Doug Satterfield v. Breeding Insulation Company

OPINION

delivered the opinion of the court,

This appeal involves the efforts of the estate of a twenty-five-year-old woman who contracted mesothelioma to recover damages for her death. While she was alive, the woman filed a negligence action against her father’s employer, alleging that the employer had negligently permitted her father to wear his asbestos-contaminated work clothes home from work, thereby regularly and repeatedly exposing her to asbestos fibers over an extended *352period of time. After the woman died, the Circuit Court for Blount County permitted her father to be substituted as the personal representative of her estate. The employer moved for a judgment on the pleadings on the narrow ground that it owed no duty to its employee’s daughter. The trial court granted the motion. The deceased woman’s father appealed the dismissal of his daughter’s wrongful death claim. The Tennessee Court of Appeals reversed the trial court. Satterfield v. Breeding Insulation Co., No. E2006-00903-COA-R3-CV, 2007 WL 1159416 (Tenn.Ct.App. Apr.19, 2007). We granted the employer’s application for permission to appeal to determine whether the deceased woman’s complaint can withstand a motion for judgment on the pleadings. We have determined that it does because, under the facts alleged in the complaint, the employer owed a duty to those who regularly and for extended periods of time came into close contact with the asbestos-contaminated work clothes of its employees to prevent them from being exposed to a foreseeable and unreasonable risk of harm.

The only issue on this appeal is whether the complaint of a woman who succumbed to mesothelioma should have been dismissed solely because the defendant did not have a duty to act reasonably to prevent her from being exposed repeatedly and regularly over an extended period of time to the asbestos fibers on her father’s work clothes. The purpose of this appeal is not to determine whether, in fact, the defendant was negligent or whether its conduct caused the woman’s death. Because the complaint was dismissed in response to a Tenn. R. Civ. P. 12.03 motion, the facts contained in this opinion are those found in the challenged complaint.1

I.

Alcoa, Inc.2 is an international manufacturer of aluminum and aluminum products. It owns and operates facilities in various locations throughout the United States, including a facility in Alcoa, Tennessee. Alcoa uses materials containing asbestos in many of its manufacturing operations. Since the 1930s, Alcoa has been aware that asbestos is a highly dangerous substance, and it has closely monitored the research into the dangers posed by asbestos.

Beginning in the 1940s, Alcoa opened its own internal hygiene department which provided directives to Alcoa’s local facilities regarding the handling of materials containing asbestos. Because of the frequent use of materials containing asbestos in its manufacturing processes, Alcoa was aware that the air in its factories contained high levels of asbestos fibers and that its employees were being exposed to these fibers on a daily basis.

Alcoa became aware in the 1960s that the dangers posed by asbestos fibers extended beyond its employees who were in constant direct contact with the materials *353containing asbestos or the asbestos fibers in the air. It learned that even intermittent exposure to low levels of asbestos fibers resulted in an increased risk of disease. At approximately the same time, Alcoa also learned that persons living near facilities that made extensive use of materials containing asbestos were experiencing higher disease rates, as were the family members of its employees who were being exposed regularly and repeatedly to the asbestos fibers on the employees’ work clothes.

In 1972, the Occupational Safety and Health Administration (“OSHA”) promulgated regulations prohibiting employees who had been exposed to asbestos from taking their work clothes home to be laundered. Tests that Alcoa conducted at a number of its facilities, including those in Tennessee, revealed that the levels of asbestos fibers on the workers’ clothes were extremely high.

In 1973, Doug Satterfield began working at Alcoa’s facility in Alcoa, Tennessee. He worked there for two years until he entered the United States Army in 1975. After three years of military service, Mr. Satterfield resumed working at the Alcoa plant in 1978. He continued to work for Alcoa until at least 1984. His job assignments resulted in his exposure to high levels of asbestos dust and fibers on a daily basis.

