Quinn v. General Electric: No Duty Required for Asbestos Design Defect Claims

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April 27, 2026 Get Citation Alerts Download PDF Add Note

Robin B. Quinn, Prsnl. Rep. for Jo Ann Allen v. General Electric Co.

Court of Appeals of Maryland

• Citations: None known
• Docket Number: 2m/25

• Judges: Watts

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.5K)

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Combined Opinion

by Shirley M. Watts

Robin B. Quinn, Personal Representative for Jo Ann Allen v. General Electric Company,
et al., Misc. No. 2, September Term, 2025

PRODUCTS LIABILITY – STRICT LIABILITY – DESIGN DEFECT –
ASBESTOS – Supreme Court of Maryland held that with respect to strict liability design
defect claim in asbestos product case, household member of consumer or user of product
at issue who alleges injury based on exposure, through no fault of their own, to asbestos
dust brought home on work clothing of consumer or user is not required to prove duty in
addition to four elements of strict liability action set forth in Phipps v. Gen. Motors Corp.,
278 Md. 337, 344, 363 A.2d 955, 958 (1976).

Supreme Court concluded that elements of strict liability design defect claim are distinct
from those of strict liability failure to warn and negligence claims. Case law addressing
whether defendant owes duty to plaintiff with respect to strict liability failure to warn claim
does not mandate that person in plaintiff’s position prove duty as element in asbestos
product strict liability design defect claim. Although concepts of negligence and strict
liability have morphed together in failure to warn cases, duty is not required element of
strict liability design defect claim for user and consumer or for person in plaintiff’s
position.
District of Columbia Court of Appeals
Case No. 24-CV-0199

District of Columbia Superior Court
IN THE SUPREME COURT
Case No. 2020-CA-003862-A
OF MARYLAND
Argued: November 4, 2025
Misc. No. 2

September Term, 2025

---

ROBIN B. QUINN, PERSONAL
REPRESENTATIVE FOR JO ANN ALLEN

v.

GENERAL ELECTRIC COMPANY, ET AL.

---

Fader, C.J.
Watts
Booth
Biran
Eaves
Killough
Raker, Irma S. (Senior Justice,
Specially Assigned),

Pursuant to the Maryland Uniform Electronic Legal JJ.
Materials Act (§§ 10-1601 et seq. of the State ______________________________________
Government Article) this document is authentic.

Opinion by Watts, J.
2026.04.27 14:00:48 ______________________________________
-04'00'
Filed: April 27, 2026
Gregory Hilton, Clerk
This case is before us pursuant to a certification order 1 of the District of Columbia
0F

Court of Appeals (“the Court of Appeals”), asking that we answer the following question:

Under Maryland law, in a strict liability design defect claim, must a plaintiff
who alleges that she was injured as a bystander (in contrast to a “user” or
“consumer” as defined in Valk Manufacturing Company v. Rangaswamy,
537 A.2d 622, 629 (Md. Ct. Spec. App. 1988), rev’d on other grounds, 562
A.2d 1246 (Md. 1989)) prove an additional element—the element of duty—
beyond the four “essential elements of an action in strict liability as set forth
in [the Restatement (Second) of Torts] § 402A,” Phipps v. General Motors
Co., 363 A.2d 955, 958 (Md. 1976), to recover, and if so, what factors are
used to determine whether a duty is owed?

(Alteration in original).

According to the certification order, in the Superior Court of the District of

Columbia (“the Superior Court”), the wife of a deceased worker brought a products liability

action, with a strict liability for design defect claim, against her husband’s former employer

and various other defendants, including General Electric Company (“General Electric”),

Appellee, seeking damages for mesothelioma and lung cancer caused by exposure to

asbestos from dust brought home on her former husband’s work clothes. The trial court

granted General Electric’s motion for summary judgment.

On appeal, the Court of Appeals vacated the trial court’s grant of summary judgment

and remanded the case for further proceedings. On remand, the trial court again granted

summary judgment in General Electric’s favor as to the strict liability design defect claim,

1
Pursuant to the Maryland Uniform Certification of Questions of Law Act, Md.
Code Ann., Cts. & Jud. Proc. (1974, 2020 Repl. Vol., 2023 Supp.) (“CJ”) §§ 12-601 to 12-
613, a court certifying a question to this Court shall issue a certification order setting forth
“(1) [t]he question of law to be answered; and [t]he facts relevant to the question[.]”
CJ § 12-606(a).
and the plaintiff appealed. After briefing and oral argument, the Court of Appeals certified

the question of law set forth above to this Court.

Because neither the information presented to this Court in the certification order nor

the Appellate Court of Maryland’s holding in Valk Mfg. Co. v. Rangaswamy, 74 Md. App.

304, 537 A.2d 622 (1988), rev’d on other grounds sub nom., Montgomery Cnty. v. Valk

Mfg. Co., 317 Md. 185, 562 A.2d 1246 (1989), contains a specific definition of the term

“bystander,” to avoid any ambiguity, we will address the question of whether a person in

the position of Jo Ann Allen (“Mrs. Allen”), who is a household member of a consumer or

user of the product at issue but not a user or consumer herself, must prove the additional

element of duty. Pursuant to our authority under Md. Code Ann., Cts. & Jud. Proc. (1974,

2020 Repl. Vol., 2023 Supp.) § 12-604, we have reformulated the certified question as

follows:

Under Maryland law, in a strict liability design defect claim, must a person
in the position of the decedent, Mrs. Allen—a household member of a
“consumer” or “user” as the terms are defined in Valk Mfg. Co. v.
Rangaswamy, 74 Md. App. 304, 318, 537 A.2d 622, 629 (1988), rev’d on
other grounds sub nom., Montgomery Cnty. v. Valk Mfg. Co., 317 Md. 185,
562 A.2d 1246 (1989), who alleges injury based on exposure to asbestos dust
brought home on the work clothing of the consumer or user—prove an
additional element, the element of duty, beyond the four “essential elements
of an action in strict liability [as] set forth in [the Restatement (Second) of
Torts §] 402A,” Phipps v. Gen. Motors Corp., 278 Md. 337, 344, 363 A.2d
955, 958 (1976), to recover, and if so, what factors are used to determine
whether a duty is owed? 21F

2
General Electric suggests that the question presented should be reformulated to
reflect that the issue presented in this case is: “Does the scope of a product seller’s strict
liability based on design defect extend beyond the scope of its strict liability based on
failure to warn, to include a claimant who was not a user, consumer or bystander to the use
of the product?” According to General Electric, a bystander is “someone present when and

-2-
Our answer is “no.” We hold that with respect to an asbestos product strict liability

design defect claim, a person in the position of Mrs. Allen—a household member of a

consumer or user of the product at issue who alleges injury caused, through no fault of her

own, by exposure to asbestos from dust brought home on the work clothing of the consumer

or user—is not required to prove the element of duty in addition to the four elements of an

action in strict liability set forth in Phipps, 278 Md. at 344, 363 A.2d at 958.

Our holding flows directly from this Court’s holding in Phipps, id. at 352, 363 A.2d

at 963—that “[p]roof of a defect in the product at the time it leaves the control of the seller

implies fault on the part of the seller sufficient to justify imposing liability for injuries

caused by the product”—and the Appellate Court’s holding in Valk, 74 Md. App. at 323,

537 A.2d at 632, with which we agree, that bystanders—nonusers and non-consumers—

“are protected under the doctrine of strict liability in tort.”

In Valk, id. at 318, 537 A.2d at 629, after an extensive review of case law in the

developing area of products liability law, the Appellate Court concluded that “[t]he

unmistakable movement over recent decades has been toward vastly expanded coverage in

where the products at issue were used” and if Mrs. Allen satisfied that requirement, she
would “clearly fall within a class of plaintiffs who can assert a strict liability design defect
claim against the product seller.” General Electric contends that the purpose of certifying
the question to this Court was for us to determine whether “a person who was never present
when and where the products at issue were used is a bystander within the scope of a product
seller’s tort duty.” Although we have not reformulated the question as General Electric
asks and do not adopt its definition of the word “bystander,” our reformulation takes into
account the circumstance that Mrs. Allen’s alleged exposure occurred as a result of
asbestos dust brought into her home.

-3-
the products liability field” and that “[t]he last and most recent expansion has embraced

third-party beneficiaries or bystanders as well.” As the Appellate Court explained:

An appreciation of the significant change that has taken place in recent
decades in the undergirding philosophy of tort law with respect to products
liability will help to liberate us from earlier limiting notions such as 1) some
duty of care on the part of the manufacturer/seller (a heavy factor under
contractual theories of liability based on express or implied warranties as
well as in negligence law) and 2) the necessity for some sort of moral fault
or blame in the manufacturer/seller (a dominant factor in 19th Century tort
law).

