Miller v. Ford Motor Co. , 479 Mich. 498 ( 2007 )

MARKMAN, J.

Plaintiffs filed suit in Texas against defendant, alleging that the decedent contracted mesothelioma from washing the work clothes of her stepfather, who worked for independent contractors hired by defendant to reline the interiors of blast furnaces with materials that contained asbestos. A jury found in favor of plaintiffs. Pursuant to MCR 7.305(B), the Fourteenth District Court of Appeals of Texas certified the following question to this Court:

Whether, under Michigan law, Ford, as owner of the property on which asbestos-containing products were located, owed to Carolyn Miller, who was never on or near that property, a legal duty specified in the jury charge submitted by the trial court,[¹] to protect her from exposure to any asbestos fibers carried home on the clothing of a member of Carolyn Miller’s household who was working on that property as the employee of an independent contractor.

Having granted the request to answer the certified question, and having heard oral argument, we answer the question in the negative.² Under Michigan law, Ford, as the owner of the property on which asbestos-containing products were located, did not owe to Carolyn Miller, who was never on or near that property, a legal duty to protect her from exposure to any asbestos fibers carried home on the clothing of a member of her household who was working on that property as the employee of independent contractors, where there was no further relationship between defendant and Miller. Having answered the certified question, we now return the matter to the Fourteenth District Court of Appeals of Texas for such further proceedings as that court deems appropriate.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs allege that the decedent, Carolyn Miller, died from mesothelioma, an incurable and fatal form of lung cancer, that she contracted from washing the work clothes of her stepfather, Cleveland “John” Roland.³ From 1954 through 1965, Roland worked for independent contractors who were hired on various occasions by defendant to reline the interiors of blast furnaces used to melt iron ore at the Ford Rouge plant in Dearborn, Michigan. Plaintiffs allege that the materials used to reline the interiors of the blast furnaces contained asbestos. There is no dispute that Miller was never on or near defendant’s premises. Miller was diagnosed with mesothelioma in 1999 and died in 2000. After the Texas trial court denied defendant’s motion for a directed verdict, a Texas jury awarded plaintiffs $9.5 million for Carolyn Miller’s death on the basis of a theory of negligence.⁴ After the trial court denied defendant’s motion for judgment notwithstanding the verdict, defendaht filed an appeal in the Fourteenth District Court of Appeals of Texas. At defendant’s request and over plaintiffs’ objections, the Fourteenth District Court of Appeals of Texas certified the above-quoted question to this Court. We granted the request to answer the question and heard oral argument. 477 Mich 1277 (2006).

II. STANDARD OF REVIEW

Whether a defendant owes a duty to a plaintiff to avoid negligent conduct is a question of law that is reviewed de novo.⁵ Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004), citing Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995).

III. ANALYSIS

A. LEGAL DUTY IN GENERAL

There is no dispute among the parties that the substantive law of Michigan governs plaintiffs’ claims.⁶ In Michigan, “the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides after assessing the competing policy considerations for and against recognizing the asserted duty.” Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981). That is, “ ‘ “[d]uty” is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Buczkowski v McKay, 441 Mich 96, 100-101; 490 NW2d 330 (1992), quoting Friedman, supra at 22 n 9, quoting Prosser, Torts (4th ed), § 53, pp 325-326.⁷ Thus, the ultimate inquiry in determining whether a legal duty should be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty. The inquiry involves considering, among any other relevant considerations, “ ‘the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’ ” Dyer, supra at 49, quoting Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997), citing Buczkowski, supra at 100.

The most important factor to be considered is the relationship of the parties. “[A] duty arises out of the existence of a relationship ‘between the parties of such a character that social policy justifies’ its imposition.” Dyer, supra at 49, quoting Prosser & Keeton, Torts (5th ed), § 56, p 374. “ ‘The determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor’s part to act for the benefit of the subsequently injured person.’ ” Buczkowski, supra at 101 n 5, quoting Rodriguez v Sportsmen’s Congress, 159 Mich App 265, 270; 406 NW2d 207 (1987). “The duty to protect others against harm from third persons is based on a relationship between the parties.” Buczkowski, supra at 103, citing Prosser & Keeton, Torts (5th ed), § 56, p 385. “Only if the law recognizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to liability for negligent conduct.” Friedman, supra at 22. “Duty... ‘concerns “the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.” ’ ” Buczkowski, supra at 100, quoting Friedman, supra at 22, quoting Prosser, Torts (4th ed), § 53, p 324. See also Buczkowski, supra at 100 (referring to “duty” as “the relational obligation between the plaintiff and the defendant”).⁸

