Tort Law’s Sleight of Hand – Part 2

There was sadly no dearth of cases of asbestosis or silicosis before the publication of the Restatement (Second) of Torts. Before 1965, legal doctrine and state and federal regulatory regimes saw the occupational lung disease problem as one of employers’ management of the workplace, and employer and employee compliance with regulations.[1]

Before the Restatement (Second) of Torts in 1965, cases against remote industrial suppliers were quite uncommon. In the first few decades of the 20th century, workers could still sue their employers in tort, and remote suppliers had a robust defense based upon reliance on the purchaser-employers’ obligation to provide a safe workplace. Even after the widespread adoption of worker compensation laws, the common law acknowledged that many “[c]hattels are often supplied for the use of others,” and provided an exception to liability rules based upon the facts and circumstances of the product, its use, the known hazards of its use, and the character of buyer.[2]

By the time of the Restatement (Second), most workplace accidents and injuries, including the development of occupationally related chronic diseases were covered by workers’ compensation statutes, which effectively barred lawsuits directly against employers.[3] Perversely, these statutes also granted employers liens against tort recoveries from remote suppliers, with the consequence of diluting the costs to the employer for failing to prevent injuries and disease the employer was uniquely positioned to avoid.

Section 402A certainly opened the way for applying products liability law to protect the employees of purchasers. Nonetheless, Section 388 of the First Restatement was carried forward to the Second, and arguably qualified the application of 402A, by providing a sophisticated intermediary sophisticated intermediary defense. This defense acknowledged the impossible burden placed upon a product supplier to warn every possible user of its product, especially in the industrial context where purchaser/employers maintain and control the safety of their workplace. Section 388 observed that responsibility for warning employees in many cases must be carried out by purchasers/employers of the product, who are in the best position to warn users/employees.

The language of Section 388 provides important limitations on the scope of Section 402A, from the same Restatement:

Section 388. Chattel Known to Be Dangerous for Intended Use

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Comment n to Section 388 observed that

“Modern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.”[4]

The tension between Sections 388 and 402A did not escape the attention of the Judge John Minor Wisdom, in the landmark asbestos case, Borel v. Fibreboard Paper Products Corporation.[5] The plaintiff had characterized the case as a consumer case, with the duty to warn him as the ultimate user. The defendants had argued that the danger was obvious and that some of them had issued “cautions,” which were on shipping cartons. Judge Wisdom, in writing for the court, inferred that such cautions were aimed only at contractor-purchasers, and not the ultimate users who were owed a warning under the law:

“We agree with the Restatement: a seller may be liable to the ultimate consumer or user for failure to give adequate warnings. The seller’s warning must be reasonably calculated to reach such persons, and the presence of an intermediate party will not by itself relieve the seller of this duty.”[6]

Judge Wisdom might have just as easily agreed with Restatement 388, especially considering that plaintiff Clarence Borel and his fellow insulators were well aware of the asbestosis hazard from excessive exposure in insulation work since 1930,[7] despite Borel’s equivocal trial testimony.[8] Of course, between 1930 and 1973, when Judge Wisdom wrote, the scientific, industrial, and regulatory community had become aware of a cancer risk from asbestos exposure. Still, the courts might have been mindful that there were several different types of asbestos, and there were a multiplicity of expert opinions about the carcinogenic potential of chrysotile as opposed to amphibole asbestos fibers. Indeed, one expert in the employ of the United States government, who would go on to become a major testifying expert witness for plaintiffs in asbestos litigation, opined in a 1973 publication, that mesothelioma was a problem limited to exposure to South African crocidolite, which was not in every asbestos-containing insulation product.[9]

In any event, Judge Wisdom never directly addressed Section 388, and the framing of the Borel case as a consumer case prevailed. There was nothing inevitable about the rejection of Section 388, in the context of asbestos personal injury actions. Many other so-called toxic torts have been legally detoxified by Section 388.[10]


[1]  See, e.g., New York “Industrial Code Rule No. 12 – Control of Air Contaminants” (1956) (governing “all processes and operations releasing or disseminating air contaminants in any workroom or work space,”  and defining the employer’s duties to protect workers, regardless of the industry sector or manufacturing process), based upon New York Labor Law § 200 (enacted 1921). See also James D. Hackett, “Silicosis,” N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198” (1946).

[2]  Restatement (First) of Torts § 388, & cmt. 1 (1934) .

[3]  Many state statutes withheld immunity from employers for intentional torts. See, e.g., Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A. 2d 505 (1985). Some state statutes limited the coverage for workers’ compensation to diseases that manifested within a certain time window during and after employment. Such limitations logically implied that employers had no immunity to claims that arose outside the time window. Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.2d 851, 864-65 (2013); see Ellen Relkin, “The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century,” 69 Rutgers Univ. L. Rev. 881, 881-83 (2017) (discussing Tooey and the perceived inadequacies of worker compensation statutes).

[4]  Restatement (Second) of Torts § 388 & cmt. n (1965).  In 1998, the ALI promulgated a restatement of products liability law, which carried forward the principles of Section 388. See Restatement (Third) of Torts: Products Liability § 2, and comment I (1998).

[5]  493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).

[6]  Id. at 1105.

