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Michigan Supreme Court Lansing, Michigan

Opinion
In re CERTIFIED QUESTION FROM THE FOURTEENTH DISTRICT COURT OF APPEALS OF TEXAS, _______________________________ GLENN MILLER, ESTATE OF CAROLYN MILLER, SHAWN DEAN, JOHN ROLAND, and ALMA ROLAND, Plaintiffs, v FORD MOTOR COMPANY, Defendant. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 25, 2007

No. 131517

Plaintiffs filed suit in Texas against defendant, alleging that the decedent contracted mesothelioma from washing the work clothes of her stepfather who worked for independent contractors who were hired by defendant to reline the interiors of blast furnaces with materials that contained asbestos. A jury found in

favor of plaintiffs. Pursuant to MCR 7.305(B), the Fourteenth District Court of Appeals of Texas certified the following question to this Court: Whether, under Michigan law, Ford, as owner of the property on which asbestos-containing products were located, owed to Carolyn Miller, who was never on or near that property, a legal duty specified in the jury charge submitted by the trial court,[1] to protect her from exposure to any asbestos fibers carried home on the clothing of a member of Carolyn Miller's household who was working on that property as the employee of an independent contractor. Having granted the request to answer the certified question, and having heard oral argument, we answer the question in the negative.2 Under Michigan

The jury was asked to decide whether defendant was negligent and was instructed that "[n]egligence is the failure to use ordinary care." Therefore, the legal duty specified in the jury charge submitted by the trial court was the duty to use ordinary care. Justice Weaver restates her belief that this Court lacks the authority to answer certified questions, but she has not prevailed on this issue. See, e.g., In re Certified Question (Kenneth Henes Special Projects Procurement v Continental Biomass Industries, Inc), 468 Mich 109; 659 NW2d 597 (2003); In re Certified Question (Wayne Co v Philip Morris, Inc), 465 Mich 537, 543-545; 638 NW2d 409 (2002), certified questions in which Justice Weaver participated in this Court's substantive decisions. For one justice's response to Justice Weaver's constitutional arguments, see In re Certified Question (Melson v Prime Ins Syndicate, Inc), 472 Mich 1225, 1231-1242 (2005) (Markman, J., dissenting). Moreover, we see no constitutional distinction in whether a certified question has come to this Court from another state's supreme court or from its court of appeals. See MCR 7.305(B) (allowing this Court to consider certified questions from a "federal court, state appellate court, or tribal court"). Concerning Justice Cavanagh's solicitude for Justice Young's "constitutional conscience," post at 1-2, Justice Young, like Justice Weaver, has written that this Court lacks the authority to answer certified questions, but his position did not carry the day. See Melson, supra at 1226 (Young, J., concurring). (continued...)
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law, Ford, as owner of the property on which asbestos-containing products were located, did not owe to Carolyn Miller, who was never on or near that property, a legal duty to protect her from exposure to any asbestos fibers carried home on the clothing of a member of her household who was working on that property as the employee of independent contractors, where there was no further relationship between defendant and Miller. Having answered the certified question, we now return the matter to the Fourteenth District Court of Appeals of Texas for such further proceedings as that court deems appropriate. I. FACTS AND PROCEDURAL HISTORY Plaintiffs allege that the decedent, Carolyn Miller, died from mesothelioma, an incurable and fatal form of lung cancer, that she contracted from washing the

(...continued) Five justices, including Justice Cavanagh, disagreed. Just as Justice Cavanagh is within his rights as a supporter of certified questions not to answer a certified question in a particular case (his position here), Justice Young as an opponent of certified questions is within his rights to answer a certified question, because this is now a part of our state's "judicial power." Indeed, Justice Young has previously answered certified questions and, in fact, authored a majority opinion responding to a certified question. Kenneth Henes, supra. Justice Young also joined Justice Cavanagh's opinion in Wayne Co, supra. This is obviously all well known to Justice Cavanagh, who made no similar objections to Justice Young's participation in these previous cases in which he and Justice Young were in agreement on the results. In respecting that the law is the law even where he disagrees with that law, Justice Young's determination to respect the majority position of this Court and to participate in certified questions is the only honorable position that could be taken by a justice of this Court.

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work clothes of her stepfather, Cleveland "John" Roland.3 From 1954 through 1965, Roland worked for independent contractors who were hired on various occasions by defendant to reline the interiors of blast furnaces used to melt iron ore at the Ford Rouge plant in Dearborn, Michigan. Plaintiffs allege that the materials used to reline the interiors of the blast furnaces contained asbestos. There is no dispute that Miller was never on or near defendant's premises. Miller was diagnosed with mesothelioma in 1999 and died in 2000. After the Texas trial court denied defendant's motion for a directed verdict, a Texas jury awarded plaintiffs $9.5 million for Carolyn Miller's death on the basis of a theory of negligence.4 After the trial court denied defendant's motion for judgment

notwithstanding the verdict, defendant filed an appeal in the Fourteenth District Court of Appeals of Texas. At defendant's request and over plaintiffs' objections, the Fourteenth District Court of Appeals of Texas certified the above-quoted question to this Court. We granted the request to answer the question and heard oral argument. 477 Mich 1277 (2006).

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

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Michigan Law