Doug Satterfield v. Breeding Insulation Company

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 8, 2008 Session

DOUG SATTERFIELD v. BREEDING INSULATION COMPANY ET AL.

Appeal by permission from the Court of Appeals, Eastern Section

Circuit Court for Blount County

No. L-14000 W. Dale Young, Judge

No. E2006-00903-SC-R11-CV - Filed September 9, 2008

This appeal involves the efforts of the estate of a twenty-five-year-old woman who contracted

mesothelioma to recover damages for her death. While she was alive, the woman filed a negligence

action against her father’s employer, alleging that the employer had negligently permitted her father

to wear his asbestos-contaminated work clothes home from work, thereby regularly and repeatedly

exposing her to asbestos fibers over an extended period of time. After the woman died, the Circuit

Court for Blount County permitted her father to be substituted as the personal representative of her

estate. The employer moved for a judgment on the pleadings on the narrow ground that it owed no

duty to its employee’s daughter. The trial court granted the motion. The deceased woman’s father

appealed the dismissal of his daughter’s wrongful death claim. The Tennessee Court of Appeals

reversed the trial court. Satterfield v. Breeding Insulation Co., No. E2006-00903-COA-R3-CV,

2007 WL 1159416 (Tenn. Ct. App. Apr. 19, 2007). We granted the employer’s application for

permission to appeal to determine whether the deceased woman’s complaint can withstand a motion

for judgment on the pleadings. We have determined that it does because, under the facts alleged in

the complaint, the employer owed a duty to those who regularly and for extended periods of time

came into close contact with the asbestos-contaminated work clothes of its employees to prevent

them from being exposed to a foreseeable and unreasonable risk of harm.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed;

Case Remanded

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J.,

CORNELIA A. CLARK, and GARY R. WADE, JJ., joined. JANICE M. HOLDER , J., filed a separate

concurring and dissenting opinion.

John A. Lucas and John T. Winemiller, Knoxville, Tennessee, for the appellant, Alcoa, Inc.

Gregory F. Coleman, Knoxville, Tennessee, for the appellee, Doug Satterfield.

Martin B. Bailey and John L. Miller, Knoxville, Tennessee, and Mark A. Behrens, Washington, DC,

for the Amici Curiae, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United

States of America, National Association of Manufacturers, National Federation of Independent

Business Legal Foundation, American Chemistry Council, Property Casualty Insurers Association

of America, and National Association of Mutual Insurance Companies.

Timothy D. Patterson, Memphis, Tennessee, and Deborah J. LaFetra and Timothy Sandefur,

Sacramento, California, for the Amicus Curiae, Pacific Legal Foundation.

OPINION

The only issue on this appeal is whether the complaint of a woman who succumbed to

mesothelioma should have been dismissed solely because the defendant did not have a duty to act

reasonably to prevent her from being exposed repeatedly and regularly over an extended period of

time to the asbestos fibers on her father’s work clothes. The purpose of this appeal is not to

determine whether, in fact, the defendant was negligent or whether its conduct caused the woman’s

death. Because the complaint was dismissed in response to a Tenn. R. Civ. P. 12.03 motion, the

facts contained in this opinion are those found in the challenged complaint.1

I.

Alcoa, Inc.2 is an international manufacturer of aluminum and aluminum products. It owns

and operates facilities in various locations throughout the United States, including a facility in Alcoa,

Tennessee. Alcoa uses materials containing asbestos in many of its manufacturing operations. Since

the 1930s, Alcoa has been aware that asbestos is a highly dangerous substance, and it has closely

monitored the research into the dangers posed by asbestos.

Beginning in the 1940s, Alcoa opened its own internal hygiene department which provided

directives to Alcoa’s local facilities regarding the handling of materials containing asbestos. Because

of the frequent use of materials containing asbestos in its manufacturing processes, Alcoa was aware

that the air in its factories contained high levels of asbestos fibers and that its employees were being

exposed to these fibers on a daily basis.

Alcoa became aware in the 1960s that the dangers posed by asbestos fibers extended beyond

its employees who were in constant direct contact with the materials containing asbestos or the

1

W hen a complaint has been dismissed in response to a Tenn. R. Civ. P. 12.03 motion, we must construe the

complaint liberally in the plaintiff’s favor by taking all factual allegations in the complaint as true and by giving the

plaintiff the benefit of all the inferences that can be reasonably drawn from the pleaded facts. Lanier v. Rains, 229

S.W .3d 656, 660 (Tenn. 2007); Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W .3d 466, 470 (Tenn. 2004).

In this case, we are doing nothing more than reviewing the pleaded facts through the perceptual lenses worn by reviewing

courts when asked to determine whether a Tenn. R. Civ. P. 12.03 motion should have been granted.

2

The Aluminum Company of America changed its name to Alcoa, Inc. in 1999. The complaint named

“Aluminum Company of America (Alcoa, Inc.)” as the defendant. W e will refer to the company as “Alcoa” in this

opinion.

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asbestos fibers in the air. It learned that even intermittent exposure to low levels of asbestos fibers

resulted in an increased risk of disease. At approximately the same time, Alcoa also learned that

persons living near facilities that made extensive use of materials containing asbestos were

experiencing higher disease rates, as were the family members of its employees who were being

exposed regularly and repeatedly to the asbestos fibers on the employees’ work clothes.

In 1972, the Occupational Safety and Health Administration (“OSHA”) promulgated

regulations prohibiting employees who had been exposed to asbestos from taking their work clothes

home to be laundered. Tests that Alcoa conducted at a number of its facilities, including those in

Tennessee, revealed that the levels of asbestos fibers on the workers’ clothes were extremely high.

In 1973, Doug Satterfield began working at Alcoa’s facility in Alcoa, Tennessee. He worked

there for two years until he entered the United States Army in 1975. After three years of military

service, Mr. Satterfield resumed working at the Alcoa plant in 1978. He continued to work for Alcoa

until at least 1984. His job assignments resulted in his exposure to high levels of asbestos dust and

fibers on a daily basis.

Contrary to the OSHA regulations, Alcoa failed to educate Mr. Satterfield and its other

employees regarding the risk of asbestos or how to handle materials containing asbestos. Even

though Alcoa’s employees worked extensively with materials containing asbestos, these materials

did not contain warning labels or notices stating that they contained asbestos. Despite the fact that

Alcoa was aware of the dangers posed by asbestos before Mr. Satterfield became an employee, it

failed to apprise him or its other employees of the dangers of asbestos or specifically of the danger

associated with wearing home their asbestos-contaminated work clothes. In addition, Alcoa failed

to provide protective coveralls for its employees, discouraged the use of its on-site bathhouse

facilities, and did not offer to launder its employees’ work clothes at its facility. Accordingly,

Alcoa’s employees, including Mr. Satterfield, left the plant each day unaware of the dangers posed

by the asbestos fibers on their contaminated work clothes and without Alcoa making an effort to

prevent others from being exposed to the asbestos fibers on its employees’ clothes.

On September 7, 1979, Amanda Nicole Satterfield was born to Mr. Satterfield and Donna

Satterfield. Because her birth was premature, she was required to spend the first three months of her

life at the University of Tennessee Hospital in Knoxville, Tennessee. Mr. Satterfield visited his

infant daughter every day she was hospitalized. He came to the hospital immediately after work

wearing his asbestos-contaminated work clothes and stayed with his daughter until late into the

evening. Thus, from the day of her birth, Ms. Satterfield was exposed to the asbestos fibers on her

father’s work clothes.

Ms. Satterfield was eventually diagnosed with mesothelioma. On December 8, 2003, she

filed suit against Breeding Insulation Company, Inc. (“Breeding”) and Alcoa in the Circuit Court for

Knox County. She alleged that mesothelioma is a highly lethal form of cancer that is almost

exclusively caused by exposure to asbestos and that she contracted mesothelioma as a direct result

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of the negligent acts and omissions of both Breeding and Alcoa.3 The case was transferred to the

Circuit Court for Blount County on February 11, 2004.

Ms. Satterfield died from mesothelioma on January 1, 2005. The trial court granted the

motion filed by Mr. Satterfield, as the representative of his daughter’s estate, to be substituted as

plaintiff. The trial court also allowed Mr. Satterfield to amend his daughter’s complaint to assert that

the negligent acts and omissions of Alcoa and Breeding proximately caused his daughter’s death.

On December 16, 2005, Alcoa filed a Tenn. R. Civ. P. 12.03 motion for judgment on the

pleadings. Alcoa asserted that “as a matter of law it owed no legal duty to Amanda Nicole

Satterfield.” Following a hearing on January 30, 2006, the trial court filed an order on March 31,

2006, dismissing Ms. Satterfield’s complaint4 on the ground that “there is no provision in Tennessee

law (either through the Legislature or Court interpretation) that imposes on Alcoa a legal duty to a

third party under the facts and circumstances of this case.” Satterfield v. Breeding Insulation Co.,

No. L-14000, 2006 WL 901725, at *1 (Blount Cir. Ct. Mar. 31, 2006).

On April 10, 2006, Mr. Satterfield voluntarily dismissed Ms. Satterfield’s claims against

Breeding. Thereafter, on April 27, 2006, Mr. Satterfield, on behalf of his daughter’s estate, appealed

from the trial court’s dismissal of Ms. Satterfield’s claims against Alcoa. On April 19, 2007, the

Tennessee Court of Appeals filed an opinion reversing the dismissal of Ms. Satterfield’s complaint

after concluding that the trial court had erred by holding that Alcoa owed no duty to Ms. Satterfield

under the facts alleged in the complaint. Satterfield v. Breeding Insulation Co., No. E2006-00903-

COA-R3-CV, 2007 WL 1159416, at *4-10 (Tenn. Ct. App. Apr. 19, 2007).

