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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
le to this type of property damage case, the City failed to prove that a lack of a post-sale warning proximately caused any additional injury.
Relying upon County of Anderson v. U.S. Gypsum Co., No. CIV-3-83-511, (E.D. Tenn. May 3, 1985), aff'd, 821 F.2d 1230 (6th Cir. 1987), Asbestospray contends that this Court should decline to recognize a continuing duty to warn in cases brought to recover property damages only. In County of Anderson v. U.S. Gypsum, supra, the plaintiff school system sought to recover from the manufacturer the cost of removing asbestos-containing ceiling plaster from two of its schools. The plaintiff proceeded on a failure to warn theory, and sought to introduce evidence relevant to the defendant's continuing duty to warn consumers of the hazards of asbestos-containing building materials. The court refused to admit this evidence, since Tennessee law did not recognize a continuing duty to warn in non-personal injury tort cases. The fact that the plaintiff school board removed the ceilings "because it feared that personal injury might otherwise have resulted to building occupants and users" was not deemed to be a sufficient basis to recognize a continuing duty to warn in property damage cases. Moreover, the court in Anderson indicated that even if it were to recognize a continuing duty to warn in some property damage cases, such a duty would not apply in an action for the cost of discovering, managing and removing asbestos products. The Anderson court stated: "At most, a post-[sale] warning would merely have speeded up the decision to remove the asbestos-containing acoustical ceiling plaster. . . . There is no relationship between that timing and the actual cause of the plaintiff's damages." Id. at 3.
The opinions of this Court which have considered a continuing duty to warn, while all personal injury actions, have in no way limited the scope of the duty. Recently, in Owens-Illinois v. Zenobia, 325 Md. 420, 446-448, 601 A.2d 633, 645-647 (1992), we specifically addressed a product manufacturer's continuing duty to warn. The plaintiffs brought a strict
liability action under § 402A of the Restatement (Second) of Torts, for the failure to warn of the hazards of asbestos. One plaintiff, Zenobia, had been exposed to the defendant's asbestos products at work in 1948, in 1951-1952, and again in 1968, and had developed asbestosis as a result of this exposure. Zenobia, a cigarette smoker, argued that a post-exposure warning from Owens-Illinois about the link between smoking and asbestosis may have prevented aggravation of his disease. Owens-Illinois had stopped manufacturing asbestos in 1958, and argued that, as a matter of law, it had no duty whatsoever to warn of product hazards after that date. This Court upheld the imposition of a continuing duty to warn on a manufacturer who has discontinued its product line. After reviewing earlier cases, we stated: "Generally, a manufacturer of a defective product has a duty to warn of product defects which the manufacturer discovers after the time of sale." 325 Md. at 446, 601 A.2d at 645. This duty may continue from the point at which the product was introduced into commerce, or may arise even where the product was reasonably safe for use at the time of manufacture and sale. See Zenobia, 325 Md. at 446, 601 A.2d at 645; Rekab, Inc. v. Frank Hrubetz & Co., 261 Md. 141, 146, 274 A.2d 107, 110 (1971), quoting 1 Frumer & Friedman, Products Liability § 8.02, at 148.3.
As noted above, although both Zenobia, and the earlier opinion in Rekab, Inc. v.
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