Estate of Schatz v. Univ. of Md., College Park , 239 Md. App. 211 ( 2018 )

Estate of Concetta Schatz, et al. v. John Crane, Inc., No. 1300, September 2017 Term.
Opinion by Beachley, J.
DUTY OF CARE—DUTY TO WARN THIRD PARTIES—
FORESEEABILITY OF HARM—FEASIBILITY OF WARNING—FEASIBILITY
OF WARNING INTERMEDIARIES—EFFECTIVENESS OF WARNING
Husband of decedent worked in a facility and routinely handled John Crane, Inc.
(“JCI”) brand packing rope, which contained asbestos. In working with JCI rope, husband
was exposed to asbestos dust. After work, husband would come home and his wife,
decedent, would wash his asbestos-covered work clothing. Doing so exposed decedent to
asbestos dust. Decedent contracted mesothelioma and eventually passed away.
Decedent, through her estate and surviving daughters (“appellants”), brought a
products liability claim against John Crane, Inc. (“JCI”). The case proceeded to trial, and
at the close of decedent’s case-in-chief, JCI moved for judgment, arguing that it did not
owe a duty of care—the duty to warn—decedent. The trial court agreed with JCI and
granted the motion. Decedent’s estate and surviving daughters appealed.
Held: Judgment affirmed. Whether a duty to warn exists represents a policy
consideration. There is no set formula for determining the existence of a duty. Maryland
courts consider the “foreseeability of harm” and consider what the defendant knew or
reasonably should have known at the time of exposure to harm. The “foreseeability” factor,
however, is not dispositive. Maryland courts generally consider the relative weight to be
given to “foreseeability” as opposed to other factors, including: the relationship between
the parties, the feasibility of a warning, and the effectiveness of a warning.
Although there may have been evidence tending to show that JCI reasonably should
have known of the harm at the time of decedent’s exposure, the other factors weighed
against establishing a duty to warn. Based on the facts presented in this case, it would not
have been feasible for JCI to directly warn decedent. JCI had no relationship with
decedent. Additionally, a duty does not exist simply because JCI could have warned an
intermediary (decedent’s husband) who supposedly would have warned decedent. Finally,
appellants failed to present evidence at trial showing how a warning would have been
effective—even if it would have been permissible for JCI to warn decedent’s husband.
Circuit Court for Baltimore City
Case Nos. 24X1500318 & 24X1600024
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1300
September Term, 2017
ESTATE OF CONCETTA SCHATZ, et al.
v.
JOHN CRANE, INC.
Wright,
Beachley,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Beachley, J.
Filed: November 2, 2018
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
2018-11-02
15:15-04:00
Suzanne C. Johnson, Acting Clerk
In 2015, Concetta Schatz (“Mrs. Schatz”) passed away from malignant
mesothelioma. After her death, Mrs. Schatz’s estate and her four surviving daughters
(“appellants”) commenced a products liability action against John Crane, Inc. (“JCI” or
“appellee”). Appellants alleged that Mrs. Schatz’s husband, William Schatz (“Mr.
Schatz”), would handle JCI products containing asbestos while at work, and then bring his
asbestos-covered clothing home for Mrs. Schatz to clean, thus exposing her to asbestos
fibers.
The case proceeded to trial. At the close of appellants’ case-in-chief, JCI moved for
judgment, arguing that appellants had failed to prove that JCI owed a legal duty to warn
Mrs. Schatz pursuant to Georgia-Pacific, LLC v. Farrar, 432 Md. 523 (2013). Following
arguments, the trial court granted JCI’s motion. Appellants timely appealed and present
two questions for our review, which we have condensed as follows1:
1. Whether the circuit court erred in granting JCI’s motion for judgment.
We hold that the court did not err, and affirm.
1
Appellants presented the following two questions for our review:
1. Whether the Circuit Court erred in finding that household members
constitute an indeterminate class, contrary to the holding in Farrar.
2. Whether under Farrar a duty to warn extended to household members
beginning in 1972 when OSHA promulgated safety regulations
specifically addressing the problem of tracking asbestos dust on clothing
into the home.
