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Eagle-Picher Industries Inc. v. Balbos8/29/1990
laintiff there did not present evidence regarding the distance asbestos dust travels on air currents. More significantly, for purposes of our discussion of the "substantial factor" jury instruction, Lohrmann also is readily distinguishable from the case sub judice because the injured worker in that case suffered from asbestosis, a noncancerous disease, rather than mesothelioma. A medical expert
testified there that "even thirty days exposure, more or less, was insignificant as a causal factor in producing [asbestosis]." 782 F.2d at 1163. In the case before us, Dr. Nicholson testified that mesothelioma can occur from asbestos exposures that are too low to cause asbestosis. (E.305) Thus, Lohrmann is inapposite and provides no support for Celotex's version of the jury instruction.
As the authors, W. Prosser & W. P. Keeton, of The Law of Torts (5th ed. 1984) pointed out, "It has been considered that 'substantial factor' is a phrase sufficiently intelligible to furnish an adequate guide in instructions to the jury and that it is neither possible nor desirable to reduce it to any lower terms." Id. at 267. That line of reasoning was manifested in the trial judge's comments on the instruction Celotex requested: " ubstantial factor means substantial factor and I think any ordinary person gets the drift of what that means and I don't see where all of the additional language adds a great deal to it." Such logic makes eminent good sense.
6.
Plaintiffs failed to present legally sufficient evidence to establish that the defendants' failure to place warnings on their products amounted to negligence.
To have a right of action in negligence, a plaintiff must show (1) that the defendant owed him a duty, (2) that the defendant breached that duty, and (3) that the breach caused harm to the plaintiff. Myers v. Montgomery Ward & Co., 253 Md. 282, 291, 252 A.2d 855(1969). Two of the appellants appear to argue that appellees failed to meet the second Myers requirement; four (including one of the first two) contend that appellees failed to meet the third requirement. We disagree and hold that appellees sufficiently proved that the appellants were negligent in failing to place warnings on their asbestos-containing products.
A. Breach of Duty
We said in Banks v. Iron Hustler Corp., 59 Md. App. 408, 475 A.2d 1243(1984), that
Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn . . . . And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury.
Id. at 423, 475 A.2d 1243(quoting Fowler v. Smith, 240 Md. 240, 246, 213 A.2d 549(1965) (emphasis in Fowler)). We went on to say that the test of legal sufficiency is "whether the evidence serves to prove a fact or permits an inference of fact that would enable an ordinarily intelligent mind to draw a rational conclusion therefrom
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