Id. at 311, 537 A.2d at 625-26.

The Appellate Court adopted a view that we discussed in Phipps, namely, that

“[s]trict liability in tort is today largely a societal decision that the cost of injury should be

borne by those best able to bear such costs.” Valk, 74 Md. App. at 311, 537 A.2d at 626.

In Phipps, 278 Md. at 343, 363 A.2d at 958, we explained that various justifications have

been set forth by courts for imposing strict liability on manufacturers. Among the

justifications we discussed were that “imposing strict liability on manufacturers for

defective products is equitable because it shifts the risk of loss to those better able

financially to bear the loss[,]” and “the requirement of proof of a defect rendering a product

unreasonably dangerous is a sufficient showing of fault on the part of the seller to impose

liability without placing an often impossible burden on the plaintiff of proving specific acts

of negligence.” Id. at 343, 363 A.2d at 958. We concluded that proof of a defect in the

product at the time it leaves the control of the seller implies culpability on the part of the

seller sufficient to warrant imposing liability for injuries caused by the product. See id. at

352, 363 A.2d at 963.

-4-
In accord with the principles set forth above, in response to the reformulated

question, we conclude that, to prove a strict liability design defect claim in an asbestos

case, a person in the position of Mrs. Allen need not prove the additional element of duty,

which is an element generally associated with proof of negligence and failure to warn

claims, and an element that exceeds those of a claim for strict liability design defect that

we adopted in Phipps.

BACKGROUND

Pursuant to the Maryland Uniform Certification of Questions of Law Act, CJ

§§ 12-601 to 12-613, this Court has the power to answer questions of law presented to it.

“[I]f the answer may be determinative of an issue in pending litigation in the certifying

court and there is no controlling appellate decision, constitutional provision, or statute of

this State[,]” this Court may “answer a question of law certified to it by a court of the

United States or by an appellate court of another state[.]” CJ § 12-603. In answering a

certified question of law, we accept the statement of facts submitted by the certifying court,

and resolve only issues of Maryland law, not questions of fact. See Parler & Wobber v.

Miles & Stockbridge, 359 Md. 671, 681, 756 A.2d 526, 531 (2000).

In this case, in its certification order, the Court of Appeals provided the following

facts and procedural history as stipulated by the parties, which we summarize.

Facts

This case involves an asbestos-related personal injury and wrongful death lawsuit

-5-
by Robin B. Quinn, Appellant, in which she alleges that the decedent, Mrs. Allen, 3 2F

developed mesothelioma and lung cancer caused by exposure to asbestos from dust brought

home on the work clothes of Mrs. Allen’s former husband, Willard Phillips. Appellant’s

action against General Electric relates to asbestos-containing thermal insulation applied by

Mr. Phillips and other workers to two General Electric power generation turbines during

their construction at Potomac Electric Power Company’s (“PEPCO’s”) Chalk Point power

plant in Aquasco, Maryland (“Chalk Point”), from mid-1963 to late-1964. PEPCO’s

contract with General Electric for the purchase of the turbine-generators required General

Electric to furnish all of the thermal insulation materials for the turbines. General Electric

ordered the thermal insulation materials from Walter E. Campbell Company (“WECCO”),

which was an insulation supplier and contractor and Mr. Phillips’s employer. Pursuant to

a separate contract between WECCO and PEPCO, professional insulators who were

employed by WECCO, such as Mr. Phillips, installed the insulation materials on the

turbines.

Mr. Phillips is deceased and did not testify in the case. Donald Burroughs, a

coworker of Mr. Phillips, testified about his work with Mr. Phillips at Chalk Point as

follows. Mr. Burroughs and Mr. Phillips were among numerous insulators employed by

WECCO to insulate the two turbines manufactured by General Electric. It took a total of

eight to ten weeks to install insulation on the two turbines, at the rate of four to five weeks

3
On brief, the parties advise that Mrs. Allen instituted the asbestos product liability
action on September 2, 2020, in the Superior Court. After Mrs. Allen’s death, on
November 15, 2021, Appellant, the personal representative of Mrs. Allen’s estate, was
substituted as plaintiff.

-6-
per turbine. Installing insulation on the turbines was only part of the insulation work that

Mr. Burroughs and Mr. Phillips performed at Chalk Point over a period of 18 months. The

process of installing asbestos-containing insulation material on the General Electric

turbines at Chalk Point emitted significant dust in the areas where Mr. Burroughs and Mr.

Phillips worked. Neither WECCO, (Mr. Phillips’s employer), nor the general contractor

(Bechtel), nor PEPCO (the site owner) provided facilities for the people who worked as

insulators at Chalk Point to change clothes and shower before departing work. Therefore,

Mr. Phillips wore his work clothes home every day.

Mrs. Allen testified that during her marriage to Mr. Phillips, she shook and

laundered his dusty work clothing every other day. Mrs. Allen never visited Chalk Point.

In opposition to a motion for summary judgment by General Electric, Appellant

submitted an affidavit by an expert, Barry Castleman, listing sources that Appellant

asserted demonstrate that “the need to avoid taking hazardous substances, and specifically

asbestos, home on clothing” was established in the scientific community prior to 1965.

General Electric countered that these references are largely unrelated to asbestos and, in

any event, reflect concern with protecting workers from continued exposure beyond the

worksite, not the protection of members of the workers’ households.

Appellant’s expert in occupational medicine, Dr. Arthur Frank, reviewed the facts

of the case and Mrs. Allen’s medical records and concluded that Mrs. Allen developed, and

died from, malignant mesothelioma caused by exposure to asbestos dust generated by the

-7-
defendants’ 4 asbestos products and brought home on her husband’s work clothing.
3F

Procedural History

In the Superior Court, Appellant asserted claims against General Electric for

negligence, strict liability for failure to warn, and strict liability for design defect. On April

27, 2022, the Superior Court entered summary judgment in General Electric’s favor as to

all claims. Appellant appealed the ruling only as to the strict liability design defect claim.

On April 5, 2023, the Court of Appeals vacated the grant of summary judgment as to

Appellant’s strict liability design defect claim. The Court of Appeals concluded that

General Electric’s summary judgment motion did not present an adequate challenge to that

specific claim. The case was remanded for further proceedings, and, on remand, General

Electric again filed a motion for summary judgment as to Appellant’s claim of strict

liability for design defect. On January 31, 2024, after briefing on the motion by the parties,

the Superior Court granted General Electric’s motion and entered summary judgment as to

Appellant’s claim of strict liability for design defect. The Superior Court determined, as a

matter of Maryland law, that Mrs. Allen was a bystander who could not recover on a strict

liability theory. Appellant appealed. After briefing and oral argument, on April 18, 2025,

the Court of Appeals entered an order directing the parties to show cause why the question

of law at issue should not be certified to this Court. On June 10, 2025, the Court of Appeals

ordered that the question of law described herein be certified to this Court.

4
Mrs. Allen filed a complaint against numerous defendants, including General
Electric.

-8-
DISCUSSION

Strict Liability Design Defect Claim

A plaintiff bringing a strict liability design defect claim is not required to prove any

specific act of negligence on the part of a seller. See Phipps, 278 Md. at 344, 363 A.2d at

958. “The relevant inquiry in a strict liability action focuses not on the conduct of the

manufacturer but rather on the product itself.” Id. at 344, 363 A.2d at 958 (citation

omitted). Strict liability subjects sellers of defective and unreasonably dangerous products

to liability for harm caused by their products. See id. at 344, 363 A.2d at 959. A seller of

“any product in a defective condition unreasonably dangerous to the user or consumer” is

liable even where “the seller has exercised all possible care in the preparation and sale of

his product[.]” Id. at 341, 363 A.2d at 957 (quoting Restatement (Second) of Torts §

402A). Sellers include the manufacturers of products and any person or entity in the

distribution chain. See id. at 343-44, 363 A.2d at 958-59 (referring to “seller” and

“manufacturer”); see also Halliday v. Sturm, Ruger & Co., Inc., 368 Md. 186, 201, 792

A.2d 1145, 1154 (2002) (We stated that strict liability relieves “persons injured by products

from the requirement of proving negligence on the part of manufacturers or others in the

distribution chain” and instead focuses “on the product itself,” thereby making “it easier to

obtain a recovery for a defectively designed or manufactured product.”).