FACTS AND PROCEEDINGS
Mr. Schatz married Mrs. Schatz on November 13, 1955. Near the time of their
marriage, Mr. Schatz began working for Baltimore Gas & Electric (“BG&E”), where he
continued to work until he retired in the mid-to-late 1980s. For approximately the first two
years of his employment with BG&E, Mr. Schatz worked with turbines. He was then
transferred to Wagner Station and shortly thereafter was promoted to mechanic. Mr. Schatz
remained a mechanic at Wagner Station for the rest of his career with BG&E. While
working at Wagner Station as a mechanic, Mr. Schatz was responsible for repairing and
maintaining a variety of equipment, including air compressors, coal machinery, fly ash
hoppers, and of particular relevance here, boilers.
The boilers at Wagner Station each contained approximately 200 doors. The
packing or sealing surrounding these doors would routinely deteriorate due to heat and dirt
from the boilers, and Mr. Schatz and other mechanics were tasked with replacing the
damaged packing with JCI rope.2 The rope used was white and flexible, and when
mechanics would cut it to fit into the doors, it created dust and dirt. Unfortunately, from
1930 until 1985, JCI’s rope contained sixty percent chrysotile asbestos.
BG&E did not provide any laundry services to its employees when Mr. Schatz
worked at Wagner Station as a mechanic, so he would typically take his dirty work clothes
home for his wife to wash. Approximately every other day, Mrs. Schatz would shake out
2
According to evidence introduced at trial, BG&E workers also used Phelps brand
rope to replace the damaged packing around the doors of the boilers at Wagner Station.
2
and wash the dirty work clothes, breathing in the dust as she did so. After Mrs. Schatz
passed away due to mesothelioma, appellants filed this products liability claim against JCI.
Appellants’ trial against JCI began on July 25, 2017. JCI moved for judgment on
August 4, at the close of appellants’ case-in-chief. On August 8, the circuit court held that
JCI did not owe a duty to warn Mrs. Schatz, and granted JCI’s motion. Appellants timely
appealed. We shall provide additional facts as necessary for our analysis.
STANDARD OF REVIEW
“We review the trial court’s grant of [JCI’s] motion for judgment de novo,
considering the evidence and reasonable inferences drawn from the evidence in the light
most favorable to the non-moving party.” Thomas v. Panco Mgmt. of Md., LLC, 423 Md.
387, 393-94 (2011) (citing C & M Builders, LLC v. Strub, 420 Md. 268, 290 (2011)).
DISCUSSION
Appellants argue that the circuit court erred in concluding that JCI did not owe a
duty to warn Mrs. Schatz. Specifically, they claim that: 1) the court erred “in finding that
household members constitute an indeterminate class, contrary to the holding in Farrar”;
and 2) “[U]nder Farrar, a duty to warn extended to household members beginning in 1972
when OSHA[3] promulgated safety regulations dealing specifically with the problem of
tracking asbestos dust on clothing into the home.” We first explain why JCI did not have
a duty to warn Mrs. Schatz of the danger of exposure to its asbestos ropes. Though not
3
Occupational Safety and Health Administration.
3
material to our holding, we then briefly address the court’s finding that Mrs. Schatz did not
belong to a “definite determinative class” under Farrar.
I. JCI DID NOT OWE A DUTY TO MRS. SCHATZ
The parties to this appeal dispute whether JCI owed a duty to warn Mrs. Schatz of
the dangers of its asbestos product. In Farrar, a case directly on point, the Court of Appeals
discussed whether a manufacturer and supplier of an asbestos product had a duty to warn
the family member of a bystander who was exposed to its product. 432 Md. at 526. There,
John Hentgen (“Mr. Hentgen”), a mechanic in the construction industry, worked on a
project at the Forrestal Building in Washington D.C. for a six or seven-month period from
1968 to 1969. Id. at 525. While there, Mr. Hentgen worked in the immediate vicinity of
workers who would install drywall and then apply a “Georgia Pacific Ready-Mix joint
compound to smooth the joints between the drywall slabs.” Id. at 525-26. During the time
that Mr. Hentgen worked at the Forrestal Building, Georgia Pacific’s “Ready-Mix
contained asbestos, and the sanding created a great deal of dust that got on Mr. Hentgen’s
clothes, hair, and skin.” Id. at 526.
