Bobo v. Tennessee Valley Authority (138 F. Supp. 3d 1285, 2015)

MEMORANDUM OPINION

C. Lynwood Smith, Jr., United States District Judge

Barbara Bobo, now deceased, commenced this action during her lifetime. The gravamen of her complaint was that she suffered from malignant pleural mesotheli-oma as a result of being “wrongfully exposed” to airborne asbestos fibers, “an inherently dangerous toxic substance.” She alleged that the fibers came from the Browns Ferry Nuclear Plant operated by the Tennessee Valley Authority (“TVA”) on the north shore of the Tennessee River near Athens, in Limestone County, Alabama. Mrs. Bobo, however, had never been inside the Browns Ferry Nuclear Plant. In fact, she had never worked for TVA in any capacity. Instead, her claims were derivative: they grew out of her practice of laundering the asbestos-laden, work clothes worn by her husband, James Bobo, every week during the twenty-two years that he was employed by TVA as a laborer at its Browns Ferry Nuclear Plant. Such allegations are typical of so-called “secondary exposure,” or “take-home exposure” claims, as distinguished from “direct exposure” claims.

I. JURISDICTION

Mrs. Bobo’s original complaint asserted claims against TVA and eight other defendants, seven of which had developed, manufactured, marketed, distributed, or sold asbestos-containing products, and one, the Metropolitan Life Insurance Company, that allegedly had “conspired with other asbestos suppliers and product manufacturers to mislead the public as to the hazards of asbestos.” Mrs. Bobo was a resident of the State of Alabama on the date this action was commenced, and the defendants other than TVA were corporate citizens of states other than Alabama. Apparently for that reason, Mrs. Bobo’s attorneys premised jurisdiction on the diversity statute, 28 ■ U.S.C. § 1332. Mrs. Bobo’s claims against the eight, non-TVA defendants were dismissed at various stages of these proceedings pursuant to stipulations for dismissal, thus leaving TVA as the only defendant. TVA’s status as a wholly-owned corporate agency and instrumentality of the United States created pursuant to an act of Congress places subject matter jurisdiction under the federal question statute, 28 U.S.C. § 1331, as opposed to the diversity statute. See, e.g., Union Pacific Railroad Co. v. Myers, 115 U.S. 1, 11, 5 S.Ct. 1113, 29 L.Ed. 319 (1885) (the so-called “Pacific Railroad Removal Case,” holding that a suit by or against a corporation of the United States is a ground for federal question jurisdiction); Government National Mortgage Association v. Terry, 608 F.2d 614, 620-21 & n.10 (5th Cir.1979) (same); Jackson v. Tennessee Valley Authority, 462 F.Supp. 45, 50-51 (M.D.Tenn.1979) (“The courts have consistently relied upon the Pacific Railroad decision in finding jurisdiction over tort actions against TVA under sections 1331 and 1337”) (citations omitted); Monsanto Co. v. Tennessee Valley Authority, 448 F.Supp. 648, 651 (N.D.Ala.1978) (observing that “the precedents going back over a hundred and fifty years establish that any claim, even one created by state law,[ ] against a federally created corporation arises under federal law”) (emphasis and footnote supplied, citations omitted).

II. PROCEDURAL HISTORY

Mrs. Bobo died about fifteen months after filing suit, but her claims were not extinguished by death, and survived in favor of her daughters, who were appointed co-personal representatives of their mother’s estate by the Probate Court of Laud-erdale County, Alabama. A timely motion to substitute Melissa Ann Bobo and Shannon Jean Cox as plaintiffs was granted pursuant to Federal Rule of Civil Procedure 25(a)(1).

Following denial of TVA’s motions for summary judgment, the case proceeded to a bench trial on plaintiffs’ claims that their mother had contracted malignant plural mesothelioma as a result of TVA’s negligence that allowed her to be exposed to a large quantity of asbestos fibers while laundering the work clothing of her husband each week throughout the years he worked' at TVA’s Browns Ferry Nuclear Plant. Upon consideration of the parties’ pleadings, pre-trial evidentiary submissions, trial testimony and exhibits, briefs, arguments of counsel, and independent research, the court makes the following findings of fact and enters conclusions of law.

III. FINDINGS OF FACT

■Plaintiffs’ decedent, Barbara Wear Bobo, was born on March 3, 1942, and lived with her father, Clifton Wear, on the family farm until she married James Bobo on September 28,1964. They purchased a home in Florence, Alabama the following year, and lived together as husband and wife until Mr. Bobo died on September 7, 1997, from lung cancer induced by asbestosis: “a form of pneumoconiosis (silicato-sis) caused by inhaling fibers of asbestos” and “associated with pleural mesothelio-ma.”

Mrs. Bobo did not remarry arid continued to reside in the marital home until her own death. She was diagnosed with malignant pleural mesothelioma in November of 2011, and died as a result of that disease nearly two years later, on September 7, 2013. She was seventy-one years of age.

Defendant, Tennessee Valley Authority (“TVA” or “the Authority”), is a constitutionally authorized instrumentality of the United States created pursuant to the Tennessee Valley Authority Act of 1933,16 U.S.C. § 831 et seq. (“the TVA Act”), which broadly charges the Authority with the accomplishment of several important missions, including: improving the navigability of the Tennessee River and its tributaries; flood control; improvement of marginal lands; reclamation of lands ravaged by erosion; reforestation; and agricultural and industrial development of the region served by TVA—an area of the .nation-that was particularly affected by the Great Depression, and which covers most of Tennessee, portions of Alabama, -Mississippi, and Kentucky, and small slices of Georgia, North Carolina, and Virginia. To assist in the accomplishment of its Congressionally-mandated purposes, the TVA Act specifically authorizes the Authority “to acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects at any point along the Tennessee River, or any of its tributaries,” 'and “[t]o produce, distribute, and sell electric power.” All real property acquired by TVA is held “in the name of the United States of America,” and is “entrusted to the [Authority] as the agent of the United States to accomplish the purposes of the [TVA Act].”

The land upon which the Browns Ferry Nuclear Plant was constructed is among the real estate owned by the United States and entrusted to TVA for management and operational control. The Browns Ferry facility was the Authority’s first nuclear power plant and, when it began operation in 1974, the largest in the world. It also was the first nuclear plant to generate more than one billion watts of electric power. The plant’s three operating units are General Electric boiling water reactors. They produce electricity by splitting uranium atoms, and the heat generated by that process boils watér, thereby producing steam' that is piped to turbines, which in turn spin generators to produce electricity.