Alcoa filed a Tenn. R. App. P. 11 application for permission to appeal. Because strikingly

similar issues related to “take-home” or “transmission” asbestos exposure cases have sharply divided

courts throughout the country and because this case implicates core principles of Tennessee’s tort

law, we granted Alcoa’s application for permission to appeal. We have determined that the trial

court erred by dismissing Ms. Satterfield’s complaint and that the Court of Appeals properly reversed

the trial court’s dismissal of the complaint. Based on the facts alleged in the complaint, Alcoa owed

a duty of reasonable care to Ms. Satterfield.

3

Ms. Satterfield alleged in her complaint that Alcoa was aware that asbestos was a known human carcinogen

and that, as early as the 1960s, Alcoa was also aware that persons with light intermittent exposure to asbestos were at

a higher risk of contracting mesothelioma. See also National Cancer Institute, Fact Sheet, Asbestos Exposure: Questions

and Answers, http://www.cancer.gov/cancertopics/factsheet/Risk/asbestos (last visited Aug. 5, 2008) (“Studies have

shown that exposure to asbestos may increase the risk of lung cancer and mesothelioma (a relatively rare cancer of the

thin membranes that line the chest and abdomen). Although rare, mesothelioma is the most common form of cancer

associated with asbestos exposure.”).

4

In order to avoid misunderstanding, we will refer to the complaint as “Ms. Satterfield’s complaint” even though

her father was substituted as the plaintiff following her death. The following discussion of Alcoa’s duty relates to the

duty it owed to Ms. Satterfield, not to Mr. Satterfield.

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II.

In its most succinct form, the pivotal question in this case is whether, under the facts alleged

in Ms. Satterfield’s complaint, Alcoa owed a duty of reasonable care to Ms. Satterfield. Alcoa

asserts that it did not owe a duty to Ms. Satterfield. It contends that imposing such a duty on it

would improperly create an affirmative obligation to act despite the absence of any special

relationship between Alcoa and either Ms. Satterfield or her father. On the other hand, Mr.

Satterfield insists that his daughter’s complaint is premised on the assumption that Alcoa owed Ms.

Satterfield a duty of reasonable care because it created an unreasonable and foreseeable risk of harm

to her.

A.

The underlying dispute in this case is fundamentally one of characterization and

classification. Has Alcoa engaged in an affirmative act that created an unreasonable and foreseeable

risk of harm to Ms. Satterfield? If Alcoa did create such a risk of harm, are there countervailing legal

principles or policy considerations that warrant determining that Alcoa nevertheless owed no duty

Ms. Satterfield? Or, alternatively, does this case involve an omission by Alcoa in failing to control

the actions of Mr. Satterfield, its employee? If so, then does Alcoa have the sort of special

relationship with either Mr. Satterfield or Ms. Satterfield that gives rise to a duty to restrain Mr.

Satterfield or to protect Ms. Satterfield? The answers to these questions emerge from considerations

of precedent and public policy, as well as the basic foundations of Tennessee’s tort law.

To prevail on a negligence claim, a plaintiff must establish (1) a duty of care owed by the

defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting

to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.

Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 771 (Tenn. 2006); Draper v. Westerfield, 181

S.W.3d 283, 290 (Tenn. 2005). Although not originally required under the English common law,

duty has become an essential element of all negligence claims, as well as a question of law to be

determined by courts. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005);

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). Thus, if Alcoa does not owe a duty to Ms.

Satterfield, her claim must fail.

B.

Duty is a legal obligation to conform to a reasonable person standard of care in order to

protect others against unreasonable risks of harm. Burroughs v. Magee, 118 S.W.3d 323, 328-29

(Tenn. 2003); Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). As a general rule, persons

have a duty to others to refrain from engaging in affirmative acts that a reasonable person “should

recognize as involving an unreasonable risk of causing an invasion of an interest of another” or acts

“which involve[] an unreasonable risk of harm to another.” Restatement (Second) of Torts §§ 284,

302, at 19, 82 (1965). Thus, if an individual “acts at all, [he or she] must exercise reasonable care

to make his [or her] acts safe for others.” Restatement (Second) of Torts § 4 cmt. b, at 8. The core

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of negligence is the violation of this requirement by engaging in “behavior which should be

recognized as involving unreasonable danger to others.” W. Page Keeton, Prosser and Keeton on

the Law of Torts § 31, at 169 (5th ed. 1984) [hereinafter “Prosser and Keeton”].

These rules do not, however, require that persons always act reasonably to secure the safety

of others. Rather, they serve a more limited role as restraints upon a person’s actions that create

unreasonable and foreseeable risks of harm to others. Expounding upon this point more than a

century ago, Professor Francis H. Bohlen asserted that “[t]here is no distinction more deeply rooted

in the common law and more fundamental than that between misfeasance and non-feasance, between

active misconduct working positive injury to others and passive inaction, a failure to take positive

steps to benefit others, or to protect them from harm not created by any wrongful act of the

defendant.”5 While the primacy of this distinction is certainly subject to debate, that it has played

a significant role in the formation of the law of negligence is beyond reasonable dispute.

Professor Bohlen is not the only scholar to offer an eloquent and enlightening articulation

of the distinction between misfeasance and nonfeasance. Dean Keeton and Dean Prosser explained

the distinction as follows:

In the determination of the existence of a duty, there runs

through much of the law a distinction between action and inaction. .

. . [T]here arose very early a difference, still deeply rooted in the law

of negligence, between “misfeasance” and “nonfeasance” – that is to

say, between active misconduct working positive injury to others and

passive inaction or a failure to take steps to protect them from harm.

The reason for the distinction may be said to lie in the fact that by

‘misfeasance’ the defendant has created a new risk of harm to the

plaintiff, while by ‘nonfeasance’ he has at least made his situation no

worse, and has merely failed to benefit him by interfering in his

affairs.

Prosser and Keeton § 56, at 373.6 Similarly, Professor Fowler V. Harper and Judge Posey M. Kime

offered the following explanation:

The man who has undertaken a definite course of continuous action

thus brings himself into relation with other human beings within the

zone of possible danger, to an extent requiring that precaution against

bodily harm to such persons which a reasonable man under the

5

Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 219

(1908).

6

Tennessee’s courts have recognized and accredited this analysis of the distinction between misfeasance and

nonfeasance. See, e.g., Bradshaw v. Daniel, 854 S.W .2d at 870; Newton v. Tinsley, 970 S.W .2d 490, 492 (Tenn. Ct.

App. 1997).

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circumstances would take. If he fails to do so, this is characterized as

misfeasance. In other words, an actor is always under the duty to see

that other persons are not immediately exposed to an unreasonable

risk from his acts. On the other hand, a previous course of action, not

in itself creating risks to others, may have brought the actor into

certain socially recognized relations with others which are of such a

character as to require affirmative acts to protect them from risks

which the person thus required to act had no part in creating. The

failure to perform such an act is described as non-feasance.

Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886,

887 (1934) [hereinafter “Harper & Kime”].7

The distinction between misfeasance and nonfeasance can be easily misunderstood. One can

be led astray by thinking that a defendant’s negligent act must be characterized “as an affirmative

act for a duty to exist, rather than appreciating that it is the defendant’s entire course of conduct that

must constitute an affirmative act creating a risk of harm and that negligence may consist of an act

or omission creating an unreasonable risk.”8 A classic illustration of this point is the example of a

driver who fails to apply his or her brakes to avoid hitting a pedestrian walking in a crosswalk. Even

though the driver’s negligent act – failing to apply the brakes – is an omission, the “driver’s careless

failure to apply the brakes is negligent driving, not negligent failure to rescue.”9 Accordingly,

distinguishing between misfeasance and nonfeasance can best be accomplished, not by focusing on

whether an individual’s “specific failure to exercise reasonable care is an error of commission or

omission,” but rather by focusing on whether the individual’s entire course of conduct created a risk

of harm.10 Thus, even though the specific negligent act may constitute an omission, the entirety of

the conduct may still be misfeasance that created a risk of harm.11

The distinction between misfeasance and nonfeasance is far from academic. It has practical

significance, and Tennessee’s courts regularly employ it when called upon to decide whether a duty

exists. See, e.g., Bradshaw v. Daniel, 854 S.W.2d at 870; Newton v. Tinsley, 970 S.W.2d at 492.

With regard to misfeasance, this Court has held that “all persons have a duty to use reasonable care

to refrain from conduct that will foreseeably cause injury to others.” Burroughs v. Magee, 118

7

This Court has previously relied upon Professor Harper’s and Judge Kime’s explanation. Bradshaw v. Daniel,

854 S.W .2d at 871.

8

Restatement (Third) of Torts: Liab. Physical Harm § 37, Reporter’s Note, cmt. c, at 721 (Proposed Final Draft

No. 1, 2005) [hereinafter “Restatement (Third) of Torts”].

9

John C. P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence

Law, 54 Vand. L. Rev. 657, 691 (2001) [hereinafter “Goldberg & Zipursky”].

10

Restatement (Third) of Torts § 37 cmt. c, at 711.

11

Restatement (Third) of Torts § 37 cmt. c, at 712.

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S.W.3d at 328; Bradshaw v. Daniel, 854 S.W.2d at 870. As for nonfeasance, Tennessee’s courts

generally have declined to impose a duty to act or to rescue. Bradshaw v. Daniel, 854 S.W.2d at

870; Newton v. Tinsley, 970 S.W.2d at 492. Simply stated, persons do not ordinarily have a duty to

act to protect others from dangers or risks except for those that they themselves have created. Biscan

v. Brown, 160 S.W.3d 462, 478-79 (Tenn. 2005); Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn. Ct.

App. 1992).