At the end of each work week, Mr. Hentgen would bring his work clothes home to
be washed. Id. at 525. Jocelyn Farrar (“Ms. Farrar”), the plaintiff in that case, was Mr.
Hentgen’s granddaughter. Id. “During her teenage years in the 1960s, Ms. Farrar and her
sister shared the task of shaking out Mr. Hentgen’s work clothes, which were covered with
asbestos-laden dust, laundering them, and sweeping the dust from the floor.” Id.
Unfortunately, Ms. Farrar was diagnosed with mesothelioma in 2008. Id.
4
Ms. Farrar filed claims against more than thirty defendants, including Georgia
Pacific, alleging, inter alia, strict liability and negligence claims. Id. at 526. After the jury
ruled in Ms. Farrar’s favor, Georgia Pacific appealed, arguing that the trial court had erred
in denying its motion for judgment because it had no duty to warn Ms. Farrar. Id. After
this Court affirmed the circuit court’s judgment, the Court of Appeals reversed, agreeing
with Georgia Pacific that it did not have a duty to warn persons such as Ms. Farrar. Id.
In discussing whether Georgia Pacific had a duty to warn, the Court of Appeals
explained that “[a]t its core, the determination of whether a duty exists represents a policy
question of whether the specific plaintiff is entitled to protection from the defendant.” Id.
at 529 (quoting Gourdine v. Crews, 405 Md. 722, 745 (2008)). The Court recognized that
“[t]here is no set formula for the determination of whether a duty exists,” but stated that it
“applied a ‘foreseeability of harm’ test, ‘which is based upon the recognition that duty must
be limited to avoid liability for unreasonably remote circumstances[.]’” Id. at 529 (quoting
Doe v. Pharmacia & Upjohn Co., 388 Md. 407, 415 (2005)). The Court cautioned,
however, that “[w]hile foreseeability is often considered among the most important of [the]
factors, its existence alone does not suffice to establish a duty under Maryland law.” Id. at
530 (quoting Gourdine, 405 Md. at 745-46).
After establishing the overarching policy considerations, the Court narrowed its
focus for determining the existence of a duty:
What we find from a survey of our case law and that in other States is that
whether a duty to warn extends to individuals such as Ms. Farrar depends, in
large part, on (1) who is being sued and on what theory, and (2) when a
manufacturer or supplier of an asbestos product is sued for failure to warn
the household member, (i) when the exposures occurred—in effect, what the
5
defendant knew or reasonably should have known about the dangers of
household exposure at the time the warning should have been given, and (ii)
the relative weight to be given to foreseeability, as opposed to other factors,
such as the relationship between the parties and the feasibility or burden of
providing warnings, under the State’s negligence and product liability law.
Id. at 531-32 (emphasis added). Put simply, the Court stated that in a household member’s
product liability action against a manufacturer for failure to warn, the existence of a duty
is determined by two factors. The first factor is what the manufacturer knew or reasonably
should have known about the dangers posed to household members when the exposures
occurred—the “foreseeability of harm.” Id. The second factor involves weighing the
foreseeability of harm against other policy-based factors, including the relationship
between the parties and the feasibility of providing warnings. Id.
