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Taylor v. Elliott Turbomachinery Co. Inc.

February 25, 2009

VICKIE L. TAYLOR, PLAINTIFF AND APPELLANT,
v.
ELLIOTT TURBOMACHINERY CO. INC., DEFENDANT AND RESPONDENT.
VICKIE L. TAYLOR, PLAINTIFF AND APPELLANT,
v.
CRANE COMPANY ET AL., DEFENDANTS AND RESPONDENTS.



(City and County of San Francisco Super. Ct. No. CGC-05-438516) Trial Judge Honorable Peter J. Busch.

The opinion of the court was delivered by: Dondero, J.*fn17

CERTIFIED FOR PUBLICATION

In this appeal, Vickie Taylor (Mrs. Taylor) challenges the trial court‟s grant of summary judgment to respondents.*fn1 The case arises out of injuries allegedly suffered by her late husband, Reginald (Mr. Taylor), from exposure to asbestos-containing products during his Navy service aboard the USS Hornet in the mid-1960s. During World War II, when the Hornet was originally commissioned, respondents supplied the Navy with various pieces of equipment that were used in the ship‟s propulsion system, and some of this equipment included asbestos-containing parts.*fn2 The asbestos-containing parts to which Mr. Taylor was exposed during his service, however, were not manufactured or supplied by respondents but instead by third parties. Plaintiffs sought damages from respondents, alleging that the latter had breached their duty to warn Mr. Taylor of the risks inherent in the asbestos-containing materials supplied by other manufacturers. The trial court granted summary judgment to respondents Crane, IMO, Ingersoll-Rand, and Leslie on the ground that, under California law, a manufacturer‟s duty to warn extends only to the manufacturer‟s own products. Elliott was granted summary judgment when the trial court held that plaintiffs had not produced sufficient evidence of causation.

We hold that the trial court was correct in concluding that California law imposed no duty on respondents to warn of the hazards inherent in defective products manufactured or supplied by third parties. Accordingly, we will affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

During the early 1940s, the five respondents in this appeal supplied various pieces of equipment to the United States Navy for use in the propulsion system of the USS Hornet, a steam-driven aircraft carrier originally commissioned in 1943. The equipment included various valves and pumps, and DFTs. When they were originally delivered to the Navy in the early 1940s, the respondents‟ products incorporated asbestos-containing packing, gaskets, and in some cases, discs or insulation. Significantly, the asbestos-containing gaskets and packing were made by manufacturers other than the respondents.

Mr. Taylor joined the United States Navy on July 13, 1964. After boot camp, he was assigned to serve aboard the Hornet. Mr. Taylor served on the Hornet for over three years as a fireman apprentice, fireman, and machinist mate. By the time Mr. Taylor boarded the Hornet, the ship had undergone extensive repairs or overhauls at least three times since it was commissioned.

During his service on the Hornet, Mr. Taylor was assigned to the aft engine room, and his duties included repairing and maintaining machinery in that location. According to his deposition testimony, he was required to remove and replace asbestos-containing internal gaskets, flange gaskets, packing, and blanket insulation from valves and pumps manufactured by respondents. Mr. Taylor testified that he would remove the old gaskets by scraping them off with a putty knife, a wire brush, or a sharp piece of metal.*fn3 The scraping released dust and particles into the air. There were no windows in the aft engine room because it was located below the ship‟s water line, and Mr. Taylor testified that he inhaled the dust created by removal of the gaskets.

Although it is undisputed that Mr. Taylor was exposed to asbestos-containing materials aboard ship, plaintiffs‟ naval expert testified that by the time Mr. Taylor served aboard the Hornet, all of the original asbestos-containing parts of respondents‟ equipment would have been removed. In addition, Mr. Taylor admitted he did not know what entity may have manufactured or supplied the asbestos-containing products with which he worked.

Mr. Taylor was diagnosed with mesothelioma in December 2004. Plaintiffs filed this action against respondents and a number of other entities on February 8, 2005. The complaint alleged causes of action for negligence, strict liability, false representation, intentional tort/intentional failure to warn, and loss of consortium,*fn4 all of which were predicated on Mr. Taylor‟s exposure to asbestos-containing products. Following discovery, respondents moved for summary judgment. All respondents, save Elliott, contended that they were not liable to plaintiffs because they did not manufacture or supply the asbestos-containing materials to which Mr. Taylor had been exposed during his military service. For its part, Elliott argued that plaintiffs could not establish the element of causation, because they had produced no evidence of Mr. Taylor‟s exposure to asbestos from any Elliott product.

In opposing the motions for summary judgment filed by Crane, IMO, Ingersoll-Rand, and Leslie, plaintiffs made no claim that they possessed evidence that

(1) Mr. Taylor had been exposed to the original asbestos-containing materials respondents included when they delivered their equipment to the Navy, or

(2) respondents had supplied the materials to which he was exposed. Instead, plaintiffs argued only that respondents remained liable for "foreseeable uses of the [respondent‟s] product, including any foreseeable changes." Plaintiffs argument was therefore essentially a legal one--that a "manufacturer has a duty to warn of hazards arising from the foreseeable uses of its product, even if that hazard arises from the addition of a product that, although manufactured by another, is used in the normal and intended operation of the defendant‟s product." Thus, plaintiffs asserted that so long as the use of the replacement items supplied by other manufacturers was part of the "foreseeable and intended use" of respondents‟ products, respondents were under a duty to warn even though they had not themselves manufactured or supplied the products that actually caused the injuries.