A. Asbestos

The Toxic Substances Control Act of 1976, 15 U.S.C. §. 2641 et seq., defines asbestos as the asbestiform varieties of chrysotile (serpentine), crocidolite (rie-beckite), amosite (cummingtonite-gruner-ite), anthophyllite, tremolite, or actinolite. 15 U.S.C. § 2642(3)(A)-(F). “Asbestiform” is a minerálogical term meaning that the fibers are long, thin, and possess high tensile strength. Asbestos fibers are flexible, and can be woven together. They also are resistant to heat and most chemicals. “Because of these properties, asbestos fibers have been used in a wide range of manufactured goods, including roofing shingles, ceiling and floor tiles, paper and cement products, textiles, coatings, and friction products such as automobile clutch, brake and transmission parts.” The use most relevant to the issues of this case was the installation or replacement of insulation materials wrapping the boilers, pipes, and other equipment involved in the transfer of high-temperature steam to the turbines driving TVA’s electrical generating equipment.

B. James Bobo’s Pre-TVA Employment and Exposure to Asbestos

Barbara Bobo’s husband James was employed as a machine operator at the “Alabama Wire” plant in Florence, Alabama for about ten years, from 1965 until April 15, 1975, when he was hired by TVA. During that period, he was exposed to airborne asbestos fibers that emanated from such products as: Careytemp pipe covering, insulating cement, and block insulation; GAF Building Materials Corporation pipe covering, insulating cement, and block insulation; H.K. Porter cloth; Kaiser Aluminum & Chemical Corporation block insulation; Keene Corporation pipe covering, insulating cement, and block insulation; and Raymark gaskets.

C. James Bobo’s TVA Employment and Exposure to Asbestos

James' Bobo was employed by TVA as either a temporary or annual employee for more than twenty-two years, from April 15, 1975 until September 7,1997: the day on which he died from lung cancer induced by asbestosis. He worked primarily in the Browns Ferry Nuclear Plant. Numerous products and materials containing asbestos fibers were present in that facility: for example, thermal pipe coverings and insulation; roofing cement; packing materials; and gasket packing materials. Even so, there is no record of air monitoring measurements demonstrating either the fact of Mr. Bobo’s exposure to airborne asbestos fibers during his TVA employment, or the extent of any such exposure in some objectively measurable units.

Mr. Bobo held at various times job positions classified as “laborer,” “dual rate laborer foreman,” and “laborer foreman.” He never held jobs classified as either “asbestos worker” or “insulator.”

Mr. Bobo’s duties while working as a “laborer” included, among other things, general clean-up work, tool decontamination, and the packing and storing of radiological waste. Moreover, he .often was directed to assist TVA employees who installed insulation materials made from (or that contained) asbestos fibers. Occasionally, he would assist the insulators in such work; but, more often than not, Mr. Bobo was directed to clean up after the insulators had completed their duties by sweeping insulation residue that had fallen to the floor. The act of sweeping generated airborne “dust” containing asbestos fibers. Mr. Bobo was often present when insulators mixed refractory cement, a process that also generated airborne asbestos fibers.

Mr. Bobo worked at various times in parts of the nuclear facility that contained radiologically contaminated materials: areas that are referred to in this record as “C-Zones.” Whenever Mr. Bobo did so, he was required to wear personal protective gear—ie., clothing and equipment worn to prevent or mitigate exposure to radiation and radiological contamination. Whenever Mr. Bobo swept insulation residue that was not in a C-Zone, however, he wore only street clothes, with no over-garment protective coverings, even though such gear would have prevented airborne asbestos fibers from adhering to and contaminating his personal clothing. Mr. Bobo’s, clothing always was clean when he departed, his residence for work each morning, but the same garments generally were “pretty dirty” when he returned home.

Jimmy Myhan was a TVA employee who worked with James Bobo at Browns Ferry from March 16, 1976 until October 1, 1993, except for a two-year .time period between October 1978 and August 1980, when My-han left TVA for other employment. Mr. Myhan testified that, during both periods he and James Bobo worked together—ie., 1976-78, and, 1980 through 1993—James' Bobo.worked at least once each week ip. a C-Zone, and at all other times he worked in one of the three units of the nuclear plant where he cleaned up white pipe insulation. Mr. Myhan’s description of the insulation as “white” in color is significant, because heat-absorbing materials made from (or containing) asbestos fibers generally are “white” in color. For example, Frank Mecke testified that the contractor he worked for during construction of the Browns Ferry facility (Shook & Fletcher) installed all insulation in the Unit 1 reactor, and that the insulating materials made from (or containing) asbestos fibers were white in color. In like manner, Steven Brown, Director of Maintenance at the Browns Ferry Nuclear Plant, testified that all asbestos insulation removed during abatement procedures was whitem. color, and that he encountered asbestos insulation at the nuclear plant on a daily basis. Indeed, TVA’s own documentation confirms that asbestos insulation was used pervasively throughout the Browns Ferry Nuclear Plant, including the three reactor units in which Mr. Bobo worked.

A list of TVA employee fatalities shows that, in 1977, a labor foreman (a position sometimes held by Mr. Bobo) died of asbestosis, and an electrician foreman died of mesothelioma. A 1978 internal memorandum notes that an evaluation of the Browns Ferry insulator shop revealed the presence of airborne asbestos fibers. A 1979 evaluation of -TVA facilities by the Occupational Safety and Health Administration noted that “asbestos exposure at numerous power plants” was one of “[a] number of recognized and documented hazards within TVA [that] have been known to exist for years and [were] still not abated.” A 1980 draft of TVA’s “Hazard Control Standard 407” .for asbestos allowed the purchase of asbestos insulation, but only .if no suitable, non-toxic substitute existed. It also required non-asbestos materials to be designated as such, and required teaming, signs to be posted in areas where airborne asbestos fiber concentrations might exceed the permissible exposure level. A 1988, “Asbestos -Control Program Review Report” stated that “all insulation (usually gray) is [to be] treated as asbestos unless, bulk sample .analysis indicates otherwise,” and noted that “insulation containing asbestos was sometimes substituted in some areas being insulated with asbestos-free insulation during construction.” Even though air monitoring measurements were usually obtained after wet methods had eliminated most of the airborne dust; elevated levels of asbestos fibers still were detected in every reactor unit of the plant.. Finally,- even ,though non-asbestos “mineral wool” was, sometimes used during construction of the Browns Ferry Nuclear Plant, it was covered (encased) with asbestos mud and asbestos cloth.