In Dyer, this Court focused exclusively on the relationship between the parties to determine whether the defendant owed the plaintiff a legal duty. We concluded that because there was only a limited relationship between the parties, only a limited duty could be imposed on the defendant. More specifically, we concluded that because there was only a limited relationship between the defendant physician performing the independent medical examination (IME) and the plaintiff patient, the physician only owed a limited duty to the patient, i.e., a duty to perform an IME in a manner not causing physical harm to the patient. In reaching this decision, we explained that “the duty of care in a medical malpractice action has its basis in the relationship between the physician and the patient.” Dyer, supra at 50. Because we found that only a limited relationship existed, we did not even address the other factors, i.e., the foreseeability of the harm, the burden on the defendant, or the nature of the risk presented. Consideration of the other factors was unnecessary because when there is only a limited relationship between the parties, only a limited duty can be imposed.

In Buczkowski, this Court similarly focused exclusively on the relationship between the parties to determine whether the defendant owed the plaintiff a legal duty. We concluded that because there was no relationship between the parties, no duty could be imposed on the defendant. More specifically, this Court concluded that because there was no relationship between the retailer who sold the shotgun ammunition to the intoxicated customer and the bystander who was injured by the use of the ammunition, the retailer owed no duty to the bystander. We explained, “Our ultimate decision turns on whether a sufficient relationship exists between a retailer and a third party to impose a duty under these circumstances.” Buczkowski, supra at 103. Because we found that no relationship existed, we again did not even address the other factors. This was unnecessary because when there is no relationship between the parties, no duty can be imposed.

On the other hand, even when there is a relationship between the parties, a legal duty does not necessarily exist. In order to determine whether a duty exists, the other enumerated factors must also be considered. The foreseeability of the harm is one of these. Just as the existence of a relationship between the parties is not dispositive, that the harm was foreseeable is also not dispositive. A defendant does not have a duty to protect everybody from all foreseeable harms. Although foreseeability is a factor to be considered, “other considerations may be, and usually are, more important.” Id. at 101.

“[T]he mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. Also, to require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law usually refers to as a duty on the part of the actor.” [Id., quoting Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975).]

When the harm is not foreseeable, no duty can be imposed on the defendant. But when the harm is foreseeable, a duty still does not necessarily exist.⁹

To summarize, in determining whether a defendant owes a duty to a plaintiff, competing policy factors must be considered. Such considerations include the relationship of the parties, the foreseeability of the harm, the burden that would be imposed on the defendant, and the nature of the risk presented. Where there is no relationship between the parties, no duty can be imposed, but where there is a relationship, the other factors must be considered to determine whether a duty should be imposed. Likewise, where the harm is not foreseeable, no duty can be imposed, but where the harm is foreseeable, other factors must be considered to determine whether a duty should be imposed. Before a duty can be imposed, there must be a relationship between the parties and the harm must have been foreseeable. Once it is determined that there is a relationship and that the harm was foreseeable, the burden that would be imposed on the defendant and the nature of the risk presented must be assessed to determine whether a duty should be imposed.¹⁰

B. DUTY WITH REGARD TO ASBESTOS LIABILITY

Because this Court has never addressed whether property owners owe a duty to protect people who have never been on or near their property from exposure to asbestos carried home on a household member’s clothing, it is helpful to review the decisions of other courts that have addressed this issue.

In CSX Transportation, Inc v Williams, 278 Ga 888, 891; 608 SE2d 208 (2005), the Supreme Court of Georgia, answering a certified question from the United States Court of Appeals for the Eleventh Circuit, held that “an employer does not owe a duty of care to a third-party, non-employee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace.” That court explained:

“ ‘[I]n fixing the bounds of duty, not only logic and science, but policy play an important role.’ However, it must also be recognized that there is a responsibility to consider the larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree. The recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs. Accordingly, we decline to promulgate a policy which would extend the common law so as to bring the ... plaintiff[s] within a class of people whose interests are entitled to protection from the defendant’s conduct.” [Id. at 890, quoting Widera v Ettco Wire & Cable Corp, 204 AD2d 306, 307-308; 611 NYS2d 569 (1994) (other citations omitted).][¹¹]

In In re New York City Asbestos Litigation, 5 NY3d 486; 806 NYS2d 146; 840 NE2d 115 (2005), New York’s highest court held that the defendant owed no duty to the defendant’s employee’s wife, who was allegedly injured from exposure to asbestos the employee introduced into the family home on soiled work clothes that the plaintiff wife laundered. That court explained:

“¡Tjn determining whether a duty exists, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree”____“Foreseeability, alone, does not define duty____” ... A specific duty is required because otherwise, a defendant would be subjected “to limitless liabiliiy to an indeterminate class of persons conceivably injured” by its negligent acts.... “Moreover, any extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs.” [Id. at 493, quoting Hamilton v Beretta USA Corp, 96 NY2d 222, 232; 727 NYS2d 7; 750 NE2d 1055 (2001) (other citations and internal quotation marks omitted).]

The court was concerned about “limitless liability” and questioned why, if a duty was owed to an employee’s spouse, a duty would not also be owed to the employee’s babysitter or an employee of a neighborhood laundry. In re New York City Asbestos Litigation, supra at 498.

[W]e must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality. [Id.]

The court explained, “[T]he ‘specter of limitless liability’ is banished only when ‘the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship.’ Here, there is no relationship between the [defendant] and [the defendant’s employee’s wife].” Id., quoting Hamilton, supra at 233. The court held that because there was no relationship between the defendant and the defendant’s employee’s wife, no duty could be imposed.

In Adams v Owens-Illinois, Inc, 119 Md App 395; 705 A2d 58 (1998), the Maryland Court of Special Appeals held that the defendant did not owe a duty to the defendant’s employee’s wife who was allegedly exposed to asbestos from her husband’s clothes. The court explained:

If liability for exposure to asbestos could be premised on Mary Wild’s handling of her husband’s clothing, presumably Bethlehem would owe a duty to others who came in close contact with Edwin Wild, including other family members, automobile passengers, and co-workers. Bethlehem owed no duty to strangers based upon providing a safe workplace for employees. [Id. at 411.]

In Zimko v American Cyanamid, 905 So 2d 465, 482 (La App, 2005), the Louisiana Court of Appeals, “recognizing] the novelty of the duty,” held that the defendant owed a duty to the defendant’s employee’s son who was allegedly exposed to asbestos from his father’s work clothes that he brought home. However, the Louisiana court relied exclusively on a New York intermediate appellate court decision that was subsequently reversed by New York’s highest court. As explained by New York’s highest court, “The [Zimko] court summarized [New York’s intermediate appellate court’s] decision . . . and, without providing an independent analysis, concluded that the father’s employer owed a duty of care to the son.” In re New York City Asbestos Litigation, supra at 496. Because the court in Zimko relied exclusively on a decision that has since been reversed, we do not find Zimko persuasive.

After New York’s highest court reversed the decision by New York’s intermediate appellate court in In re New York City of Asbestos Litigation, the Louisiana Court of Appeals reaffirmed its decision in Zimko. Chaisson v Avondale Industries, Inc, 947 So 2d 171 (La App, 2006). However, "(Louisiana relies more heavily upon foreseeability in its duty/risk analysis . ...” Id. at 182. Unlike Louisiana, Michigan relies more on the relationship between the parties than foreseeability in determining whether a duty exists.

In addition, in Louisiana, unlike in Michigan, “a ‘no duty’ defense in a negligence case is seldom appropriate,” Zimko, supra at 482; “resolution of a negligence case based on a finding that a defendant has ‘no duty’ should be reserved for the exceptional situation,” id. at 482-483, such as “cases involving ‘failure to act, injuries to unborn victims, negligently inflicted mental anguish or purely economic harm unaccompanied by physical trauma to the claimant or his property,’ ” id. at 482 n 19 (citation and emphasis omitted). In Michigan, however, “[o]nly if the law recognizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to liability for negligent conduct.” Friedman, supra at 22. See also Murdock, supra at 53 (“Only after finding that a duty exists may the fact-finder determine whether, in light of the particular facts of the case, there was a breach of the duty.”). For these reasons, we do not find Chaisson persuasive.