Contrary to the OSHA regulations, Alcoa failed to educate Mr. Satterfield and its other employees regarding the risk of asbestos or how to handle materials containing asbestos. Even though Alcoa’s employees worked extensively with materials containing asbestos, these materials did not contain warning labels or notices stating that they contained asbestos. Despite the fact that Alcoa was aware of the dangers posed by asbestos before Mr. Satter-field became an employee, it failed to apprise him or its other employees of the dangers of asbestos or specifically of the danger associated with wearing home their asbestos-contaminated work clothes. In addition, Alcoa failed to provide protective coveralls for its employees, discouraged the use of its on-site bathhouse facilities, and did not offer to launder its employees’ work clothes at its facility. Accordingly, Alcoa’s employees, including Mr. Satter-field, left the plant each day unaware of the dangers posed by the asbestos fibers on their contaminated work clothes and without Alcoa making an effort to prevent others from being exposed to the asbestos fibers on its employees’ clothes.

On September 7, 1979, Amanda Nicole Satterfield was born to Mr. Satterfield and Donna Satterfield. Because her birth was premature, she was required to spend the first three months of her life at the University of Tennessee Hospital in Knoxville, Tennessee. Mr. Satterfield visited his infant daughter every day she was hospitalized. He came to the hospital immediately after work wearing his asbestos-contaminated work clothes and stayed with his daughter until late into the evening. Thus, from the day of her birth, Ms. Sat-terfield was exposed to the asbestos fibers on her father’s work clothes.

Ms. Satterfield was eventually diagnosed with mesothelioma. On December 8, 2003, she filed suit against Breeding Insulation Company, Inc. (“Breeding”) and Alcoa in the Circuit Court for Knox County. She alleged that mesothelioma is a highly lethal form of cancer that is almost exclusively caused by exposure to asbestos and that she contracted mesothelioma as a direct result of the negligent acts and omissions of both Breeding and Alcoa.3 The *354case was transferred to the Circuit Court for Blount County on February 11, 2004.

Ms. Satterfield died from mesothelioma on January 1, 2005. The trial court granted the motion filed by Mr. Satterfield, as the representative of his daughter’s estate, to be substituted as plaintiff. The trial court also allowed Mr. Satterfield to amend his daughter’s complaint to assert that the negligent acts and omissions of Alcoa and Breeding proximately caused his daughter’s death.

On December 16, 2005, Alcoa filed a Tenn. R. Civ. P. 12.03 motion for judgment on the pleadings. Alcoa asserted that “as a matter of law it owed no legal duty to Amanda Nicole Satterfield.” Following a hearing on January 30, 2006, the trial court filed an order on March 31, 2006, dismissing Ms. Satterfield’s complaint4 on the ground that “there is no provision in Tennessee law (either through the Legislature or Court interpretation) that imposes on Alcoa a legal duty to a third party under the facts and circumstances of this case.” Satterfield v. Breeding Insulation Co., No. L-14000, 2006 WL 901725, at *1 (Blount Cir. Ct. Mar. 31, 2006).

On April 10, 2006, Mr. Satterfield voluntarily dismissed Ms. Satterfield’s claims against Breeding. Thereafter, on April 27, 2006, Mr. Satterfield, on behalf of his daughter’s estate, appealed from the trial court’s dismissal of Ms. Satterfield’s claims against Alcoa. On April 19, 2007, the Tennessee Court of Appeals filed an opinion reversing the dismissal of Ms. Satterfield’s complaint after concluding that the trial court had erred by holding that Alcoa owed no duty to Ms. Satterfield under the facts alleged in the complaint. Satterfield v. Breeding Insulation Co., No. E2006-00903-COA-R3-CV, 2007 WL 1159416, at *4-10 (Tenn.Ct.App. Apr.19, 2007).

Alcoa filed a Tenn. R.App. P. 11 application for permission to appeal. Because strikingly similar issues related to “take-home” or “transmission” asbestos exposure cases have sharply divided courts throughout the country and because this case implicates core principles of Tennessee’s tort law, we granted Alcoa’s application for permission to appeal. We have determined that the trial court erred by dismissing Ms. Satterfield’s complaint and that the Court of Appeals properly reversed the trial court’s dismissal of the complaint. Based on the facts alleged in the complaint, Alcoa owed a duty of reasonable care to Ms. Satterfield.

