Basil-Flippen v. Gen. Elec. Co.

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THERESA R. BASIL-FLIPPEN, et al. v. GENERAL ELECTRIC COMPANY, et al.

No. 1427-2022

Court of Special Appeals of Maryland

February 8, 2024

UNREPORTED ^[*]

Circuit Court for Baltimore City Case No. 24-X-20-000061

Nazarian, Tang, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

OPINION

Battaglia, J Barbara Basil's ("Ms. Basil") death due to mesothelioma as a result of her alleged exposure to asbestos dust forms the context of the present appeal.^[1] According to the pleadings filed in the case, Ms. Basil was exposed to asbestos dust when she laundered her husband's clothes while he worked to install asbestos insulation on a turbine generator at the Morgantown Generating Station, an electric generating plant, in Charles County, Maryland. Ms. Basil initially filed a complaint in the Circuit Court for Baltimore City asserting various bases: a strict products liability claim for failure to warn and for defective design, a breach of implied warranty of merchantability claim, and a negligence claim against seven companies associated with her alleged exposure to asbestos: Paramount Global (hereinafter "Westinghouse"),^[2] AC&R Insulation Company, General Electric Company,^[3] Hampshire Industries, Inc., Kraft-Murphy Company, Metropolitan Life Insurance Company,^[4] and the Walter E. Campbell Company.^[5] After Ms. Basil's death in 2021, her Estate and her children, Theresa Basil-Flippen and Dennis Basil, Appellants here (collectively "Ms. Basil-Flippen"), filed an amended complaint asserting an additional claim for wrongful death. Appellee Westinghouse successfully moved for summary judgment on the grounds that it was not liable to Ms. Basil-Flippen because it could not be held liable for the negligent work practices of a subcontractor and that the turbine was not a product for the purposes of strict products liability.

Ms. Basil-Flippen presents the following question^[6] on appeal:^[7]

Whether the trial court erred in granting summary judgment in favor of Westinghouse on [Appellants'] strict liability design defect claim where the evidence demonstrated that Westinghouse manufactured, designed, specified and sold a defective and unreasonably dangerous product-a turbine-inclusive of third-party manufactured asbestos insulation components, which was a substantial and contributing cause of Ms. Basil's mesothelioma and death.

We shall affirm the Circuit Court's grant of summary judgment to Westinghouse.

RELEVANT LAW

We begin with a brief overview of the doctrine of strict liability. The Supreme Court of Maryland (then the Court of Appeals) adopted Section 402A of the Restatement (Second) of Torts in Phipps v. General Motors Corp., 278 Md. 337 (1976). Phipps identified the language of the Restatement (Second) as follows:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Phipps, 278 Md. at 341 (quoting Restatement (Second) of Torts § 402A (1965)). The Court explained that strict liability under Section 402A has four "essential elements":

(1) the product was in a defective condition at the time that it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of the injuries, and (4) that the product was expected to and did reach the consumer without substantial change in its condition.

Id. at 344. Essentially, Section 402A "extended the liability of sellers by prescribing a doctrine of strict liability as to those in the chain of distribution." Stein v. Pfizer, Inc., 228 Md.App. 72, 90 (2016). The Supreme Court later explained that the "Phipps opinion expressly indicated that [its] adoption of [Section] 402A included the official comments." Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 436 (1992) (citing Phipps, 278 Md. at 346).

The Phipps opinion articulated that the test for a defect is whether the product was "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him" at the time the product left the seller's control. Phipps, 278 Md. at 344 (quoting Restatement (Second) of Torts § 402A cmt. g (1965)). To be unreasonably dangerous, the article sold must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. (quoting Restatement (Second) of Torts § 402A cmt. i). Thus, consumer expectation constitutes the primary basis for the determination of whether a product is in defective condition.^[8] According to the evolution of the doctrine, a product may be in defective condition in three different ways. Simpson v. Standard Container Co., 72 Md.App. 199, 203 (1987). A manufacturing defect may exist if there is "a flaw in the product at the time the defendant sold it, making the product more dangerous than was intended." Id. Further, there may be a defect for failure to warn if the producer does not adequately warn of a risk or hazard in the product's design. Id. Finally, a design defect may exist if "what proves to be a defect was actually intended by the manufacturer," in which "the inquiry focuses on the product itself" rather than the actions of the manufacturer. Klein v. Sears, Roebuck &Co., 92 Md.App. 477, 485 (1992).

Two issues that arise in relation to strict products liability are pertinent to this case: who is a seller of the product and when does liability for a defective product attach? We shall address these in turn.

Comment f of Section 402A of the Restatement (Second) states, "this Section applies to any person engaged in the business of selling products for use or consumption. It therefore applies to any manufacturer of such a product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant." As this Court stated in Stein, 228 Md.App. at 91-92, "in all jurisdictions that had adopted Section 402A (including Maryland), strict products liability was imposed on all entities in the distribution chain of a defective product."

A related issue is who, as a seller, is liable for an injury arising from a defective component part that is "part of a product to be assembled by another." Restatement (Second) of Torts § 402A cmt. q. The Restatement (Second) did not mandate when strict liability would attach when a component part is defective but anticipated that "where there is no change in the component part itself, but it is merely incorporated into something larger, the strict liability will be found to carry through to the ultimate user or consumer," rather than to the assembler. Id. In Ford Motor Co. v. Wood, 119 Md.App. 1, 34 (1998), abrogated on other grounds by John Crane, Inc. v. Scribner, 369 Md. 369 (2002), Judge James R. Eyler, writing for this Court, examined the justifications for "assembler's liability":

As a general matter, however, those courts that have considered the issue have held that a vehicle manufacturer may be held liable in damages for defective component parts manufactured by another only if the vehicle manufacturer incorporated the defective component into its finished product. Such liability, often referred to as "assembler's liability," is justified because the assembler derives an economic benefit from the sale of a product that incorporates the component; the assembler has the ability to test and inspect the component when it is within its possession; and, by including the component in its finished product, the assembler represents to the consumer and ultimate user that the component is safe.

(Citations omitted.)

Beyond explaining when liability attaches to a "seller," Section 402A applies only when an injury results from a "product." Restatement (Second) of Torts § 402A cmt. a. Section 402A does not define "product," and neither this Court nor the Supreme Court of Maryland has provided a definition.^[9] The plot thickens in the circumstance where the "product" at issue is incorporated into an improvement to real property. Strict liability is negated, however, for injuries resulting from dangerous conditions on real property or improvements because negligence concepts apply to real property pursuant to Comment a of Section 385 of the Restatement (Second) entitled "Persons Creating Artificial Conditions on Land on Behalf of Possessor: Physical Harm Caused After Work has been Accepted," cited with approval by the Supreme Court in Council of Co-Owners Atlantic Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 28 (1986). See also id. at 32 ("The duty of the architects and the builders in this case, to use due care in the design, inspection, and construction of this condominium extended to those persons foreseeably subject to the risk of personal injury created, as here, by a latent and unreasonably dangerous condition resulting from their negligence." (emphasis added)).

In this sense, the "improvement" is "[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement,...