Tennessee’s general rule with regard to nonfeasance is consistent with the Restatement’s

position that “[t]he fact . . . the actor realizes or should realize that action on his part is necessary for

another’s aid or protection does not of itself impose upon him a duty to take such action.”

Restatement (Second) of Torts § 314, at 116. This general and long-standing principle of tort law,

often termed either the “no duty to act rule” or the “no duty to rescue rule” has been subject to

considerable and enduring criticism.12

A compelling argument in opposition to the no duty to act or to rescue rule rests comfortably

“on the perception that, as a matter of inarticulate common sense, it is wrong for one person to stand

by as another suffers an injury that could easily be prevented.”13 An expert swimmer who stands on

the shore watching a child drown or a passerby on the bridge who cannot be bothered to throw a rope

to a person in distress in the waters below stand as illustrations that demonstrate the

unreasonableness that can be exemplified by a failure to rescue. Even staunch defenders of the no

duty to act or to rescue rule must concede that failure to do so may, in certain circumstances, not only

be unreasonable, a normal measure for negligent conduct, but actually “outrageous.”14

Nevertheless, common-law courts, including Tennessee’s courts, have preserved, though not

inviolably, the no duty to act or to rescue rule. The reason is not intransigency or lack of

consideration. Quite to the contrary, the rule survives because its limitations continue to be of

considerable importance and value. Imposing a duty to act or to rescue strays dangerously into

interference with individual liberty.15 By adhering to a no duty to act or to rescue rule, the courts are

12

See, e.g., John M. Adler, Relying Upon the Reasonableness of Strangers: Some Observations About the

Current State of Common Law Affirmative Duties to Aid or Protect Others, 1991 W is. L. Rev. 867 (1991); James Barr

Ames, Law and Morals, 22 Harv. L. Rev. 97 (1908) [hereinafter “Ames”]; Thomas C. Galligan, Jr., Aiding and Altruism:

A Mythopsycholegal Analysis, 27 U. Mich. J.L. Reform 439 (1994); Steven J. Heyman, Foundations of the Duty to

Rescue, 47 Vand. L. Rev. 673 (1994) [hereinafter “Heyman”]; Jay Silver, The Duty to Rescue: A Reexamination and

Proposal, 26 W m. & Mary L. Rev. 423 (1985); Ernest J. W einrib, The Case for a Duty to Rescue, 90 Yale L.J. 247

(1980) [hereinafter “W einrib”].

13

W einrib, 90 Yale L.J. at 260. See also Heyman, 47 Vand. L. Rev. at 741 (“Perhaps the most common

argument for a duty to rescue is based on the view that individuals have a moral obligation to aid others.”).

14

Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 201 (1973) [hereinafter “Epstein”].

15

Professor Epstein has explained that

[o]nce one decides that as a matter of statutory or common law duty, an individual is required under

(continued...)

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not rendering the common law amoral but instead are prioritizing liberty over altruism in

circumstances where the defendant did not create the risk of harm.16 While a person who fails to act

may well be subject to public censure, not all failures to act should be prohibited or punished by

force of law.17 Failure to leave sufficient space outside the dictates of the law may have an adverse

15

(...continued)

some circumstances to act at his own cost for the exclusive benefit of another, then it is very hard to

set out in a principled manner the limits of social interference with individual liberty. . . . Even if the

rule starts out with . . . modest ambitions, it is difficult to confine it to those limits. Take a simple case

first. X as a representative of a private charity asks you for $10 in order to save the life of some

starving child in a country ravaged by war. There are other donors available but the number of needy

children exceeds that number. The money means “nothing” to you. Are you under a legal obligation

to give the $10? Or to lend it interest-free?

Epstein, 2 J. Legal Stud. at 198-99.

Lord Macaulay made the same point in his discussion of The Indian Penal Code when he remarked:

W e are sensible that in some of the cases which we have put our rule may appear to be too lenient. But

we do not think that it can be made more severe, without disturbing the whole order of society. It is

true that the man who, having abundance of wealth, suffers a fellow creature to die of hunger at his

feet, is a bad man,--a worse man, probably, than many of those for whom we have provided very

severe punishment. But we are unable to see where, if we make such a man legally punishable, we can

draw the line. If the rich man who refuses to save the beggar’s life at the cost of a little copper is a

murderer, is the poor man just one degree above beggary also to be a murderer if he omits to invite

the beggar to partake his hard earned rice? Again: If the rich man is a murderer for refusing to save

the beggar’s life at the cost of a little copper, is he also to be a murderer if he refuses to save the

beggar’s life at the cost of a thousand rupees? . . . It will hardly be maintained that a surgeon ought

to be treated as a murderer for refusing to go from Calcutta to Meerut to perform an operation,

although it should be absolutely certain that this surgeon was the only person in India who could

perform it, and that if it were not performed, the person who required it would die.

Thomas B. Macaulay, Report Upon the Indian Penal Code, in 7 Works of Lord Macaulay 493-94 (H. Trevelyan ed.,

1866) (quoted in Jeremy W aldron, On the Road: Good Samaritans and Compelling Duties, 40 Santa Clara L. Rev. 1053,

1069 n.45 (2000)).

16

Alan Calnan, The Fault(s) in Negligence Law, 25 Quinnipiac L. Rev. 695, 722-23 (2007).

17

Damien Schiff, Samaritans: Good, Bad and Ugly: A Comparative Law Analysis, 11 Roger W illiams U. L.

Rev. 77, 126 (2005). Furthermore,

[no one truly] believes that everything that is immoral-not even everything that can be generally agreed

to be immoral-should be illegal, and a central task for a legal theory will be to say how to draw that

line. In constructing a legal account . . . , the legal theorist must take into account our interest in

personal freedom, our interest in not harming ourselves or others, and many other highly complex

factors. Many of these will be moral factors, involving the weighing of harms, rights and liberties, and

so forth.

Martha Nussbaum, “Only Grey Matter”? Richard Posner’s Cost-Benefit Analysis of Sex, 59 U. Chi. L. Rev. 1689, 1699

(continued...)

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effect on the exercise of private judgment which is critical to the development of a person’s moral

capacities.18

While society may be outraged at the conduct of someone who fails to act, there is no

concomitant sense that persons who fail to act should be required to pay financial compensation

because the harm was not caused by that person’s failure to act.19 The expert swimmer or the

indifferent passerby on the bridge may be worthy of social approbation, but financial compensation

for failing to act to avert a danger not caused by the unwilling rescuer hardly seems appropriate.20

In addition, it has been asserted that recognizing a duty to act or to rescue rule could create problems

of comprehensibility, verifiability, and conformability, as well as administrative difficulties, to such

an extent that maintaining the current no duty to act or to rescue rule, while not perfect, is still the

superior course.21

C.

Searching for reasonable ground between the competing viewpoints surrounding the no duty

to act or to rescue rule, Tennessee’s courts have maintained the general rule but have carved out

exceptions to mitigate against some of its harshest applications. See, e.g., Bradshaw v. Daniel, 854

S.W.2d at 871; Newton v. Tinsley, 970 S.W.2d at 492. These exceptions arise when certain special

relationships exist between the defendant and either the person who is the source of the danger or

the person who is foreseeably at risk from the danger. Biscan v. Brown, 160 S.W.3d at 478-79;

17

(...continued)

(1992).

18

Note, Professional Obligation and the Duty to Rescue: When Must a Psychiatrist Protect His Patient’s

Intended Victim?, 91 Yale L.J. 1430, 1433 n.20 (1982) (citing W illiam Godwin, Enquiry Concerning Political Justice

and Its Influence on General Virtue and Happiness 165-327 (Isaac Krammick ed., 1976) (1793)).

19

Theodore M. Benditt, Liability for Failing to Rescue, 1 Law & Phil. 391, 410 (1982).

20

More than one century ago, the Kansas Supreme Court observed:

It is the omission or negligent discharge of legal duties only which come within the sphere of judicial

cognizance. For withholding relief from the suffering, for failure to respond to the calls of worthy

charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not

in the laws of men, but in that higher law, the violation of which is condemned by the voice of

conscience, whose sentence of punishment for the recreant act is swift and sure.

Union Pac. Ry. v. Cappier, 72 P. 281, 282 (Kan. 1903); but see Harold F. McNiece & John V. Thornton, Affirmative

Duties in Tort, 58 Yale L.J. 1272, 1280 n.52 (1949).

21

James A. Henderson, Jr., Process Constraints in Tort, 67 Cornell L. Rev. 901, 943 (1982) [hereinafter

“Henderson”].

-10-

Bradshaw v. Daniel, 854 S.W.2d at 871.22 These relationships create an affirmative duty either to

control the person who is the source of the danger or to protect the person who is endangered. See

Restatement (Second) of Torts §§ 314A, B; 315, at 118, 122.23

The recognition by Tennessee’s courts of these exceptions to the no duty to act or to rescue

rule is consistent with decisions of other state courts. During the post World War II era, the number

of exceptions to the no duty to act or to rescue rule based on special relationships has expanded.24

While there are many potential justifications for these departures from the general rule, among the

most straightforward of justifications is that the nature of the particular relationship creates a

sufficiently significant obligation that there is an enforceable expectation of reasonable action rather

than unreasonable indifference.25

Accordingly, Tennessee law provides that while “an actor is always bound to prevent his acts

from creating an unreasonable risk to others, he is under the affirmative duty to act to prevent

another from sustaining harm only when certain socially recognized relations exist which constitute

the basis for such legal duty.” Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997) (quoting

22

Tennessee’s courts are neither the first nor the only courts to recognize exceptions to the no duty to act or to

rescue rule. Academics have noted that “Eighteenth-[C]entury courts carved out exceptions to the no duty rule based

upon the higher duties ‘owed by surgeons, apothecaries, solicitors, and innkeepers’” as well as by common carriers.

