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More limitations on premises liability

      The Michigan Supreme Court recently decided that a landowner conducting dangerous activity on his property should owe no duty to persons injured off the premises.  There is no Michigan statute which addresses this question, so the Court was required to analyze and address the issue as a matter of judge-made "common law".  The case involved the death of the wife of a worker who routinely laundered the worker's clothes and was exposed to asbestos fibers as a result.

         The Defendant's property was contaminated by asbestos.  The Plaintiff died after prolonged illness resulting from exposure to her husband's work clothing.  She laundered the clothing for him on a regular basis and no one disputed that her death was a result of contact with asbestos carried home from Defendant's property on her husband's clothing.

         The federal government has previously concluded, after substantial study, that no environmental exposure is more dangerous than asbestos.  It is extremely toxic with clearly demonstrated and substantial detrimental health effects.   Exxon Mobil knew of the "take-home" risk of asbestos as long ago as 1937, however, the majority of our Supreme Court ignored this confirmation of known risk.  Further, by government regulation a property owner is now required to manage and control the "take-home" risk of asbestos, as the health risk to off-site persons such as this housewife have been very clearly documented in prior years.

        As long ago as 1916, employers  were urged by safety publications to launder contaminated work clothing on site.  The Occupational Health and Safety Administration began regulating "take-home" clothing in 1972.  In the 1960s, admonitions about the safety of laundering asbestos-exposed clothing were documented, yet the "industrial apologists" on our Supreme Court not only refused to impose a legal duty; they also engaged in an intellectually superficial examination of the "foreseeability" of injury without a full hearing on the merits.  In other words, they gave lip service to a weighing of social cost and benefit without allowing the issue of negligence to be fully addressed.  After engaging in what it called a "weighing of competing social policy considerations" (i.e., the relative advantages and costs of imposing responsibility) the four right-wing jurists who speak for the Chamber of Commerce on the Michigan Supreme Court concluded that a property owner should owe no duty to a person injured when not on the premises, regardless of any issue of negligence.   One of the three dissenting Justices noted that the majority showed an unseemly interest in the corporate cost of regulating asbestos without giving any consideration to the health cost for individuals.  As Justice Kelly wrote, "it is a sad day" for our citizens when our Supreme Court responds to one of the greatest and most expensive environmental health catastrophes of our time by eliminating corporate responsibility and leaving individual victims to bear the associated cost.  It is also stupid public policy to impose that cost on the workers and their family who cannot control the risk, rather than placing the duty where it belongs:  on the entities with the knowledge, resources, authority and legal duty to impose appropriate controls.

      Oddly, Justice Young provided the deciding fourth vote in the case, despite his firmly-stated conviction that the Court lacked the constitutional basis to even decide the case.  We can only suppose that he was more interested in the (no liability) result than he was interested in the underlying legal analysis.

      Sadly, these Justices are so jaundiced and so deeply biased in favor of their corporate supporters that they simply cannot or will not recognize the costs borne by an injury victim.  They can read a spreadsheet pretty well (especially if it relates to corporate profits or campaign advertising expenditures); they don't do as well with the New Testament.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262