Black v. Abex Corp.

1999 ND 236, 603 N.W.2d 182



Market share liability is premised upon the fact that the defendants have produced identical or virtually identical defective products that carry equivalent risks of harm. Accordingly, under the market share theory, it is considered equitable to apportion liability based upon the percentage of products each defendant contributed to the entire relevant market.


Plaintiff sued forty-eight asbestos manufacturers, alleging her husband's death was caused by his occupational exposure to asbestos-containing products and asserting market share and alternative liability claims. Plaintiff appealed the trial court's grant of summary judgment in favor of defendants.


Is market-share liability appropriate where each defendant could be responsible for different amounts of injury, even though each amount could not be proven?




In affirming summary judgment, the appellate court concluded that market share liability, premised upon the fact that defendants produced identical defective products that carry equivalent risks of harm, was inappropriate in this asbestos case as plaintiff alleged injury from exposure to many different types of asbestos products containing differing amounts of asbestos and as plaintiff could not identify any such product as causing decedent's injury. Further, plaintiff's claim of alternative liability failed, where a crucial element is that all possible wrongdoers be brought before the court and plaintiff failed to assert that she included as defendants all possible manufacturers of asbestos-containing products to which her husband was exposed. The trial court's order of summary judgment in defendants' favor was affirmed as plaintiff could not maintain a market share liability theory where she could not establish that, in spite of product differences, the asbestos-containing products carried equivalent risks of harm.

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