The preponderance of the, evidence presented at trial established that a significant quantity of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue in the rjon-C-Zone areas of all reactor units at the Browns Ferry, Nuclear Plant.

D. Barbara Bobo’s Exposure to Airborne Asbestos Fibers That Originated From Sources Other Thán TVA’s Browns Ferry Nuclear Plant

Barbara Bobo, like many Americans above the age of sixty, probably was exposed to products containing some amount of asbestos at-various times throughout her life. Plaintiffs’ counsel admitted that she experienced non-occupational exposures to asbestos from 1965 until April 15, 1975, when her husband was employed as a -machine operator at the Alabama -Wire plant, through laundering his work.clothes and traveling in the family automobile. Her- - exposures to asbestos-containing products during that period, however, occurred thirty-five to forty-five years before the date on which she was diagnosed with malignant pleural mesothelioma.

In addition, Mrs. Bobo worked as a beautician for various employers from 1976 until 1983, when she opened her own beauty salon in a building adjacent to the home that she shared with James Robo. From then until 2011 she was self-employed as a beautician under the trade name of “Barbara’s Beauty Shop.” During the approximately thirty-five years that Mrs. Bobo was employed as a beautician, she generally worked five and a half days each week, with a typical work day of eight hours. Mrs. Bobo used stationary hair dryers on her patrons twenty-five to thirty times each day, and she inhaled dust particles while doing so. She also inhaled dust while cleaning hair dryer filters each month: a maintenance- procedure that involved removing, cleaning, and reinserting the filters. The record does not indicate whether the particles inhaled by Mrs. Bobo while performing such functions in her beauty salon contained asbestos fibers, and neither the Bobo residence nor Mrs. Bobo’s salon was ever tested for the presence of that substance.

E. Barbara Bobo’s Exposures to Airborne Asbestos That Originated In TVA’s Browns Ferry Nuclear Plant

Plaintiffs contend that their deceased mother’s exposure to airborne asbestos fibers from those sources sketched in the preceding section was not significant in comparison to the large quantity of those inherently dangerous toxic substances to which she was subjected through her practice of laundering James Bobo’s work clothes over the course of the twenty-two years that he worked for TVA at its Browns Ferry Nuclear Plant. The laundry room located in the center of the Bobo home was small: its floor dimensions were only about four feet by five feet (twenty square feet). Mrs. Bobo washed her husband’s clothes twice each week, but her daily practice was to pick up the dirty clothing that he had removed at the end of the preceding work day, carry those articles into the laundry room, shut the door, empty the pockets, shake the clothing to remove loose dirt particles, and place the articles in the washing machine. Mrs. Bobo testified in her deposition that she inhaled “dust” while performing those tasks. She.' described the atmosphere of the laundry room as “[f]oggy,” but said she “just thought it was dust.” She also dry-swept the washroom floor with a small broom and dustpan prior to mopping it, and said that the air became “dusty” when she did so. Again, the record does not indicate whether that “dust” contained asbestos fibers, and the Bobo residence was never tested for the presence of that substance. Even so, the preponderance of the evidence indicates that James Bobo’s clothing was encased in asbestos fibers by the time he returned home-from-the nuclear plant each evening. It is more likely than not that Mrs. Bobo unknowingly inhaled dangerous concentrations of asbestos fibers as she “shook out” her husband’s clothing while sequestered within the small space of her laundry room. -

F. Plaintiff’s Expert

Dr. Eugene Mark testified, based upon his review of depositions, medical records, and other materials in the case, that Mrs. Bobo was exposed to asbestos by laundering her husband’s clothes for more than twenty-two years. He also testified that studies in the scientific literature link mesothelioma to asbestos exposure from laundering the clothes of a person who works with asbestos. One study relied upon by Dr. Mark (an article by Gunnar Hillerdal entitled “Mesothelioma Cases Associated with Non-Occupational and Low-Dose Exposures”) reported that asbestos fiber concentrations in domestic exposure cases might be as high as in occupational exposure cases. The same study reported that “[ojrdinary vacuum cleaning is not effective in removing asbestos fibers, which can remain for years in the house and be airborne again whenever disturbed. Thus, domestic exposure is not low exposure.” Dr. Mark concluded that Mrs. Bobo’s exposure to asbestos from her husband’s work át TVA was a substantial factor contributing to the development of her mesothelioma.

G. The Application of Regulations Promulgated by the Occupational Safety and Health Administration to TVA’s Operations

The-Occupational Safety and Health Act of 1970 (“the OSH Act”) required “the head of each Federal agency... to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards promulgated under section 665” of the OSH Act. 29 U.S.C. § 668(a).

Executive Order 11,612, promulgated in 1971, observed that, “[a]s the Nation’s largest employer, the Federal Government has a special obligation to set an example for safe and healthful employment,” 36 Fed. Reg. 13,891 (July 26,1971) (alteration supplied). For that reason, the order required the head of each federal department and agency to “establish an occupational .safety and health program...in compliance with the requirements of:.. section 19(a) of [the OSH Act],” and the programs were required to “be consistent with the standards prescribed by section 6 of [the OSH Act],” now codified as 29 U.S.C. § 668. Id. (alterations supplied).

Yet another Executive Order promulgated three years later recognized that “even greater efforts” were needed in order to establish occupational safety, and health programs that were consistent with the standards prescribed by Section 6 of the OSH Act. Executive Order No. 11,807, recorded at 39 Fed. Reg. 35,559 (Sept. 28, 1974) (alteration supplied). Thus, this 1974 Executive Order was designed to provide additional guidance to ensure effective occupational safety and health programs within executive agencies, and to allow for detailed evaluations of such programs by the Secretary of the Department of Labor. See id.

It was not .until the promulgation .of Executive Order. 12,196 in February of 1980, however, that federal executive agencies were explicitly required to comply with the regulations of the Occupational Safety and Health Administration. See 45 Fed. Reg. 12,769 (Feb. 26,1980) (providing that the head of each agency must “Mom-ply with all standards issued under section 6 of [the OSH Act],” now codified as 29 U.S.C. § 668 (alterations supplied)).

