 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
F--> 517 A.2d at 345. Rather, we held that "where the risk is of death or personal injury the action will lie for recovery of the reasonable cost of correcting the dangerous condition," regardless of whether the damages constitute economic loss. Ibid. See also Village of Cross Keys v. U.S. Gypsum, 315 Md. 741, 753-754, 556 A.2d 1126, 1131-1132 (1989) (applying the rationale of Whiting-Turner to a claim for negligent misrepresentation involving a serious risk of physical harm).
Courts elsewhere, considering claims for the cost of asbestos removal, have similarly permitted the plaintiffs to proceed in tort based on allegations that the asbestos-containing materials posed a substantial and unreasonable risk of personal injury to building users. In 80 S. 8th St. Ltd. Ptsp. v. Carey-Canada, 486 N.W.2d 393, 397 (Minn. 1992), the Supreme Court of Minnesota rejected the defendant manufacturer's argument that the plaintiff's tort claim could not be maintained because it was for economic loss arising from the failure of asbestos-containing fireproofing to perform satisfactorily. The court permitted the plaintiff building owner to proceed in tort because, "in seeking the costs of maintenance, removal and replacement, 80 South Eighth seeks the costs of eliminating the risks of injury and of making the building safe for all those who use and occupy this property." Ibid. Just as this Court had earlier held in Whiting-Turner, supra, the Minnesota
court concluded by stating that, "rather than waiting for an occupant or user of the building to develop an asbestos-related injury , we believe building owners should be encouraged to abate the hazard to protect the public." 486 N.W.2d at 398. See generally James L. Connaughton, Recovery for Risk Comes of Age: Asbestos in Schools and the Duty to Abate a Latent Environmental Hazard, 83 Nw. U. L. Rev. 512, 528-529 (1989). But see Adams-Arapahoe School Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 872-873 (10th Cir. 1992).
Consequently, tort remedies were available to the City in this property damage case.
II.
Asbestospray argues that the trial court erroneously recognized, in a case involving property damages only, a post-sale continuing duty to warn. The challenge to the continuing duty to warn focuses both on the jury instructions and on the admission of evidence pertaining to actions taken after 1971, when all of the sales at issue were complete.
The trial court gave the following jury instruction with respect to both the City's negligence and strict liability counts:
"A manufacturer or seller also has a continuing duty to warn of product defects which the manufacturer or seller discovers after the time of sale. Therefore, if a manufacturer or a seller discovers a product defect after the time of sale, the manufacturer and/or the seller must make reasonable efforts to issue a post-sale warning if the warning would help to prevent or lessen the harm. The post-sale duty to warn requires reasonable efforts to inform users of the hazards once the manufacturer or seller is or should be aware of the need of a warning."
Asbestospray makes the following arguments as to why a continuing duty to warn was improperly injected into the trial below. First, the defendant maintains that a continuing duty to warn is applicable only in personal injury actions. Furthermore, it argues that even if such a duty applies in certain types of property damage cases, it should not apply under the
special circumstances presented by asbestos removal cases. Finally, Asbestospray contends that, if the continuing duty to warn is applicab
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|