MARY BENNETT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RAYMOND , BENNETT, DECEASED, APPELLANT,
v.
NATIONAL GYPSUM COMPANY, A FOREIGN CORPORATION; UNITED STATES GYPSUM COMPANY, A FOREIGN CORPORATION; AND GEORGIA-PACIFIC CORPORATION, A FOREIGN CORPORATION, APPELLEES
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Florida appellate court reversed dismissal of asbestos product liability complaint, holding that while market share liability theory is unavailable when manufacturers are identified, the plaintiff adequately pleaded traditional strict liability.
A plaintiff may pursue strict liability against identified asbestos manufacturers but cannot rely on market share liability theory when specific manufacturers are named.
[1] Market share liability theory is not available in product liability cases where the plaintiff has identified the specific manufacturers of the defective product.
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Join FLexlaw to unlock all legal intelligenceMary Bennett, as representative of her deceased husband's estate, sued three asbestos manufacturers (National Gypsum, United States Gypsum, and Georgi…
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PER CURIAM.
This is an appeal from the trial court’s dismissal of Mary Bennett's fourth amended complaint which was grounded on the tort theory of product liability. It is appellant’s contention that the trial court erred since she sufficiently alleged a “market share” theory of products liability. Alternatively, she contends that she has sufficiently set out a cause of action based on the traditional theory of strict liability. We disagree with appellant’s first contention but agree with her second.
There is no cause of action founded on a “market share” theory of product liability in a case where, as here, appellant identified appellees as the manufacturers of the asbestos products to which her deceased husband was fatally exposed. Celotex Corp. v. Copeland, 471 So. 2d 533 (Fla.1985). Even though that be so, we reverse because appellant has sufficiently alleged the proper elements of a cause of action based on the traditional theory of strict liability. West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla.1976); Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla.1973); Fla.R.Civ.P. 1.110(b).
Reversed and remanded for reinstatement of the complaint and for further proceedings.
SCHEB, A.C.J., and DANAHY and FRANK, JJ., concur.
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Cited By
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Dorothy Baione for the Estate of Nickolas Baione v. Owens-Illinois, Inc., 599 So. 2d 1377 (Fla. 2d DCA 1992)…s ago. First, although the parties did not rely upon existing precedent from this district, [*1379] we have previously held that it is error to dismiss a strict liability claim in the context of asbestos litigation. Bennett v. National Gypsum. Co., 491 So. 2d 1161 (Fla. 2d DCA 1986). Strict liability has become an accepted theory in asbestos litigation and provides a remedy in some circumstances when negligence would not. See 9 American Law of Products Liability 3d § 113:24 (T. Travers ed.1988). Accordingly,…
Authorities Cited
- West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976)
- Celotex Corp. v. Copeland, 471 So. 2d 533 (Fla. 1985)
- Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla. 1973)