 

cases for settlement or trial.” Administrative 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 standards. Therefore, it would be inconsistent for us now to 

suggest that traditional legal standards should not apply to asbestos litigants. 

23
 
 

 

almost infinite universe of potential plaintiffs.20 Accordingly, we decline to 

promulgate 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 protection from 

the defendant’s conduct.” CSX Transportation, supra at 890 (citation omitted).21 

20 Justice Cavanagh would impose 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 characterization. However, we do not 

believe that this automatically allows courts to ignore the social costs of imposing 

a duty. Although every death, or serious injury, is indeed “tremendous,” this is no 

warrant for placing responsibility upon an inappropriate defendant. Not every 

death or serious injury, however genuinely “tremendous,” is legally compensable 

by someone else. Under Justice Cavanagh’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 prevail. This is simply not 

the law in Michigan or in any other state. Nor could it be the law in any 

reasonably functioning society that desires that its resources be devoted to 

something other than litigation. Justice Cavanagh would impose liability here 

because Carolyn Miller died. One need not fail to recognize the gravity of this 

occurrence to recognize 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 owed to the members of a worker’s household 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 members 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 Roland 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 the work being performed. Ormsby v Capital Welding, 

Inc, 471 Mich 45, 55; 684 NW2d 320 (2004). To our knowledge, there was no 

evidence presented establishing the “‘unusually high degree of control’” over the 

relining projects required by Ormsby, supra at 55 (citation omitted). Indeed, the 

jury instructions given on this point seem inconsistent with Michigan law. 

(continued...) 

24
 
 

Finally, plaintiffs argue that under the “inherently dangerous activity” 

doctrine, property owners may owe a duty to somebody who has never been on 

their property even where they do not owe a duty to their own employees or the 

employees of an independent contractor that they have hired. Plaintiffs are correct 

that under the “inherently dangerous activity” 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 332 (2004). However, the 

“inherently dangerous activity” doctrine is not at all applicable to the instant case. 

“[U]nder this doctrine, the landowner must itself owe some duty to the specific 

third party, . . . the negligent act that causes the injury cannot be collateral to the 

work contracted for, and . . . the injury that occurs must be reasonably expected by 

the landowner.” Id. at 34. 

First, for the reasons discussed above, defendant owed no duty to Miller. In 

addition, the “inherently dangerous activity” doctrine only applies to persons on 

the defendant’s property, passing by the property, or on neighboring property. See 

Detroit v Corey, 9 Mich 165 (1861) (a passerby 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 conclude that defendant owed no duty to Miller regardless 

of whether defendant owed a duty to Roland, it is not necessary for us to decide 

whether defendant owed a duty to Roland. 

25
 
Detroit Central Mills Co, 31 Mich 274 (1875) (a passerby was run over by a 

railroad car); Rogers v Parker, 159 Mich 278; 123 NW 1109 (1909) (a fire spread 

to neighboring land); Inglis v Millersburg Driving Ass’n, 169 Mich 311; 136 NW 

443 (1912) (a fire spread to the plaintiff’s adjoining land); Olah v Katz, 234 Mich 

112; 207 NW 892 (1926) (a neighboring 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 story as a result of improperly fastened 

steel joists); Tillson v Consumers Power Co, 269 Mich 53; 256 NW 801 (1934) 

(excavation on property caused damage 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 child fell into a bucket of hot tar on an adjacent lot); 

McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d 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 things, injurious consequences 

to his neighbor must be expected to arise, unless 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 cannot relieve himself of his responsibility by employing 

some one else.”’”) (citations omitted; emphasis in the original); Prosser & Keeton, 

Torts (5th ed), § 71, p 514 (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 dangerous activity” doctrine has never been 

applied to extend a property owner’s duty to somebody 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 allegedly negligent act-- providing unsafe materials-- was 

“collateral” to the work contracted for-- the relining of the blast furnaces. 

Finally, “the injury that 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 expected by defendant while 

Roland was working at defendant’s plant from 1954 to 1965. For these reasons, 

the “inherently dangerous activity doctrine” does not apply here. 