In Olivo v Owens-Illinois, Inc, 186 NJ 394; 895 A2d 1143 (2006), the New Jersey Supreme Court held that if the defendant owed a duty to the worker, the defendant owed a duty to the wife of the worker who was exposed to asbestos when she washed the clothes of her husband, who was hired by an independent contractor to perform work at the defendant’s premises.¹² However, as explained by the New York Court of Appeals, “Olivo is distinguishable legally in that New Jersey, unlike New York, relies heavily on foreseeability in its duty analysis.” In re New York City Asbestos Litigation, supra at 497. In Olivo, supra at 402, the New Jersey Supreme Court described “foreseeability of harm” as “ ‘ “a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate.” ’ ” (Citations omitted.) It further explained that, “in respect of a landowner’s liability, whether a duty of care can be owed to one who is injured from a dangerous condition on the premises, to which the victim is exposed off-premises, devolves to a question of foreseeability of the risk of harm to that individual or identifiable class of individuals.” Id. at 403. However, as explained above, Michigan, like New York, relies more on the relationship between the parties than foreseeability of harm when determining whether a duty exists.¹³ For this reason, we do not find Olivo persuasive.¹⁴

C. APPLICATION TO THIS CASE

As explained above, under Michigan law, the ultimate inquiry in determining whether a legal duty should be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing that duty. The inquiry involves considering, among any other relevant considerations: “ ‘the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’ ” Dyer, supra at 49 (citations omitted).

In the instant case, the relationship between Miller and defendant was highly tenuous — defendant hired an independent contractor who hired Roland who lived in a house with Miller, his stepdaughter, who sometimes washed his clothes.¹⁵ Miller had never been on or near defendant’s property and had no further relationship with defendant. Therefore, the “relationship between the parties” prong of the duty test, which is the most important prong in this state, strongly suggests that no duty should be imposed.¹⁶

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

Given what we know about asbestos today, i.e., that there is a causal relationship between exposure to asbestos and mesothelioma, and assuming that defendant directed the independent contractor to work with asbestos-containing materials, the “nature of the risk” was serious. Therefore, the “nature of the risk” prong suggests that a duty should be imposed.

However, the “foreseeability of the harm” prong suggests that no duty should be imposed. From 1954 to 1965, the period during which Roland worked at defendant’s plant, we did not know what we know today about the hazards of asbestos. See Exxon Mobil Corp v Altimore, 2007 Tex App LEXIS 2971 (Tex App, 2007) (holding that because the Occupational Health and Safety Administration did not promulgate regulations prohibiting employers from allowing workers who had been exposed to asbestos to wear their work clothes home until 1972, the risk of “take home” asbestos exposure was not foreseeable to Exxon Mobil before 1972, and, thus, Exxon Mobil did not owe a duty to the plaintiff, who was allegedly exposed to asbestos brought home on her husband’s clothes from 1942 to 1972). Further, plaintiffs’ own expert conceded that the first published literature suggesting a “specific attribution to washing of clothes” was not published until 1965. Joint appendix at 897a. Therefore, the risk of “take home” asbestos exposure was, in all likelihood, not foreseeable by defendant while Roland was working at defendant’s premises from 1954 to 1965.¹⁸

Because the ultimate inquiry in determining whether a duty should be imposed involves balancing the social benefits of imposing a duty with the social costs of imposing that duty, we cannot decide whether a duty should be imposed without “assessing the competing policy considerations . . . .” Friedman, supra at 22. We must be “concerned with whether it is appropriate public policy to impose liability. . . .” Smith, supra at 716 n 24. “ ‘ “[I]n fixing the bounds of duty, not only logic and science, but policy play an important role.” ’ ” CSX Transportation, supra at 890, quoting Widera, supra at 307 (other citations omitted). “ ‘[T]here is a responsibility to consider the larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree.’ ” CSX Transportation, supra at 890, quoting Widera, supra at 307. “ ‘[I]n determining whether a duty exists, courts must be mindful of the precedential... effects of their rulings, and limit the legal consequences of wrongs to a controllable degree.’ ” In re New York City Asbestos Litigation, supra at 493, quoting Hamilton, supra at 232 (other citations and internal quotation marks omitted). “ ‘Moreover, any extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs.’ ” Id.

As the United States Supreme Court has recognized, this country is experiencing an “asbestos-litigation crisis” as a result of the “ ‘elephantine mass of asbestos cases’ lodged in state and federal courts . . . .” Norfolk & W R Co v Ayers, 538 US 135, 166; 123 S Ct 1210; 155 L Ed 2d 261 (2003) (citation omitted). Asbestos claims have given rise to one of the most costly products-liability crises ever within our nation’s legal system. “Asbestos claims continue to pour in at an extraordinary rate [and] scores of employers have been forced into bankruptcy.” Behrens & Cruz-Alvarez, A potential new frontier in asbestos litigation: Premises owner liability for “take home” exposure claims, 21 Mealey’s Litig Rep Abs 1,4 (2006). Some commentators have said that “[b]efore it ends, the litigation may cost up to $195 billion — on top of the $70 billion spent through 2002.” Id. These same commentators have explained:

