Asbestos in 20th Century Building Codes: Can Compliance Be Negligence?

Texas Tech Administrative Law Journal Vol.18, (2017), Forthcoming

45 Pages Posted: 13 May 2016

Date Written: April 27, 2016

Abstract

Building codes, and the engineering standards incorporated into them, were developed in Western industrial nations for the purpose of preventing harm to citizens from defects in, or failures of, the built environment. Until the end of the century, and in some cases beyond, asbestos was specified, approved and sometimes required in code-compliant assemblies in the U.S. and Europe that passed inspections by the authorities having jurisdiction (AHJs). Compliance with building laws, and other safety regulations that specified asbestos, such as those of the Occupational Safety and Health Administration (OSHA) and the U.S. Public Health Service (USPHS), is now construed in asbestos litigation as negligence. In the landmark 1973 Borel v. Fibreboard decision, the Fifth Circuit, and the Supreme Court in the following year, argued that it was the failure to warn that made asbestos-containing materials "unreasonably dangerous," relying on the Restatement (Second) of Torts in 1964, which asserted in §402A that a product was "unreasonably dangerous" if "a reasonable man would not sell the product if he knew the risk involved." Yet no safety authority, including OSHA and USPHS, required warnings on asbestos-containing products or their packages prior to 25 November 1985. We are thus forced to the patently absurd conclusion that the two agencies most directly responsible for public safety at the Federal level specified and approved assemblies before November 1985 that were, by this legal logic, "unreasonably dangerous," and that the engineers, physicians and scientists associated with these agencies could not have been "reasonable men" and women. How can compliance with administrative law be construed as negligence, as it clearly is in asbestos litigation?

Keywords: asbestos litigation, building codes, administrative law, engineering standards, OSHA

JEL Classification: K13, K23, K32, I74

Suggested Citation

Maines, Rachel, Asbestos in 20th Century Building Codes: Can Compliance Be Negligence? (April 27, 2016). Texas Tech Administrative Law Journal Vol.18, (2017), Forthcoming, Available at SSRN: https://ssrn.com/abstract=2778784

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