Other Cases Of Interest

The Manufacturer Of A Machine That Causes Asbestos Fibers To Be Released Into The Air Was Not Liable For Manufacturing A Defective Product

Barker v. Hennessy
(Cal. Ct. of App., 2d Dist.), filed May 22, 2012 

Richard Barker worked as a mechanic in an automotive repair garage. Asbestos-containing clutch components, brake linings and brake shoes were necessary component parts to the automobiles, trucks, tractors and heavy equipment on which he worked. Barker’s work included repairing, arcing, grinding, sanding, cutting, drilling and installing these asbestos products. In performing repairs, Barker worked with or near brake shoe arcing machines and brake drum lathes, which were manufactured by Hennessy’s predecessor Ammco Tools, Inc. Barker was diagnosed with asbestosis and asbestos-related lung cancer and died of those.

Barker’s widow and children filed a wrongful death action against Hennessy and others, alleging causes of action for negligence, strict liability, false representation, and concealment, as well as a survival claim. They alleged that Barker’s exposure to harmful respirable asbestos dust occurred as a result of Hennessy’s failure to warn of the dangers of such exposure.

Hennessy moved for summary judgment on the ground that its machines did not cause or create the risk of harm to which Barker was exposed. It argued that it could not be held liable for injuries caused by another’s inherently dangerous, asbestos-containing products, even if it was foreseeable that its machines would be used in conjunction with those products.

The trial court agreed and granted Hennessy’s motion.

The Court of Appeal affirmed.

The court relied on the recent California Supreme Court case of O’Neil v. Crane Co., 53 Cal.4th 335 (2012). There, the Supreme Court held that “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”

The Court of Appeal reasoned that the undisputed evidence showed nothing more than that while it was foreseeable that Hennessy’s machines would be used with asbestos-containing products, it was not intended or inevitable that the machines would be used on them. The evidence showed that the machines could be used equally as well on products that did not contain asbestos.

The court distinguished the case of Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co.129 Cal.App.4th 577 (2004), which held a manufacturer owes a duty to warn of the risks created by the intended and necessary operation of its own products with other asbestos-containing products. The court reasoned that the machine at issue in the Tellez-Cordova case could only be used in a potentially injury-producing manner. In contrast, Hennessy’s machines were not so limited.

The court remarked that if Hennessy had a duty to warn that if its machines were used on materials containing asbestos, particles could be released into the air, manufacturers of saws would have a duty to warn that cutting asbestos-containing insulation could be harmful. Likewise, manufacturers of putty knives, wire brushes and metal scraps — products which created the release of harmful asbestos dust when used to scrape the asbestos-containing materials would have a duty to warn.

Significantly, the court observed:

Our conclusion is dictated by the record below. We recognize that a different result could be required if the evidence offered below had shown, for example, that Hennessy’s machines necessarily operated with asbestos-containing brake parts because non-asbestos-containing brake parts were not manufactured at the time Barker was exposed to asbestos dust. For this reason, our conclusion is not inconsistent with two recent First District cases holding that allegations concerning Hennessy’s machines were sufficient to state causes of action for strict liability and negligence.

The court further remarked: “Here, had appellants’ evidence created a triable issue as to the existence of the facts as alleged in Bettencourt and Shields, we would reach a different conclusion.”