Premises owner liability for “take home” exposure injuries represents the latest frontier in asbestos litigation. These actions clearly involve highly sympathetic plaintiffs. Yet, as several leading courts have appreciated, the law should not be driven by emotion or mere foreseeability. Broader public policy impacts must be considered, including the very real possibility that imposition of an expansive new duty on premises owners for off-site exposures would exacerbate the current “asbestos-litigation crisis.” Plaintiffs’ attorneys could begin naming countless employers directly in asbestos and other mass tort actions brought by remotely exposed persons such as extended family members, renters, house guests, carpool members, bus drivers, and workers at commercial enterprises visited by the worker when he or she was wearing dirty work clothes ....

Furthermore, adoption of a new duty rule for employers could bring about a perverse result: nonemployees with secondary exposures could have greater rights to sue and potentially reap far greater recoveries than employees. Namely, secondarily exposed nonemployees could obtain noneconomic damages, such as pain and suffering, and possibly even punitive damages; these awards are not generally available to injured employees under workers’ compensation. [Jd. at 5.]

In Henry v Dow Chemical Co, 473 Mich 63; 701 NW2d 684 (2005), this Court held that mere exposure to a negligently released dioxin, a synthetic chemical that is potentially hazardous to human health, does not give rise to a negligence action. We explained:

[W]e have on occasion allowed for the development of the common law as circumstances and considerations of public policy have required. But as Justice YOUNG has recently observed, our common-law jurisprudence has been guided by a number of prudential principles. See YOUNG, A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299,305-310 (2004). Among them has been our attempt to “avoid capricious departures from bedrock legal rules as such tectonic shifts might produce unforeseen and undesirable consequences,” id. at 307, a principle that is quite applicable to the present case.

Plaintiffs have asked us to recognize a cause of action that departs drastically from our traditional notions of a valid negligence claim.[¹⁹] Beyond this enormous shift in our tort jurisprudence, judicial recognition of plaintiffs’ claim may also have undesirable effects that neither we nor the parties can satisfactorily predict. For example, recognizing a cause of action based solely on exposure — one without a requirement of a present injury — would create a potentially limitless pool of plaintiffs. \Id. at 83 (citations and emphasis omitted).]

Just as recognizing a cause of action based solely on exposure would create a potentially limitless pool of plaintiffs, so too would imposing a duty on a landowner to anybody who comes into contact with somebody who has been on the landowner’s property. “We would be unwise, to say the least, to alter the common law in the manner requested by plaintiffs when it is unclear what the consequences of such a decision may be and when we have strong suspicions ... that they may well be disastrous.” Id. at 88 (citation omitted). “The recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs.[²⁰] Accordingly, we decline to promulgate a policy which would extend the common law so as to bring the ... plaintiff[s] within a class of people whose interests are entitled to protection from the defendant’s conduct.” CSX Transportation, supra at 890 (citation omitted).²¹

Finally, plaintiffs argue that under the “inherently dangerous activity” doctrine, property owners may owe a duty to somebody who has never been on their property even where they do not owe a duty to their own employees or the employees of an independent contractor that they have hired. Plaintiffs are correct that under the “inherently dangerous activity” doctrine, property owners may owe a duty to a person who has never been on their property even though they owe no duty to their employees or the employees of their independent contractors. DeShambo v Anderson, 471 Mich 27, 38; 684 NW2d 332 (2004). However, the “inherently dangerous activity” doctrine is not at all applicable to the instant case. “[U]nder this doctrine, the landowner must itself owe some duty to the specific third party,. . . the negligent act that causes the injury cannot be collateral to the work contracted for, and .. . the injury that occurs must be reasonably expected by the landowner.” Id. at 34.