Because Ms. Farrar, a household member, had sued Georgia Pacific, a
manufacturer, for failure to warn, the Court first considered what Georgia Pacific knew or
should have known about the dangers to household members at the time the exposure
occurred. Although the evidence at trial showed that a 1960 article from South Africa
recognized the concern for household member exposure to asbestos, experts for both
parties regarded a 1965 study from England as more significant. Id. at 536-37. The Court
noted, however, that “The clear and most widely broadcast breakthrough came in June
1972, when OSHA adopted regulations dealing specifically with the problem of tracking
asbestos dust on clothing into the home.” Id. at 537. The Court did not appear to resolve
when Georgia Pacific was charged with knowledge of the danger its asbestos product posed
to household members, and simply concluded that discussion by stating, “We have made
clear that the fact that an individual or class of individuals is foreseeably within a zone of
6
danger, though important, is not the sole criterion in determining a duty to warn, even in a
product liability case.” Id. at 540.
Though recognizing the relevance of the manufacturer’s knowledge of harm at the
time of the exposure, the Court weighed competing policy considerations to determine
whether a duty existed. The Court stated,
Determining the existence of a duty requires the weighing of policy
considerations, among which are whether, in light of the relationship (or lack
of relationship) between the party alleged to have the duty and the party to
whom the duty is alleged to run, there is a feasible way of carrying out that
duty and having some reason to believe that a warning will be effective. To
impose a duty that either cannot feasibly be implemented or, even if
implemented, would have no practical effect would be poor public policy
indeed.
Id. at 540. In other words, the Court considered the feasibility of warning the household
member, and how effective that warning would be. Id. Regarding the feasibility of Georgia
Pacific warning Ms. Farrar, the Court expressed doubt that, in the era before home
computers and social media,
manufacturers and suppliers of products containing asbestos could have
directly warned household members who had no connection with the
product, the manufacturer or supplier of the product, the worker’s employer,
or the owner of the premises where the asbestos product was being used, not
to have contact with dusty work clothes of household members who were
occupationally exposed to asbestos.
Id. at 540-41. Due to the lack of any relationship between Georgia Pacific and Ms. Farrar,
the Court held that there was no feasible way to warn.
After discussing the feasibility of the warning, the Court considered how effective
the manufacturer’s warning to workers and bystanders would have been. The Court stated,
7
Assuming such warnings would, in fact, have reached the workers,
much less bystanders, until the 1972 OSHA regulations were adopted, unless
employers or the owners of premises where asbestos dust would be present
voluntarily provided protective clothing, changing rooms, and safe
laundering—which the record before us does not suggest was done by any of
Mr. Hentgen’s employers or existed at any facility where Mr. Hentgen
worked—what were the workers to do? Mr. Hentgen did the best he could
by keeping his work clothes in the car all week and bringing them home only
on the weekend to be laundered, but that proved insufficient. The simple fact
is that, even if Georgia Pacific should have foreseen back in 1968-69 that
individuals such as Ms. Farrar were in a zone of danger, there was no
practical way that any warning given by it to any of the suggested
intermediaries would or could have avoided that danger.
Id. at 541. Because the evidence did not show what effective measures Mr. Hentgen could
have taken to shield individuals such as Ms. Farrar from the zone of danger, the Court
concluded that a warning would not have prevented harm to individuals such as Ms. Farrar.
Id. Because the Court held that it was not feasible for Georgia Pacific to warn Ms. Farrar,
and that a warning (even if feasible) would not have effectively prevented harm, the Court
found that Georgia Pacific did not owe a duty in 1968-69 to warn Ms. Farrar of the danger
of asbestos dust on her grandfather’s clothes. Id.
Naturally, appellants attempt to distinguish their case from Farrar. They first
contend that, by 1972, household members were within a foreseeable zone of danger. They
go on to argue that “JCI owed a duty to warn even if it was not feasible to directly warn
household members.” Finally, appellants claim that a warning to the workers would have
been effective because of OSHA’s 1972 regulations. We shall address each contention in
turn.
8
A. The Foreseeable Zone of Danger in June 1972
Appellants first claim that a duty to warn extended to household members starting
in 1972 because OSHA had promulgated safety regulations for tracking asbestos dust into
the home. Borrowing language from Farrar, appellants essentially argue that JCI “knew
or reasonably should have known about the dangers of household exposure at the time the
warning should have been given[.]” Id. at 531. To support this argument, appellants note
that Farrar stated that “The clear and most widely broadcast breakthrough came in June
1972, when OSHA adopted regulations dealing specifically with the problem of tracking
asbestos dust on clothing into the home.” Id. at 537. Inferentially, appellants argue that
this language means that, as a matter of law, manufacturers and suppliers of asbestos knew
about the dangers of household exposure, at the latest, by June 1972.