22 Further, the “inherently dangerous activity” doctrine only applies to nondelegable 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 materials is certainly not a 

nondelegable duty. Otherwise, a homeowner 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. Homeowners must be able to delegate this 

duty to professionals who are specifically trained in removing asbestos without 

fear of liability. 

27
 
IV. CONCLUSION 

In Michigan, “the question whether the defendant owes an actionable legal 

duty to the plaintiff is one of law which the court decides after assessing the 

competing policy considerations for and against 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 involves 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 pertains to the relationship between the 

parties. Because any relationship between Miller and defendant was highly 

tenuous, the harm was, in all likelihood, not foreseeable, the burden on defendant 

would be onerous and unworkable, and the imposition 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. For 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 located, did not owe to the 

deceased, 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 who was working on that property as the employee of independent 

28
 
contractors, where there was no further relationship between defendant and the 

deceased. Having answered the certified question, 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. 

29
 
 

v 

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 ALMA 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, without the participation of 

Justice Young, who strongly 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 (Melson v Prime Ins Syndicate, 

Inc), 472 Mich 1225 (2005) (Young, J., concurring). 
 

the question. I would point out the curiosity that Justice Young’s constitutional 

conscience would allow him to subordinate his deeply held belief to provide the 

fourth vote to answer the question in this case. Despite the fact that he has 

participated in answering certified questions before, the fact remains that had he 

not provided the deciding vote to answer this certified question, he would have 

caused the Court not to answer the question, which surely 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 enough 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 law compels the result the 

majority reaches. Contrary to the majority’s conclusion, defendant could be 

found to owe a duty to Carolyn 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 unpredictable behavior that 

Justice Markman does. See ante at 3 n 2. 

2
 
the 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 property, a legal duty specified in the 

jury charge submitted by the trial court, to protect 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 independent 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 the 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 Texas court’s formulation of the certified question 

depends on the intricacies of this specific case, and because of these complexities 

I would decline to answer the question. I do not believe that we should entangle 

ourselves in an appeal pending in another state by determining whether this 

defendant owed a duty to Carolyn Miller. If anything, we should be determining 

only whether Michigan law would permit the Texas court to hold that defendant 

owed a duty to Carolyn Miller. But by deciding the case, this Court oversteps its 

advisory role and decides issues of fact without the benefit of full review. 

However, because the majority decides the case, I must register my 

disagreement with its analysis. Contrary to the majority’s position, I would hold 

that a duty can be imposed in the present case. I am guided first and foremost by 

3
 
 

traditional principles of negligence set forth by this Court in Clark v Dalman, 379 

Mich 251, 260-261; 150 NW2d 755 (1967): 

Actionable negligence presupposes the existence of a legal 

relationship between parties by which the injured party is owed a 

duty by the other, and such duty must 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 obligation to use due care, or to 

so govern his actions as not to unreasonably endanger 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 may be a general one owed by the 

defendant to the public, of which the 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 Michigan law. For instance, although the 

majority spends considerable time opining that, in a duty 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, utilizing a wide array of variables in the process. 

Frequently, the first component examined by the court is the foreseeability of the 

risk. However, other considerations may be, and usually are, more important.” 

4
 
 

 

The fact that the relationship between the parties is a component of a duty 

analysis and may, at times, be given more weight than another of the components 

certainly does not mean that the relationship is the most important inquiry.3

 How 

heavily to weigh each of the several factors depends on the precise situation at 

hand.4 

Many variables are considered in a duty analysis. As the Buczkowski 

Court noted: 

Dean Prosser described the several variables that consistently 

go to the heart of a court’s determination of duty as including: 

foreseeability of the harm, degree of certainty of injury, closeness of 

connection between the conduct and injury, moral blame attached to 

the conduct, policy of preventing future harm, and, finally, the 

burdens and consequences of imposing a duty and the resulting 

liability for breach. [Id. at 101 n 4, quoting Prosser & Keeton, Torts 

(5th ed), § 53, p 359 n 24.] 

