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Rita Bettencourt et al v. Hennessy Industries

May 4, 2012

RITA BETTENCOURT ET AL., PLAINTIFFS AND APPELLANTS,
v.
HENNESSY INDUSTRIES, INC., DEFENDANT AND RESPONDENT. DONALD PEARSON, PLAINTIFF AND APPELLANT,
v.
HENNESSY INDUSTRIES, INC., DEFENDANT AND RESPONDENT. NOEL SHUSTED ET AL., PLAINTIFFS AND APPELLANTS,
v.
HENNESSY INDUSTRIES, INC., DEFENDANT AND RESPONDENT. SANDY SIEGEL ET AL., PLAINTIFFS AND APPELLANTS,
v.
HENNESSY INDUSTRIES, INC., DEFENDANT AND RESPONDENT.



Superior Court of the City and County of San Francisco, No. CGC06454966, Harold E. Kahn, Judge. (San Francisco City & County Super. Ct. No. CGC-06-454966) (San Francisco City & County Super. Ct. No. CGC-08-274975) (San Francisco City & County Super. Ct. No. CGC-09-275378) (San Francisco City & County Super. Ct. No. CGC-06-456189)

The opinion of the court was delivered by: Jones, P.J.

CERTIFIED FOR PUBLICATION

These consolidated appeals seek reversal of judgments entered in favor of respondent Hennessy Industries, Inc. (Hennessy).*fn1 Hennessy, the manufacturer of brake shoe grinding machines, is one of a large number of defendants against whom plaintiffs brought personal injury or wrongful death and survival actions. Plaintiffs claimed the use of Hennessy's machines to grind asbestos-containing brake linings resulted in exposure to airborne asbestos fibers that caused injury. Plaintiffs sought recovery under several theories, including strict products liability and negligence.

Hennessy moved for judgment on the pleadings in all of plaintiffs' cases, arguing it could not be held liable as a matter of law because it did not manufacture or distribute the asbestos-containing brake linings, which Hennessy claimed were the cause of plaintiffs' injuries. The trial court agreed, finding that plaintiffs' injuries were the result of defects in the products of other manufacturers for which Hennessy was not responsible. It granted Hennessy's motions and denied plaintiffs leave to amend their complaints. The court entered judgment in Hennessy's favor on all of plaintiffs' causes of action, and plaintiffs appealed.*fn2

We conclude plaintiffs could have cured the defect in their complaints by amendment. We therefore hold it was error to grant judgment on the pleadings to Hennessy and an abuse of discretion to deny plaintiffs leave to amend their complaints with respect to their causes of action for strict products liability and negligence. We therefore reverse the judgments with regard to those causes of action.

FACTUAL AND PROCEDURAL BACKGROUND

These appeals challenge a grant of judgment on the pleadings, and we accept as true the factual allegations in plaintiffs' complaints. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.) Because all of these allegations are deemed admitted for purposes of a motion for judgment on the pleadings (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602 (Ludgate)), we draw our statement of facts from plaintiffs' "master complaint," their individual case-specific complaints, and the proposed amendments to the complaints plaintiffs filed in the trial court.*fn3

The Plaintiffs

Between 1958 and 1996, William Bettencourt worked in various occupations in which he was exposed to asbestos and asbestos-containing products. He also suffered nonoccupational exposure to asbestos from performing maintenance and repairs on cars, trucks, and motorcycles. Bettencourt was diagnosed with asbestosis, asbestos-related pleural disease, and right lung cancer in about 1984. He was diagnosed with bladder and kidney cancer in about 2004, left lung cancer in about 2005, and received another diagnosis of right lung cancer in about 2006. He died October 10, 2007.

Donald Pearson served in the U.S. Army and worked as a machinist, mixer, gas station attendant, and mechanic. Between 1958 and 1993, he was exposed to asbestos and asbestos-containing products at various places of employment. He also suffered nonoccupational exposure when he changed and removed the brakes on different vehicles. In the process, he used grinding and arcing machines to shape the new brake shoes. Pearson was diagnosed with asbestosis and asbestos-related pleural disease in about May 2008.

Shusted's decedent, Margaret Hauck, experienced para-occupational exposure to asbestos from her father's and husband's dirty work clothing. Hauck lived with her father between 1942 and 1960, during which time he worked as a millwright and service engineer. He was exposed to asbestos from the 1930s until 1973 at various places of employment. Hauck lived with her husband from 1962 until 1999, during which time her husband operated an automobile repair business where he was exposed to asbestos. He also performed brake replacement jobs on his personal vehicles, as well as those belonging to family and friends. Hauck was exposed to asbestos from washing her husband's dusty clothes and from home remodeling work. She was diagnosed with mesothelioma in about August 2008, and died October 9, 2008.

John Siegel was exposed to asbestos-containing products at numerous workplaces between 1964 and 2000. He was diagnosed with lung cancer in about April 2006, and died on April 24, 2008.