In Phipps, 278 Md. at 344, 353, 363 A.2d at 958, 963, this Court adopted the theory

of strict liability and the elements necessary to establish a strict liability design defect claim

-9-
as expressed in the Restatement (Second) of Torts § 402A. 5 The elements of a strict
4F

liability design defect claim as adopted in Phipps, 278 Md. at 344, 363 A.2d at 958, are

that (1) the product was defective at the time it left the control of the seller, (2) it was

unreasonably dangerous to the user or consumer, (3) the defect was a cause of the injuries,

and (4) the product was expected to and did reach the consumer without substantial change

in its condition. Among the bases for imposing strict liability is that the seller, by marketing

its product for use, “has undertaken and assumed a special responsibility toward any

member of the consuming public who may be injured by it[.]” Id. at 352, 363 A.2d at 963

At that time, as to strict liability claims, the Restatement (Second) of Torts § 402A
5

(1965) provided:

Special Liability of Seller of Product for Physical Harm to User or
[C]onsumer

(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, 363 A.2d at 957 (internal quotation marks omitted).

• 10 - (citation omitted).

Strict liability evolved from warranty law, as courts began forgoing the requirement

that an injured party demonstrate that he or she was in privity with the seller. See

Restatement (Second) of Torts § 402A cmt. b. “[T]he requirement of privity, once an

obstacle to recovery under a contract action, and a major reason for the adoption of [§]

402A of the Restatement (Second), [was] eliminated by the General Assembly of Maryland

in actions where personal injuries result from a breach of warranty.” Phipps, 278 Md. at

349, 363 A.2d at 961 (citing “Sections 2-318 and 2-314 of the Maryland Uniform

Commercial Code”; Frericks v. Gen. Motors Corp., 278 Md. 304, 309, 363 A.2d 460, 462-

63 (1976)). Despite the elimination of the privity requirement, though, there remained

other requirements and limitations imposed by contract law in an action for breach of

warranty, such as the right of the seller to disclaim or limit remedies for breach of warranty

that are not applicable when damages are sought for injury caused by a defective product

under the theory of strict liability in tort. See id. at 349, 363 A.2d at 961-62. With a strict

liability design defect claim, however, the “limitation or exclusion of warranties is

irrelevant to the question of the seller’s liability for injury caused by defective goods

regardless of the classification of the goods[.]” Id. at 349, 363 A.2d at 962 (citation

modified).

As explained in Nissen Corp. v. Miller, 323 Md. 613, 623, 594 A.2d 564, 569

(1991), “[w]e adopted the theory of strict liability in tort to foreclose the unfair result

‘where injured parties are forced to comply with the proof requirements of negligence

actions or are confronted with the procedural requirements and limitations of warranty

• 11 - actions.’” (Quoting Phipps, 278 Md. at 353, 363 A.2d at 963). We stated:

It is clear that Maryland espoused the doctrine of strict liability in tort in order
to relieve plaintiffs of the burden of proving specific acts of negligence by
permitting negligence to be implied where plaintiffs can prove a product is
defective and unreasonably dangerous when placed in the stream of
commerce.

Id. at 624, 594 A.2d at 569. “[I]nherent in our recognition of strict products liability is the

concept that sellers who place defective and unreasonably dangerous products on the

market are at fault when a user is injured by that activity and should bear responsibility.”

Id. at 624, 594 A.2d at 569.

Strict Liability Design Defect Versus Other Theories of Strict Liability

There are three separate theories of strict liability under which a product may be

dangerous or defective: (1) there is a flaw in the product at the time of sale making it more

dangerous than intended (“manufacturing flaw” or “defective construction”); (2) the

manufacturer of the product fails to warn adequately of a risk or hazard related to the way

the product was designed (“failure to warn”); or (3) the product has a defective design

(“design defect”). See, e.g., Gourdine v. Crews, 405 Md. 722, 743 n.11, 955 A.2d 769,

782 n.11 (2008) (We noted that the Restatement (Second) of Torts § 402A applies in

“defective design, defective construction, and failure to warn cases[.]” (Citation omitted)).

The standards of liability for a claim under each theory are different.

With respect to a manufacturing defect claim, under the Second Restatement, the

elements of a strict liability manufacturing defect claim include that the product must be

defective or unreasonably dangerous, that the defect arose from errors in the manufacturing

process, not the product’s design, and the defect or danger must have existed at the time

• 12 - the product left the manufacturer’s control. See Restatement (Second) of Torts § 402A.

In a strict liability failure to warn claim, the primary assertion is that a seller failed

to provide adequate warnings or instructions about the danger of the product, and that an

injury occurred as a result of an undisclosed risk. See, e.g., Owens-Illinois, Inc. v. Zenobia,

325 Md. 420, 433, 437, 601 A.2d 633, 639, 641 (1992) (“[T]he seller is required to give

warning against the danger, if [the seller] has knowledge, or by the application of

reasonable, developed human skill and foresight should have knowledge, of the danger.”

(Citation modified)). In a failure to warn case, a plaintiff is not required to allege that a

product has a defect. Id. at 438 n.8, 601 A.2d at 641 n.8 (“In a strict liability failure to

warn case, the alleged defect is the failure of the seller to give an adequate warning.”).

A strict liability failure to warn claim “bears a strong resemblance to a claim of

negligence[,]” as “[c]oncepts of duty, breach, causation, and damages are present in both.”

Gourdine, 405 Md. at 743, 955 A.2d at 782 (citation modified). A strict liability failure to

warn claim is often brought along with a negligent failure to warn claim, and requires proof

of a duty to warn and a violation or breach of the duty, while a strict liability design defect

claim does not require proof of a duty. See, e.g., May v. Air & Liquid Sys. Corp., 446 Md.

1, 9, 129 A.3d 984, 988-89 (2015); Gourdine, 405 Md. at 743, 955 A.2d at 782; Phipps,

278 Md. at 344, 351-52, 363 A.2d at 958, 963.

In describing the basis for a failure to warn claim, quoting a principle that was first

stated in 2 Fowler Harper & Fleming James, The Law of Torts, § 28.3 (1956) and William

Prosser, The Law of Torts, § 31 (4th ed. 1971), we have explained that “a manufacturer’s

duty to produce a safe product, with appropriate warnings and instructions when necessary,

• 13 - is no different from the responsibility each of us bears to exercise due care to avoid

unreasonable risks of harm to others.” May, 446 Md. at 9, 129 A.3d at 988 (quoting Moran

v. Fabergé, Inc., 273 Md. 538, 543, 332 A.2d 11, 15 (1975)). In Moran, 273 Md. at 552,

332 A.2d at 20, a products liability case alleging a negligent failure to warn claim, we

described the framework for the analysis of negligent failure to warn cases:

Based on this negligence law we think that in the products liability domain a
duty to warn is imposed on a manufacturer if the item it produces has an
inherent and hidden danger about which the producer knows, or should
know, could be a substantial factor in bringing injury to an individual or his
property when the manufacturer’s product comes near to or in contact with
the elements which are present normally in the environment where the
product can reasonably be expected to be brought or used.

(Citation modified).

In May, 446 Md. at 23, 129 A.3d at 997, and Zenobia, 325 Md. at 433, 436, 601

A.2d at 639, 641, we explained that Comment j of the Restatement (Second) of Torts §

402A is applicable to strict liability failure to warn claims. Comment j of § 402A states

that a “seller is required to give warning against [a danger], if [the seller] has knowledge,

or by the application of reasonable, developed human skill and foresight should have

knowledge, of the . . . danger.” Comment j distinguishes a product containing an adequate

warning from a defective product, stating that “a product bearing such a warning, which is

safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

Zenobia, 325 Md. at 433, 601 A.2d at 639 (quoting Restatement (Second) of Torts § 402A

cmt. j).

In May, 446 Md. at 24, 129 A.3d at 997, and Gourdine, 405 Md. at 743, 955 A.2d

at 782, we explained that “negligence concepts and those of strict liability have ‘morphed

• 14 - together’ . . . in failure to warn cases.” (Citations modified). Under both a negligence and

strict liability theory failure to warn claim, a plaintiff bringing a failure to warn claim must

establish the following: (1) that the defendant owed a duty to warn; (2) that the defendant

breached that duty; (3) there was a direct causal connection between the defendant’s failure

and the alleged injuries; and (4) that the plaintiff was harmed. See Gourdine, 405 Md. at

738, 955 A.2d at 779; Mayor & City Council of Baltimore v. B.P. P.L.C., ___ Md. ___,

___ A.3d ___, No. 11, Sep. Term, 2025, 2026 WL 809501, at *31 (Md. Mar. 24, 2026).

Thus, to establish a strict liability failure to warn claim, a plaintiff must prove both duty

and breach of the duty, whereas there are no such requirements in a strict liability design

defect claim.