Whether Farrar stands for that broad proposition is substantially immaterial to our
analysis. In Farrar, the Court noted that the evidence varied on the actual date upon which
Georgia Pacific knew or should have known of the dangers. An expert for Georgia Pacific
referenced an article from 1960 recognizing the potential harm to household members, but
the Court stated that “The study that experts from both sides regarded as more significant
was . . . in 1965.” Id. at 536-37. Despite evidence from Georgia Pacific that it may have
or reasonably should have known of the dangers of asbestos to household members at the
time of exposure, the Court ultimately gave less weight to the foreseeability of harm, and
more weight to the other policy factors. The Court stated, “We have made clear that the
fact that an individual or class of individuals is foreseeably within a zone of danger, though
important, is not the sole criterion in determining a duty to warn, even in a product liability
9
case.” Id. at 540. Like the Court in Farrar, we shall give greater weight to the policy
considerations.
B. Feasibility of Warning Mrs. Schatz
Appellants next argue that JCI “owed a duty to warn even if it was not feasible to
directly warn household members.” According to appellants, “Farrar does not require it
to be feasible for [JCI] to have warned the household member directly. To the contrary,
Farrar makes clear that [JCI] could have warned ‘intermediaries.’” In support of this
argument, appellants claim “Farrar listed various intermediaries, suggested by the
plaintiff, who could have been warned: ‘distributors of the product, the owners of land on
which the product was used, contractors who supervised the workers, and union officials.’”
Appellants misconstrue the “feasibility” discussion in Farrar.
First, the Court never stated that the feasibility of the warning depended on the
ability of the manufacturer to warn an intermediary. Instead, the Court focused on the
ability of the manufacturer to warn the household member. Discussing feasibility, the
Court stated,
With respect to implementation, in an era before home computers and
social media, it is not at all clear how hundreds or thousands of
manufacturers and suppliers of products containing asbestos could have
directly warned household members who had no connection with the
product, the manufacturer or supplier of the product, the worker’s employer,
or the owner of the premises where the asbestos product was being used, not
to have contact with dusty work clothes of household members who were
occupationally exposed to asbestos.
Id. at 540-41 (emphasis added). It is clear from the Court’s discussion that the feasibility
of the warning applied to the household member as opposed to an intermediary.
10
Next, we disagree with appellants that Farrar provided a list of approved
intermediaries in its feasibility discussion. The passage in Farrar from which appellants
find support for warning intermediaries reads as follows:
The best that the plaintiff offers in her brief was for Georgia Pacific to have
“spread the word” to distributors of the product, the owners of land on which
the product was used, contractors who supervised the workers, and union
officials, and rely on them to inform everyone working in the vicinity of
asbestos. Presumably, the word to be spread was that asbestos dust collected
on work clothes could be dangerous if brought into the home.
Id. at 541 (emphasis added). Nowhere in the opinion did the Court of Appeals approve of
the list of intermediaries appellants rely on to bolster their argument here. Instead, the
Court was reciting the contents of the plaintiff’s appellate brief. In fact, the only reference
to “intermediaries” in the entire opinion appears in the Court’s “effectiveness” discussion,
where the Court stated,
The simple fact is that, even if Georgia Pacific should have foreseen back in
1968-69 that individuals such as Ms. Farrar were in a zone of danger, there
was no practical way that any warning given by it to any of the suggested
intermediaries would or could have avoided that danger.
Id. We do not construe this statement as establishing the duty to warn an intermediary. In
fact, the Court of Appeals has rejected the notion that a duty to warn extends to a plaintiff
simply because of the plaintiff’s relationship to an intermediary.