H. The Evolution of OSHA Standards

The Occupational Safety and Health Administration (“OSHA”) promulgated an emergency temporary standard for exposure to asbestos fibers, under Section 6. of the OSH Act in 1971 (now codified as 29 U.S.C. § 668). 36 Fed. Reg. 23,207 (December 7, 1971). The temporary standard provided that an employee’s exposure could not exceed five fibers longer than five micrometers in length-per milliliter of air over an eight-hour, time-weighted average, and could not exceed a peak concentration level of ten fibers longer than five micrometers in length per cubic centimeter of air. See 36 Fed. Reg. 23,208. The concentration level of airborne asbestos fibers was to be determined by “the membrane filter method at 400-450x magnification (4 millimeter objective) phase contrast illumination.” Id.

The exposure limits stated in the 1971 temporary standard became final in 1972, when OSHA notified employers to prepare for the following reductions in exposure limits that were to. take effect, initially, on July 7, 1972, and then be further reduced four years thereafter, on July 1,1976:

(b) Permissible exposure to- airborne concentrations of asbestos fibers

(1) Standard effective July 7, 1972. 'The 8-hour time-weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed five fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section.

(2) Standard effective July 1, 1976. The 8-hour time-weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed two fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section.

(3) Ceiling concentration. No employee shall be exposed at any given time to airborne concentrations of asbestos fibers in excess of 10 fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e), of this section.

29 C.F.R. § 1910.93a(b)(1972), recodified as 29 C.F.R. § .1910.1001 (1975) (emphasis supplied).

OSHA also specified. requirements for protective equipment and clothing for employees, such as James Bobo, who were exposed to airborne concentrations of asbestos fibers that exceeded the permissible exposure levels prescribed in Section 1910.93a(b).

(d)(3) Special clothing: The .employer shall provide, and require the.use of, special clothing, such as coveralls or similar whole body clothing, head coverings, gloves, and foot coverings for any employee exposed to airborne concentrations of asbestos fibers, which exceed the ceiling level prescribed in paragraph (b) of this section.

(4) Change rooms: (i) At any fixed place of employment exposed to airborne concentrations of asbestos fibers in excess of the exposure limits prescribed in paragraph (b) of this section, the employer shall provide change rooms for employees working regularly at the place.

(ii) Clothes lockers: The employer shall provide two separate lockers or containers for each employee, so separated or isolated as to prevent contamination of the employee’s. street clothes from his work clothes.

(in) Laundering: (a) • Laundering of asbestos contaminated clothing shall be done so as to prevent the release of airborne asbestos fibers in excess of the exposure limits prescribed in paragraph (b) of this section....

29 C.F.R. § 1910.93a(d)(1972), recodified as 29 C.F.R. § 1910.1001 (1975). .

In addition, OSHA mandated particular methods of measuring and monitoring the concentrations of airborne asbestos .fibers.

(e) Method of measurement. All determinations of airborne concentrations of asbestos fibers shall be made by the membrane filter method at 400-450 x (magnification) (4 millimeter objective) with phase contrast illumination.

(f) Monitoring—(1) Initial determinations. Within 6 months of the publication of this section, every employer shall cause every place of employment where asbestos fibers are released to be monitored in such a way as to determine whether-every employee’s exposure to asbestos fibers is below the limits prescribed in paragraph (b) of this section. ...

(2) Personal monitoring—(i) Samples shall be - collected from within the breathing zone of the employees, on membrane filters of 0.8 micrometer po-rossity mounted in an open-face filter holder. Samples shall be taken for the determination of the 8-hour time-weighted average airborne concentrations and of the ceiling concentrations of asbestos fibers.

(ii) Sampling frequency and patterns. After the initial determinations required by subparagraph (1) of this paragraph, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of employees. In no case shall the sampling be done at intervals greater than 6 months for employees whose exposure to asbestos may reasonably be foreseen to exceed the limits prescribed by paragraph (b) of this section.

29 C.F.R. §§ 1910.93a(e)-(f)(1972), recodi-fied as 29 C.F.R. § 1910.1001 (1975).

The 1972 OSHA standard for asbestos exposure also contained a mandate for employer-provided medical examinations: ie., “[EJvery employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers.” 29 C.F.R. § 1910.93a(j)(3) (alteration supplied).

I. TYA Internal Policies

TVA has an internal safety organization that is ‘Responsible for establishing TVA policies and procedures for assuring safe and healthful work conditions for all employees on TVA properties (TVA safety practices).” Such safety practices “are organized generally into three tiers: agency safety practices established by the TVA safety organization; business unit safety practices established by major business units such as nuclear power,; and site specific safety practices established by local facilities such as Browns Ferry... .” Further, many of those safety practices address specific standards relating to the use of asbestos at TVA properties, such as the Browns Ferry Nuclear Plant.

1. TVA Hazard Control Standard 407

TVA adopted “Hazard Control Standard 407” for asbestos on April 15,1974. Paragraph 1.0 of that standard stated that it applied “primarily, but not exclusively, to operations where asbestos or insulating material containing asbestos is handled, mixed, sprayed, applied, removed, cut, or scored.” Paragraph 4.1.2 noted that the following materials are examples of substances that may contain asbestos: heat insulating materials; fireproofing materials; transite; limpet fibers; calcium silicate block and pipe insulation; asbestos cement, mortars, wire covers, grouting, paper, blankets, tape, and plaster; and vehicle brake linings. Paragraph 4.3 of Hazard Control Standard 407 prescribed the permissible exposure level for airborne concentrations of asbestos in the following terms:

4.3.1 The 8-hour time-weighted average airborne concentration of asbestos fibers to which an employee may be exposed shall not exceed five fibers, each longer than five micrometers, per cubic centimeter of air. (On July 1, 1976, the permissible concentration for asbestos will be reduced from five fibers to two fibers, each longer than five micrometers, per cubic centimeter of air.)

4.8.2An employee shall not be exposed for any length of time to airborne concentrations of asbestos fibers in excess of the ceiling limit of 10 fibers, each longer than five micrometers, per cubic centimeter of air without appropriate personal protective equipment as described in paragraph 4.5 of this standard.

Paragraph 4.4 provided instructions on the proper use of asbestos-containing products:

4.4.1 Engineering controls, except when technically not feasible, shall be utilized to ensure that each individual working with or near materials containing asbestos is not exposed to concentrations of asbestos dust in excess of the permissible limits. Administrative controls shall be used only if engineering controls are not feasible.