Each of these factors is significant, and the majority incorrectly represents the 

law in this state by asserting that the relationship between the parties is the most 

important. Only by subordinating 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 the injured person’s 

claim involved the criminal act of a third party. Here, no third-party conduct is 

involved. The analysis, therefore, will not be identical to that in Buczkowski. 

4

 For a recent case in which the relationship of the parties was hardly 

mentioned but in which foreseeability was this same majority’s paramount focus, 

see Brown v Brown, 478 Mich ___; ___ NW2d ___ (Docket No. 270689, decided 

July 11, 2007). 

5
 
With respect to relationship, the majority 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 “relationship” seems to be based on its view 

of premises liability law rather than on the principles of ordinary negligence. 

Under the latter (and the former as well, although that is not at issue here), a 

harmed person need not visit the property of the injuring 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 exposing the worker’s 

family to asbestos. Under these circumstances, I have no difficulty concluding 

that the relationship—that a jury found defendant had to Cleveland “John” 

Roland—extended to Carolyn Miller. To conclude otherwise, as does the 

majority, ignores basic negligence principles and gives employers carte blanche 

to expose workers to communicable toxic substances without taking any measure 

whatsoever to prevent those substances from harming 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 Carolyn Miller is so great that innocent people must suffer 

without recourse. Our federal 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 exposure.” 51 Fed Reg 

6
 
 

22615 (1986). In assessing whether defendant should have a duty, I would find 

that the extreme toxicity of asbestos weighs heavily in favor of finding that 

defendant had a duty to protect those whom defendant put at risk by exposing 

them to it. 

The majority also seriously overstates what the consequences of imposing 

a burden on defendant would truly be by asserting that, 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 Carolyn 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 takehome exposure. Thus, holding 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 wrote 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 the legal question of duty as it pertains to a particular 

set of parties. Although duty is a question of law, it will always be answered in 

the context of a unique set of circumstances. 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. 

7
 
would not impose nearly the burden the majority claims. Questions of duty 

specifically entail drawing lines, and under a properly tailored rule, the duty 

could be appropriately limited. Thus, the majority mischaracterizes the burden 

and concludes, on the basis of unwarranted extremism, that the burden is too 

great. I would not conclude 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 conclusion regarding foreseeability. 

In its analysis, the majority commits three errors. First, it reasons that because 

foreseeability was not found with respect to Exxon Mobil in Exxon Mobil Corp v 

Altimore, unpublished opinion of the Texas Court of Appeals, issued April 19, 

2007 (Docket No. 14-04-01133-CV), “the risk of ‘take home’ asbestos exposure 

was, in all likelihood, not foreseeable by defendant while [John] Roland was 

working at defendant’s premises from 1954 to 1965.” Ante at 20. But the 

Altimore court based its holding on the evidence produced at trial, as it should 

have. See Altimore, supra, 2007 Tex App LEXIS 2971 at *36. This Court’s 

conclusion, too, should be based on the evidence produced at trial. 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 that in a different case involving Exxon 

Mobil, the evidence showed that Exxon Mobil was fully aware of the possibility 

of take-home exposure: 

8
 
Exxon Mobil was aware by 1937 that exposure, of sufficient 

duration and intensity, to asbestos dust or raw asbestos was 

associated with asbestosis. Moreover, a report prepared in 1937 

specifically for the petroleum industry, detailed the hazards 

associated with “occupational 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 have known about the risk of take-home exposure at 

the times relevant to this case. In Condon v Union Oil Co of California, 

unpublished opinion of the California Court of Appeals, issued August 31, 2004 

(Docket No. A102069), the court relied on expert testimony indicating that 

in 1924 in the United States, it was recognized that workers handling 

toxic substances should have separate lockers for work and street 

clothes to prevent their 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 prior to going home, and that the 

refinery launder the work clothes 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-evident that a finding regarding 

foreseeability must be based on the evidence specific to a particular case. And 

here, plaintiffs presented evidence, which the jury clearly believed, that this 

defendant knew of the hazards of asbestos at the relevant 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 

9
 
produced at trial and relying on another court’s findings regarding the evidence 

produced at a different trial involving a different defendant, the majority upends 

the jury’s finding and improperly decides a factual matter. 