II.

In its most succinct form, the pivotal question in this case is whether, under the facts alleged in Ms. Satterfield’s complaint, Alcoa owed a duty of reasonable care to Ms. Satterfield. Alcoa asserts that it did not owe a duty to Ms. Satterfield. It contends that imposing such a duty on it would improperly create an affirmative obligation to act despite the absence of any *355special relationship between Alcoa and either Ms. Satterfield or her father. On the other hand, Mr. Satterfield insists that his daughter’s complaint is premised on the assumption that Alcoa owed Ms. Satter-field a duty of reasonable care because it created an unreasonable and foreseeable risk of harm to her.

A.

The underlying dispute in this case is fundamentally one of characterization and classification. Has Alcoa engaged in an affirmative act that created an unreasonable and foreseeable risk of harm to Ms. Satterfield? If Alcoa did create such a risk of harm, are there countervailing legal principles or policy considerations that warrant determining that Alcoa nevertheless owed no duty Ms. Satterfield? Or, alternatively, does this case involve an omission by Alcoa in failing to control the actions of Mr. Satterfield, its employee? If so, then does Alcoa have the sort of special relationship with either Mr. Satter-field or Ms. Satterfield that gives rise to a duty to restrain Mr. Satterfield or to protect Ms. Satterfield? The answers to these questions emerge from considerations of precedent and public policy, as well as the basic foundations of Tennessee’s tort law.

To prevail on a negligence claim, a plaintiff must establish (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 771 (Tenn.2006); Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn.2005). Although not originally required under the English common law, duty has become an essential element of all negligence claims, as well as a question of law to be determined by courts. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn.2005); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993). Thus, if Alcoa does not owe a duty to Ms. Satter-field, her claim must fail.

B.

Duty is a legal obligation to conform to a reasonable person standard of care in order to protect others against unreasonable risks of harm. Burroughs v. Magee, 118 S.W.3d 323, 328-29 (Tenn.2003); Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000). As a general rule, persons have a duty to others to refrain from engaging in affirmative acts that a reasonable person “should recognize as involving an unreasonable risk of causing an invasion of an interest of another” or acts “which involve[] an unreasonable risk of harm to another.” Restatement (Second) of Torts §§ 284, 302, at 19, 82 (1965). Thus, if an individual “acts at all, [he or she] must exercise reasonable care to make his [or her] acts safe for others.” Restatement (Second) of Torts § 4 cmt. b, at 8. The core of negligence is the violation of this requirement by engaging in “behavior which should be recognized as involving unreasonable danger to others.” W. Page Keeton, Prosser and Keeton on the Law of Torts § 31, at 169 (5th ed.1984) [hereinafter “Prosser and Keeton ”].

These rules do not, however, require that persons always act reasonably to secure the safety of others. Rather, they serve a more limited role as restraints upon a person’s actions that create unreasonable and foreseeable risks of harm to others. Expounding upon this point more than a century ago, Professor Francis H. Bohlen asserted that “[t]here is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and non-feasance, be*356tween active misconduct working positive injury to others and passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant.” 5 While the primacy of this distinction is certainly subject to debate, that it has played a significant role in the formation of the law of negligence is beyond reasonable dispute.

Professor Bohlen is not the only scholar to offer an eloquent and enlightening articulation of the distinction between misfeasance and nonfeasance. Dean Keeton and Dean Prosser explained the distinction as follows:

In the determination of the existence of a duty, there runs through much of the law a distinction between action and inaction.... [Tjhere arose very early a difference, still deeply rooted in the law of negligence, between “misfeasance” and “nonfeasance” — that is to say, between active misconduct working positive injury to others and passive inaction or a failure to take steps to protect them from harm. The reason for the distinction may be said to lie in the fact that by ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs.