Plaintiffs opposed Elliott‟s motion for summary judgment on the basis of Mr. Taylor‟s deposition testimony that he had "worked on everything that was in the aft engine room" and the declaration of their naval expert. In his declaration, plaintiffs‟ expert stated that based on his review of Navy documents and his personal inspection of the Hornet, the DFTs aboard the ship were manufactured by Elliott. He further stated that the DFTs were insulated with asbestos during Mr. Taylor‟s service. Plaintiffs‟ expert also opined that during the time Mr. Taylor was aboard the Hornet, routine maintenance would have been performed on the DFTs approximately every 2000 hours of operation, and that such maintenance would have disturbed asbestos-containing materials on the DFTs. Plaintiffs presented no evidence that this maintenance had ever been performed by Mr. Taylor himself or that he had been present when it was done.

The trial court heard argument on the motions in July 2006. With respect to respondents Crane, IMO, Ingersoll-Rand, and Leslie, the trial court ruled that summary judgment was proper based on its view that under California law manufacturers have no duty to warn, under either a strict liability or negligence theory, for products manufactured or supplied by third parties. The trial court granted Elliott‟s motion for summary judgment on the ground that plaintiffs could not establish causation because they had failed to produce evidence that Mr. Taylor had ever worked on any Elliott product or had been exposed to asbestos from any such product.*fn5

Mr. Taylor died on August 28, 2006. Mrs. Taylor filed timely notices of appeal on her own behalf and as her deceased husband‟s successor-in-interest.

DISCUSSION

Mrs. Taylor contends that she may recover under both strict liability and negligence theories of liability. As to the former theory, she contends that respondents owed a duty to warn of the dangers inherent in the asbestos-containing gaskets, packing, discs, and insulation that were used in conjunction with their products, even if respondents did not themselves produce or supply the injury-causing materials. Her negligence theory is that respondents breached their duty of care to Mr. Taylor by failing to warn of the risks posed by the asbestos-containing materials that were used in combination with their equipment. We will therefore examine whether respondents owed a duty to warn under either strict liability or negligence. (See Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 559 [explaining that both strict liability and negligence theories of products liability involve questions of duty].) We discuss first the principles that govern our review of the trial court‟s rulings.

I. Standard of Review

We review the trial court‟s grant of summary judgment de novo, applying the same statutory procedure followed in the trial court. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 (Cadlo).) A grant of summary judgment is proper "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must negate a necessary element of each of the plaintiff‟s causes of action or establish a complete defense thereto. (Code Civ. Proc., § 437c, subd. (o).) If the defendant meets its burden of production by making a prima facie showing of the nonexistence of any triable issue of material fact, then the burden shifts to the opposing party, who must then make a prima facie showing that triable issues of material fact exist. (Code Civ. Proc., § 437c, subd. (p)(2); Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1437.)

In performing our review, we must view the evidence in a light favorable to Mrs. Taylor as the losing party, liberally construing her evidentiary showing while strictly scrutinizing respondents‟ showing and resolving any doubts or ambiguities in Mrs. Taylor‟s favor. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100.) "[W]e examine the facts presented to the trial court and determine their effect as a matter of law." (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 (Parsons).)

II. Respondents Are Not Strictly Liable on a Failure to Warn Theory

Taylor seeks to ground her strict liability cause of action against respondents on their failure to warn of the dangers inherent in the asbestos-containing materials that were manufactured by others and used with respondents‟ products. As we explain below, respondents are not liable under this theory for three related reasons. First, California law restricts the duty to warn to entities in the chain of distribution of the defective product. Second, in California, a manufacturer has no duty to warn of defects in products supplied by others and used in conjunction with the manufacturer‟s product unless the manufacturer‟s product itself causes or creates the risk of harm. Third, manufacturers or suppliers of non-defective component parts bear no liability when they simply build a product to a customer‟s specifications but do not substantially participate in the integration of their components into the final product. After setting out some general principles of the law of strict liability and failure to warn, we will address each of these rationales.

A. General Principles of Products Liability and the Duty to Warn

California‟s products liability doctrine "provides generally that manufacturers, retailers, and others in the marketing chain of a product are strictly liable in tort for personal injuries caused by a defective product." (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1188 (Peterson); accord, Jimenez v. Superior Court (2002) 29 Cal.4th 473, 477-478.) "The rules of products liability "focus responsibility for defects, whether negligently or non-negligently caused, on the manufacturer of the completed product.‟ " (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478-479, quoting Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 261 (Vandermark).) As the California Supreme Court explained three decades ago, the basis for imposing strict products liability on a particular defendant is that "he has marketed or distributed a defective product." (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 739.)

This legal responsibility has been extended to successor corporations (Ray v. Alad Corp. (1977) 19 Cal.3d 22, 31), and retailers of the manufactured product in issue (Vandermark, supra, 61 Cal.2d at p. 262), among other entities in the chain of distribution of the injury-causing manufactured product. Another phrase for this notion of responsibility is the "stream of commerce" theory. (Edwards v. A.L. Lease & Co. (1996) 46 Cal.App.4th 1029, 1033.) "[S]trict liability may attach even if the defendant did not have actual possession of the defective product or control over the manner in which the product was designed or manufactured." (Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 774.) Consequently, evidence that a defendant received royalties and financial benefits, allowed the actual manufacturer to use its trademark or advertising network, supplied machinery parts and specifications for the manufacture of the injury-producing product, and like connections have sufficed collectively to impose liability under the "stream of commerce" standard. (Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711, 727.) "It is the defendant‟s participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product . . . with the manufacturer or other entities involved in the manufacturing-market system [ ] which calls for imposition of strict liability." (Id. at p. 725.) This nexus of liability is present, as one court succinctly summarized, if the plaintiff‟s evidence establishes "(1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant‟s role was integral to the business enterprise such that the ...


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