Hennessy and its Product

Hennessy engaged in the design, manufacture, and distribution of brake shoe grinding machines.*fn4 The only intended use of the machines was for grinding brake shoe linings to match the size and shape of the brake shoe to the brake drum for full braking efficiency.

During the periods relevant to this litigation, all brake shoe linings used on automobiles, light trucks, and commercial trucks in the United States contained asbestos. Hennessy knew or should have known its brake shoe grinding machines would be used by consumers and workers in conjunction with asbestos-containing brake linings. Its machines were specifically designed for grinding such brake shoe linings and had no other function. Plaintiffs allege this was the inevitable use of Hennessy's machines.

Until subjected to Hennessy's product, asbestos fiber bundles were physically bound or otherwise attached in a "matrix" in the nonfriable asbestos brake lining. As they were designed to do, Hennessy's machines ground and abraded the hard linings and subjected them to pressures, temperatures, and force, making portions of the lining into a fine powder and releasing the formerly bound-up asbestos as airborne fibers. The airborne fibers presented a significant danger to human health, as they would be inhaled by anyone in the area around the brake shoe grinding machine during or after its use. The use of Hennessy's products led to inhalation and ingestion of those asbestos fibers, which cause serious disease, including asbestosis, other lung damage, cancer, and even death.

Hennessy's machines were unsafe and dangerous for use, both because they were negligently manufactured and designed, and because Hennessy failed to warn of the danger from exposure to asbestos fibers released from the brake linings by the intended use of its machines. The machines failed to protect against exposure to asbestos fibers, although Hennessy could have been designed and built them with features that would have prevented the exposure. The design defects include the lack of effective dust collection mechanisms and/or the failure to ensure that the machines' abrading mechanism did not come into contact with the asbestos-containing brake linings until achieving sufficient revolution velocity, temperature, and pressure, so as to convert the asbestos fibers into inert "forsterite," a substance which would not have presented any danger to humans.

The Actions Below

Plaintiffs filed complaints for wrongful death or personal injury in San Francisco Superior Court. They alleged a number of causes of action against Hennessy, but only two--those for negligence and strict products liability--are at issue in these appeals.*fn5

Hennessy moved for judgment on the pleadings in all of the cases. Relying principally on our opinion in Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564 (Taylor), Hennessy contended it could not be held liable under either negligence or strict products liability for asbestos-containing products manufactured, marketed, and distributed by other entities. Briefly stated, Hennessy argued it was not liable because plaintiffs did not allege Hennessy had placed an asbestos-containing product into the stream of commerce. (See id. at pp. 575-579 [explaining that California's " 'stream of commerce' " theory of products liability generally restricts strict liability for failure to warn to entities in the chain of distribution of the defective product].) Since plaintiffs alleged their injuries were the result of exposure to inherently dangerous asbestos released from brake linings produced by others, Hennessy asserted its product did not cause or create the risk of harm to plaintiffs. Under Taylor, Hennessy argued, it could not be held liable as a matter of law.

Plaintiffs opposed Hennessy's motions, arguing Taylor was both wrongly decided and factually distinguishable. Plaintiffs contended their cases were controlled by the Second District's opinion in Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577 (Tellez-Cordova). Plaintiffs asserted that Hennessy's abrasive power tools, when used as intended and directed, released asbestos into the air around the users of Hennessy's brake grinding machines. Thus, plaintiffs argued, in their cases, as in Tellez-Cordova, it was the action of the defendant's product that created the hazardous condition leading to plaintiffs' injuries, even if the injury-producing toxin did not originate from Hennessy's machines. (See id. at p. 585.) They also noted that their complaints alleged both negligence and strict liability theories of design defect, two bases of liability we did not address in Taylor. (See Taylor, supra, 171 Cal.App.4th at p. 572, fn. 4.)

After hearings on Hennessy's motions in all of these cases, the trial court granted judgment on the pleadings to Hennessy with respect to all of plaintiffs' causes of action. The trial court explained its reasoning in its tentative ruling. Citing Taylor and the line of California authority upon which Taylor relied, the trial court reasoned that "[a] product manufacturer has no duty to persons whose injury results from defects in the products of others." It noted plaintiffs did not allege that Hennessy sold an asbestos-containing product or that it had any control over the design and manufacture of the asbestos-containing brake linings used in conjunction with its machines. The trial court found Tellez-Cordova distinguishable on its facts and explained that unlike Tellez-Cordova, plaintiffs made no allegation that Hennessy's machines could only function in conjunction with asbestos-containing brake linings, or that the brake arcing machines and brake linings formed a single defective system over which the defendant exercised significant control. The trial court recognized that "the plaintiff's injury would not have occurred but for [Hennessy's] product, but it was a defect in the product of another which proximately caused the injury. The only alleged defect in [Hennessy's] machines is that they . . . caused another defective product to injure the decedent[.]" Under those facts, the court ruled Hennessy had no duty to the plaintiffs. It also denied plaintiffs request for leave to amend their complaint.

The trial court entered judgment in Hennessy's favor on all of plaintiffs causes of action. ...


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