Michael L. Rustad & Thomas H. Koenig, Taming the Tort Monster: The American Civil Justice System as a

Battleground of Social Theory, 68 Brook. L. Rev. 1, 42 (2002) [hereinafter “Rustad & Koenig”]; see also Ames, 22

Harv. L. Rev. at 111-12 (excluding from the discussion of the propriety of the no duty to act or to rescue rule “cases in

which, by reason of some relation between the parties like that of father and child, nurse and invalid, master and servant

and others, there is a recognized legal duty to act.”).

23

“Courts can create guidelines based on the customary patterns of behavior associated with each relationship.”

Henderson, 67 Cornell L. Rev. at 940 n.187.

24

Rustad & Koenig, 68 Brook. L. Rev. at 42; see also Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 343

n.5 (Cal. 1976) (stating that “the courts have increased the number of instances in which affirmative duties are imposed

not by direct rejection of the common law [no duty to rescue] rule, but by expanding the list of special relationships

which will justify departure from that rule”). Tennessee courts have been particularly vigilant with regard to the

imposition of affirmative duties in the context of medical treatment relationships. See Limbaugh v. Coffee Med. Ctr.,

59 S.W .3d 73, 79-80 (Tenn. 2001).

25

See Phillip G. Peters, Jr., Rethinking Wrongful Life: Bridging the Boundary Between Tort and Family Law,

67 Tul. L. Rev. 397, 431 (1992); Lisa E. Heinzerling, Comment, Actionable Inaction: Section 1983 Liability for Failure

to Act, 53 U. Chi. L. Rev. 1048, 1063 n.82 (1986); see generally Irwin v. Town of Ware, 467 N.E.2d 1292, 1300 (Mass.

1984) (asserting that the nature of the relationships are such that imposition of a duty is foreseeable); John M. Adler,

Relying Upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Affirmative

Duties to Aid or Protect Others, 1991 W is. L. Rev. 867, 886-98 (critiquing the special relationship exception in

advocating for a general duty to act or rescue); Victor E. Schwartz & Leah Lorber, Defining the Duty of Religious

Institutions to Protect Others: Surgical Instruments, Not Machetes, Are Required, 74 U. Cin. L. Rev. 11, 24-26 (2005)

(describing the special relationship exception and categories thereof).

-11-

Bradshaw v. Daniel, 854 S.W.2d at 871); Nichols v. Atnip, 844 S.W.2d at 661.26 In other words, the

approach of Tennessee’s courts is largely consistent with the Restatement view that

[n]ormally, where there is an affirmative act which affects the

interests of another, there is a duty not to be negligent with respect to

the doing of the act. On the other hand, where the negligence of the

actor consists in a failure to act for the protection or assistance of

another, there is normally no liability unless some relation between

the actor and the other, or some antecedent action on the part of the

actor,27 has created a duty to act for the other’s protection or

assistance.

Restatement (Second) of Torts, Ch. 12, Topic 4, Scope Note, at 66.28

III.

Courts across the country have disagreed as to how these broad principles of tort law should

be used to determine whether an employer owes a duty to persons who develop asbestos-related

illnesses after exposure to asbestos fibers on its employees’ clothing. Although the courts have

reached inconsistent conclusions,29 a pattern has begun to emerge. The courts that ultimately

recognize the existence of a duty when faced with facts similar to this case have focused on the

foreseeability of harm resulting from the employer’s failure to warn of or to take precautions to

prevent the exposure. On the other hand, the courts finding that no duty exists have focused on the

relationship – or lack of a relationship – between the employer and the injured party. See In re

Asbestos Litig., C.A. No. 04C-07-099-ASB, 2007 WL 4571196, at *3 (Del. Super. Ct. Dec. 21,

2007).

26

Harper & Kime, 43 Yale L.J. at 887.

27

Tennessee law provides that a duty of reasonable care may arise through gratuitous assumption. Bennett v.

Trevecca Nazarene Univ., 216 S.W .3d 293, 300 (Tenn. 2007); Biscan v. Brown, 160 S.W .3d at 482-83; Ridley v. Mobile

& O.R. Co., 114 Tenn. 727, 738, 86 S.W . 606, 609 (1905); Nidiffer v. Clinchfield R.R., 600 S.W .2d 242, 246 (Tenn. Ct.

App. 1980).

28

Reiterating the same general point, the Restatement (Second) of Torts also provides that

[i]n general, anyone who does an affirmative act is under a duty to others to exercise the care of a

reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.

The duties of one who merely omits to act are more restricted, and in general are confined to situations

where there is a special relation between the actor and the other which gives rise to the duty.

Restatement (Second) of Torts § 302 cmt. a, at 82.

29

See Martin v. Gen. Elec. Co., No. 02-201-DLB, 2007 W L 2682064, at *5 (E.D. Ky. Sept. 5, 2007) (noting

that “[c]ourts across the country have significantly disagreed on the extension of liability in household asbestos exposure

cases and have frequently reached opposite conclusions based on each state’s law and how the law defines a legal duty.”).

-12-

A.

The opinions of many state courts contain well-reasoned and insightful analyses of the legal

principles implicated in these so-called “take-home” asbestos exposure cases. Even though the

outcomes in these cases differ, their principled disagreements are captured and synthesized in two

particularly edifying recent cases.

Last year, the Michigan Supreme Court addressed the question presently before this Court.

The majority of the court held that no liability could be imposed on the employer in the absence of

a relationship between the plaintiff and the employer. In re Certified Question from Fourteenth Dist.

Ct. App. of Tex., 740 N.W.2d 206, 213 (Mich. 2007). The majority reasoned that the

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 contractors, where there was no further relationship

between defendant and the deceased.

In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W.2d at 222. In a vigorous

dissent, Justice Michael F. Cavanagh offered the following rebuttal:

[T]he 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 [the employee] – extended to [the step-daughter].

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.

In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W.2d at 225 (Cavanagh, J.,

dissenting).

-13-

Also within the past year, the Washington Court of Appeals addressed the argument that

“employer liability does not extend to employees’ spouses and homes, and premises liability does

not extend outside the premises.” Rochon v. Saberhagen Holdings, Inc., No. 58579-7-I, 2007 WL

2325214, at *3 (Wash. Ct. App. Aug. 13, 2007). The court noted that the employer’s argument

missed the central point of the case because the plaintiff’s cause of action did not depend on

premises liability principles or on the employer’s duty to protect the plaintiff from the acts of third

parties. Rather, as the court noted, the plaintiff’s claim was based on the employer’s own

unreasonably risky acts – operating its factory in an unsafe manner – that directly and proximately

caused her injuries. Rochon v. Saberhagen Holdings, Inc., 2007 WL 2325214, at *3. The court also

held that the employer had a duty to prevent the foreseeable injuries caused by its misfeasance

because its operation of its plant created an unreasonable risk of harm of asbestos exposure to others

who came in regular contact with its employees. Rochon v. Saberhagen Holdings, Inc., 2007 WL

2325214, at *3.

B.

While the courts, like the Michigan Supreme Court, that have found, as a matter of law, that

employers have no duty in take-home asbestos exposure cases, rely upon the absence of a special

relationship, this argument is misplaced under Tennessee tort law as it has developed over the years.

This Court has recognized that a duty of reasonable care arises whenever a defendant’s conduct

poses an unreasonable and foreseeable risk of harm to persons or property. McCall v. Wilder, 913

S.W.2d 150, 153 (Tenn. 1995). Thus, like the drafters of the new Restatement (Third) of Torts

containing the principles applicable to liability for physical harm, we are of the view that

[e]ven when the actor and victim are complete strangers and have no

relationship, the basis for the ordinary duty of reasonable care . . . is

conduct that creates a risk to another. Thus, a relationship ordinarily

is not what defines the line between duty and no-duty; conduct

creating risk to another is.

Restatement (Third) of Torts § 37, Reporter’s Note, cmt. c, at 721. Because the requirement of

privity no longer plays a role in negligence claims, “[w]hen a defendant causes physical harm

through misfeasance – affirmative acts of negligence – rather than nonfeasance, he [or she] is liable

to the foreseeably injured person for the harm.” 2 Dan B. Dobbs, The Law of Torts § 321, at 870

(2001).

Whether a case involves a simple automobile accident or a complicated toxic tort, Tennessee

law currently provides that one owes a duty to refrain from engaging in conduct that creates an

unreasonable and foreseeable risk of harm to others. Draper v. Westerfield, 181 S.W.3d at 291;

Biscan v. Brown, 160 S.W.3d at 478; Burroughs v. Magee, 118 S.W.3d at 328-29; McCall v. Wilder,

913 S.W.2d at 153.

-14-

Our decision in West v. East Tennessee Pioneer Oil Co. illustrates this principle. That case

required us to determine whether a convenience store had a duty to the occupants of a vehicle who

were injured when an intoxicated motorist struck their vehicle after the store’s employees had helped

the obviously intoxicated motorist fuel his vehicle shortly before the accident. The store asserted

that the intoxicated motorist was only a customer and, therefore, that no special relationship existed

between the store and the intoxicated driver that would be sufficient to require the store employees

to control the intoxicated driver’s conduct. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d at 551.

We did not hold that the convenience store’s liability was predicated on the existence of a

special relationship between the store and the intoxicated driver. Instead, we held that

the defendant misconstrues the plaintiffs’ claims as being based upon

a “special relationship” arising from the sale of gasoline to Mr. Tarver

(the intoxicated driver). The plaintiffs’ allegations do not revolve

around any duty of the defendant to control the conduct of a

customer. Instead, the claims are predicated on the defendant’s

employees’ affirmative acts in contributing to the creation of a

foreseeable and unreasonable risk of harm, i.e., providing mobility to

a drunk driver which he otherwise would not have had, thus creating

a risk to persons on the roadways.