Valk’s Expansion of Strict Liability in a Design Defect Claim

In Valk, 74 Md. App. at 307-08, 317-18, 537 A.2d at 623-24, 629, the Appellate

Court addressed whether plaintiffs alleging a strict liability design defect claim could

recover under the doctrine of strict liability as “bystander[s].” 6 The manufacturer argued
5F

that the driver of the vehicle fit into neither the category of consumer nor user. See id. at

6
The driver of a vehicle died as a result of a motor vehicle accident in which he was
struck by a Montgomery County dump truck that had a snowplow hitch with a steel lift
arm mounted on its front that protruded into the driver’s vehicle as the dump truck struck
the driver’s door. See Valk, 74 Md. App. at 307-08, 537 A.2d at 623-24. The plaintiffs—
the driver’s widow and minor child—sued the manufacturer of the snowplow hitch alleging
negligence and strict liability for design defect. See id. at 308, 313, 537 A.2d at 624, 626.
A jury awarded the plaintiffs $2.5 million on the strict liability claim. See id. at 308, 537
A.2d at 624. On appeal, the manufacturer contended that the trial court erred in failing to
grant its motion for judgment and/or motion for judgment notwithstanding the verdict
because, according to the manufacturer, the plaintiffs failed to make a prima facie showing
of liability under the doctrine of strict liability. See id. at 308-09, 537 A.2d at 624.

• 15 - 318, 537 A.2d at 629. The Appellate Court observed that the Restatement (Second) of

Torts § 402A cmt. l defines a “consumer” as “one who purchases a product or who is a

member of the family of the final purchaser, his employee, a guest at his table, or a donee

of the purchaser[,]” and “users” are “those who passively enjoy the benefit of the product.”

Valk, 74 Md. App. at 318, 537 A.2d at 629. The Appellate Court explained that, although

under its express terms, the Restatement (Second) of Torts § 402A applies only to users

and consumers, in Comment o, the authors of the Restatement neither approved nor

disapproved of the extension of strict liability to bystanders. See id. at 320, 537 A.2d at

630. Comment o states in relevant part:

Casual bystanders, and others who may come in contact with the product, as
in the case of employees of the retailer, or a passer-by injured by an
exploding bottle, or a pedestrian hit by an automobile, have been denied
recovery. There may be no essential reason why such plaintiffs should not
be brought within the scope of the protection afforded, other than that they
do not have the same reasons for expecting such protection as the consumer
who buys a marketed product; but the social pressure which has been largely
responsible for the development of the rule stated has been a consumers’
pressure, and there is not the same demand for the protection of casual
strangers. The Institute expresses neither approval nor disapproval of
expansion of the rule to permit recovery by such persons.[ 7]
6F

Restatement (Second) of Torts § 402A cmt. o. The Appellate Court explained:

Section 402A is premised upon the assumption that a seller assumes a special
responsibility to the public; that the public has a right to expect reputable
sellers to stand behind their products; that public policy demands the costs of
injuries due to defective products be placed on those who market them; and
that such injuries are properly treated as a cost of production and insurable

7
The “Institute” refers to The American Law Institute, which “is a private,
independent, nonprofit organization that publishes Restatements of the Law,” The
American Law Institute, Frequently Asked Questions (2024), https://www.ali.org/faq
[https://perma.cc/MRD3-W3YQ], including the Restatement (Second) of Torts, see
Restatement (Second) of Torts Intro. (1965).

• 16 - risks by those in the best position to seek such protection. Jurisdictions extending liability to the “bystander” point to these general policies as ample justification.

Valk, 74 Md. App. at 321, 537 A.2d at 630.

After a thorough review of case law of other jurisdictions, the Appellate Court

concluded that “[m]ost jurisdictions, when called upon to do so, have extended the strict

liability doctrine to provide relief to bystanders.” Id. at 322, 537 A.2d at 631 (citation

modified). The Appellate Court was persuaded by the action of other jurisdictions as well

as by the “internal logic of the proposition” to extend recovery in strict liability actions to

“bystanders,” who were neither users nor consumers of a defective product. Id. at 323, 537

A.2d at 631-32. The Appellate Court expressly held that bystanders who are not users or

consumers are protected under the doctrine of strict liability in tort. See id. at 323, 537

A.2d at 632. Although the Appellate Court did not define the term “bystander[,]” the Court

made clear that a person who is not a user or consumer may be protected under the doctrine

of strict liability.

Valk and Case Law from Other Jurisdictions

In Valk, id. at 318-19, 537 A.2d at 629, the Appellate Court explained that coverage

for negligence in tort was first expanded by the Court of Appeals of New York in

MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), when that Court held that a

“manufacturer, by placing the car upon the market, assumed a responsibility to the ultimate

consumer, resting not upon the contract but upon the relation arising from the purchase,

together with the foreseeability of harm if proper care were not used.” In the years

following MacPherson, “the coverage for negligence in tort continued to expand until it

• 17 - ultimately embraced mere bystanders as well[.]” Valk, 74 Md. App. at 319, 537 A.2d at

630. As explained by the Appellate Court, after coverage based on negligence in tort was

expanded, “coverage of remote consumers and users” under strict liability, which was first

based on a warranty theory, followed. Id. at 319, 537 A.2d at 629.

In holding that bystanders are protected under the doctrine of strict liability in tort

for design defects, the Appellate Court examined cases from other jurisdictions in which

courts had reached the same or a similar conclusion. The cases included but were not

limited to: Piercefield v. Remington Arms Co., 133 N.W.2d 129 (Mich. 1965); Elmore v.

Am. Motors Corp., 451 P.2d 84 (Cal. 1969); Ciampichini v. Ring Bros., Inc., 339 N.Y.S.2d

716 (N.Y. App. Div. 1973); Weber v. Fidelity & Cas. Ins. Co. of New York, 250 So.2d

754 (La. 1971); Embs v. Pepsi-Cola Bottling Co. of Lexington, Ky., Inc., 528 S.W.2d 703

(Ky. 1975); and West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla. 1976). See Valk,

74 Md. App. at 321-22, 537 A.2d at 630-31. None of the cases discussed by the Appellate

Court in Valk mandated or established a requirement that a bystander must demonstrate

that a duty of care was owed to the bystander. To illustrate the point, we will discuss the

cases.

In Piercefield, 133 N.W.2d at 133-34, in a breach of warranty action, the Supreme

Court of Michigan held that a manufacturer of a defective shotgun shell 8 was liable to a
7F

bystander, who was neither a purchaser nor user of the product, where the bystander alleged

The plaintiff was injured when the barrel of a shotgun fired by the plaintiff’s brother
8

exploded. The shotgun shell had been manufactured by the defendant and the explosion
resulted in metal fragments becoming embedded in the plaintiff’s brain. See Piercefield,
133 N.W.2d at 133; id. at 130 (O’Hara, J., dissenting).

• 18 - and proved both “the defect of manufacture upon which he relie[d]” and “injury or damage

caused by or resulting from such defect.” The Court explained that proof of negligence is

not required for breach of an implied warranty claim. See id. at 134. The Court held that

because a “manufacturer is best able to control dangers arising from defects of

manufacture” and case law in Michigan had put an end to the defense of no privity,

“certainly so far as concerns an innocent bystander injured as this plaintiff pleads,” such

an injured person “should have a right of action against the manufacturer on the theory of

breach of warranty as well as upon the theory of negligence.” Id. at 134-35 (footnote

omitted). The Court explained that this did not establish liability without fault because “a

plaintiff relying upon the rule must prove a defect attributable to the manufacturer and

causal connection between that defect and the injury or damage of which he complains.”

Id. at 135.

In Elmore, 451 P.2d at 89, the Supreme Court of California held that “the doctrine

of strict liability in tort is available in an action for personal injuries by a bystander against

the manufacturer and the retailer.” 9 In consolidated personal injury and wrongful death
8F

actions, at the conclusion of the plaintiffs’ case in chief, the trial court granted the

9
In Elmore, 451 P.2d at 85-86, the drive shaft of a station wagon became
disconnected, which caused the car to fishtail out of control, cross into the opposite lane of
traffic, and strike another vehicle with such impact that the driver of the first vehicle
(Sandra Elmore) was hurled from her car onto an embankment. Ms. Elmore suffered head
injuries and the driver of the vehicle that Ms. Elmore struck died as a result of the accident.
See id. at 85; Waters v. Am. Motors Co., 69 Cal. Rptr. 799 (Cal. Ct. App. 1968), vacated
sub nom., Elmore, 451 P.2d 84.