4.4.2 When both respiratory protection and control of exposure time are practicable, control of exposure time shall be used. The permissible exposure time can be determined by allowing a precalculated length of exposure to airborne concentrations of asbestos above the permissible concentration (but in no case, above the ceiling limit), followed by a comparable period of no exposure. Accurate records of exposure times and airborne asbestos concentrations shall be maintained.

4.4.3 Asbestos and materials containing asbestos shall be handled, mixed, applied, removed, cut, scored, or otherwise used in a wet state (except where impracticable or where the usefulness of the product would be diminished) to prevent airborne concentrations of asbestos fibers in excess of the permissible limits....

Paragraph 4.5 of Hazard Control Standard 407 defined the requirements for personal protective equipment as follows:

4.5.1.1 The use of respiratory protection for controlling employee exposure to asbestos shall be limited to the following conditions:

A.Prior to implementation of engineering controls or work methods designed to maintain airborne asbestos concentrations within the permissible limits required by paragraph 4.3 of this standard.

B. Where engineering controls or administrative controls are technically not feasible.

C. In emergency situations.

D. Prior to determining the airborne concentrations of asbestos in a work environment.

4.5.2 Employees exposed to airborne concentrations of asbestos fibers greater than the ceiling limit shall be provided with and required to use personal protective equipment to protect the eyes, head, hands, feet, and trunk from asbestos.... Protective clothing shall be utilized for exposures of undetermined concentrations until it has been proven by tests that the activity will not produce concentrations above the ceiling limits.

Paragraph 4.6.2 contained standards for changing rooms, and stated that “[e]ach employee exposed to airborne concentrations of asbestos in excess of the ceiling limit shall be provided with two separate lockers or containers so separated or isolated [as]: to prevent contamination of the employee’s street clothes from his work clothes.”

. Paragraph 4.7 established requirements for “Personal and Environmental Monitoring,” and provided that:

Initial and continuing monitoring shall be performed by .the TVA Hazard Control Branch which will quantitatively determine airborne asbestos fiber concentration in. the breathing zone, of exposed employees, and in areas of a work environment which are representative of airborne concentrations which may reach the breathing zone of employees. Eight-hour time-weighted average and ceiling concentrations shall be determined. Such evaluations shall be accomplished at least semiannually and shall represent with reasonable accuracy the levels of exposure of employees.

TVA also was required to “maintain records of personal monitoring and environmental monitoring.”

Paragraph 4.9, addressing the subject of “Housekeeping,” provided that “the use of air jets or dry sweeping to clean up asbestos accumulations is prohibited.”

Finally, Paragraph 4.10.2, of Hazard Control • Standard- 4.07 -mandated that “[ejmployees exposed to- airborne concentrations of asbestos fibers shall receive an annual medical . examination.” Significantly, TVA-was required to retain records of those medical examinations, for twenty years.

2. TVA nuclear power safety and hazard control manual

TVA’s Nuclear Power-Division adopted a safety and hazard control manual on May 8, 1978. The -threshold limit for airborne asbestos concentrations under the standards of that manual was “five fibers per cubic centimeter, greater than five micrometers in length.” Requirement number 4 specified that “[e]mployees exposed to airborne concentrations of asbestos shall wear an approved respirator and protective coveralls____” Additionally, requirement number 12 mandated that [e]ach employee exposed to airborne concentrations of asbestos shall be provided with two separate lockers. One locker shall be used for street clothes and must not be contaminated with asbestos.” Similarly, a 1979 internal .plant memorandum stated that “[l]ocker and shower facilities separate from other plant facilities should be provided for all insulators and designated cleanup laborers.”

3. Browns Ferry Standard Practice 14.45

“Standard Practice 14.45,” adopted by the Browns Ferry Nuclear , Plant .on October 15, 1980, is a reference point that established site-specific policies and procedures governing the use of asbestos and asbestos-containing materials. That standard set the threshold limit value for airborne asbestos concentrations at “five fibers per cubic centimeter, greater than five micrometers in length.” In addition, the same standard provided that “[e]m-ployees exposed to airborne concentrations of asbestos shall wear an approved respirator and protective coveralls____” Annual medical examinations were also mandated for “employees exposed to airborne concentrations of asbestos fibers.” Although other requirements in Standard Practice 14.45 applied to “concentrations of asbestos dust in excess of the permissible limits,” the respirator and coveralls' requirement did not make that distinction. Thus, that requirement applied to any quantity of asbestos exposure.

4. 1984 memorandum—“TVA Policy on Asbestos”

A 1984 memorandum entitled “TVA Policy on Asbestos” established “additional requirements to better protect employeés from exposure to asbestos, fibers.” The first requirement lowered the agency target for asbestos to “no more than 0.5 fibers, longer than 5 micrometers, per cubic centimeter of air (f/cc) as the permissible. 8-hour time-weighted average (TWA) airborne concentration of all forms of asbestos. The ceiling level will be lowered from 10 ficc to 5 f/cc.” Employees who could “reasonably be expected to be exposed above a TWA of .1 fiber/cc” were to be identified, given initial and annual training, and offered medical examinations.

J. TVA’s Response to OSHA Regulations, Policies, and Procedures

The parties stipulated that no statute, regulation, or policy—including the Occupational Safety and Health Act of 1970 and regulations promulgated thereunder by the- Occupational Safety and Health Administration—imposed a mandatory requirement that TVA prevent all exposure to airborne asbestos fibers during the years that James Bobo worked at Browns Ferry. In other words, that Act and the regulations promulgated thereunder, as well as TVA’s own internal polices and procedures, allowed employees to be exposed to airborne asbestos fibers- at concentration levels between zero and the permissible exposure levels in effect- on the date of the occupational exposure. Even so, TVA was aware of the regulations promulgated pursuant to the Occupational Safety and Health Act by the Occupational Safety and Health Administration. As early as 1974, TVA knew that there was a certain amount of airborne asbestos fibers that could land on an employee’s clothing, and that should be avoided for reasons of the employee’s health. TVA first established an asbestos standard in 1974 as part of its Hazard Control Manual. Moreover, as previously discussed in Parts III.I.1. and III.I.2. of this opinion, supra, TVA’s internal polices required that protective clothing and separate lockers be provided to employees exposed to any quantity of airborne asbestos fibers. Further, TVA was aware that, of nine employee deaths that occurred during 1977, two were attributable to asbestos: a labor foreman died of asbestosis, and an electrician foreman died of mesothelioma. Finally, even though Browns Ferry Nuclear Plant employees began to use insulation materials that were not made of (or did not contain) asbestos (generally brown or greenish-brown in color) during the 1980s, insulation materials containing asbestos continued to be used and installed until at least 1991.