Prosser and Keeton § 56, at 373.6 Similarly, Professor Fowler V. Harper and Judge Posey M. Kime offered the following explanation:

The man who has undertaken a definite course of continuous action thus brings himself into relation with other human beings within the zone of possible danger, to an extent requiring that precaution against bodily harm to such persons which a reasonable man under the circumstances would take. If he fails to do so, this is characterized as misfeasance. In other words, an actor is always under the duty to see that other persons are not immediately exposed to an unreasonable risk from his acts. On the other hand, a previous course of action, not in itself creating risks to others, may have brought the actor into certain socially recognized relations with others which are of such a character as to require affirmative acts to protect them from risks which the person thus required to act had no part in creating. The failure to perform such an act is described as non-feasance.

Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 887 (1934) [hereinafter “Harper & Kime”].7

The distinction between misfeasance and nonfeasance can be easily misunderstood. One can be led astray by thinking that a defendant’s negligent act must be characterized “as an affirmative act for a duty to exist, rather than appreciating that it is the defendant’s entire course of conduct that must constitute an affirmative act creating a risk of harm and that negligence may consist of an act or omission creating an unreasonable risk.”8 *357A classic illustration of this point is the example of a driver who fails to apply his or her brakes to avoid hitting a pedestrian walking in a crosswalk. Even though the driver’s negligent act — failing to apply the brakes — is an omission, the “driver’s careless failure to apply the brakes is negligent driving, not negligent failure to rescue.”9 Accordingly, distinguishing between misfeasance and nonfeasance can best be accomplished, not by focusing on whether an individual’s “specific failure to exercise reasonable care is an error of commission or omission,” but rather by focusing on whether the individual’s entire course of conduct created a risk of harm.10 Thus, even though the specific negligent act may constitute an omission, the entirety of the conduct may still be misfeasance that created a risk of harm.11

The distinction between misfeasance and nonfeasance is far from academic. It has practical significance, and Tennessee’s courts regularly employ it when called upon to decide whether a duty exists. See, e.g., Bradshaw v. Daniel, 854 S.W.2d at 870; Newton v. Tinsley, 970 S.W.2d at 492. With regard to misfeasance, this Court has held that “all persons have a duty to use reasonable care to refrain from conduct that will foreseeably cause injury to others.” Burroughs v. Magee, 118 S.W.3d at 328; Bradshaw v. Daniel, 854 S.W.2d at 870. As for nonfea-sance, Tennessee’s courts generally have declined to impose a duty to act or to rescue. Bradshaw v. Daniel, 854 S.W.2d at 870; Newton v. Tinsley, 970 S.W.2d at 492. Simply stated, persons do not ordinarily have a duty to act to protect others from dangers or risks except for those that they themselves have created. Biscan v. Brown, 160 S.W.3d 462, 478-79 (Tenn.2005); Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn.Ct.App.1992).

Tennessee’s general rule with regard to nonfeasance is consistent with the Restatement’s position that “[t]he fact ... the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Restatement (Second) of Torts § 314, at 116. This general and long-standing principle of tort law, often termed either the “no duty to act rule” or the “no duty to rescue rule” has been subject to considerable and enduring criticism.12

A compelling argument in opposition to the no duty to act or to rescue rule rests comfortably “on the perception that, as a matter of inarticulate common sense, it is wrong for one person to stand by as another suffers an injury that could easily be *358prevented.”13 An expert swimmer who stands on the shore watching a child drown or a passerby on the bridge who cannot be bothered to throw a rope to a person in distress in the waters below stand as illustrations that demonstrate the unreasonableness that can be exemplified by a failure to rescue. Even staunch defenders of the no duty to act or to rescue rule must concede that failure to do so may, in certain circumstances, not only be unreasonable, a normal measure for negligent conduct, but actually “outrageous.”14