Nor should the analysis hinge on what date the first literature connecting 

take-home exposure with clothes washing was published, the majority’s second 

error. See ante at 23-24 (“[P]laintiffs’ own expert conceded that the first 

published literature suggesting a ‘specific attribution to washing 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 asbestos had been going on for decades, 

and warnings appeared far earlier. In fact, “[a]s early as 1916, industrial hygiene 

texts recommended that plant owners should provide workers with the 

opportunity to change in and out of work clothes to avoid bringing contaminants 

home on their clothes.” Olivo, supra at 404. The question is not what year 

literature was published regarding the dangers 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 and limited to the evidence produced at 

this trial, this factor might have weighed in plaintiffs’ favor. 

10
 
 

Importantly, though, and this pertains to the majority’s third error, the 

question of foreseeability is a question addressable 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 trial transcript, but instead have provided 

only excerpts. While the portions that have been submitted contain some of 

plaintiffs’ expert’s testimony regarding what defendant knew and what 

information was available to defendant, the transcripts are repeatedly cut off 

during what appears to be testimony shedding further light on the question of 

foreseeability.6

 Thus, a proper review of whether this defendant knew of the 

6

 The majority asserts that because the transcripts do not contain the full 

discussion of foreseeability that occurred at trial, evidence 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 about 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 majority must 

believe that the jury was either unintelligent or deliberately failed to follow the 

jury instructions. I find both conclusions insulting and refuse to make them. 

Further, there is a perfect explanation of why the parties did not include the entire 

transcript: this Court was not supposed 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 foreseeability in the duty 

analysis and reaching its own factual conclusions about foreseeability is a critical 

difference the majority fails to grasp. See ante at 20 n 18. 

The majority is free to thoroughly review the trial testimony excerpts as I 

have done. On doing so, it would indeed find numerous instances of testimony 

that support the jury’s findings. The record is far from devoid of such evidence. 

(continued...) 

11
 
 

 

risks posed by take-home exposure is impossible 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 Court to substantively decide this case. 

Moving on, I differ greatly with the majority regarding the outcome of 

what it deems the “ultimate inquiry”: “whether 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 the extremely narrow confines of this 

particular case. Specifically, the Texas court has asked whether this defendant 

had a duty to Carolyn Miller. Holding that this defendant had a duty to Carolyn 

Miller would not create a universal cause of action for every potential take-home 

exposure case. Thus, the majority needlessly invokes the sky-is-falling genre of 

arguments advanced by commentators who have been openly critical of asbestos 

litigation and tort recovery in general. See ante at 21-22. Quite simply, there has 

(...continued) 

But I cannot in good conscience render a definitive conclusion regarding 

foreseeability for the mere fact that the transcript is incomplete. 

The fact that the majority believes that other factors are more important 

than foreseeability, ante at 20 n 18, does not mitigate the fact that the majority 

decides the question of foreseeability using an incorrect process. Moreover, I do 

not see anything left for the Texas court’s determination, 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 decides 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 not constitute binding precedent, the Texas court is free 

to draw its own conclusions with respect to the meaning, or applicability, of the 

majority opinion. 

