United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
Frank Hrubetz & Co., involved personal injuries, there is no indication from these opinions that the continuing duty to warn should be restricted to personal injury actions. In fact, one of the leading cases cited in Zenobia for the principle that a post-sale warning may be appropriate is LaBelle v. McCauley Ind. Corp., 649 F.2d 46 (1st Cir. 1981), a negligent failure to warn case involving only injury to property. See also, e.g., Island Creek Coal Co. v. Lake Shore, Inc., 832 F.2d 274 (4th Cir. 1987) (recognizing a post-sale duty to warn in a negligence action to recover property damages resulting from the breakdown of machinery); Jones v. Bender Welding & Machine Works, Inc., 581 F.2d 1331, 1338 (9th Cir. 1978); Industrial Sugars, Inc. v. Standard Accident Insurance Co., 338 F.2d 673 (7th Cir. 1964);
Clint W. Smith, Post-Sale Warnings: Products That Go "Bump" in the Night, 1984 Ariz. St. L.J. 719, 722.
As discussed in Part I of this opinion, an asbestos abatement case does not simply involve the loss of the defective product itself. Asbestospray's argument overlooks the risk posed to building users when the asbestos-containing products remain undiscovered, or improperly maintained, or unjustifiably in place because of a lack of a post-sale warning.
Moreover, we reject the defendant's contention that, as a matter of law, an asbestos removal plaintiff's injury is fixed upon the sale of the materials to the plaintiff, so that the failure to issue a post-sale warning can cause no additional injury. Contrary to the court's view in County of Anderson v. U.S. Gypsum Co., supra, it is clear to us that, in an action for the cost of discovering, managing, rectifying the effects of, and removing asbestos-containing materials, the plaintiff's damages are not necessarily fixed upon sale or installation. A warning given after a manufacturer has released the product may, in some instances, come in time to avoid installation. More commonly, when the product has been distributed and installed before knowledge of the defect reasonably could be attributed to the manufacturer, a warning later given when knowledge becomes available may still effect a savings to the consumer, because the costs of removal, replacement, and cleaning will likely be less at that time than at a later time when the consumer learns of the defect. In this case, for example, the record contains evidence of a significant increase in the cost of asbestos removal between 1984 and 1992. The trial judge instructed the jury that a post-distribution warning was required "if the warning would help to prevent or lessen the harm," and that an award could be made only for damages "proven to be a consequence of the defendant's conduct."
Finally, Asbestospray argues that, on the evidence, the City failed to demonstrate that it would have lessened its damages had it received an earlier warning. The defendant's contention is based in part on the argument that the City has not completely removed all of the Asbestospray products from its
buildings. It also claims that, since the cost of the City's operations and management program was determined to be a fixed amount per school per year, an earlier warning would only have increased operations costs in buildings in which the City has not yet removed all asbestos-containing materials.
In our view, however, we need not explore this point, since this Court has long recognized a presumption that plaintiffs would have heeded a legally adequate warning had one been given. See Eagle-Picher v. Balbos, 326 Md. 179, 227-229, 604 A.2d 445, 468-469 (1992); Owens-Illinois v. Armstrong, 326 Md. 107,
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