Nevertheless, common-law courts, including Tennessee’s courts, have preserved, though not inviolably, the no duty io act or to rescue rule. The reason is not intransigency or lack of consideration. Quite to the contrary, the rule survives because its limitations continue to be of considerable importance and value. Imposing a duty to act or to rescue strays dangerously into interference with individual liberty.15 By adhering to a no duty to act or to rescue rule, the courts are not rendering the common law amoral but instead are prioritizing liberty over altruism in circumstances where the defendant did not create the risk of harm.16 While a person who fails to act may well be subject to public censure, not all failures to act should be prohibited or punished by force *359of law.17 Failure to leave sufficient space outside the dictates of the law may have an adverse effect on the exercise of private judgment which is critical to the development of a person’s moral capacities.18

While society may be outraged at the conduct of someone who fails to act, there is no concomitant sense that persons who fail to act should be required to pay financial compensation because the harm was not caused by that person’s failure to act.19 The expert swimmer or the indifferent passerby on the bridge may be worthy of social approbation, but financial compensation for failing to act to avert a danger not caused by the unwilling rescuer hardly seems appropriate.20 In addition, it has been asserted that recognizing a duty to act or to rescue rule could create problems of comprehensibility, verifiability, and con-formability, as well as administrative difficulties, to such an extent that maintaining the current no duty to act or to rescue rule, while not perfect, is still the superior course.21

C.

Searching for reasonable ground between the competing viewpoints surrounding the no duty to act or to rescue rule, Tennessee’s courts have maintained the general rule but have carved out exceptions to mitigate against some of its harshest applications. See, e.g., Bradshaw v. Daniel, 854 S.W.2d at 871; Newton v. Tinsley, 970 S.W.2d at 492. These exceptions arise when certain special relationships exist between the defendant and either the person who is the source of the danger or the person who is foreseeably at risk from the danger. Biscan v. Brown, 160 S.W.3d at 478-79; Bradshaw v. Daniel, 854 S.W.2d at 871.22 These relation*360ships create an affirmative duty either to control the person who is the source of the danger or to protect the person who is endangered. See Restatement (Second) of Torts §§ 314A, B; 315, at 118,122.23

The recognition by Tennessee’s courts of these exceptions to the no duty to act or to rescue rule is consistent with decisions of other state courts. During the post World War II era, the number of exceptions to the no duty to act or to rescue rule based on special relationships has expanded.24 While there are many potential justifications for these departures from the general rule, among the most straightforward of justifications is that the nature of the particular relationship creates a sufficiently significant obligation that there is an enforceable expectation of reasonable action rather than unreasonable indifference.25

Accordingly, Tennessee law provides that while “an actor is always bound to prevent his acts from creating an unreasonable risk to others, he is under the affirmative duty to act to prevent another from sustaining harm only when certain socially recognized relations exist which constitute the basis for such legal duty.” Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn.1997) (quoting Bradshaw v. Daniel, 854 S.W.2d at 871); Nichols v. Atnip, 844 S.W.2d at 661.26 In other words, the approach of Tennessee’s courts is largely consistent with the Restatement view that

[n]ormally, where there is an affirmative act which affects the interests of another, there is a duty not to be negligent with respect to the doing of the act. On the other hand, where the negligence of the actor consists in a failure to act for the protection or assistance of another, *361there is normally no liability unless some relation between the actor and the other, or some antecedent action on the part of the actor,27 has created a duty to act for the other’s protection or assistance.

Restatement (Second) of Torts, Ch. 12, Topic 4, Scope Note, at 66.28

III.

Courts across the country have disagreed as to how these broad principles of tort law should be used to determine whether an employer owes a duty to persons who develop asbestos-related illnesses after exposure to asbestos fibers on its employees’ clothing. Although the courts have reached inconsistent conclusions,29 a pattern has begun to emerge. The courts that ultimately recognize the existence of a duty when faced with facts similar to this case have focused on the foreseeability of harm resulting from the employer’s failure to warn of or to take precautions to prevent the exposure. On the other hand, the courts finding that no duty exists have focused on the relationship — or lack of a relationship — between the employer and the injured party. See In re Asbestos Litig., C.A. No. 04C-07-099-ASB, 2007 WL 4571196, at *3 (Del.Super.Ct. Dee.21, 2007).