12
 
 

been no showing in this case that were defendant found to have a duty, “a 

potentially limitless pool of plaintiffs” or “‘an almost infinite universe of 

potential plaintiffs’” would be created. Ante at 23-24 (citation omitted). In fact, 

one of the very commentators the majority quotes recently wrote that “after years 

of downward spiral, the asbestos 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 addressed the majority’s concern with 

reasoning I find persuasive. One explained that the public policy concerns would 

“dissipate” because it was only recognizing a duty based on “the particularized 

foreseeability of harm to plaintiff’s wife, who ordinarily would perform 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 attributes the “asbestos litigation crisis” not 

to those who, like plaintiffs’ decedent, are or were truly ill, but to what the authors 

describe as healthy plaintiffs who have been “unearth[ed]” by profitable “mass 

screenings programs.” Behrens, supra at 479. The authors observe that “‘the 

“asbestos litigation crisis” would never have arisen and would not exist today’ if 

not for the claims filed by the unimpaired.” Id., quoting Brickman, Lawyers’ 

ethics and fiduciary obligation in the brave new world of aggregative litigation, 

26 Wm & Mary Environmental 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. According to the majority’s own authority, it is 

not people like Carolyn Miller who are the “problem.” 

13
 
 

potential plaintiffs”: “[L]imitless liability would not be created in this case if we 

found a duty under these particular facts and circumstances.” Chaisson v 

Avondale Industries, Inc, 947 So 2d 171, 182 (La App, 2006), clarified 947 So 2d 

171 (2007).8 

But even so, the majority’s conclusion that the social costs of imposing a 

duty outweigh the social benefits requires elevating corporate vitality over the 

health and well-being of humanity. The majority’s statements regarding the 

social burden abound with tales of corporate 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 the losses suffered by 

businesses, the majority fails to account for the social benefits that would ensue 

from ensuring that people who are exposed to detrimental substances and who, 

consequently, suffer ruined health, life-altering and life-ending diseases, and the 

8

 And I would note that the absence of any evidence that Roland rode a bus 

home from work every day should alleviate the majority’s concern that fellow 

passengers could sue defendant under my rationale. See ante at 19 n 17. 

9

 I emphasize this because my sense from reading the majority’s opinion is 

that the majority believes that 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 product. This, to me, would be a gross 

misunderstanding. 

14
 
 

loss of family members, are compensated.10 When workers are protected from 

deadly substances, society benefits. When corporations are held accountable for 

the consequences their processes have on those who toil to make the corporations 

viable, society benefits. When our justice system fairly places the burden of 

responsibility for dangerous products on the offending party, rather than the one 

who suffers, society benefits. 

Unlike the majority, I would find a tremendous social benefit in imposing 

corporate accountability, and I would conclude that the social benefits of 

corporate responsibility and a valued, healthy society easily outweigh the burden 

of imposing a duty on corporations to mitigate the risk of take-home exposure, 

especially in light of the fact that they have been required to do so anyway for the 

last 35 years. 

And the majority proclaims that “[n]ot every death or serious injury, 

however genuinely ‘tremendous,’ is legally compensable 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 holding that an employer who allowed a contaminated worker to 

10 And the majority’s dire global predictions 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 Asbestos: A Clinicopathological Correlation of 1445 

Cases, 26 Ultrastructural Pathology 55 (2002). For two other recent examples of 

an improperly skewed analysis 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). 

15
 
expose his family to a deadly 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 should not disregard its singular role in 

preventing compensation and then shrug off the consequences of that role by 

saying, in essence, “Sorry, not everything is compensable.” 

And I would not impose liability simply “because Carolyn Miller died” or 

allow a plaintiff to prevail “no matter how attenuated or remote the relationship 

between the parties, if a plaintiff has suffered a death, or presumably any kind of 

serious injury . . . .” Ante at 24 n 20. Readers will see through these empty 

allegations simply by reading this dissent, in which it is thoroughly explained 

why each factor in the analysis of whether a duty should be imposed weighs in 

plaintiffs’ favor. And readers perusing the opinions of other states that have 

found a duty in similar 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 society that desires that social resources be 

devoted to something other than litigation.” Ante at 24 n 20. For instance, a 

Louisiana court easily found a duty 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 economic impact of imposing a duty on 

Zachry is minimal. The fact that this case presents res nova 

determinations for this Court demonstrates the small number of 

16
 
 

cases. Second, there is a public policy need to prevent 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 rely upon others’ 

representations and perform no safety inspections of their own. 