[7]  “The Pulmonary Asbestosis Menance,” 9 The Asbestos Worker 9 (Sept. 1930) (warning about the dangers of asbestosis from occupational asbestos exposures, in the official monthly journal of the International Association of Heat and Frost Insulation and Asbestos Workes).

[8]  See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d at 1082.

[9]  Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” in Goodwin, Proceedings on the Symposium on Talc; U.S. Dep’t Interior Information Circular 8639 (1973).

[10]  Section 388 has been a dispositive legal defense in most silicosis cases. See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736, 739-40 (3d Cir. 1990) (Ohio law); Goodbar v. Whitehead Brothers, 591 F. Supp. 552, 561 (W.D. Va. 1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985) (Virginia law); Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003) (Iowa law); Haase v. Badger Mining Corp., 266 Wis. 2d 970 (Wis. Ct. App. 2003), aff’d, 274 Wis. 2d 143 (2004); Cowart v. Avondale Indus., 792 So. 2d 73 (La. Ct. App. 2001); Bates v. E.D. Bullard Co., 76 So. 3d 111 (La. App. 2011); Phillips v. A.P. Green Refractories Co., 428 Pa. Super. 167, 630 A.2d 874 (1993), aff’d on other grounds sub nom., Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995); Conley v. Air Liquide America Corp., Cuyahoga Cty. C.P. Case No. 516427 (July 15, 2008); Woodard v. Air Liquide, Cuyahoga Cty. C.P. Pleas No. CV-469127, Entry & Opinion No. 6405397 (Aug. 3, 2005); Pawlowski v. Air Liquide, Cuyahoga Cty. C.P. Case No. 499457 (Aug. 2, 2006); Huddleston v. Air Liquide, Cuyahoga Cty. C.P. Case Nos. 506488 and 510330 (Oct. 30, 2007).

The defense has operated to provide a complete legal defense in a large variety of toxic substance exposure cases. See, e.g., Hoffman v. Houghton Chemical Corp., 434 Mass. 624, 751 N.E.2d 848 (2001) (acetone and other chemicals in 55-gallon drums); Parker v. Schmiede Machine & Tool Corp., 445 Fed. Appx. 231 (11th Cir. 2011) (beryllium); Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 718 (E.D. Tenn. 2001) (beryllium); Byrd v. Brush Wellman, Inc., 753 F. Supp. 1403 (E.D. Tenn. 1990) (beryllium); Davis v. Avondale Indus., 975 F.2d 169, 174 (5th Cir. 1992) (cadmium in welding rods); Coffey v. Chemical Specialties, Inc., 4 F.3d 984, 1993 WL 318886 (4th Cir. 1993) (chromated copper arsenate); Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich. Ct. App. 1994) (cobalt dust); Kudzia v. Carboloy Division, General Electric Co., 190 Mich. App. 285, 475 N.W.2d 371 (1991) (same), aff’d, 439 Mich. 923, 479 N.W.2d 679 (1992); Tasca v. GTE Products Corp., 175 Mich. App. 617, 438 N.W.2d 625 (Mich. Ct. of App. 1989) (same); Kennedy v. Mobay Corp., 84 Md. App. 397 (1990) (toluene diisocyanate), aff’d, 325 Md. 385 (1992); Adams v. Union Carbide Corp., 737 F.2d 1453, 1455 (6th Cir.) (same), cert. denied, 469 U.S. 1062 (1984); O’Neal v. Celanese Corp., 10 F.3d 249, 254 (4th Cir. 1993) (lead fumes); Whitehead v. The Dycho Co., 775 S.W.2d 593, 597-98 (Tenn. 1989) (naphtha); Parkinson v. The California Co., 255 F.2d 265 (10th Cir. 1958) (natural gas); Strong v. E.I. Du Pont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981) (natural gas); Dusoe v. Union Carbide Corp., 2005 WL 705960, at *6 (Sup. Ct. Mass. Jan. 20, 2005) (oxygen regulator involved in explosion of welding system); Marker v. Universal Oil Prods. Co., 250 F.2d 603, 607 (10th Cir. 1957) (Okla. law) (petroleum refining process); Taylor v. Monsanto Co., 150 F.3d 806 (7th Cir. 1998) (polychlorinated biphenyls); Fisher v. Monsanto Co., 863 F.Supp. 285 (W.D. Va. 1994) (same); Wilson v. Glenro, Inc., 2012 WL 1005007 (D. Vt. Mar. 23, 2012) (polytetrafluoroethylene), aff’d, 2013 WL 1876598 (2d Cir. May 7, 2013); Newson v. Monsanto Corp., 869 F. Supp. 1255 (E.D. Mich. 1994) (polyvinyl butyl); Roney v. Gencorp, 654 F. Supp. 2d 501 (S.D.W.Va. 2009) (polyvinyl chloride); Pike v. Trinity Indus., Inc., 34 F. Supp. 3d 1193, 1199-1202 (M.D. Fla. 2014) (guardrails); Ditto v. Monsanto Co., 867 F. Supp. 585 (N.D. Ohio 1993), aff’d, 36 F.3d 1097 (6th Cir. 1994); Adams v. Union Carbide Corp., 737 F.2d 1453, 1456-57 (6th Cir.), cert. denied, 469 U.S. 1062 (1984); Midwest Specialities, Inc. v. Crown Industrial Prods. Co., 940 F. Supp. 1160, 1166 (N.D. Ohio 1996).

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