A.

The opinions of many state courts contain well-reasoned and insightful analyses of the legal principles implicated in these so-called “take-home” asbestos exposure cases. Even though the outcomes in these cases differ, their principled disagreements are captured and synthesized in two particularly edifying recent cases.

Last year, the Michigan Supreme Court addressed the question presently before this Court. The majority of the court held that no liability could be imposed on the employer in the absence of a relationship between the plaintiff and the employer. In re Certified Question from Fourteenth Dist. Ct.App. of Tex., 479 Mich. 498, 740 N.W.2d 206, 213 (2007). The majority reasoned that the

defendant, as owner of the property on which asbestos-containing products were located, did not owe to the deceased, who was never on or near that property, a legal duty to protect her from exposure to any asbestos fibers carried home on the clothing of a member of her household who was working on that property as the employee of independent contractors, where there was no further relationship between defendant and the deceased.

*362In re Certified Question from, Fourteenth Dist. Ct.App. of Tex., 740 N.W.2d at 222. In a vigorous dissent, Justice Michael F. Cavanagh offered the following rebuttal:

[T]he majority’s severely curtailed view of “relationship” seems to be based on its view of premises liability law rather than on the principles of ordinary negligence. Under the latter (and the former as well, although that is not at issue here), a harmed person need not visit the property of the injuring party. This case involves an employer who exposed a worker to asbestos, knowing that the asbestos fibers were toxic and could be earned home, thus exposing the worker’s family to asbestos. Under these circumstances, I have no difficulty concluding that the relationship — that a jury found defendant had to [the employee] — extended to [the step-daughter]. To conclude otherwise, as does the majority, ignores basic negligence principles and gives employers carte blanche to expose workers to communicable toxic substances without taking any measure whatsoever to prevent those substances from harming others. This I cannot do. Indeed, as discussed later in this dissent, our government also refuses to grant this free pass.

In re Certified Question from, Fourteenth Dist. Ct.App. of Tex., 740 N.W.2d at 225 (Cavanagh, J., dissenting).

Also within the past year, the Washington Court of Appeals addressed the argument that “employer liability does not extend to employees’ spouses and homes, and premises liability does not extend outside the premises.” Rochon v. Saberhagen Holdings, Inc., No. 58579-7-1, 2007 WL 2325214, at *3 (Wash.Ct.App. Aug.13, 2007). The court noted that the employer’s argument missed the central point of the case because the plaintiffs cause of action did not depend on premises liability principles or on the employer’s duty to protect the plaintiff from the acts of third parties. Rather, as the court noted, the plaintiffs claim was based on the employer’s own unreasonably risky acts-operating its factory in an unsafe manner-that directly and proximately caused her injuries. Rochon v. Saberhagen Holdings, Inc., 140 Wash.App. 1008, 2007 WL 2325214, at *3. The court also held that the employer had a duty to prevent the foreseeable injuries caused by its misfeasance because its operation of its plant created an unreasonable risk of harm of asbestos exposure to others who came in regular contact with its employees. Rochon v. Saberhagen Holdings, Inc., 140 Wash.App. 1008, 2007 WL 2325214, at *3.

B.

While the courts, like the Michigan Supreme Court, that have found, as a matter of law, that employers have no duty in take-home asbestos exposure cases, rely upon the absence of a special relationship, this argument is misplaced under Tennessee tort law as it has developed over the years. This Court has recognized that a duty of reasonable care arises whenever a defendant’s conduct poses an unreasonable and foreseeable risk of harm to persons or property. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995). Thus, like the drafters of the new Restatement (Third) of Torts containing the principles applicable to liability for physical harm, we are of the view that

[e]ven when the actor and victim are complete strangers and have no relationship, the basis for the ordinary duty of reasonable care ... is conduct that creates a risk to another. Thus, a relationship ordinarily is not what defines the line between duty and no-duty; conduct creating risk to another is.