West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d at 551.

C.

According to Ms. Satterfield’s complaint, Alcoa’s employees worked with materials

containing asbestos on a daily basis. Employees, including Mr. Satterfield, worked under improper

and unsafe conditions which violated internal safety requirements and OSHA standards. As a result,

the employees’ clothes collected significant amounts of asbestos fibers. Even though Alcoa was

aware of the dangerous amounts of asbestos on its employees’ clothes, Alcoa did not inform its

employees that the materials that they were handling contained asbestos or of the risks posed by

asbestos fibers to the employees or to others. The danger was compounded even further because

Alcoa dissuaded its employees from using on-site bathhouse facilities, and it failed to provide

coveralls or to wash its employees’ work clothes at the factory. Under the facts alleged in Ms.

Satterfield’s complaint, Alcoa’s alleged misfeasance created a significant risk of harm to Ms.

Satterfield.

Despite Alcoa’s protestations to the contrary, this is not a failure to act case wherein a

defendant “declined to interfere, . . . was in no way responsible for the perilous situation, . . . did not

increase the peril, . . . took away nothing from the person in jeopardy, [but instead] . . . simply failed

-15-

to confer a benefit.”30 The rules establishing no duty to protect, to rescue, or to control the conduct

of third parties, the underlying basis of Alcoa’s argument, are all subsets of the same no affirmative

duty to act absent a special relationship rule.31 That rule, however, is inapplicable to this case.

Instead, this case involves a risk created through misfeasance. Rochon v. Saberhagen Holdings, Inc.,

2007 WL 2325214, at *3 & n. 23; see also In re Certified Question from Fourteenth Dist. Ct. App.

of Tex., 740 N.W.2d at 225 (Cavanagh, J., dissenting). Thus, as in Rochon v. Saberhagen Holdings,

Inc., the outcome of this case does not turn on a failure to act or on the act of a third party, but

instead, it turns on the employer’s own misfeasance – its injurious affirmative act of operating its

facility in such an unsafe manner that dangerous asbestos fibers were transmitted outside the facility

to others who came in regular and extended close contact with the asbestos-contaminated work

clothes of its employees. Rochon v. Saberhagen Holdings, Inc., No. 58579-7-I, 2007 WL 2325214,

at *3;32 see also In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W.2d at 225

(Cavanagh, J., dissenting).33

As illustrated by West v. East Tennessee Pioneer Oil Co., liability for misfeasance is not

cabined within the confines of boxes created by particular relationships. To the contrary, “[l]iability

for ‘misfeasance’ . . . may extend to any person to whom harm may reasonably be anticipated as a

result of the defendant’s conduct . . . ; while for ‘nonfeasance’ it is necessary to find some definite

relation between the parties, of such a character that social policy justifies the imposition of a duty

to act.” Prosser and Keeton § 56, at 374. Alcoa engaged in misfeasance that set in motion a risk

of harm to Ms. Satterfield. Because Ms. Satterfield’s complaint rests on the basic tort claim of

misfeasance, it is not necessary to analyze in detail whether Alcoa also had duties arising from

special relationships with third parties.

IV.

Concluding that Ms. Satterfield’s complaint alleges that Alcoa’s misfeasance caused her to

contract mesothelioma does not end the inquiry into whether Tennessee recognizes that Alcoa owed

a duty to Ms. Satterfield based on the factual allegations in her complaint. Determinations regarding

the existence and scope of a particular legal duty also reflect “society’s contemporary policies and

social requirements concerning the right of individuals and the general public to be protected from

another’s act or conduct.” Bradshaw v. Daniel, 854 S.W.2d at 870. After all, the concept of duty

30

Ames, 22 Harv. L. Rev. at 112.

31

See Kathleen Connolly Butler, Shared Responsibility: The Duty to Legal Externs, 106 W . Va. L. Rev. 51, 63

(2003).

32

In making this argument, which was ultimately adopted by the W ashington Court of Appeals, the employee

in Rochon drew upon the well-reasoned and articulated opinion of the Court of Appeals in the present case as authored

by Judge Franks.

33

Our reference to Justice Cavanagh’s dissent is based upon a shared view that these “take-home” or

“transmission” asbestos exposure cases turn upon questions of general negligence rather than third-party or premises

liability.

-16-

is largely an expression of policy considerations.34 Accordingly, our consideration of the existence

and scope of Alcoa’s duty must also include an analysis of the relevant public policy considerations.

Burroughs v. Magee, 118 S.W.3d at 329.

It would be erroneous, however, to assume that the concept of duty is a free- floating

application of public policy, drifting on the prevailing winds like the seeds of a dandelion. Like the

courts in our sister states, Tennessee’s courts have not become so intoxicated on the liquor of public

policy analysis that we have lost our appreciation for the moderating and sobering influences of the

well-tested principles regarding the imposition of duty.35

A.

In most cases today, prior court decisions and statutes have already established the doctrines

and rules governing a defendant’s conduct.36 Generally, the presence or absence of a duty is a given

rather than a matter of reasoned debate, discussion, or contention. The common law, however, must

and does grow to accommodate new societal realities and values – or simply better reasoning – as

it moves toward refinement and modification with the aim of improving while maintaining a

sufficient stability so as to seek, and one hopes, to find, prudent reformation as opposed to anarchic

revolution.

When the existence of a particular duty is not a given or when the rules of the established

precedents are not readily applicable, courts will turn to public policy for guidance. Doing so

necessarily favors imposing a duty of reasonable care where a “defendant’s conduct poses an

unreasonable and foreseeable risk of harm to persons or property.” McCall v. Wilder, 913 S.W.2d

at 153. When conducting this analysis, the courts have considered, among other factors: (1) the

foreseeable probability of the harm or injury occurring; (2) the possible magnitude of the potential

harm or injury; (3) the importance or social value of the activity engaged in by the defendant; (4) the

usefulness of the conduct to the defendant; (5) the feasibility of alternative conduct that is safer; (6)

the relative costs and burdens associated with that safer conduct; (7) the relative usefulness of the

safer conduct; and (8) the relative safety of alternative conduct. Burroughs v. Magee, 118 S.W.3d

at 329; McCall v. Wilder, 913 S.W.2d at 153.

With these factors firmly in mind, Tennessee’s courts use a balancing approach to determine

whether the particular risk should give rise to a duty of reasonable care. West v. E. Tenn. Pioneer

Oil Co., 172 S.W.3d at 551; Burroughs v. Magee, 118 S.W.3d at 329. A duty arises when the degree

34

Prosser and Keeton, § 53, at 358.

35

See generally John C.P. Goldberg & Benjamin C. Zipursky, The Moral of Macpherson, 146 U. Pa. L. Rev.

1733, 1772-75 (1998). These rules themselves are derived not purely from logic, as if some formalist absolute was given

birth, but from the collective wisdom and application of common-law courts in which public policy has certainly played

an important role.

36

Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev. 543, 562-63 (1962).

-17-

of foreseeability of the risk and the gravity of the harm outweigh the burden that would be imposed

if the defendant were required to engage in an alternative course of conduct that would have

prevented the harm. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d at 551; Burroughs v. Magee, 118

S.W.3d at 329; McCall v. Wilder, 913 S.W.2d at 153. The foreseeability and gravity of the harm are

linked insofar as the degree of foreseeability needed to establish a duty is inversely proportional to

the magnitude of the foreseeable harm. Turner v. Jordan, 957 S.W.2d at 818. The greater the risk

of harm, the less degree of foreseeability is required. Pittman v. Upjohn Co., 890 S.W.2d 425, 433

(Tenn. 1994). During the balancing process, it is permissible for the courts to consider the

contemporary values of Tennessee’s citizens.37

While every balancing factor is significant, the foreseeability factor has taken on paramount

importance in Tennessee. Hale v. Ostrow, 166 S.W.3d 713, 716-17 (Tenn. 2005); Biscan v. Brown,

160 S.W.3d at 480. This factor is so important that if an injury could not have been reasonably

foreseen, a duty does not arise even if causation-in-fact has been established. Doe v. Linder Constr.

Co., 845 S.W.2d 173, 178 (Tenn. 1992).38 Conversely, foreseeability alone is insufficient to create

a duty. McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 904 (Tenn. 1996). Thus, to prevail

on a negligence claim, a plaintiff must show that the risk was foreseeable, but that showing is not,

in and of itself, sufficient to create a duty. Instead, if a risk is foreseeable, courts then undertake the

balancing analysis.

While there have certainly been able and skillful critiques of the role that foreseeability plays

in determining whether a duty exists,39 the majority of courts continue to use foreseeability as a

central component of their analyses.40 Foreseeability has proven to be a useful hub from which

central organizing principles can be maintained, while at the same time allowing for prudent

modification and reformation of those principles. Despite the difficulties and significant stumbles,

the experience of most courts has been that maintaining a role for foreseeability when addressing

questions regarding the existence and scope of duty assists – more than it impedes – the application

and development of the law of negligence.

37

W illiam L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953) (quoting Palsgraf v. Long Island R.R.

Co., 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)); see also Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.

1987) (stating that “the question of whether a duty should be imposed in a particular case is essentially one of fairness

under contemporary standards-whether reasonable persons would recognize a duty and agree that it exists”).

38

Oliver W endell Holmes justified the foreseeability requirement as follows: “The requirement of an act is the

requirement that the defendant should have made a choice. But the only possible purpose of introducing this moral

element is to make the power of avoiding the evil complained of a condition of liability. There is no such power where

the evil cannot be foreseen.” Oliver W endell Holmes, The Common Law 77 (Mark DeW olfe Howe ed., Little Brown

& Co. 1963) (1881).