• 19 - defendants’ motions for nonsuit. See id. at 85. 10 The Supreme Court of California F

reversed, noting that the authors of the Restatement (Second) of Torts had “refrained from

expressing a view as to whether the doctrine of strict liability of the manufacturer and

retailer for defects is applicable to third parties who are bystanders and who are not

purchasers or users of the defective chattel.” Id. at 88, 89 (citation omitted). The Court

stated that although the authors of the Restatement had pointed out that as of 1965 “no case

had applied strict liability to a person who was not a user or consumer[,]” in two cases in

other jurisdictions courts had “held manufacturers of defective goods strictly liable in tort

for injuries caused to persons who were mere bystanders and were not users or consumers.”

Id. at 88 (citing Piercefield, 134 N.W.2d at 134-36; Mitchell v. Miller, 214 A.2d 694, 697-

99 (Conn. Super. Ct. 1965)).

The Court examined relevant California case law, which made “clear that the

doctrine of strict liability may not be restricted on a theory of privity of contract” and that,

because “the doctrine applies even where the manufacturer has attempted to limit liability,”

the doctrine could not be “limited on the theory that no representation of safety is made to

the bystander.” Id. The Court explained that strict liability “has been based upon the

10
The Supreme Court of California explained:

A nonsuit in a jury case or a directed verdict may be granted only when
disregarding conflicting evidence, giving to the plaintiffs’ evidence all the
value to which it is legally entitled, and indulging every legitimate inference
which may be drawn from the evidence in plaintiffs’ favor, it can be said that
there is no evidence to support a jury verdict in their favor.

Elmore, 451 P.2d at 87 (citations omitted).

• 20 - existence of a defective product which caused injury to a human being,” and that it had not

limited the rules stated “to consumers and users but instead used language applicable to

human beings generally.” Id. at 88-89. The Court noted that “[i]t has been pointed out that

an injury to a bystander is often a perfectly foreseeable risk of the maker’s enterprise, and

the considerations for imposing such risks on the maker without regard to his fault do not

stop with those who undertake to use the chattel.” Id. at 89 (citation modified). The Court

concluded:

If anything, bystanders should be entitled to greater protection than the
consumer or user where injury to bystanders from the defect is reasonably
foreseeable. Consumers and users, at least, have the opportunity to inspect
for defects and to limit their purchases to articles manufactured by reputable
manufacturers and sold by reputable retailers, where as the bystander
ordinarily has no such opportunities. In short, the bystander is in greater need
of protection from defective products which are dangerous, and if any
distinction should be made between bystanders and users, it should be made,
contrary to the position of defendants, to extend greater liability in favor of
the bystanders.

Id.

In Ciampichini, 339 N.Y.S.2d at 717, the Supreme Court of New York, Appellate

Division, Fourth Department, reconsidered its prior holding—“that no right of action exists

in favor of a non-user of the product involved in the accident”—and concluded that it was

“laying to rest a principle which [it] believe[d] outmoded and no longer adaptable to the

rights of individuals in contemporary society.” The Court noted that warranty liability had

been expanding in scope and the requirement of privity had been gradually hewn away and

eliminated altogether with respect to certain actions. See id. at 718, 720. The Court

determined that it was “both reasonable and just to extend to bystanders the protection

• 21 - against a defective manufacturer article” and pointed out that “[t]o restrict recovery to those

who are users is unrealistic in view of the fact that bystanders have less opportunity to

detect any defect than either purchasers or users.” Id. at 720. The Court’s decision was

not premised on requirement of proof of a duty owed to a bystander but instead on “justice

and common sense” as well as the extended scope of warranty liability. Id.

In Weber, 250 So.2d at 755, the Supreme Court of Louisiana discussed principles

of Louisiana products liability law, holding:

A manufacturer of a product which involves a risk of injury to the user is
liable to any person, whether the purchaser or a third person, who without
fault on his part, sustains an injury caused by a defect in the design,
composition, or manufacture of the article, if the injury might reasonably
have been anticipated. However, the plaintiff claiming injury has the burden
of proving that the product was defective, i.e., unreasonably dangerous to
normal use, and that the plaintiff’s injuries were caused by reason of the
defect.

In other words, a bystander (i.e., a third person) may recover for injuries caused by

defective design of a product where the bystander proves the product was defective and

that the injuries were caused by that defect. The Court did not hold that bystanders (or

other plaintiffs) must demonstrate that a duty was owed to them.

In Embs, 528 S.W.2d at 704-06, the Court of Appeals of Kentucky (now known as

the Supreme Court of Kentucky) held that the protections set forth in the Restatement

(Second) of Torts § 402A, which it had adopted, “extend to bystanders whose injury from

the defective product is reasonably foreseeable.” 11 The Court noted that Comment o,
10F

11
In Embs, 528 S.W.2d at 704, a glass Seven-Up bottle sitting on the floor at the
edge of a produce counter at a retail store exploded, resulting in a store patron sustaining a
gash on her leg and being taken to a hospital.

• 22 - which is a “caveat” to the Restatement (Second) of Torts § 402A, “expresses no opinion

as to whether the rule may not apply to harm to persons other than users or consumers” and

stated that “[t]he caveat articulates the essential point: Once strict liability is accepted,

bystander recovery is fait accompli.” Id. at 705 (citation omitted). The Court explained

the reason for its holding extending protection to bystanders, stating:

Our expressed public policy will be furthered if we minimize the risk of
personal injury and property damage by charging the costs of injuries against
the manufacturer who can procure liability insurance and distribute its
expense among the public as a cost of doing business; and since the risk of
harm from defective products exists for mere bystanders and passersby as
well as for the purchaser or user, there is no substantial reason for protecting
one class of persons and not the other. The same policy requires us to
maximize protection for the injured third party and promote the public
interest in discouraging the marketing of products having defects that are a
menace to the public by imposing strict liability upon retailers and
wholesalers in the distributive chain responsible for marketing the defective
product which injures the bystander. The imposition of strict liability places
no unreasonable burden upon sellers because they can adjust the cost of
insurance protection among themselves in the course of their continuing
business relationship.

Id. (citation omitted).

In West, 336 So.2d at 82, 89, the Supreme Court of Florida answered a question of

law certified to it by the United States Court of Appeals for the Fifth Circuit and held that

“a manufacturer may be held liable under the theory of strict liability in tort, as distinct

from breach of implied warranty of merchantability, for injury to a user of the product or a

bystander[.]” 12
1 F The Court adopted the doctrine of strict liability set forth in the

12
The facts of the case were that a Caterpillar grader operated by a contractor’s
employee ran over a woman crossing the street, resulting in the woman’s death six days
later. See West, 336 So. 2d at 82.

• 23 - Restatement (Second) of Torts § 402A. See id. at 87. In addressing “the question of

whether the doctrine of strict liability should be extended to a foreseeable bystander who

comes within range of the danger[,]” id. at 88, the Court explained:

The manufacturer unquestionably intends that its product will be used by the
public. There would appear to be no logic or reason in denying a right of
relief to persons injured by defective merchandise solely on the ground that
he was not himself a user of the merchandise. Many products in the hands
of the consumer are sophisticated and even mysterious articles, frequently a
sealed unit with an alluring exterior rather than a visible assembly of
component parts. In today’s world it is often only the manufacturer who can
fairly be said to know and understand when an article is suitably designed
and safely made for its intended purpose.

Id. The Court noted that states that had adopted the theory of strict liability had “extended

the theory to the bystander when called upon to do so.” Id. at 89 (citations omitted). The

Court concluded that “[t]he public policy which protects the user and the consumer of a

manufactured article should also protect the innocent bystander.” Id. In its only mention

of the concept of duty, the Court stated:

Of course, the duty of a manufacturer for breach of which liability will attach
runs only to those who suffer personal injury or property damage as the result
of using or being within the vicinity of the use of the dangerous
instrumentality furnished by a manufacturer which fails to give notice of the
danger. Injury to a bystander is often feasible.

Id. This mention of duty was not a discussion of the duty of care and breach thereof that

is required to be shown in a negligence action.

What can be gleaned from the review of cases relied upon by the Appellate Court

in Valk is that courts in California and Kentucky have required that for a bystander to

recover on a strict liability design defect claim, the plaintiff must demonstrate that the

alleged injury was reasonably foreseeable. See Elmore, 451 P.2d at 89; Embs, 528 S.W.2d

• 24 - at 706. The Supreme Court of Florida answered a question certified to it—whether strict

liability coverage applied to a foreseeable bystander who comes within the range of

danger—“yes” and explained that public policy should protect innocent bystanders. See

West, 336 So.2d at 82, 88-89. In New York and Louisiana, courts have permitted

bystanders to recover on strict liability design defect claims without imposing an additional

requirement outside of the factors set forth in the Restatement (Second) Torts § 402A. See

Ciampichini, 339 N.Y.S.2d at 720; Weber, 250 So.2d at 755. In none of the cases did a

court conclude that a bystander was required to prove the seller owed a duty to the

bystander in order to recover for a strict liability claim.