Third, the possibility of limitless liability is of no concern because 

finding a duty in this case would not create a categorical duty rule, 

but one based upon the facts and circumstances of this case. Fourth, 

the historical precedent and development of institutional guidelines 

show that courts are holding companies liable for negligence based 

on unsafe work conditions. This desire for accountability is also 

shown in the strengthening of OSHA [Occupational 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 independent steps to protect its employees’ 

family members from household exposure to hazardous materials. 

[Chaisson, supra at 183-184.] 

Indeed, not even our federal government believes that requiring employers 

to protect workers and their families from asbestos exposure is too cumbersome a 

burden. In fact, quite the opposite is true. OSHA has promulgated stringent 

requirements on employers whose employees encounter asbestos in the work 

environment. See 29 CFR 1926.1101. In no uncertain terms, OSHA has set forth 

strict procedures to decontaminate workers who handle asbestos on the job. 

These rigorous measures reflect OSHA’s awareness that the deadly and 

communicable nature of asbestos fiber merits 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 ACM [asbestos-containing material] 

and PACM [presumed asbestos-containing material]. 

(i) Decontamination areas. The employer shall establish a 

decontamination area that is adjacent and connected to the regulated 

17
 
area 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 the regulated area through the 

decontamination area. 

(A) Equipment room. The equipment room shall be supplied 

with impermeable, labeled bags and containers for the containment 

and disposal of contaminated protective equipment. 

(B) Shower area. Shower facilities shall be provided which 

comply with 29 CFR 1910.141(d)(3), unless the employer can 

demonstrate that they are not feasible. 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 employers shall ensure that 

employees: 

(1) Remove asbestos contamination from their worksuits in 

the equipment room using a HEPA [high-efficiency particulate air 

filter] vacuum before proceeding to a shower that is not adjacent to 

the work area; or 

(2) Remove their contaminated worksuits in the equipment 

room, then don clean worksuits, 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 demonstrate that it is not feasible to 

provide a clean change area adjacent to the work area or where the 

work is performed outdoors, the employer may permit employees 

engaged in Class I asbestos jobs to clean their protective clothing 

with a portable HEPA-equipped vacuum before such employees 

leave the regulated area. Following showering, such employees 

however must then change into street clothing in clean change areas 

provided by the employer which otherwise meet the requirements of 

this section. 

(ii) Decontamination area entry procedures. The employer 

shall ensure that employees: 

(A) Enter the decontamination area through the clean room; 

18
 
 

(B) Remove and deposit street clothing within a locker 

provided for their use; and 

(C) Put on protective clothing and respiratory protection 

before leaving the clean room. 

(D) Before entering the regulated area, the employer shall 

ensure that employees pass through 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 and debris from their protective 

clothing. 

(B) Employees shall remove their protective clothing in the 

equipment room and deposit the clothing 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 exposure limit] or where there is no 

negative exposure assessment produced before the operation. 

(i) The employer shall establish an equipment room or area 

that is adjacent to the regulated area for the decontamination of 

employees and their equipment which is contaminated with asbestos 

which shall consist of an area covered by a impermeable drop cloth 

on the floor or horizontal working surface. 

(ii) The area must be of sufficient size as to accommodate 

cleaning of equipment and removing 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 that employees enter and exit 

the regulated area through the 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 classification 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 average limit] or excursion limit 

prescribed in paragraph (c) of this section. 

(ii) Any employer who gives contaminated clothing to 

another person for laundering shall inform such person of the 

requirement in paragraph (i)(2)(i) of this section to effectively 

prevent the release of airborne asbestos in excess of the TWA and 

excursion limit prescribed in paragraph (c) of this section. 

(3) Contaminated clothing. Contaminated clothing shall be 

transported in sealed impermeable 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. Although these regulations were not in place 

when John Roland and Carolyn Miller were exposed to asbestos, their existence 

demonstrates how seriously our government considered the social detriments of 

20
 
asbestos exposure when it imposed these obligations on businesses. While the 

majority views the alleged projected financial 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 the social benefit of a healthy people. 