39

See, e.g., W . Jonathan Cardi, Purging Foreseeability, 58 Vand. L. Rev. 739 (2005).

40

James R. Adams, From Babel to Reason: An Examination of the Duty Issue, 31 McGeorge L. Rev. 25, 46

(1999); W . Jonathan Cardi, Reconstructing Foreseeability, 46 B.C. L. Rev. 921, 923 (2005).

-18-

The role that the concept of foreseeability plays in the context of a court’s determination of

the existence and scope of a duty differs from the role the concept plays when the fact-finder is

addressing proximate causation.41 For a duty to exist, the defendant’s “conduct must create a

recognizable risk of harm to the [plaintiff] individually, or to a class of persons – as, for example,

all persons within a given area of danger – of which the [plaintiff] is a member.” Restatement

(Second) of Torts § 281 cmt. c, at 4-5. However, because almost any outcome is possible and can

be foreseen, the mere fact that a particular outcome might be conceivable is not sufficient to give rise

to a duty. For the purpose of determining whether a duty exists, the courts’ consideration of

foreseeability is limited to assessing whether there is some probability or likelihood of harm that is

serious enough to induce a reasonable person to take precautions to avoid it.42 In this context, the

courts are not concerned with the ultimate reasonableness, or lack of reasonableness, of the

defendant’s conduct. Rather, the courts are simply ascertaining “whether [the] defendant was

obligated to be vigilant of a certain sort of harm to the plaintiff.”43

B.

Viewing the allegations in Ms. Satterfield’s complaint in the light most favorable to her, it

is not difficult to conclude that Ms. Satterfield falls within a class of persons that could, with

reasonable foreseeability, be harmed by exposure to asbestos. That class includes persons who

regularly and for extended periods of time came into close contact with the asbestos-contaminated

work clothes of Alcoa’s employees.

Under the facts alleged in Ms. Satterfield’s complaint, Alcoa was aware of the presence of

significant quantities of asbestos fibers on its employees’ work clothes. It was also aware of the

dangers posed by even small quantities of asbestos and that asbestos fibers were being transmitted

by its employees to others. Nevertheless, despite its extensive and superior knowledge of the

dangers of asbestos, Alcoa allegedly (1) failed to inform its employees that they were working with

materials containing asbestos; (2) failed to provide its employees with or to require them to wear

protective covering on their clothes; (3) actively discouraged its employees’ use of on-site bathhouse

facilities for changing or cleaning; and (4) failed to inform its employees of the dangers posed by the

asbestos fibers on their work clothes. Under these circumstances, it was foreseeable that Ms.

Satterfield would come into close contact with Mr. Satterfield’s work clothes on an extended and

repeated basis.

41

See, e.g., McCain v. Fla. Power Corp., 593 So. 2d 500, 502-04 (Fla. 1992); Di Cosala v. Kay, 450 A.2d 508,

516 (N.J. 1982); Bodkin v. 5401 S.P., Inc., 768 N.E.2d 194, 203 (Ill. App. Ct. 2002) (quoting Colonial Inn Motor Lodge,

Inc. v. Gay, 680 N.E.2d 407, 413 (Ill. App. Ct. 1997)); Knoll v. Bd. of Regents of Univ. of Neb., 601 N.W .2d 757, 763

(Neb. 1999); Mack v. Altmans Stage Lighting Co., 470 N.Y.S.2d 664, 667 (N.Y. App. Div. 1984); Goldberg & Zipursky,

54 Vand. L. Rev. at 728 (noting that “[a]lthough foreseeability is invoked in both instances, the questions being asked

are quite different.”).

42

See Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W .3d 151, 156 (M o. 2000); Knoll v. Bd. of Regents of Univ.

of Neb., 601 N.W .2d at 762-64.

43

Goldberg & Zipursky, 54 Vand. L. Rev. at 728-29.

-19-

C.

Because the risk of Ms. Satterfield being exposed to the asbestos fibers on her father’s work

clothes was foreseeable, the analysis shifts to considering the balancing factors: (1) the foreseeable

probability of the harm or injury occurring; (2) the possible magnitude of the potential harm or

injury; (3) the importance or social value of the activity engaged in by the defendant; (4) the

usefulness of the conduct to the defendant; (5) the feasibility of alternative conduct that is safer; (6)

the relative costs and burdens associated with the safer conduct; (7) the relative usefulness of the

safer conduct; and (8) the relative safety of alternative conduct. Burroughs v. Magee, 118 S.W.3d

at 329; McCall v. Wilder, 913 S.W.2d at 153.

When considering these factors, courts should take care not to invade the province of the

44

jury. A court’s function is more limited than a jury’s. As a practical matter, a court serves as a

gate-keeper and may exclude a claim only if it finds, as a matter of law, that the defendant does not

owe a duty to the plaintiff.45 For claims that should not be excluded as a matter of law, it is

ultimately the jury’s function to determine whether the defendant actually breached its duty of

reasonable care.

While the facts alleged in Ms. Satterfield’s complaint may not permit a precise assessment

of the full extent of the risk to Ms. Satterfield, they certainly support a conclusion that the risk to her

was real and substantial. In light of the debilitating and fatal illnesses that can be caused by exposure

to asbestos fibers,46 the magnitude of the potential harm to Ms. Satterfield was great.

Alcoa argues that its manufacturing operations create jobs and provide useful products and

that recognizing that it owes a duty to persons like Ms. Satterfield will have an adverse impact on

its ability to provide jobs and to produce useful products. This assertion warrants serious

consideration. However, at least at this stage of the proceeding, Alcoa has not articulated a

connection between its allegedly negligent acts and its ability to provide employment or to produce

useful products. For example, it has not demonstrated that the sort of exposure to asbestos that is

involved in this case is a largely unavoidable part of its manufacturing operations.

44

See Burroughs v. Magee, 118 S.W.3d at 339 (Holder, J., concurring and dissenting).

45

The determination of whether a complaint should be dismissed because the defendant did not owe a duty to

the plaintiff must be made using the analysis required by the procedural posture of the case. Thus, when a claim is

challenged by a Tenn. R. Civ. P. 12.03 or 12.02(6) motion, as in this case, the court must determine, based on the facts

alleged in the complaint, whether the defendant owes a duty to the plaintiff. W hen a claim is challenged by a Tenn. R.

Civ. P. 56 motion, the court must determine, based on the undisputed facts, whether the defendant owes a duty to the

plaintiff. Finally, when a claim is challenged by a Tenn. R. Civ. P. 50 motion, the court must determine whether the only

conclusion that a reasonable person can draw from the evidence is that the defendant did not owe a duty to the plaintiff.

46

Even though the Michigan Supreme Court ultimately declined to hold that an employer owed a duty to its

employees’ family members who were exposed to asbestos fibers on its employees’ clothes, it conceded that the nature

of the risk was serious enough to impose a duty. In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740

N.W .2d at 217.

-20-

Ms. Satterfield’s complaint, on the other hand, asserts that Alcoa could have greatly reduced

the risk of asbestos exposure. It asserts that her risk of being exposed to the asbestos on her father’s

work clothes could have been greatly reduced had Alcoa (1) provided basic warnings to its

employees about the dangers of asbestos, (2) required safer handling of the materials containing

asbestos, (3) provided coveralls to its employees, (4) required employees to change their clothes

before leaving the workplace, (5) laundered its employees’ work clothes on site, or (6) encouraged

its employees to use the on-site bathhouse facilities before leaving work.

Based on the present record, many of the measures described in Ms. Satterfield’s complaint

to protect workers and their families from exposure to asbestos appear to be feasible and efficacious

without imposing prohibitive costs or burdens on Alcoa.47 For its part, however, Alcoa has offered

no explanation why any or all of these precautions were not feasible or how they would have had a

deleterious effect on its ability to provide jobs or to produce useful products.

Based on the facts alleged in Ms. Satterfield’s complaint, Alcoa was a knowledgeable and

sophisticated company that was fully aware (1) that it used materials containing asbestos in its

manufacturing operations, (2) that high volumes of asbestos fibers were being deposited on its

employees’ work clothes, and (3) that exposure to asbestos fibers created a substantial health risk.

In light of this knowledge, Alcoa had a duty to use reasonable care to prevent exposure to asbestos

fibers not only to its employees but also to those who came into close regular contact with its

employees’ contaminated work clothes over an extended period of time.

V.

Alcoa articulates additional reasons for declining to hold that it has a duty to persons like Ms.

Satterfield. First, it argues that the current asbestos litigation crisis in the United States will be

worsened if employers that have utilized asbestos in manufacturing are exposed to additional costly

litigation. Second, Alcoa asserts that manufacturers could face bankruptcy and a substantial loss of

jobs could result if they are exposed to the burden of additional liability. Third, Alcoa claims that

finding that it has a duty to persons like Ms. Satterfield will expose premises owners to a host of

similar claims by other plaintiffs.

47

Alcoa argues that “a business today cannot guard against claims of liability for exposures that may have

occurred half a century ago.” While it is undoubtedly true that an employer can do nothing to prevent an exposure that

occurred fifty years ago, the argument misses the mark with regard to our consideration of whether it owed a duty to

persons who were repeatedly exposed to asbestos fibers on its employees’ clothing for an extended period. The inquiry

into the feasibility, usefulness, cost, and burden of safer conduct relates to the time when the employer’s allegedly

negligent conduct took place.

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A.

There can be little doubt that there is an asbestos products liability litigation crisis in the

United States.48 The United States Supreme Court has noted that the “elephantine mass of asbestos

cases . . . defies customary judicial administration and calls for national legislation.” Ortiz v.