First, for the reasons discussed above, defendant owed no duty to Miller. In addition, the “inherently dangerous activity” doctrine only applies to persons on the defendant’s property, passing by the property, or on neighboring property. See Detroit v Corey, 9 Mich 165 (1861) (a passerby fell into a ditch); Darmstaetter v Moynahan, 27 Mich 188 (1873) (a passerby ran into a wall of ice); McWilliams v Detroit Central Mills Co, 31 Mich 274 (1875) (a passerby was run over by a railroad car); Rogers v Parker, 159 Mich 278; 123 NW 1109 (1909) (a fire spread to neighboring land); Inglis v Millersburg Driving Ass’n, 169 Mich 311; 136 NW 443 (1912) (a fire spread to the plaintiffs adjoining land); Olah v Katz, 234 Mich 112; 207 NW 892 (1926) (a neighbor’s child fell in a hole); Wight v H G Christman Co, 244 Mich 208; 221 NW 314 (1928) (sparks from a steam shovel started an adjacent house on fire); Watkins v Gabriel Steel Co, 260 Mich 692; 245 NW 801 (1932) (a worker fell from third story as a result of improperly fastened steel joists); Tillson v Consumers Power Co, 269 Mich 53; 256 NW 801 (1934) (excavation on property caused damage to an adjacent property); Grinnell v Carbide & Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937) (a boat exploded, seriously injuring its passengers); Barlow v Krieghoff Co, 310 Mich 195; 16 NW2d 715 (1944) (a child fell into a bucket of hot tar on an adjacent lot); McDonough v Gen Motors Corp, 388 Mich 430; 201 NW2d 609 (1972) (a boom fell on a worker); see also DeShambo, supra, at 33 (“ ‘ “[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see the doing of that which is necessary to prevent mischief, and cannot relieve himself of his responsibility by employing some one else.” ’ ”) (citations omitted; emphasis in the original); Prosser & Keeton, Torts (5th ed), § 71, p 514 (inherently dangerous activity doctrine is limited to activity that poses a “specific risk or set of risks to those in the vicinity”) (emphasis added). The “inherently dangerous activity” doctrine has never been applied to extend a property owner’s duty to somebody completely disconnected from the property.²²

Second, “the negligent act that causes the injury cannot be collateral to the work contracted for... .” DeShambo, supra at 34 (emphasis added). Here, the work contracted for was the relining of blast furnaces. Plaintiffs argue that defendant was negligent in providing the workers with materials that contained asbestos. This allegedly negligent act — providing unsafe materials — was “collateral” to the work contracted for —the relining of the blast furnaces.

Finally, “the injury that occurs must be reasonably expected by the landowner.” Id. As discussed above, the risk of “take home” asbestos exposure, in all likelihood, was not reasonably expected by defendant while Roland was working at defendant’s plant from 1954 to 1965. For these reasons, the “inherently dangerous activity doctrine” does not apply here.

rv. CONCLUSION

In Michigan, “the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides after assessing the competing policy considerations for and against recognizing the asserted duty.” Friedman, supra at 22. The social benefits of imposing a duty must outweigh the social costs of doing so. The inquiry involves considering, among any other relevant considerations: “ ‘the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’ ” Dyer, supra at 49, quoting Murdock, supra at 53, citing Buczkowski, supra at 100. However, the most important factor pertains to the relationship between the parties. Because any relationship between Miller and defendant was highly tenuous, the harm was, in all likelihood, not foreseeable, the burden on defendant would be onerous and unworkable, and the imposition of a duty, under these circumstances, would “ ‘expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs,’ ” CSX Transportation, supra at 890 (citation omitted), we conclude that a legal duty should not be imposed. For these reasons, we answer the certified question in the negative. That is, we hold that, under Michigan law, defendant, as owner of the property on which asbestos-containing products were located, did not owe to the deceased, who was never on or near that property, a legal duty to protect her from exposure to any asbestos fibers carried home on the clothing of a member of her household who was working on that property as the employee of independent contractors, where there was no further relationship between defendant and the deceased. Having answered the certified question, we now return the matter to the Fourteenth District Court of Appeals of Texas for such further proceedings as that court deems appropriate.

Taylor, C.J., and Corrigan and Young, JJ., concurred with MARKMAN, J.

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

2 Justice Weaver restates her belief that this Court lacks the authority to answer certified questions, but she has not prevailed on this issue. See, e.g., In re Certified Question (Kenneth Henes Special Projects Procurement v Continental Biomass Industries, Inc), 468 Mich 109; 659 NW2d 597 (2003); In re Certified Question (Wayne Co v Philip Morris, Inc), 465 Mich 537, 543-545; 638 NW2d 409 (2002), involving certified questions in which Justice Weaver participated in this Court’s substantive decisions. For one justice’s response to Justice Weaver’s constitutional arguments, see In re Certified Question (Melson v Prime Ins Syndicate, Inc), 472 Mich 1225, 1231-1242 (2005) (Markman, J., dissenting). Moreover, we see no constitutional distinction in whether a certified question has come to this Court from another state’s supreme court or from its court of appeals. See MCR 7.305(B) (allowing this Court to consider certified questions from a “federal court, state appellate court, or tribal court”).