Post-Valk Developments

Since Valk and the cases its holding is premised on, a new Restatement of Torts has

been issued. The Restatement (Third) of Torts: Products Liability § 1 (1998), titled

“Liability of Commercial Seller or Distributor for Harm Caused by Defective Products,”

provides: “One engaged in the business of selling or otherwise distributing products who

sells or distributes a defective product is subject to liability for harm to persons or property

caused by the defect.” 13 Significantly, the Restatement (Third) of Torts does not limit strict
12F

We note that the Restatement (Third) of Torts sets forth a description of when a
13

product is defective in design that is not contained in the Restatement (Second) of Torts.
The Restatement (Third) of Torts: Products Liability § 2 (1998), titled “Categories of
Product Defect,” provides in part:

A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of
inadequate instructions or warnings. A product:

• 25 - liability of a seller or distributor to only users or consumers, but rather indicates that sellers

and distributors are liable for harm to all “persons” for harm caused by a defective product.

After Valk, courts in other jurisdictions have continued to permit bystanders to

recover in strict liability design defect claims without requiring that a bystander prove that

a specific duty was owed by the seller to the plaintiff. Just as before the Appellate Court’s

decision in Valk, after Valk, the expansion of strict liability to include coverage for

bystanders has continued with different jurisdictions taking different approaches. Either

by expansion of the common law or through the enactment of legislation, states have

allowed bystanders to pursue claims of strict liability design defect without requiring proof

of the element of duty.

In some instances, courts have adopted the principle that sellers are liable to all

persons for harm caused by a defective product and have adopted the redefined definition

of a defective product from the Restatement (Third) of Torts: Products Liability §§ 1 and

2, requiring that all plaintiffs prove that the foreseeable risk of harm could have been

...

(b) is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders the product not
reasonably safe[.]

We have not been asked to determine whether the factors that we adopted in Phipps
should be expanded to incorporate the new definition of when a product is defective set
forth in the Restatement (Third) of Torts: Products Liability § 2. Rather, we resolve the
question certified to us by the Court of Appeals. See Parler & Wobber, 359 Md. at 681,
756 A.2d at 531 (“[W]e confine our legal analysis and final determinations of Maryland
law to the questions certified.”) (Citations omitted)).

• 26 - reduced or avoided by the adoption of a reasonable alternative design by the seller. See

Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 40, 54-55 (3d. Cir. 2009) (The United States

Court of Appeals for the Third Circuit, applying Pennsylvania law, held that, if the

Supreme Court of Pennsylvania were confronted with the issue of whether a bystander

could recover in strict liability, that Court “would adopt the Restatement (Third) of Torts,

§§ 1 and 2, and thereby afford bystanders a cause of action in strict liability[.]”).

The Supreme Court of Utah has concluded that a seller is liable to a bystander for

the foreseeable consequences of the risks presented by a defective product. See Straub v.

Fisher and Paykel Health Care, 990 P.2d 384, 389-91 (Utah 1999) (The Supreme Court of

Utah stated that, in 1979, it had adopted the Restatement (Second) of Torts § 402A, and

concluded that strict liability extends to bystanders for foreseeable consequences of risks

presented by defective products.). 14 13F The Supreme Court of Indiana has permitted

bystander recovery on products liability claims under Indiana’s Product Liability Act,

which defines the term “consumer” as including “any bystander injured by the product who

14
After Embs and Valk, in Martin v. Cincinnati Gas and Elec. Co., 561 F.3d 439,
442, 446 (6th Cir. 2009), the United States Court of Appeals for the Sixth Circuit, applying
Kentucky law, briefly addressed a plaintiff’s claim that his father was a bystander injured
by the defendants’ asbestos. The Court stated that in Kentucky there is a universal duty of
care. See id. at 444. Discussing Embs, 528 S.W.2d at 706, the Sixth Circuit stated that
“Kentucky recognizes a bystander claim under a products liability framework” and that in
Kentucky the rule “is limited to bystanders whose injury from the defect is reasonably
foreseeable.” Martin, 561 F.3d at 446-47 (citation modified). The Sixth Circuit concluded,
however, that, as stated in its discussion of the plaintiff’s negligence claim, “there [was]
no evidence that the danger from secondary exposure was reasonably foreseeable at the
time of [the plaintiff’s father’s] exposure[,]” and, as such, the trial court was correct in
ruling that the plaintiff “did not present sufficient evidence to survive summary judgment
on a bystander liability claim.” Id. at 447.

• 27 - would reasonably be expected to be in the vicinity of the product during its reasonably

expected use.” Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 975 (Ind. 2002) (citation

modified); see also Martin v. ACandS, Inc., 768 N.E.2d 426, 428 (Ind. 2002) (The Supreme

Court of Indiana held that “a plaintiff who allegedly contracted a disease as a result of

contact with asbestos fibers brought home on the person and clothing of her husband ha[d]

standing as a bystander under” Indiana’s Product Liability Act to bring the claim, stating

that “taking into account the nature of asbestos products, [the plaintiff] had a cognizable

claim as a bystander under the Act.” (Citation modified)); Camplin v. ACandS, Inc., 768

N.E.2d 428, 429 (Ind. 2002) (same).

Gourdine and Georgia Pacific Do Not Require Proof of Duty in a Strict Liability
Design Defect Claim

Our holdings in cases addressing whether a defendant owed a duty to plaintiffs who

brought strict liability failure to warn claims do not mandate that a person in Mrs. Allen’s

position must prove the element of duty in a strict liability design defect claim. In

Gourdine, 405 Md. at 726-27, 955 A.2d at 772-73, the petitioner brought claims of

negligence and strict liability for failure to warn against a drug manufacturer and others,

both of which require proof of the element of duty. The petitioner’s husband had been

killed in a vehicle collision caused by a driver who was experiencing a “debilitating

episode” due to an adverse reaction to insulin medications. Id. at 726, 728, 955 A.2d at

772-73.

The petitioner argued that the drug manufacturer owed a duty to her husband to

warn the other driver about the risks of driving after taking a combination of medications.

• 28 - See id. at 737-38, 955 A.2d at 779. Due to the nature of the claims, we were not required

to determine whether establishing a duty of care is necessary in failure to warn claims, it

is, see id. at 743, 955 A.2d at 782 (“Duty[] is an essential element of both negligence and

strict liability causes of action for failure to warn.”); rather, we were required to determine

whether that particular element of the failure to warn claims had been satisfied, see id. at

750, 758, 955 A.2d at 786, 791.

Applying general common law tort theories, we concluded that the drug

manufacturer did not owe the petitioner’s husband a duty of care because there had been

no contact between the deceased and the drug manufacturer whatsoever and there was no

connection between the drug company’s warnings or failure to warn of the potential of an

adverse reaction to the drugs and the petitioner’s husband’s death. See id. at 750, 955 A.2d

at 786. Although we stated that negligence and strict liability concepts had morphed

together in failure to warn cases and that duty is an element of both negligent and strict

liability failure to warn claims, see id. at 743, 955 A.2d at 782, in referencing strict liability

causes of action, we were clearly referring only to strict liability failure to warn actions and

not strict liability design defect claims. There was no strict liability design defect claim in

Gourdine.

Likewise, this Court’s holding in Georgia Pacific, LLC v. Farrar, 432 Md. 523, 69

A.3d 1028 (2013), cannot be interpreted to require that a person in Mrs. Allen’s position

prove the element of duty in a strict liability design defect case. In Georgia Pacific, id. at

526-27, 540-41, 69 A.3d at 1030-31, 1039—another strict liability failure to warn case in

which proof of duty was required—we held that a manufacturer did not have a duty to

• 29 - protect a plaintiff from injury due to exposure to asbestos fibers in its product because the

plaintiff’s alleged injury was not foreseeable and, that even if the alleged injury had been

foreseeable, there was no available way, at the time, for the manufacturer to provide a

warning that could have prevented the potential of injury. The plaintiff alleged injury due

to exposure to asbestos dust brought home on the work clothing of her grandfather, who

was a mechanic in the construction industry from 1925 to 1970. See id. at 525, 69 A.3d at

1030. We confirmed that in a negligence count in a product liability action, any plaintiff

must allege and prove the same elements as in any action sounding in negligence—namely,

“(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the

defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4)

that the loss or injury proximately resulted from the defendant’s breach of the duty.” Id. at

528, 69 A.3d at 1031-32 (citation modified). We applied the existing requirement that in

a strict liability failure to warn claim, a plaintiff must prove that a manufacturer or supplier

owed a duty of care, and we concluded that the plaintiff in the case had failed to do so. See

id. at 526, 541, 69 A.3d at 1030-31, 1039. As with Gourdine, there was no strict liability

design defect in Georgia Pacific.