Fibreboard Corp., 527 U.S. 815, 821 (1999). While calls for legislative action have produced much

debate and have resulted in various remedial proposals, this sound and fury has not resulted in any

significant national legislation.49

Unimpaired claimants stand at the center of the asbestos exposure litigation crisis.50

Estimates compiled in surveys funded by asbestos defendants suggest that between sixty-six and

ninety percent of claimants are unimpaired.51 These claimants are persons who have been exposed

to asbestos and who usually have some marker of exposure, but who are not impaired by an

asbestos-related disease and likely never will be.52 The enormous number of claims that have been

filed by unimpaired or mildly impaired persons was unexpected.53 As a result of these claims, the

funds available to compensate persons gravely affected by exposure to asbestos has been depleted,54

48

See generally, e.g., Paul D. Carrington, Asbestos Lessons: The Consequences of Asbestos Litigation, 26 Rev.

Litig. 583, 584-95 (2007).

49

Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613,

1632-34 (2008).

50

Lester Brickman, On the Theory Class’s Theories of Asbestos Litigation: The Disconnect Between Scholarship

and Reality, 31 Pepp. L. Rev. 33, 59 (2003).

51

Stephen J. Carroll et al., Asbestos Litigation Costs and Compensation 20 (2002), available at

http://www.rand.org/pubs/documented_briefings/DB397/DB397.pdf (last visited July 5, 2008); see also Victor E.

Schwartz et al., A Letter to the Nation’s Trial Judges: Serious Asbestos Cases- How to Protect Cancer Claimants and

Wisely Manage Assets, 30 Am. J. Trial Advoc. 295, 297 & n. 9 (2006); Katherine M. Anand, Note, Demanding Due

Process: The Constitutionality of the § 524 Channeling Injunction and Trust Mechanisms That Effectively Discharge

Asbestos Claims in Chapter 11 Reorganization, 80 Notre Dame L. Rev. 1187, 1212 & n.143 (2005).

52

Mark A. Behrens & Monica G. Parham, Stewardship for the Sick: Preserving Assets for Asbestos Victims

Through Inactive Docket Programs, 33 Tex. Tech L. Rev. 1, 5 (2001) (quoting The Fairness in Asbestos Compensation

Act of 1999: Hearings Before the House Comm. on the Judiciary, 106th Cong. 5 (1999) (testimony of Prof. Christopher

Edley, Jr.)); see generally Mark H. Reeves, Note, Makes Sense to Me: How Moderate, Targeted Federal Tort Reform

Legislation Could Solve the Nation’s Asbestos Litigation Crisis, 56 Vand. L. Rev. 1949, 1961-64 (2003) (discussing the

original rationale for suits involving unimpaired plaintiffs and the problems therewith).

53

Mark A. Behrens, Some Proposals for Courts Interested in Helping Sick Claimants and Solving Serious

Problems in Asbestos Litigation, 54 Baylor L. Rev. 331, 342 (2002) [hereinafter “Behrens”].

54

Lester Brickman, An Analysis of the Financial Impact of S. 852: The Fairness in Asbestos Injury Resolution

Act of 2005, 27 Cardozo L. Rev. 991, 995 (2005).

-22-

and the persons with more serious illnesses caused by exposure to asbestos have been “lost in the

shuffle.”55

Alcoa’s argument that liability should be foreclosed as a matter of law because of the current

asbestos litigation crisis might have resonance with regard to recognizing a duty to unimpaired

claimants where the magnitude of the harm is significantly less. However, it rings hollow with

regard to a claimant, like Ms. Satterfield, who has died of mesothelioma.

The various efforts to reform asbestos litigation have been directed toward stemming the tide

of lawsuits in large part to ensure that seriously ill claimants are able to recover and are not drowned

out by unimpaired claimants.56 Victims of mesothelioma are regularly identified as precisely the type

of claimants whose claims should be protected.57 It is not surprising that individuals with

mesothelioma are put in such a category because mesothelioma is a serious and fatal illness that

rarely occurs in the general population and that is closely associated with exposure to asbestos.58 Ms.

Satterfield is precisely the type of claimant whose claims should be permitted rather than inhibited.

B.

Alcoa also contends that it does not manufacture asbestos and that the manufacturers who

use materials containing asbestos in their manufacturing process will face enormous financial

burdens if they are exposed to liability for illnesses caused by exposure to asbestos fibers in their

manufacturing processes. We find this argument unpersuasive. If the financial burden of

compensating these injuries is lifted from the employers’ shoulders, it does not vanish into the ether.

Rather, the burden will fall on persons like Ms. Satterfield. We see no particular public policy

reason to favor imposing these costs upon the persons who have been harmed by exposure to

asbestos rather than upon the manufacturers who used asbestos in their manufacturing processes.

Furthermore, based on the facts alleged in Ms. Satterfield’s complaint, Alcoa is far from an

uninformed manufacturer who had the misfortune of using materials containing asbestos in its

manufacturing process.

55

In re Asbestos Products Liability Litigation (No. VI), Civ. A. No. MDL 875, 1996 W L 539589, at *1 (E.D.

Pa. Sept. 16, 1996); see also Steven B. Hantler et al., Is the “Crisis” in the Civil Justice System Real or Imagined?, 38

Loy. L.A. L. Rev. 1121, 1163-64 (2005); 28 No. 22 Andrews Asbestos Litig. Rep. 11 (2006).

56

See, e.g., Behrens, 54 Baylor L. Rev. at 336, 344-57; Mark A. Behrens & Phil Goldberg, The Asbestos

Litigation Crisis: The Tide Appears to be Turning, 12 Conn. Ins. L.J. 477, 488-95 (2005-06); Paul F. Rothstein, What

Courts Can Do in the Face of the Never-Ending Asbestos Crisis, 71 Miss. L.J. 1, 10-14 (2001) [hereinafter “Rothstein”].

57

See, e.g., Behrens, 54 Baylor L. Rev. at 344; Rothstein, 71 Miss. L.J. at 11-12.

58

See, e.g., Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling the Risk-Injury Divide, 59 Stan. L. Rev.

1671, 1730-31 & n. 240-41 (2007); Patrick M. Hanlon & Anne Smetak, Asbestos Changes, 62 N.Y.U. Ann. Surv. Am.

L. 525, 532 (2007); Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv.

J.L. & Pub. Pol’y 541, 546-47 (1992).

-23-

C.

Alcoa also asserts that if it is found to be liable to persons like Ms. Satterfield, all premises

owners, including schools and home owners, will be exposed to liability for asbestos exposure to

persons who were never on their premises. This concern is misplaced for two reasons. First, this

opinion is not addressed to premises liability law but rather to the law applicable in a general

negligence misfeasance case. See Rochon v. Saberhagen Holdings, Inc., 2007 WL 2325214, at *2-5.

Second, viewing the facts in the light most favorable to Ms. Satterfield, Alcoa is a sophisticated

manufacturer that was aware of, or should have been aware of, the risk to others that could result

from exposure to asbestos fibers. Under the facts alleged in the complaint, Alcoa knew its

employees’ work clothes contained significant quantities of asbestos fibers, and it understood the

danger of transmitting these asbestos fibers to others. It is not readily apparent, though the facts of

a future case may warrant a contrary finding, that such a transmission injury would be reasonably

foreseeable by school officials or home owners.

D.

Finally, Alcoa argues that this Court should not recognize the existence of a duty to persons

like Ms. Satterfield because doing so would be “contrary to the emerging weight of authority in the

United States.” As an initial matter, it is not entirely clear that the various decisions of courts in

other states reflect a clear weight of authority standing behind the rejection of finding that employers

have a duty in take-home or transmission asbestos exposure cases. Courts in Louisiana,59 New

Jersey,60 California,61 and Washington62 have recognized the existence of a duty under circumstances

similar to the present case. A Texas state court63 and a United States District Court in Kentucky,64

sitting in diversity jurisdiction, did not foreclose the imposition of a duty in take-home exposure

cases but instead found that the injuries in the respective cases were not foreseeable because they

were caused before the defendants were aware of the dangers of asbestos transmission beyond the

workplace.65 Courts in Georgia,66 Maryland,67 Michigan,68 New York,69 and Delaware70 have

59

Chaisson v. Avondale Indus., Inc., 947 So. 2d 171, 183-84 (La. Ct. App. 2006); Zimko v. Am. Cyanamid, 905

So. 2d 465, 483-84 (La. Ct. App. 2005).

60

Olivo v. Owens-Ill., Inc., 895 A.2d 1143, 1148-50 (N.J. 2006).

61

Condon v. Union Oil Co. of Cal., 2004 W L 1932847, at *3-5 (Cal. Ct. App. Aug. 31, 2004).

62

Rochon v. Saberhagen Holdings, Inc., 2007 W L 2325214, at *2-4.

63

Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460-62 (Tex. App. 2007).

64

Martin v. Gen. Elec. Co., 2007 W L 2682064, at *1-9.

65

The Texas Court of Appeals noted that in June 1972, OSHA prohibited work clothes from being taken home

to be laundered if those clothes had been exposed to asbestos. Exxon Mobil Corp. v. Altimore, ___ S.W .3d ___, ___,

2008 W L 885955, at * 6 (Tex. App. 2008). In a separate decision, the Texas Court of Appeals also noted that

(continued...)

-24-

concluded that no duty exists. Rather than confirming the existence of an “emerging weight of

authority” supporting Alcoa’s position, our research reveals a pronounced split of authority with

regard to the central issue of this case.