In Dehn v. Edgecombe, the Court of Appeals held that a doctor’s duty to warn did
not extend to his patient’s spouse simply because of the relationship between the patient
and the spouse. 384 Md. 606, 610 (2005). There, Mr. and Mrs. Dehn sued Mr. Dehn’s
family doctor, Dr. Edgecombe, for negligence related to an unsuccessful vasectomy. Id.After the trial court found that Dr. Edgecombe did not owe Mrs. Dehn a duty and dismissed
11
her negligence claims, Mrs. Dehn appealed. Id. at 615. The Court of Appeals upheld the
dismissal, stating that it was not “willing to impose a legal duty on Dr. Edgecombe with
regard to Mrs. Dehn based simply on his alleged awareness that Mr. Dehn was married.”
Id. at 626. Rather than rely on Mrs. Dehn’s relationship to an intermediary—her
husband—the Court instead required a special relationship between the plaintiff, Mrs.
Dehn, and the defendant, Dr. Edgecombe. The Court stated, “A duty of care does not
accrue purely by virtue of the marital status of the patient alone; some greater relational
nexus between doctor and patient’s spouse must be established[.]” Id. The Court rejected
the notion that the duty to warn extended to the plaintiff by virtue of the plaintiff’s
relationship to an intermediary. Instead, an actual relationship between the plaintiff and
defendant was necessary to impose a legal duty.
Although Dehn involved a doctor-patient relationship, the Court of Appeals applied
the same reasoning to a case between an employer and an employee’s spouse in Doe v.
Pharmacia & Upjohn Co., Inc., 388 Md. 407 (2005). There, the Court of Appeals
addressed “whether Pharmacia had a legal duty to protect Ms. Doe from injury or harm by
exercising reasonable care in testing Mr. Doe and by warning him of the possibility that he
had contracted HIV-2.” Id. at 414 (emphasis added). Ms. Doe claimed that Pharmacia
owed her a duty because it was responsible for informing Mr. Doe of his test results and
protecting his health. Id. at 420. The Court of Appeals rejected this argument, stating, “In
this context, an employer could owe a duty to a third party [Ms. Doe] only in extraordinary
circumstances. Such extraordinary circumstances do not exist in this case. Ms. Doe had
no relationship with Pharmacia.” Id. Rather than find that the duty to warn extended by
12
way of an intermediary, the Court instead required a relationship between the plaintiff and
defendant. Cf. Adams v. Owens-Illinois, 119 Md. App. 395, 411 (1998) (holding that duty
owed to employee was not relevant in establishing duty to employee’s spouse).
In both Dehn and Doe, the Court of Appeals considered whether the duty to warn
extended to a spouse whose husband had a direct relationship with the defendant. In both
cases, the Court rejected the notion that the duty extended to the spouse simply because the
defendant was obligated to warn the intermediary spouse. Accordingly, Maryland courts
have not accepted appellant’s “intermediary argument,” and we decline to do so here.
Even assuming, arguendo, that Maryland permitted warning intermediaries to
establish a duty, we note that the record here is devoid of any evidence to support their
“intermediary” theory. Indeed, nowhere in the portion of Mr. Schatz’s deposition which
was introduced at trial did he explain what he would have done to warn Mrs. Schatz had
he himself been warned of the dangers of asbestos. Accordingly, we reject appellants’
argument that a duty extended to Mrs. Schatz because of the feasibility of warning Mr.
Schatz. 4
4
In a footnote in their brief, appellants attempt to overcome the lack of evidence on
this issue by contending that, “it must be presumed that, had he been warned, Mr. Schatz
would have sought recourse from [BG&E] and, if necessary, from [Maryland Occupational
Safety and Health].” (Emphasis added). Appellant’s “heeding presumption” argument
relies on the assumption that JCI was required to warn Mr. Schatz—an intermediary—who
would presumably take steps to protect Mrs. Schatz—the injured person. As we have
explained above, the duty to warn does not extend simply because the defendant has the
ability or obligation to warn an intermediary. Doe, 388 Md. at 420; Dehn, 384 Md. at 626.