Concerning Justice Cavanagh’s solicitude for Justice Young’s “constitutional conscience,” post at 526, Justice Young, like Justice Weaver, has written that this Court lacks the authority to answer certified questions, but his position did not carry the day. See Melson, supra at 1226 (Young, J., concurring). Five justices, including Justice Cavanagh, disagreed. Just as Justice Cavanagh is within his rights as a supporter of certified questions not to answer a certified question in a particular case (his position here), Justice Young as an opponent of certified questions is within his rights to answer a certified question, because this is now a part of our state’s “judicial power.” Indeed, Justice Young has previously answered certified questions and, in fact, authored a majority opinion responding to a certified question. Kenneth Henes, supra. Justice Young also joined Justice Cavanagh’s opinion in Wayne Co, supra. This is obviously all well known to Justice Cavanagh, who made no similar objections to Justice Young’s participation in these previous cases in which he and Justice Young were in agreement on the results. In respecting that the law is the law even where he disagrees with that law, Justice Young’s determination to respect the majority position of this Court and to participate in certified questions is the only honorable position that could be taken by a justice of this Court.

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

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

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

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

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

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

9 See Ross v Glaser, 220 Mich App 183, 196 n 1; 559 NW2d 331 (1996) (Markman, J., dissenting) (“[F]oreseeability is a necessary condition of duty, but not always a sufficient condition to establish duty!;] [t]hat foreseeability alone is insufficient to establish duty does not mean that a lack of foreseeability is insufficient to establish a lack of duty.”) (emphasis in the original).

10 Plaintiffs and Justice Cavanagh rely on the following two statements: found in Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967): “duty ... may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others” and “every person is under the general duty to so act, or to use that which he controls, as not to injure another.” However, they read these statements out of context. First, these statements immediately follow the statement that “[ajctionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law.” Id. at 260-261. Although Justice Cavanagh quotes this sentence, he fails to give it any meaning. Second, the Court subsequently addressed whether a relationship existed between the parties before it concluded that a duty was owed. Therefore, contrary to plaintiffs’ and Justice Cavanagh’s suggestion, Clark does not stand for the proposition that everybody owes a duty to everybody else.

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

12 It is important to note that the court did not hold that the defendant owed the worker’s wife a duty. In fact, it held that if the defendant owed no duty to the worker, the defendant necessarily owed no duty to the worker’s wife. Olivo, supra at 408 (If “no duty is owed to Anthonyt,] ... no derivative duty can be imposed on [the defendant] for Eleanor in respect of the exposure she experienced from asbestos borne home on Anthony’s work clothing.”). The court remanded the case because a question of fact existed regarding whether the defendant owed the worker a duly because the worker was an employee of an independent contractor.

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

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

15 Although Justice CAVANAGH attempts to downplay the importance of the relationship prong, he is unable to cite a single decision in which this Court has found that a duty existed where a relationship did not exist. Moreover, it is noteworthy that, although Justice CAVANAGH does not dispute that relationship, or lack thereof, constitutes a factor that must be considered, he says nothing at all about the relationship, or lack thereof, between Miller and the defendant in this case, other than a conclusory statement that there was a relationship between Roland and defendant and that such a relationship should “extend[]” to Miller. Post at 530.

16 Plaintiffs rely on Shepard v Redford Community Hosp, 151 Mich App 242; 390 NW2d 239 (1986). In Shepard, the plaintiff went to the defendant hospital and was diagnosed as suffering from an upper respiratory problem. In fact, the plaintiff was suffering from spinal meningitis. The plaintiffs son became infected with spinal meningitis and died. The Court of Appeals held that the defendant hospital owed the plaintiffs son a duty because it had a physician-patient relationship with the plaintiff. Shepard is distinguishable from the instant case because in Shepard there was a physician-patient relationship between the plaintiff mother and the defendant, while in the instant case there was not even an employer-employee relationship between the stepfather and defendant. Because Shepard is distinguishable, we do not need to address whether it was decided correctly; however, we do note that the Court of Appeals concluded that a duty was owed solely on the basis of the existence of a relationship. See Shepard, supra at 246 (“Because defendant had a special relationship with plaintiff, we conclude that defendant owed a duty of reasonable care to [plaintiffs son].”). As we explained above, although the nonexistence of a relationship precludes the imposition of a duty, the existence of a relationship does not require the imposition of a duty. Instead, where the existence of a relationship is found, the other factors must be considered before a duty can be imposed.