This Case

General Electric contends that the Appellate Court’s extension of the ability to

recover to bystanders was based on principles of negligence, e.g., foreseeability of injury,

and, as such, requires proof of a duty of care. General Electric asserts that, “in expanding

strict liability beyond product users and consumers to cover bystanders to the use of the

product, the Valk court approached the issue as addressing ‘the all-important concept of

• 30 - legal duty.’” (Citations omitted). General Electric maintains that a “seller’s duty in a strict

liability design defect claim, like its duty under any other strict liability theory, runs to

users and consumers of the product and to bystanders present when and where the product

is used.” As evidence that proof of duty is required, General Electric argues that in Valk,

the Appellate Court “cited approvingly to commentators observing that the effect of

expanding of strict liability to cover bystanders to the use of the product ‘is obviously to

put the strict liability on the same footing as negligence, as to all foreseeable injuries.’”

(Citation omitted).

We conclude that, with respect to an asbestos product strict liability design defect

claim, a person in the position of Mrs. Allen is not required to prove the element of duty in

addition to the four elements of an action in strict liability set forth in Phipps, 278 Md. at

344, 363 A.2d at 958. This conclusion is derived directly from our holding in Phipps, id.

at 352, 363 A.2d at 963, that demonstrating the existence of a defect in a product at the

time it leaves the seller’s control indicates fault on the seller’s part that justifies imposing

liability for injuries caused by the product, and the Appellate Court’s holding in Valk, 74

Md. App. at 323, 537 A.2d at 632, that persons who are not users or consumers of products

are protected under the doctrine of strict liability. Based on our analysis in Phipps and

approval of the Appellate Court’s holding in Valk, in our view, extending the requirement

of proof of duty, which is a necessary element of proof for all claimants in negligence and

strict liability failure to warn claims, to be a requisite element of proof for a person in Mrs.

Allen’s position in a strict liability design defect claim is not warranted.

• 31 - General Electric’s contentions misapprehend the Appellate Court’s thorough

analysis and approach in Valk and our basis for adopting the elements of a strict liability

design defect claim in Phipps. In Valk, 74 Md. App. at 311, 318-19, 537 A.2d at 625-26,

629, after examining the adoption of the theory of strict liability by courts in other

jurisdictions and the trend toward expanded coverage in products liability cases, the

Appellate Court concluded that “[t]he rule that has finally emerged is that the seller is liable

for negligence in the manufacture or sale of any product which may reasonably be expected

to be capable of inflicting substantial harm if it is defective.” (Citation omitted). This was

not a determination that strict liability in a design defect claim is based on establishing a

negligence-based tort duty or a determination that such liability is based on the

foreseeability of injury to a specific person or group.

In Valk, id. at 318, 537 A.2d at 629, in describing the development of the theory of

strict liability and the expansion of coverage in the products liability field to bystanders,

the Appellate Court explained:

Within each of its doctrinal subdivisions—1) the original contractual
obligation based upon express and implied warranties, 2) the subsequently
developed liability in tort for negligence, and 3) the final development of
strict liability in tort—there has been internal movement as well, although
the chronology for that internal movement has been slower in the more
recently developed doctrinal area. Originally, there was coverage only for
the immediate purchasers who were in privity with the manufacturers/sellers.
That coverage was soon expanded to include even more remote consumers
and ultimately users. The last and most recent expansion has embraced third-
party beneficiaries or bystanders as well.

To the extent that the Appellate Court purported to address “the all-important

concept of legal duty[,]” it did so in response to the manufacturer’s claim that the plaintiffs’

• 32 - “right to recovery founders upon the all-important concept of legal duty.” Id. at 317, 537

A.2d at 629. It was the manufacturer, not the Appellate Court, that asserted that the concept

of legal duty is “all-important” for purposes of a plaintiff’s recovery on a strict liability

claim. The Appellate Court reached the exact opposite conclusion, indicating that the

expansion of coverage in strict liability in design defect claims freed plaintiffs, including

bystanders, from the need to prove negligence-based elements. See id. at 323, 537 A.2d at

631-32.

A closer look at General Electric’s position reveals that its contention that Mrs.

Allen is not a person within the scope of coverage of a strict liability design defect claim

is based on its view that Mrs. Allen had no contact with the product at issue and that Mrs.

Allen was not present at a place or time where the product was being used. According to

General Electric, in Valk, after reviewing cases from other jurisdictions, the Appellate

Court held that strict lability in a design defect case extended to “bystanders to the use of

the product such as the decedent in that case.” (Emphasis added). General Electric

interprets the language of Comment o of § 402A of the Restatement (Second) of Torts—

stating that there is no reason why “[c]asual bystanders, and others who may come in

contact with the product, as in the case of employees of the retailer, or a passer-by injured

by an exploding bottle, or a pedestrian hit by an automobile,” should not be brought under

the scope of strict liability protection—to mean that there is no basis for extending the

scope of liability to plaintiffs “who were distant in time and place from the use of the

product and had no contact with the product itself.” (Footnote omitted).

• 33 - General Electric’s interpretation of the Appellate Court’s holding in Valk and in

particular the definition of the word “bystander” that it attributes to the Court goes far

beyond the Appellate Court’s holding. See 74 Md. App. at 323, 537 A.2d at 631-32.

Although Valk involved injury to a person who was actually struck by the product at issue,

the Appellate Court did not purport to limit the definition of the word “bystander” to a

person who was injured at a time or location where the product was being used. See id. at

308, 323, 537 A.2d at 624, 631-32. In fact, the Appellate Court did not set forth a definition

of the word bystander.

Similarly, General Electric’s interpretation of the language of Comment o of § 402A

of the Restatement (Second) of Torts reads into the comment language that is not there.

Comment o, labeled “Injuries to non-users and non-consumers,” provides that the Institute

has neither expressed approval nor disapproval of expansion of § 402A of the Restatement

(Second) of Torts to permit recovery by “[c]asual bystanders[] and others who may come

into contact with the product[.]” Comment o lists persons such as “employees of the

retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile”

as examples of people who have been denied recovery. Although Comment o refers to

expanding the rule to casual bystanders and others who come in contact with a product,

there is no language in the comment that denotes a casual bystander to be a person who is

present at the time and place that a product is used.

Multiple sources confirm that “[i]f products containing asbestos are disturbed, tiny

asbestos fibers are released into the air. When asbestos fibers are breathed in, they may

get trapped in the lungs and remain there for a long time. Over time, these fibers can

• 34 - accumulate . . . and lead to serious health problems.” National Cancer Institute

Publication, “Asbestos Exposure and Cancer Risk” (revised May 20, 2021), https://www.

cancer.gov/about-cancer/causes-prevention/risk/substances/asbestos/asbestos-fact-sheet#

r6 [https://perma.cc/SUZ9-W65X]; see also Agency for Toxic Substances and Disease

Registry, “Health Effects of Asbestos” (Aug. 12, 2024), https://www.atsdr.cdc.gov/

asbestos/health-effects [https://perma.cc/7ULS-GUHH]. “Asbestos fibers lie dormant in

the human body over a period of time.” Duffy v. CBS Corp., 458 Md. 206, 230, 182 A.3d

166, 180 (2018) (citation modified). A person who is exposed to asbestos may become

“aware of the injury only after he or she starts to experience symptoms of a latent disease,

which usually occur many years after exposure.” Id. at 231, 182 A.3d at 180 (citation

omitted). We have determined with respect to the development of asbestos-related diseases

that “bodily injury occurs when asbestos is inhaled and retained in the lungs.” Id. at 231,

182 A.3d at 180 (citation modified). Imposing the requirement that, for recovery in an

asbestos product strict liability claim for design defect, a person in Mrs. Allen’s position

must be present at the time and place that the product at issue is used disregards the manner

in which injury may occur from exposure to asbestos.

On the other hand, as to the requirement of contact with the product, the factors

adopted by this Court in Phipps, 278 Md. at 344, 352-53, 363 A.2d at 958, 963, based on

§ 402A of the Restatement (Second) of Torts, unequivocally require that to prevail on a

claim of strict liability based on a design defect, a plaintiff must have had contact with the

product at issue and that the contact must have been reasonably foreseeable. Whether a

plaintiff is a user or consumer or a person in Mrs. Allen’s position, to prevail on a strict

• 35 - liability design defect claim, under the second and fourth elements set forth in Phipps, id.

at 344, 352, 363 A.2d at 958-59, 963, a plaintiff is required to prove, among other things,

that the product at issue was unreasonably dangerous to the person and that the product

was expected to and did reach the person, i.e., that the person had contact with the product.