Accordingly, it does not matter if Mr. Schatz would have presumptively heeded a
13
C. The Effect of Warning Workers in 1972
Finally, appellants argue that it would have been effective to warn workers such as
Mr. Schatz because they could have forced compliance with OSHA’s 1972 regulations.
According to appellants, “had [JCI] warned Mr. Schatz, he had recourse via a complaint to
MOSH[5] to compel the provision of safe laundering.” We see two problems with this
argument.
First, because Mrs. Schatz was the injured party, the analysis should focus on JCI’s
duty to warn Mrs. Schatz, not Mr. Schatz. In claiming that it was practical to warn Mr.
Schatz in 1972 because the workers had recourse, appellants change the party to whom JCI
allegedly owed its duty to warn. As stated above, the relationship (or lack thereof) of the
parties is a relevant factor in determining the existence of a duty to warn. Farrar, 432 Md.
at 529. As in Farrar, there is no apparent relationship between JCI, the manufacturer, and
Mrs. Schatz, the household member.
Second, assuming it would have been legally sufficient for JCI to warn Mr. Schatz,
the evidence adduced at trial failed to demonstrate what Mr. Schatz would or could have
done to limit asbestos exposure to Mrs. Schatz.6 Even if Farrar expressly permitted the
hypothetical warning when determining JCI’s duty to Mrs. Schatz. JCI had no relationship
with Mrs. Schatz.
5
Maryland Occupational Safety and Health.
6
At oral argument, appellants noted that BG&E provided showers and changing
rooms which Mr. Schatz used. The existence of these facilities, however, does not impact
the fact that Mrs. Schatz was allegedly exposed to asbestos when washing Mr. Schatz’s
work clothes.
14
warning to flow through an intermediary (which it does not), we reject appellants’
argument that Mr. Schatz’s alleged recourse via a complaint to MOSH proved that a
warning would have been effective. In Farrar, the Court of Appeals noted that, even had
Georgia Pacific warned workers and bystanders, the workers themselves were powerless
to reasonably contain the asbestos without protective clothing, changing rooms and safe
laundering facilities. Id. at 541. Similarly here, the circuit court found that
The evidence does not support a finding that Mr. Schatz could as a matter of
course leave his dusty clothes at BG&E each Friday or even on evenings and
expect that they would be laundered when he returned to work. The
occasional laundering testified to of overalls which were supplied by BG&E
does not change that.
In both Farrar and the instant case, there was no evidence to show that a warning would
have been effective.
Because there was no evidence tending to show that it was feasible for JCI to warn
Mrs. Schatz, and no evidence tending to show how any such warning would have been
effective, Farrar instructs that JCI had no duty to warn Mrs. Schatz. Accordingly, the
circuit court did not err in granting JCI’s motion for judgment.
II. HOUSEHOLD MEMBERS AS AN INDETERMINATE CLASS
Finally, we address appellants’ argument that “The Circuit Court erred in finding
that household members constitute an indeterminate class, contrary to the holding in
Farrar.” In issuing its ruling from the bench, the court stated “Unfortunately, for plaintiff
in our case there is no definite determinative class.” Appellants correctly state that, in
Farrar, the Court of Appeals, in a footnote, stated
15
In attempting to illustrate the impossibility of determining the
universe of persons who may need to be warned if the plaintiff’s argument is
accepted, Georgia Pacific raises the prospect of whether, if the worker rides
a bus home or stops at a bar or grocery store on the way home, the duty to
warn would extend to the bus driver, other passengers on the bus, the
bartender, other patrons in the bar, the cashier in the grocery store, or other
customers. That is not what is before us. We are dealing only with household
members, who constitute an identifiable class of individuals.
Id. at 535 n.2 (emphasis added). We do not interpret this footnote as holding that a duty to
warn extends to household members because they constitute an identifiable class of
individuals. Because we have already explained why a warning in this case was neither
feasible nor likely to be effective, any error by the court in essentially concluding that Mrs.
Schatz was not in an “identifiable class of individuals” was harmless.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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