17 Justice Cavanagh contends that “the potential burden must be examined in this limited context, not extrapolated to all other imaginable potential litigants.” Post at 531 (emphasis added). He contends further that this question “should also be viewed in the extremely narrow confines of this particular case.” Post at 536. However, this is not how a court of law properly determines the existence, or nonexistence, of a legal duty, for such a determination will apply not only in the instant case but in the next 500 cases as well. One cannot assess “social benefits” and “social costs” by considering only a “particular” case or without considering other “potential litigants.” Unlike Justice CAVANAGH, we refuse to consider whether to impose a new legal duty without regard to the consequences of such a decision for future cases. As New York’s highest court explained:

Plaintiffs assure us that this will not lead to “limitless liability” because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises. This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short, as we pointed out in Hamilton, the “specter of limitless liability” is banished only when “the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship.” [In re New York City Asbestos Litigation, supra at 498, quoting Hamilton, supra at 233.]

Unlike Justice Cavanagh, the New York plaintiffs at least recognized that their burden in urging the creation of a new duty required an assessment of the consequences arising from such a duty for future cases. Moreover, Justice Cavanagh fails to offer any principled way of distinguishing the claims of household members from other potential claimants — for instance, a person who sat next to Roland on the bus every day after work — on the basis of “the social benefit of a healthy people.” Post at 544.

18 Justice CAVANAGH criticizes us for relying on Altimore rather than “the evidence produced at trial.” Post at 532. However, he fails to point to any “evidence produced at trial” that suggests that the harm was foreseeable. He states that “the transcripts are repeatedly cut off during what appears to be testimony shedding further light on the question of foreseeability.” Post at 535. If there are pages missing from the transcript that contain “testimony shedding further light on the question of foreseeability,” plaintiffs obviously could have included those pages. This is a matter for the Fourteenth District Court of Appeals of Texas, not this Court. That court has certified a question of law, and we have answered that question of law on the basis of the information that has been presented to us.

Also, contrary to Justice Cavanagh’s contention, it should come as no surprise to the parties that we are addressing foreseeability given that it is well-established law in Michigan that foreseeability, is a factor to be considered in determining whether a legal duty should be imposed. Nevertheless, “other considerations may be, and usually are, more important.” Buczkowski, supra at 101.

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

20 Justice Cavanagh would impose a duty here because the social benefit of compensating somebody for a loved one’s death is “tremendous.” Post at 538. We certainly do not quarrel with him in this characterization. However, we do not believe that this automatically allows courts to ignore the social costs of imposing a duty. Although every death, or serious injury, is indeed “tremendous,” this is no warrant for placing responsibility upon an inappropriate defendant. Not every death or serious injury, however genuinely “tremendous,” is legally compensable by someone else. Under Justice Cavanagh’s approach, no matter how attenuated or remote the relationship between the parties, if a plaintiff has suffered a death, or presumably any kind of serious injury, he or she would prevail. This is simply not the law in Michigan or in any other state. Nor could it be the law in any reasonably functioning society that desires that its resources be devoted to something other than litigation. Justice CAVANAGH would impose liability here because Carolyn Miller died. One need not fail to recognize the gravity of this occurrence to recognize that additional analysis is required under traditional legal rules.

21 Plaintiffs and Justice Cavanagh rely heavily on Olivo, supra at 405, which held that any duty owed to the members of a worker’s household constitutes a “derivative duty,” i.e., one derived from the duty owed to the worker himself. Thus, even under Olivo, no duty is owed to a worker’s household members unless a duty is owed to the worker himself. Justice Cavanagh, however, concludes that defendant owed Miller a duty without considering whether defendant owed Roland a duty. Because Roland was an employee of an independent contractor, defendant would have owed him a duty under Michigan law only if it could be shown that the “common work area” doctrine was satisfied and that defendant “retained control” over the work being performed. Ormsby v Capital Welding, Inc, 471 Mich 45, 55; 684 NW2d 320 (2004). To our knowledge, there was no evidence presented establishing the “ ‘unusually high degree of control’ ” over the relining projects required by Ormsby, supra at 55 (citation omitted). Indeed, the jury instructions given on this point seem inconsistent with Michigan law. However, given that we conclude that defendant owed no duty to Miller regardless of whether defendant owed a duty to Roland, it is not necessary for us to decide whether defendant owed a duty to Roland.

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