TVA’s industrial hygiene database lists no record of air sampling to determine concentrations of airborne asbestos fibers prior to October 1979. Indeed, employees at the Browns Ferry Nuclear Plant were not monitored for asbestos exposure until at least the early 1980s. A 1979 internal plant memorandum stated that “TVA and Federal safety and health standards require that we provide locker and shower facilities for insulators and designated cleanup laborers that are separate from the plant’s regular facilities.”

The extent to which employees in the Browns Ferry Nuclear Plant were exposed to airborne asbestos fibers was to be determined by a visual inspection conducted by supervisory personnel, but plant managers were not provided any meaningful criteria to measure the concentration levels to which employees were exposed. Further, Browns Ferry supervisors conducted asbestos air monitoring measurements of only three employees in 1980. Only eight employees were sampled in 1981, and only five in 1982. For such reasons, an internal review conducted in 1988 determined that asbestos monitoring “has been very limited and does not meet the monitoring requirements of the OSHA asbestos standard.” Further, TVA did not provide laborers with protective clothing, separate lockers, or separate showers, unless they worked in a C-Zone.

J. Plaintiffs’ Damage Claims

Barbara Bobo was subjected to a “thora-centesis”—a procedure in which a long needle is used to perforate’ the chest-wall and draw off morbid accumulations of excess fluid from the pleural space between the inner wall of the chest cavity and the lungs—during November of 2011. Approximately two liters of fluid were removed. A November 11, 2011 laboratory analysis of the extracted fluid produced a diagnosis of mesothelioma: “a tumor derived from mesothelial tissue.... ” A pathological evaluation conducted on December 13, 2011 resulted in a diagnosis of malignant pleural mesothelioma: a condition that is “often the result of excessive exposure to asbestos,” and one that often spreads widely, invading other thoracic structures. “It is usually fatal within one year.” Mrs. Bobo survived nearly twice that length of time, but the remainder of her term on this earth was filled with pain. She was subjected to multiple rounds of chemotherapy from January through April of 2012, and endured a number of undesirable side effects from the treatments, including pain when drinking fluids and spitting up raw flesh. The therapy became so painful that she referred to the chemical administered to her as the “Red Devil.”'Dr.-David’ Sugarbaker performed a pleurectomy on Mrs. Bobo on June 14, 2012,, during which he removed a rib and the pleural lining of one lung. Mrs. Bobo was hospitalized for twenty-two days following that procedure, after which she was discharged to begin a painful rehabilitation regime.

Plaintiffs claim $8,000,000 in damages for the physical pain, suffering, mental anguish, and loss of the enjoyment of life endured by their mother during the-twenty-two month period between her diagnosis of mesothelioma and resulting death. They also assert a claim for the aggregate amount of $537,131.82 in medical expenses incurred in the unsuccessful attempt to forcé Mrs. Bobo’s mesothelioma into remission.

Barbara Bobo was insured at all relevant times by Medicare and Blue Cross Blue Shield of Alabama. Those insurers paid or satisfied 99.1% of Mrs. Bobo’s medical expenses (¿a, $532,131.82 of the $537,131.82 aggregate). Medicare asserts a subrogation claim of • $82,793.81 for its payments to her medical providers.

Plaintiffs retained Garretson Resolution Group, Inc., to represent them in negotiating with Medicare Secondary Payer Recovery Contractors regarding the amount of Medicare’s subrogation claim.. Garret-son has contested $1,180.06 of Medicare’s subrogation claim in an effort to reduce the amount plaintiffs will be required to pay. The amount of -the claim recoverable from plaintiffs may be subject to reduction as provided in 42 C.F.R. § 411.37 (2013).

L. Plaintiffs’ Settlements

Barbara Bobo submitted claims for compensation to.seventeen asbestos bankrupt cy trusts following her diagnosis of meso-thelioma. Plaintiffs’ attorneys prepared and submitted the claims forms to the asbestos bankruptcy trusts for the purpose of obtaining monetary compensation for Mrs. Bobo’s asbestos-related injuries. As of February 9, 2015, plaintiffs had entered into settlements with asbestos bankruptcy trusts in the aggregate amount of $136,176.37. Accordingly, TVA is entitled to an offset in that amount.

As of February 9, 2015, plaintiffs had seven pending claims with - other asbestos bankruptcy trusts, and potential claims against other bankrupt entities that may, or may not, establish trusts for the corn-pensation of asbestos victims. TVA is entitled to an offset in the amount of all payments received by plaintiffs in connection with any of those pending claims, if any.

IV. CONCLUSIONS OF LAW

“We bring mow than a paycheck to our loved ones and family. We, bring asbestosis, silicosis, brown lung, black lung .disease. And radiation hits the children before they’ve even been conceived.”

“More Than a Paycheck,” sung by Sweet Honey in the Rock on the Collector Records album entitled We Just Come to Work Here, We Don’t Come to Die.

This casé proceeded to trial on plaintiffs’ claims that TVA negligently violated numerous regulations and standards promulgated by OSHA, as well as its own internal policies relating to monitoring and reducing exposure to asbestos and preventing the transport of asbestos fibers off TVA property. Specifically, plaintiffs alleged that TVA negligently violated OSHA regulations and its own policies in at least the following ways: exceeding permissible levels of exposure;- failing to follow mandatory directives governing the monitoring of an employee’s exposure; failing to administer annual medical examinations to employees who, like James Bobo, were exposed to airborne asbestos fibers as a result of their work duties; and failing to provide protective equipment, clothing, lockers, and shower facilities for employees like James Bobo. In order to prevail on any of those claims, plaintiffs were required to prove by a preponderance of the evidence that: TVA owed a duty of care to Barbara Bobo; TVA breached that duty; Barbara Bobo was harmed; and TVA’s breach of duty was the proximate cause of the harm to Mrs. Bobo and of the damages claimed by plaintiffs. E.g., Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala.1995). See also, e.g., Sessions v. Nonnenmann, 842 So.2d 649, 651 (Ala.2002) (“In [a] premises-liability case, the' elements of negligence are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.’’) (quoting Ex parte Harold L. Martin Distributing Co., 769 So.2d 313, 314 (Ala.2000) (in turn quoting E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963, 969 (Ala.1985)) (alteration in original, internal quotation marks omitted).