Furthermore, the distinctions that have been drawn and the explanations that have been

offered by the courts refusing to recognize a duty similar to the one we recognize today, if anything,

bolster our conclusion that the cases relied upon by Alcoa do not provide helpful guidance to us. For

example, in In re New York City Asbestos Litigation, the Court of Appeals of New York

distinguished an opinion by the New Jersey Supreme Court finding that a duty existed on the ground

that

New Jersey, unlike New York, relies heavily on foreseeability in its

duty analysis. Moreover, Olivo can be distinguished factually in that

the landowner did nothing to prevent workers from bringing

asbestos-covered clothing into the family home - an important

component of that court’s duty analysis - whereas here, the Port

Authority provided laundry services to [the employee], which is

relevant under New York law as to whether the Port Authority

65

(...continued)

The first case study of non-occupational asbestos exposure was published in 1965. That study

observed patients hospitalized in London with a diagnosis of mesothelioma and noted that out of the

76 patients from whom full occupational and residential histories were obtained, 40 (52.6%) “gave

a history of occupational or domestic (living in the same house as an asbestos worker) exposure.”

Several witnesses also testified in this case about the regulations instituted in 1972 by the Occupational

Safety and Hazard Administration (OSHA) that expressly mandated, for the first time, restrictions on

allowing asbestos to be carried home on clothing. The record in this case also reflects that the first

epidemiological study of the link between females with mesothelioma and non-occupational asbestos

exposure was published in 1978.

Alcoa, Inc. v. Behringer, 235 S.W .3d at 461.

Ms. Satterfield’s exposure could not have occurred prior to 1979; accordingly, the foreseeability concerns raised

in the Texas cases do not apply to the present case.

66

CSX Transp., Inc. v. Williams, 608 S.E.2d 208, 209-10 (Ga. 2005).

67

Adams v. Owens-Ill., Inc., 705 A.2d 58, 66 (Md. Ct. Spec. App. 1998). W hile there have been conflicting

interpretations of this decision, the M aryland Supreme Court has placed this case squarely within the no duty column.

Doe v. Pharmacia & Upjohn Co., 879 A.2d 1088, 1096 (Md. 2005) (interpreting Adams v. Owens-Ill., Inc.); compare

In re Asbestos Litig., 2007 W L 4571196, at *3 n.19, *11, with Martin v. Gen. Elec. Co., 2007 W L 2682064, at *6.

68

In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W .2d at 213.

69

In re New York City Asbestos Litig., 840 N.E.2d 115, 122-23 (N.Y. 2005).

70

In re Asbestos Litig., 2007 W L 4571196, at *11-12.

-25-

breached any duty that it may have owed [the plaintiff family

member].

In re New York City Asbestos Litig., 840 N.E.2d at 122. However, like the courts in New Jersey,71

and unlike the courts in New York, Tennessee’s courts rely heavily on foreseeability when

determining the existence and scope of a duty. Hale v. Ostrow, 166 S.W.3d at 716-17; Biscan v.

Brown, 160 S.W.3d at 480. In addition, the facts in the In re New York City Asbestos Litigation case

regarding the conduct of the employee differ significantly from the factual allegations in Ms.

Satterfield’s complaint.72

Similarly, the decisions by the courts in Delaware,73 Georgia,74 Maryland,75 and Michigan76

emphasize the absence of a relationship or a special relationship between the plaintiff and the

defendant. We have already concluded that, under the law of Tennessee, the existence or the nature

of a relationship between the plaintiff and the defendant is not controlling with regard to claims

based on negligent misfeasance. The decisions by the courts in Texas and Kentucky appear to hinge

on the fact that the asbestos exposure occurred before the type of take-home or transmission

exposure injury that is involved in this case was reasonably foreseeable.

Based on our review of the opinions of the courts in other states addressing the issue before

us in this case, we are not persuaded that the weight of authority supports Alcoa in this case. While

we have the greatest respect for the courts that have declined to recognize the duty we recognize

today, we have determined that their decisions rest on negligence principles that are not consistent

with ours or that they arise from facts that are significantly dissimilar from the factual allegations

in Ms. Satterfield’s complaint.

VI.

71

Under New Jersey law, foreseeability is “a crucial element in determining whether imposition of a duty on an

alleged tortfeasor is appropriate.” Olivo v. Owens-Ill., Inc., 895 A.2d at 1148.

72

The opinion in the In re New York City Asbestos Litigation case indicates that the employee appeared to have

ignored the steps taken by the employer to ensure that the transmission of asbestos fibers did not occur beyond the work

premises. Based on the facts alleged in Ms. Satterfield’s complaint, Mr. Satterfield was unaware of the dangers of

asbestos or that he was working with materials that contained asbestos, and Alcoa actively discouraged its employees

from using the on-site bathhouse facilities. Accordingly, unlike the employee in the New York litigation, Ms.

Satterfield’s complaint provides no basis for concluding that M r. Satterfield circumvented Alcoa’s precautions against

the transmission of asbestos fibers.

73

In re Asbestos Litig., 2007 W L 4571196, at *11.

74

See CSX Transp., Inc. v. Williams, 608 S.E.2d at 209-10.

75

See Adams v. Owens-Ill., Inc., 705 A.2d at 66.

76

In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W .2d at 211-13.

-26-

Both Alcoa and Mr. Satterfield address the proper scope of the class of persons to whom a

duty is owed in cases of this sort. The Court of Appeals limited Alcoa’s duty “to members of

employees’ households who routinely come into close contact with employees’ contaminated

clothing over an extended period of time.”77 In addition, it expressly excluded “individuals who

might possibly come into contact with the employees’ clothing, but whose contacts are sporadic or

unpredictable.”78

Even though the cases that have recognized the duty we recognize today have involved

claims by an employee’s family members,79 they have not necessarily rejected claims by other

plaintiffs. In support of its argument against recognizing any duty in cases like this one, Alcoa

asserts that no principled basis exists to limit the duty to the members of the employee’s immediate

family living in the employees house and thus that recognizing a duty to these family members will

eventually result in the recognition of a duty with regard to babysitters, housekeepers, home repair

contractors, and next-door neighbors. Alcoa makes a valid point with regard to restricting the duty

to family members.

There is no magic talisman that protects persons from the harmful effects of exposure to

asbestos simply because they do not live under the same roof or are not a member of the employee’s

family by blood or marriage. It is foreseeable that the adverse effects of repeated, regular, and

extended exposure to asbestos on an employee’s work clothes could injure these persons. Public

policy does not warrant finding that there is no duty owed to such persons. Accordingly, the duty

we recognize today extends to those who regularly and repeatedly come into close contact with an

employee’s contaminated work clothes over an extended period of time, regardless of whether they

live in the employee’s home or are a family member.

We note that the Michigan Supreme Court has cautioned that allowing liability in cases like

this one could result in “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.” In re Certified

Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W.2d at 219. However, in light of the

magnitude of the potential harm from exposure to asbestos and the means available to prevent or

reduce this harm, we see no reason to prevent carpool members, babysitters, or the domestic help

from pursuing negligence claims against an employer should they develop mesothelioma after being

77

Satterfield v. Breeding, 2007 W L 1159416, at *9.

78

Satterfield v. Breeding, 2007 W L 1159416, at *9.

79

See Condon v. Union Oil Co. of Cal., 2004 W L 1932847, at *5; Chaisson v. Avondale Indus., Inc., 947 So.

2d at 183-84; Zimko v. Am. Cyanamid, 905 So. 2d at 485; Olivo v. Owens-Ill., Inc., 895 A.2d at 1149.

-27-

repeatedly and regularly in close contact with an employee’s asbestos-contaminated work clothes

over an extended period of time.80

We also note the Delaware Superior Court’s concern regarding the potentially limitless

liability that could arise from requiring employers to undertake to warn or otherwise protect every

potentially foreseeable victim of off-premises exposure to asbestos. In re Asbestos Litig., 2007 WL

4571196, at *12. We agree that a duty to warn all foreseeable persons who might be exposed to

asbestos fibers on an employee’s work clothes would be too great a burden. However, the

imposition of a duty of reasonable care with regard to safe handling of asbestos fibers on employees’

work clothes to prevent transmission to others is not such a burden.

Recognizing the existence of a duty to exercise reasonable care to avoid the risk of harm to

another involves considerations of fairness and public policy. Under Tennessee law, Alcoa has a

duty to prevent foreseeable injury from an unreasonable risk of harm that it had itself created. Under

the facts alleged in Ms. Satterfield’s complaint, Alcoa failed to inform its employees, including Mr.

Satterfield, of the risks associated with asbestos and failed to provide them with meaningful

alternatives to wearing home their contaminated work clothes. Based on these allegations, Alcoa

created a risk that persons who came into close and regular contact over an extended period of time

with its employees’ work clothes would be exposed to the asbestos fibers on the clothes. The fair

and proportional duty we recognize today is neither limitless nor impractical.

VII.

We have determined that Ms. Satterfield’s complaint states a claim upon which relief can be

granted. Accordingly, the trial court erred by granting Alcoa a judgment on the pleadings, and the

Court of Appeals correctly reversed that order. Based on the facts in Ms. Satterfield’s complaint,

we cannot conclude, as a matter of law, that Alcoa did not owe a duty to Ms. Satterfield. Our ruling

does not foreclose the possibility that Ms. Satterfield’s estate will not be able to present sufficient

evidence to support her claim. Thus, Alcoa is certainly free to challenge any element of Ms.

Satterfield’s claim via a motion for summary judgment or motion for directed verdict. Accordingly,

we affirm the Court of Appeals and remand the case to the trial court for further proceedings

consistent with this opinion. We tax the costs of this appeal to Alcoa, Inc. for which execution, if

necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUSTICE

80

Our ruling today should not be interpreted as approving claims by unimpaired persons or mass tort actions.

These sorts of claims would require reconsideration of the public policy questions addressed in this case. W hile not

foreclosing such liability, the magnitude of the harm and burden on the employer in these circumstances would be

significantly different.

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