*363Restatement (Third) of Torts § 37, Reporter’s Note, cmt. c, at 721. Because the requirement of privity no longer plays a role in negligence claims, “[w]hen a defendant causes physical harm through misfeasance- — affirmative acts of negligence— rather than nonfeasance, he [or she] is liable to the foreseeably injured person for the harm.” 2 Dan B. Dobbs, The Law of Torts § 321, at 870 (2001).

Whether a case involves a simple automobile accident or a complicated toxic tort, Tennessee law currently provides that one owes a duty to refrain from engaging in conduct that creates an unreasonable and foreseeable risk of harm to others. Draper v. Westerfield, 181 S.W.3d at 291; Biscan v. Brown, 160 S.W.3d at 478; Burroughs v. Magee, 118 S.W.3d at 328-29; McCall v. Wilder, 913 S.W.2d at 153.

Our decision in West v. East Tennessee Pioneer Oil Co. illustrates this principle. That case required us to determine whether a convenience store had a duty to the occupants of a vehicle who were injured when an intoxicated motorist struck their vehicle after the store’s employees had helped the obviously intoxicated motorist fuel his vehicle shortly before the accident. The store asserted that the intoxicated motorist was only a customer and, therefore, that no special relationship existed between the store and the intoxicated driver that would be sufficient to require the store employees to control the intoxicated driver’s conduct. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d at 551.

We did not hold that the convenience store’s liability was predicated on the existence of a special relationship between the store and the intoxicated driver. Instead, we held that

the defendant misconstrues the plaintiffs’ claims as being based upon a “special relationship” arising from the sale of gasoline to Mr. Tarver (the intoxicated driver). The plaintiffs’ allegations do not revolve around any duty of the defendant to control the conduct of a customer. Instead, the claims are predicated on the defendant’s employees’ affirmative acts in contributing to the creation of a foreseeable and unreasonable risk of harm, i.e., providing mobility to a drunk driver which he otherwise would not have had, thus creating a risk to persons on the roadways.

West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d at 551.

C.

According to Ms. Satterfield’s complaint, Alcoa’s employees worked with materials containing asbestos on a daily basis. Employees, including Mr. Satterfield, worked under improper and unsafe conditions which violated internal safety requirements and OSHA standards. As a result, the employees’ clothes collected significant amounts of asbestos fibers. Even though Alcoa was aware of the dangerous amounts of asbestos on its employees’ clothes, Alcoa did not inform its employees that the materials that they were handling contained asbestos or of the risks posed by asbestos fibers to the employees or to others. The danger was compounded even further because Alcoa dissuaded its employees from using on-site bathhouse facilities, and it failed to provide coveralls or to wash its employees’ work clothes at the factory. Under the facts alleged in Ms. Satterfield’s complaint, Alcoa’s alleged misfeasance created a significant risk of harm to Ms. Satterfield.

Despite Alcoa’s protestations to the contrary, this is not a failure to act ease wherein a defendant “declined to interfere, ... was in no way responsible for the perilous situation, ... did not increase the peril, ... took away nothing from the per*364son in jeopardy, [but instead] ... simply failed to confer a benefit.”30 The rules establishing no duty to protect, to rescue, or to control the conduct of third parties, the underlying basis of Alcoa's argument, are all subsets of the same no affirmative duty to act absent a special relationship rule.31 That rule, however, is inapplicable to this case. Instead, this case involves a risk created through misfeasance. Rochon v. Saberhagen Holdings, Inc., 140 Wash. App. 1008, 2007 WL 2325214, at *3 & n. 23; see also In re Certified Question from Fourteenth Dist. Ct.App. of Tex., 740 N.W.2d at 225 (Cavanagh, J., dissenting). Thus, as in Rochon v. Saberhagen Holdings, Inc., the outcome of this case does not turn on a failure to act or on the act of a third party, but instead, it turns on the employer’s own misfeasance — its injurious affirmative act of operating its facility in such an unsafe manner that dangerous asbestos fibers were transmitted outside the facility to others who came in regular and extended close contact with the asbestos-contaminated work clothes of its employees. Rochon v. Saberhagen Holdings, Inc., No. 58579-7-I, 2007 WL 2325214, at *3;32 see also In re Certified Question from Fourteenth Dist. Ct.App. of Tex., 740 N.W.2d at 225 (Cavanagh, J., dissenting).33