In addition to disputing plaintiffs’ proof of the elements of a prima facie case, TVA cohtends that the statute of limitations has expired, and that it is shielded from liability by the so-called “discretionary function doctrine.”

A. Did TVA Owe Barbara Bobo a Duty of Care?

Plaintiffs must demonstrate that TVA was subject to a legal “duty” in order to maintain an action based upon a theory of negligence. E.g., Thompson v. Mindis Metals, 692 So.2d 805, 807 (Ala.1997); see also, e.g,, Pugh v. Butler Telephone Co., 512 So.2d 1317, 1319 (Ala.1987) (stating that “the existence of a legal duty of care owed by the defendant to the plaintiff’ is fundamental to the maintenance of a negligence action); Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160, 165 (1953) (observing thát “where there is no duty, there can be no negligence”).

Negligence is a matter of risk—that is to say, of recognizable danger of injury. It has been defined as “conduct which involves, ah unreasonably great risk of causing damage,” or, more fully, conduct “which falls below the standard established by law for the protection of others against unreasonably great risk. of harm.”...

William L. Prosser, Law of Torts § 31, at 145 (4th ed. 1971) (emphasis supplied, footnotes omitted). In the context of the present discussion, the phrase “the standard established by law for the protection of others against [an] unreasonably great risk of harm” is synonymous with the concept of “duty.”

TVA denies that it had a duty to avoid harming non-employees like Barbara Bobo, saying that “no Alabama appellate court has issued an opinion regarding the availability of take-home claims under Alabama law,” and that a majority of the jurisdictions that have considered similar claims have dismissed them “for lack of [a] legal duty.”

“A legal duty to exercise care... arises where the parties are bound by contract,... or where the obligations are expressly or impliedly imposed by statute, municipal ordinance, .or by administrative rules or regulations, or by judicial decisions.” King v. National Spa & Pool Institute, 570 So.2d 612, 614 (Ala.1990) (citations and internal quotation marks omitted). Here, obligations that established legal duties against which the actions of TVA can be measured were imposed by regulations promulgated by the Occupational Safety and "Health Administration, as well as by TVA itself.

Moreover, as plaintiffs point, out, the cases relied upon by TVA do not place the same emphasis upon the foreseeability of the risk of harm as do the courts of Alabama. In this State, the “key factor” for determining whether a duty should be imposed as a matter of law in novel factual circumstances is the “foreseeability” of the harm that might result if care is not exercised. DiBia&i v. Joe Wheeler Electric Membership Corp., 988 So.2d 454, 461 (Ala.2008) (quoting Patrick v. Union State Bank, 681 So.2d 1364, 1368 (Ala.1996) (in turn quoting Smitherman v. McCafferty, 622 So.2d 322, 324 (Ala.1993)); see also, e.g., Yanmar America Corp. v. Nichols, 166 So.3d 70, 83 (Ala.2014) (observing that “[t]he ultimate test of duty to use [due] care is found in the foreseeability that harm may result if care is not exercised”) (quoting King, 570 So.2d at 615 (in turn quoting Bush v. Alabama Power Co., 457 So.2d 350, 353 (Ala.1984)) (alterations in original)); see also, e.g., Taylor v. Smith, 892 So.2d 887, 892 (Ala.2004) (holding that, when determining whether a duty exists, “[t]he key factor is whether the injury was foreseeable by the defendant”) (emphasis in original, citations and internal quotation marks omitted, alteration supplied).

The foreseeability of the harm to Mrs. Bobo was evident from the very nature of the relevant OSHA regulations and TVA’s internal standards, all of which mandated, among other things, that TVA provide two lockers for each employee, so separated or isolated as to prevent contamination of the employee’s street clothes from his work clothes, separate changing facilities, and showers for its employees. The common thread linking those rules was the goal of preventing asbestos fibers from clinging to an employee’s street clothes, skin, or hair, and being carried off of TVA property. Other regulations, such as those setting limits on airborne asbestos concentrations at the nuclear plant, and those requiring periodic medical examinations, clearly contemplated that TVA employees would be exposed to and inhale airborne asbestos fibers while at work. Note well, however, that no reasonable person can argue that the regulations which sought to prevent the transport of asbestos fibers off TVA property did not contemplate that employees’ household members would, be exposed to asbestos originating at the plant.

Plaintiffs argue, based upon the Alabama Supreme Court’s repeated characterization of the foreseeability of an injury as the “key factor” in determining whether a duty exists under novel factual circumstances, that this State likely will join those jurisdictions. holding that the employers of persons exposed to asbestos during the performance of their work responsibilities owe a duty of reasonable care to non-employees in “take-home cases” such as this one. See, e.g., Simpkins v. CSX Corp., 401 Ill.App.3d 1109, 341 Ill.Dec. 178, 929 N.E.2d 1257, 1263-64 (2010) (“[W]e believe that it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well. Thus, the general character of the harm to be prevented was reasonably foreseeable.”) (alteration supplied); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367 (Tenn.2008) (holding that the harm to the plaintiff was foreseeable, because she was regularly, in contact with asbestos-contaminated work clothes for extended periods of time); Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143, 1149 (2006) (holding that a premises owner owed a duty to spouses handling asbestos-contaminated work clothes based on the foreseeable risk of harm arising from such exposures); Zimko v. American Cyanamid, 905 So.2d 465, 483 (La.App.2005) (same). In fact, “[i]n nearly every case in which a court has used foreseeability as the primary consideration in duty analysis, the court has recognized a duty of care in take-home exposure cases.” Meghan E. Flinn, A Continuing War with Asbestos: The Stalemate Among State Courts on Liability for Take-Home Asbestos Exposure, 71 Wash. & Lee L. Rev. 707, 719 (2014).