Further, in a duty analysis, 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 plaintiff’s] injury is further 

buttressed by the severe gravity of the possible harm—mesothelioma 

and subsequent death. “[T]he degree of foreseeability needed to 

establish a duty of care decreases in proportion to the 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) (quoting Prosser [& Keeton, Torts 

(5th ed)], § 31, at 171. [Satterfield v Breeding 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 risk weighs in plaintiffs’ 

favor, it seems to struggle with giving that factor the weight it deserves. The 

data, research, and studies definitively establishing a causal relationship are too 

numerous to mention, but I would point the 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 Actinolite, 51 Fed Reg 22612 (1986). The 

following are but a few of the conclusions explained in that lengthy document: 

21
 
 

OSHA has followed these guidelines in making a 

determination that the risk of material health impairment resulting 

from occupational exposure to asbestos is significant. The 

epidemiological and toxicological evidence and testimony presented 

in the November notice and in Section IV (Health Effects) of this 

preamble clearly show that exposure to asbestos is carcinogenic to 

humans and additionally causes disabling fibrotic lung disease. 

* * * 

Clinical evidence of the adverse 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 studies have shown a definite 

association between exposure to asbestos, tremolite, anthophyllite, 

and actinolite and an increased incidence of lung cancer, pleural and 

peritoneal mesothelioma, gastrointestinal cancer, and asbestosis. 

The latter is a disabling fibrotic lung disease that is caused only by 

exposure to asbestos. Exposure to asbestos, tremolite, anthophyllite, 

and actinolite has also been associated with an increased incidence 

of esophageal, kidney, laryngeal, pharyngeal, and buccal cavity 

cancers. [51 Fed Reg 22646, 22755.] 

In fact, “a joint NIOSH-OSHA Asbestos Work Group stated 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 analysis of whether defendant had a duty to mitigate the risk 

involved. The measures to prevent take-home exposure essentially boil down to 

ensuring that workers shower and change clothes after encountering asbestos. 

Just those simple actions have the potential to completely eliminate the risk of 

take-home exposure. But the majority makes this difficult to discern by grossly 

overstating the burden of imposing a duty. It concerns itself not with the gravity 

22
 
of the health risks or even with the relatively marginal costs of prevention. 

Instead, the majority’s central focal point is this statement: “Asbestos claims have 

given rise to one of the most costly products-liability 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 victims for their losses has had such hefty 

financial consequences, this Court 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 protection. If protection and accountability 

increase, litigation eventually decreases because, obviously, the protections 

reduce injury. 

I am persuaded by the reasoning from courts in our sister states that have 

held that imposing a duty on an employer 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 the duty of care owed to employees to members of the 

employee’s household who predictably come into routine contact with the 

employee’s clothing. Such persons would certainly fall within the “range of 

reasonable apprehension” created by defendant’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 what 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 exposure under different circumstances. But I 

would hold that, under close examination of the circumstances of this case, and 

accepting the jury’s finding that defendant knew or should have known of the 

risk of take-home exposure, imposing a duty on defendant would be, without 

doubt, fair and just. Accordingly, I dissent. 

Michael F. Cavanagh 

 Marilyn Kelly 

24
 
v 

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 ALMA 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 certified question in this matter because 

Michigan Court Rule MCR 7.305(B) represents an improper expansion of this 

Court’s limited power under the Michigan Constitution to answer certain certified 

questions from the Governor and Legislature, and the majority’s use of MCR 

7.305(B) to answer a question certified by another state’s intermediate appellate 
 

 

court is unprecedented. I continue to question this Court’s authority to answer 

such questions.1 

Michigan Court Rule 7.305 addresses “certified questions.” MCR 7.305(B) 

articulates the power the Michigan Supreme Court has created for itself to answer 

certified questions from other courts, stating: 

(1) When a federal court, a state appellate court, or tribal 

court considers a question that Michigan law may resolve and that is 

not controlled by Michigan Supreme Court precedent, 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 states a model for court rules on certified 

questions of law.2

 The UCQLA has not been adopted by the people of Michigan 

by constitutional amendment, nor has it been adopted by the Michigan Legislature. 

