I'm not a torts professor. So I know only a little bit about duty. Though I understand the basics.
I also understand the problems with imposing unlimited duties. You want to confine torts to some degree. I get it.
But I think a visionary might decide this case a different way. Maybe even if you had only a little bit of vision. Or, perhaps, an admittedly clouded one (like mine).
The Court of Appeal holds that Ford Motor Company can't be sued for giving Mary Campbell mesothelioma because she never visited or worked in Ford's plant. So no duty.
I get it. You can see where the Court of Appeal is coming from.
But I think this is the perfect case to make a contrary holding. At least on these types of facts:
(1) There's virtually no doubt what caused Ms. Campbell's illness (and ultimate death). None. She contracted mesothelioma, which you pretty much only get from asbestos exposure. How'd she get exposed if she never worked in the plant herself? From when she was a little girl, she did the laundry for her family. Her father worked as . . . as asbestos insulator. Her brother worked as . . . as asbestos insultator. It's crystal clear to be that she inhaled tons of asbestos when she flapped off the dust from her family's clothing -- remember, this is back in the 1940s, so it's not like you just throw everything into the washer/dryer -- and hence got mesothelioma. That's what the jury found, and it was right.
(2) So asbestos caused her death. Causation's clear. Nor is this a case of an out-of-control verdict. The jury only found Ford five percent liable. Which means Ms. Campell gets an award of $40,000. That's relative chump change. We're not talking about a jury that went crazy.
So the question is simply: Should a business that indisputably caused someone's death by having toxic materials present, knowing that they are toxic, be liable for that death? Don't forget that what's true for a five percent liable entity is equally true for an entity that's one hundred percent liable. Does an entity that kills someone get off scot free if the person killed has never walked on their property?
If this were a criminal case, the answer would be clear. We order restitution for damages in cases far more attenuated than this one.
If this were a different types of torts case, we'd again say that a "duty" (or at least damages -- which are practically the same thing) exists. Imagine that Ms. Campbell's father was killed in front of her. Boom. Damages for Ms. Campbell. Emotional distress. A duty. Loss of consortium. Ditto.
We thus impose liability in all sorts of settings in which there's an intervening actor. Ford (as well as others) put the asbestos on the clothes that Ms. Campbell washed. It doesn't seem to me too far to say that they should be liable for doing so. At least if they knew, which the jury found they did.
Might I impose a higher standard of proof in cases like these? Maybe. I could definitely be persuaded to do so. Maybe in such situations you've got to prove damages by clear and convincing evidence. (A pretty easy showing here). Maybe I'll also limit liability to grossly negligent -- or reckless -- activities in which the defendant knows that what it's doing might cause damage. But, again, that won't negate Ford's liability here.
By contrast, it seems to me that saying categorically that there's no duty whatsoever -- none -- isn't the right (or necessary) way to go. When someone shoots a gun at X and hits Y, there's liability. When an entity dumps chemicals on X and hits Y, it seems to me that there can be liability there as well.
I think that thirty years ago, this case would have been decided a different way. For the better, I think.