Insofar as the concept of foreseeability of injury is concerned, the Appellate Court’s

mention or discussion of foreseeability of injury in Valk, 74 Md. App. at 323, 537 A.2d at

632, consisted of observing that Keeton, Prosser and Keeton on Torts, at 704 (5th ed. 1984)

summed up the “movement” expanding strict liability protection to bystanders by stating

that “other jurisdictions have agreed with [the] decision . . . until it is now generally

followed” and that “[i]ts effect is obviously to put the strict liability on the same footing as

negligence, as to all foreseeable injuries.” This observation does not translate into a

requirement that bystanders prove the extra element of duty to prevail in a strict liability

design defect claim. While foreseeability of harm “is often considered among the most

important” factors in determining whether a duty exists, “its existence alone does not

suffice to establish a duty under Maryland law.” Patton v. U.S. of Am. Rugby Football,

381 Md. 627, 637, 851 A.2d 566, 571 (2004) (quoting Remsburg v. Montgomery, 376 Md.

568, 583, 831 A.2d 18, 26 (2003)); see also Valentine v. On Target, Inc., 353 Md. 544,

551, 727 A.2d 947, 950 (1999). To determine whether a plaintiff has alleged sufficient

facts to establish the existence of a duty, we use a non-exhaustive list of factors, which

include

the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered the injury, the closeness of the connection between
defendant’s conduct and the injury suffered, the moral blame attached to the

• 36 - defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for the breach, and the availability, cost and prevalence of insurance for the risk involved.

Patton, 381 Md. at 637, 851 A.2d at 571 (citation omitted).

Our holding stems from the concept that it is reasonably foreseeable that a person

in Mrs. Allen’s position may come into contact with the product and that, therefore, the

seller may be subject to liability for physical harm caused thereby, if the elements of a strict

liability design defect claim are satisfied. The fourth element of a strict liability design

defect claim incorporates not only a requirement that a person have contact with the product

at issue but also the requirement that the person’s contact with the allegedly defective

product be foreseeable. In Phipps, 278 Md. at 348-49, 363 A.2d at 961, in contending that

this Court should reject the adoption of the strict liability design defect claim elements as

set forth in § 402A of the Restatement (Second) of Torts, General Motors argued, among

other things, “that the adoption of strict liability would substantially alter the rights of

consumers and sellers as presently defined by the law of negligence and contract[.]” We

rejected this argument, explaining that

the major distinction between an action in strict liability in tort and one
founded on traditional negligence theory relates to the proof which must be
presented by the plaintiff. Although the plaintiff need not prove any specific
act of negligence on the part of the seller, as in other product liability cases,
proof of a defect existing in the product at the time it leaves the seller’s
control must still be presented. As one commentator has observed, the
doctrine of strict liability is really but another form of negligence per se, in
that it is a judicial determination that placing a defective product on the
market which is unreasonably dangerous to a user or consumer is itself a
negligent act sufficient to impose liability on the seller[.]

• 37 - Id. at 350-51, 363 A.2d at 962 (citation omitted). In adopting the elements of a strict

liability design defect claim in Phipps, we did not require proof of a duty to a consumer or

user. And, in Valk, 74 Md. App. at 318, 320, 537 A.2d at 629-30, after setting forth the

definitions of terms “consumer” and “user,” the Appellate Court explained that Comment

o to § 402A of the Restatement (Second) of Torts forecast that the scope of liability might

be extended to bystanders “who may come into contact with the product[.]”

Our holding in Phipps and the Appellate Court’s holding in Valk applied traditional

principles of foreseeability to strict liability design defect claims, where a manufacturer

introduces an unreasonably dangerous product into the stream of commerce. In the case

of a “consumer” or “user,” where it is reasonably foreseeable that they will come into

contact with the product, a seller is subject to liability for harm caused to them if the

consumer or user satisfies the elements of a strict liability design defect claim as adopted

by this Court in Phipps. It is unnecessary to establish duty as a separate element of a strict

liability design defect claim because the claim itself is predicated on the understanding that

a manufacturer of an unreasonably dangerous product should be responsible for harm

caused to those it is reasonably foreseeable will come into contact with its product.

To recover under a strict liability design defect claim, a plaintiff must demonstrate

that a product was expected to and did reach the person without substantial change in its

condition. See Phipps, 278 Md. at 344, 363 A.2d at 958. This requires that the plaintiff

prove: (1) that contact with the product was expected, i.e., foreseeable; (2) that contact with

the product occurred; and (3) that the product reached the person without substantial

change in its condition. To be sure, foreseeability of contact with a product and

• 38 - foreseeability of injury from a product are not the same concepts. Although some

jurisdictions have required that bystanders prove foreseeability of injury to recover in a

strict liability design defect claim, and, after the Appellate Court’s decision in Valk, some

jurisdictions have incorporated the definition of a defectively designed product from the

Restatement (Third) of Torts, which requires proof of a foreseeable risk of harm that could

have been reduced or avoided, neither our case law nor any statute enacted by the General

Assembly has imposed such requirements.

After a thorough review of our holding in Phipps and the Appellate Court’s holding

in Valk, we see no basis on which to extend case law requiring proof of duty as an element

in failure to warn claims to require that a person in Mrs. Allen’s position satisfy the element

of duty in proving a strict liability design defect claim. In Phipps, 278 Md. at 352-53, 363

A.2d at 963, in adopting the theory of strict liability, we explained:

[T]here is no reason why a party injured by a defective and unreasonably
dangerous product, which when placed on the market is impliedly
represented as safe, should bear the loss of that injury when the seller of that
product is in a better position to take precautions and protect against the
defect. Yet this may be the result where injured parties are forced to comply
with the proof requirements of negligence actions or are confronted with the
procedural requirements and limitations of warranty actions. Therefore, we
adopt the theory of strict liability as expressed in [§] 402A of the Restatement
(Second) of Torts.

This rationale applies with equal force in determining whether a person in Mrs. Allen’s

position should be required to prove the additional element of duty.

The theory undergirding a strict liability design defect claim is that a seller is liable

for placing an unreasonably dangerous defective product in the stream of commerce. See

Phipps, id. at 344, 363 A.2d at 958-59; Restatement (Second) of Torts § 402A. “Where

• 39 - the seller supplies a defective and unreasonably dangerous product, the seller or someone

employed by him has been at fault in designing or constructing the product.” Phipps, 278

Md. at 352, 363 A.2d at 963. In an asbestos strict liability design defect claim, a person in

Mrs. Allen’s position must demonstrate that (1) the product was defective at the time it left

the control of the seller, (2) it was unreasonably dangerous to the person, (3) the defect was

a cause of the injuries, and (4) the product was expected to and did reach the person without

substantial change in its condition. See id. at 344, 363 A.2d at 958. Put another way, Mrs.

Allen must prove all four elements of a design defect strict liability claim set forth in

Phipps. See also Valk, 74 Md. App. at 312-13, 323, 537 A.2d at 626, 632.

Conclusion

We hold that in an asbestos-related strict liability design defect claim, where a

person who lived in the household of a user or consumer alleges injury based on exposure

to dust from the asbestos product at issue through no fault on the person’s part, the person

is not required to prove the additional element of duty to establish the claim. Our holding

neither adds additional elements nor resolves the merits of any issue with respect to the

elements of a strict liability design defect claim as set forth in Phipps. The requirement

that a person in Mrs. Allen’s position be exposed to dust of the asbestos product at issue

through no fault on the person’s part goes to making clear that sellers are not subject to

liability for injuries caused by a claimant’s misconduct.

It is not necessary that we set forth a definition of the word “bystander” or declare

whether Mrs. Allen was one. It is enough for us to conclude that, in a case involving

alleged exposure to asbestos, to establish a claim of strict liability based on a design defect,

• 40 - a person in Mrs. Allen’s position, who is neither a user nor consumer, is not required to

prove the additional element of duty to establish the claim. We do not answer the question

of whether, in other contexts, with respect to a strict liability design defect claim, a person

who is not a user or consumer of a product must prove elements in addition to those set

forth in Phipps.

For all of the reasons above, we answer the certified question “no.” As such, we do

not address what factors are used to determine whether a duty is owed.

CERTIFIED QUESTION OF LAW ANSWERED.
COSTS TO BE DIVIDED EQUALLY BETWEEN
THE PARTIES.

• 41 -