As illustrated by West v. East Tennessee Pioneer Oil Co., liability for misfeasance is not cabined within the confines of boxes created by particular relationships. To the contrary, “[liability for ‘misfeasance’ ... may extend to any person to whom harm may reasonably be anticipated as a result of the defendant’s conduct ...; while for ‘nonfeasance’ it is necessary to find some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act.” Prosser and Keeton § 56, at 374. Alcoa engaged in misfeasance that set in motion a risk of harm to Ms. Satter-field. Because Ms. Satterfield’s complaint rests on the basic tort claim of misfeasance, it is not necessary to analyze in detail whether Alcoa also had duties arising from special relationships with third parties.

IV.

Concluding that Ms. Satterfield’s complaint alleges that Alcoa’s misfeasance caused her to contract mesothelioma does not end the inquiry into whether Tennessee recognizes that Alcoa owed a duty to Ms. Satterfield based on the factual allegations in her complaint. Determinations regarding the existence and scope of a particular legal duty also reflect “society’s contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another’s act or conduct.” Bradshaw v. Daniel, 854 S.W.2d at 870. After ah, the concept of duty is largely an expression of policy considerations.34 Accordingly, our consideration of the existence and scope of Alcoa’s duty must also include an *365analysis of the relevant public policy considerations. Burroughs v. Magee, 118 S.W.3d at 329.

It would be erroneous, however, to assume that the concept of duty is a freef-loating application of public policy, drifting on the prevailing winds like the seeds of a dandelion. Like the courts in our sister states, Tennessee’s courts have not become so intoxicated on the liquor of public policy analysis that we have lost our appreciation for the moderating and sobering influences of the well-tested principles regarding the imposition of duty.35

A.

In most cases today, prior court decisions and statutes have already established the doctrines and rules governing a defendant’s conduct.36 Generally, the presence or absence of a duty is a given rather than a matter of reasoned debate, discussion, or contention. The common law, however, must and does grow to accommodate new societal realities and values — or simply better reasoning — as it moves toward refinement and modification with the aim of improving while maintaining a sufficient stability so as to seek, and one hopes, to find, prudent reformation as opposed to anarchic revolution.

When the existence of a particular duty is not a given or when the rules of the established precedents are not readily applicable, courts will turn to public policy for guidance. Doing so necessarily favors imposing a duty of reasonable care where a “defendant’s conduct poses an unreasonable and foreseeable risk of harm to persons or property.” McCall v. Wilder, 913 S.W.2d at 153. When conducting this analysis, the courts have considered, among other factors: (1) the foreseeable probability of the harm or injury occurring; (2) the possible magnitude of the potential harm or injury; (3) the importance or social value of the activity engaged in by the defendant; (4) the usefulness of the conduct to the defendant; (5) the feasibility of alternative conduct that is safer; (6) the relative costs and burdens associated with that safer conduct; (7) the relative usefulness of the safer conduct; and (8) the relative safety of alternative conduct. Burroughs v. Magee, 118 S.W.3d at 329; McCall v. Wilder, 913 S.W.2d at 153.

With these factors firmly in mind, Tennessee’s courts use a balancing approach to determine whether the particular risk should give rise to a duty of reasonable care. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d at 551; Burroughs v. Magee, 118 S.W.3d at 329. A duty arises when the degree of foreseeability of the risk and the gravity of the harm outweigh the burden that would be imposed if the defendant were required to engage in an alternative course of conduct that would have prevented the harm. West v. E. Tenn. Pioneer Oil Co.,