In the final analysis, the determination of the issue of whether a duty was owed by TVA to Mrs. Bobo and others like her under the circumstances of this case is “strictly a legal question” .to be answered by the court. DiBiasi, 988 So.2d at 460; see also, e.g., William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953) (“There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it.”). In exercising that responsibility, this court does not find the cases relied upon by TVA to be persuasive predictors of what Alabama appellate courts will hold. For example, when deciding that no duty was owed to non-employees in a take-home exposure claim similar to the present action, the Supreme Court of Erie County, New York (a trial court), stated that “[djuty.in negligence cases is not defined by foreseeability of injury — Rather, foreseeability determines merely ‘the scope of the duty once it is determined to exist____In re Eighth Judicial District Asbestos Litigation,-12 Misc.3d 936, 815 N.Y.S.2d 815, 938-39 (N.Y.Sup.Ct. 2006) (internal citations omitted, alteration supplied). Further, while the Supreme Court of Georgia declined to extend an employer’s duty to provide a safe workplace beyond its employees based on policy considerations, that court did not place the same emphasis on foreseeability that an Alabama court would. See CSX Transportation, Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208, 210 (2005) (“[W]e decline to extend on the basis of foreseeability the employer’s duty beyond the workplace to encompass all who might come into contact with an employee or an employee’s clothing outside the workplace.”). Finally, even though the California Court of Appeals assumed that a property owner could “reasonably be expected to foresee the risk of latent disease to a worker’s family members secondarily exposed, to asbestos used on its premises,” it concluded that “strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure.” Campbell v. Ford Motor Co., 206 Cal. App.4th 15, 141 Cal.Rptr.3d 390, 402-03 (2012). Notably, however, the California court did not characterize foreseeability of the risk as the “key factor” in its determination.

Policy factors relied upon by. jurisdictions that decline to recognize a legal duty in take-home exposure cases include preventing unfairness to defendants and further clogging of court dockets. This court finds, however, that other policy factors are of higher importance in this, and similar, cases: e.g., the mandatory nature of the alternative conduct; the fact that TVA, a government entity provably aware of OSHA regulations (as evidenced by TVA internal memoranda reciting OSHA findings and regulations concerning asbestos exposure and TVA’s promulgation of its own exposure reduction policies), was in a far better position to protect Mrs. Bobo than either James Bobo or Mrs. Bobo herself; and the relatively simple, low-cost methods which, if implemented as directed both by federal law and TVA internal policy, may have prevented Barbara Bobo’s contraction of mesothelioma.

In contrast to TVA, plaintiffs rely upon cases that are actually persuasive because, in the opinions they cite, the courts emphasized the foreseeability of an injury, while also considering public policy. See Satterfield, 266 S.W.3d at 373-75 (observing that “Tennessee’s courts rely heavily on foreseeability when determining the existence and scope of a duty,” and that “the existence of a duty to exercise reasonable care to avoid the risk of harm to another involves considerations of fairness and public policy”); Olivo, 895 A.2d at 1148 (“Foreseeability is significant in the assessment of a duty of care to another,” and “[o]nce the ability to foresee harm to a particular individual has been established... considerations of fairness and policy govern whether the imposition of a duty is warranted.”) (alteration supplied).

Furthermore,, as the Tennessee Supreme Court recognized, there is no danger to the business community in finding that “a sophisticated [employer] that was aware of, or should have been aware of, the risk to others that could result from exposure to asbestos fibers,... knew its employees’ work clothes contained significant quantities of asbestos fibers, and [ ] understood the danger of transmitting these asbestos fibers to others” outside the workplace, owes a duty to protect members of its' employees’ families in take-home exposure claims. Satterfield, 266 S.W.3d at 371; see also Olivo, 895 A.2d at 1150 (“Although Exxon Mobil fears limitless exposure to liability based on a theory of foreseeability built on contact with Anthony’s asbestos-contaminated clothing, such fears aré overstated. The duty we recognize in these circumstances is focused on the particularized foreseeability of harm to plaintiffs ivife, who ordinarily ivould perform typical household chores that would include laundering the work clothes worn by her husband.”) (emphasis supplied); Simpkins, 341 Ill.Dec. 178, 929 N.E.2d at 1266 (dismissing policy concerns of “limitless liability to ‘the entire world’ ” based upon the fact that “the scope of liability will.be inherently limited by the foreseeability of the .harm”). Finding that employers have' a' duty to exercise reasonable care to prevent foreseeable harm to their employees’ spouses does not raise a “specter of limitless liability.” A bright-line rule, limiting liability to an employee and the members of his household (nuclear family) is both appropriate and manageable. The liability of entities like TVA is also restricted by the discretionary function doctrine and a plaintiffs burden of proving that an employer’s conduct was both the factual and proximate cause of his or her injuries.

This court also finds that the policy considerations that might weigh against the recognition of a duty of reasonable care to family members of employees in take-home asbestos exposure cases do not outweigh either the foreseeability of the risk of harm in a jurisdiction like Alabama that relies heavily on that consideration as “the key factor” in its duty analysis, or policy considerations that weigh in favor of recognizing such a duty. In the present case, TVA: treated mandatory federal regulations as discretionary guidelines, and nullified its own exposure reduction standards by failing to implement them; had actual knowledge that asbestos was carcinogenic, and that its employees were daily coming into - contact with that substance and taking it home to their spouses and children; and did not use that knowledge to enact low-cost measures to restrict airborne asbestos concentrations to permissible levels at the Browns Ferry Nuclear Plant or prevent its employees from transporting asbestos to their homes after work. Individuals like Mrs. Bobo—who did not work at the nuclear plant or ever enter TVA’s premises—cannot be made whole for TVA’s derelictions, if a common law negligence claim is unavailable.

Finally, even though the Alabama Supreme Court has not spoken to the precise issue of duty in take-home exposure cases, it has not always limited the finding of a legal duty to situations in which there was a contractual, or employer-employee, relationship between an identifiable victim and the defendant. See, e.g., Wyeth v. Weeks, 159 So.Sd 649, 675 (Ala.2014) (the absence of a contractual relationship does not mean there is no duty); Taylor v. Smith, 892 So.2d 887, 895 (Ala.2004) (differentiating between situations in which the defendant did not create the risk of harm and, thus, owed no duty to a plaintiff, and other situations in which the defendant performs “an affirmative act which creates the risk that unidentifiable third parties might be injured,” and stating that, under the latter circumstance, “there is, most certainly, a duty to unidentifiable third parties who might be injured as a result”) (emphasis in original); State Farm Fire & Casualty Co. v. Owen, 729 So.2d 834, 839 (Ala.1998) (“Determining whether there is a duty necessarily requires analyzing the factual background of the case. In that sense, whether a duty exists is a. mixed question of law and fact.”).

In light of the Alabama Supreme Court’s emphasis on foreseeability, that Court’s recognition of a duty where a defendant creates the risk of harm, and the very serious public policy considerations at issue, this court holds that TVA owed a duty of reasonable care to B