1

 See, e.g., Proposed Amendment of MCR 7.305, 462 Mich 1208 (2000) 

(Weaver, J., dissenting); In re Certified Question (Wayne Co v Philip Morris, Inc), 

622 NW2d 518 (Mich, 2001) (Weaver, J., dissenting); In re Certified Question 

(Kenneth Henes Special Projects Procurement, Marketing & Consulting Corp v 

Continental Biomass 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) (Weaver, 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...) 

2
 
 

 

MCR 7.305(B) improperly expands this Court’s power by granting the 

Michigan Supreme Court the authority to answer a certified question beyond the 

scope authorized by the Michigan 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 constitutionality of legislation after it has 

been enacted into law but before its effective date. 

MCR 7.305(B) goes beyond the duties articulated in article 3, § 8 because it 

undeniably expands the scope of those who 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) broadly 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 State [or of a tribe] [or of Canada, a 

Canadian province or territory, Mexico, 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 another State” or “the 

highest court of another State” may be the appropriate certifying body. Further, 

the UCQLA suggests that the answer to a certified question would be 

determinative. 

3
 
 

 

 

the Michigan Constitution only allows for advisory opinions to issue in response 

to certain requests from the state Legislature 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 law to be one that is “important” and 

rests on the “constitutionality of legislation after it has been enacted into law but 

before its effective date.” Moreover, MCR 7.305(B) lacks any limiting language 

on when the Court may answer a certified question, leaving the door and the 

docket open to the whims of the majority. In contrast, the Michigan Constitution 

limits advisory opinions by the Supreme Court, on the constitutionality of 

legislation, to be issued only on “solemn occasions” and “after [legislation] has 

been enacted into law but before 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 cannot 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 than 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 response to the certified question will 

not determine the controversy. No binding order or judgment will 

be entered. The response will not be made effective by a final 

judgment, decree or process of this Court. 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 response 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 authorize this Court to issue 

advisory opinions. The 1963 Constitution authorizes the Court to 

provide the Legislature or the Governor with an advisory opinion. 

* * * 

Advisory opinions are not precedentially binding 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), “modified” on other grounds DiFranco v Pickard, 

427 Mich 32, 58; 398 NW2d 896 (1986). 

5
 
 

 

II. OTHER CONCERNS BEYOND CONSTITUTIONALITY 

This Court’s decision to answer a certified question from another state’s 

intermediate appellate court 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. Although 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 constitutionally derived and goes 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 App 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, IAR 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 Proceedings Code Ann § 

12-603; Massachusetts, ALM Sup C Rule 1:03; Michigan, MCR 7.305(B); Miss, 

MRAP 20(a); Mont Code Ann, Ch 21, Rule 44; Nebraska, 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, ORS § 28.200; PA Sup 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; Tex 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. 

6
 
 

 

 

state has done even when they have been explicitly granted the power to do so. 

Nineteen states, including Michigan, permit 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 allows “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 another state intermediate appellate court. 

The majority’s decision today to answer a question 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 Practice Book § 82-1; Del Sup Ct R 

41; Ga Sup Ct Rule 46; Iowa Code § 684A.1; Kansas, KSA § 60-3201; Ky CR 

Rule 76.37; Md Courts and Judicial 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; Oklahoma, 20 Okl St § 

1602; Oregon, ORS § 28.200; South Carolina, 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 Practice Book § 82-1; Del Sup Ct R 

41; Ky CR Rule 76.37; Massachusetts, ALM 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 and Judicial Proceedings Code Ann § 

12-603; Michigan, MCR 7.305(B); NM RAP 12-607; Oklahoma, 20 Okl St § 

1602. 

7
 
majority chooses to reach so far “deep into 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 majority’s decision to answer the certified 

question in this case is unprecedented and unnecessary. 

 Elizabeth A. Weaver 

Kelly, J., concurred with part II of Justice Weaver’s opinion. 

8