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Fern Barker et al v. Hennessy Industries

May 22, 2012


(Los Angeles County Super. Ct. No. BC414806) APPEAL from a judgment of the Superior Court of Los Angeles County. Amy D. Hogue, Judge. Affirmed.

The opinion of the court was delivered by: J. Doi Todd


The trial court granted summary judgment in favor of defendant and respondent Hennessy Industries, Inc. (Hennessy) on the asbestos-related wrongful death complaint filed by plaintiffs and appellants Fern Barker, James Barker, Carmen Barker and Tamara Worthen (appellants), the widow and surviving children of decedent Richard Barker (Barker). Hennessy manufactured machines Barker had used in his work. The trial court ruled that Hennessy could not be held liable for Barker's death under the theories of strict liability or negligence because the undisputed evidence showed that any harm was caused by products containing asbestos and not Hennessy's machines.

We affirm. The undisputed evidence showed that Hennessy's machines did not contain asbestos and could be operated independently without asbestos-containing materials. Guided by the principle recently articulated by the California Supreme Court in O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 361 (O'Neil), that "California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together," we conclude that Hennessy owed neither a duty to warn about nor a duty of care to prevent the dangers arising from asbestos-containing products that were used with its machines.


Barker worked as a mechanic in an automotive repair garage from 1967 to 1995. 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 (machines), which were manufactured by Hennessy's predecessor Ammco Tools, Inc. (Ammco). Barker was diagnosed with asbestosis and asbestos-related lung cancer and died of those diseases in December 2008.

In May 2009, appellants filed a wrongful death action against Hennessy and several other entities, alleging causes of action for negligence, strict liability, false representation, and concealment, as well as a survival claim. They characterized Hennessy as "a manufacturer, supplier, seller of AMMCO lathes and/or grinders" and alleged that Barker worked with and around others using the machines "to lathe and grind asbestos containing products including brake linings/shoes and clutch linings/facings." Appellants 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. In support of the motion, Hennessy submitted appellants' case report and discovery responses, as well as the declaration of product engineer Craig Mountz, who authenticated documents showing the parts specifications for the machines.

Mountz averred that he was employed by Ammco, and subsequently Hennessy, continuously from 1975 to the present. He was personally involved with the design of the machines and had detailed knowledge of their engineering, construction and component parts. As part of his job, he was also familiar with the function and operation of brake shoes and drums, and the proper use of the machines with those brake parts. He declared that the machines, as manufactured and as supplied with replacement parts, were not comprised of any asbestos-containing parts, did not contain respirable asbestos and did not use asbestos in order to operate. Rather, he averred that the machines were designed to reshape brake parts regardless of whether those brake parts were composed of or contained asbestos. He declared that the machines did not require asbestos-containing brake parts to operate and, correspondingly, any asbestos-containing brake parts did not require the machines in order to function. Hennessy's machines were complete, independent products, in and of themselves. Mountz added that neither Hennessy nor its predecessor had any role in designing, manufacturing, marketing or selling any asbestos products used with its machines, including brake shoes, brake linings, brake pads, clutches, clutch linings, or clutch facings.

Appellants opposed the motion. They took the position that Hennessy had not shifted the burden of producing evidence, primarily arguing that Mountz's declaration was inadmissible. Separately, they filed evidentiary objections to the declaration. In support of their opposition, they submitted counsel's declaration which attached Hennessy's discovery responses, pleadings in other matters and asbestos study reports conducted by the National Loss Control Service Corporation. They sought to establish that Hennessy had known for years that the operation of its machines with asbestos-containing brake parts created the release of respirable asbestos dust. Hennessy, in turn, filed evidentiary objections to appellants' counsel's declaration and attached exhibits.

At the January 2011 hearing on the motion, the trial court sustained Hennessy's evidentiary objections in their entirety, and overruled appellants' objections. Given the state of the admissible evidence, the trial court ruled that Hennessy had affirmatively shown its machines were stand-alone products that did not contain asbestos or require asbestos to operate. It reasoned that the evidence showed "it is someone else's products that create the exposure of risk of injury to the user, not Hennessy's." The trial court ruled that there was no triable issue of fact on the question of duty as to any cause of action and granted summary judgment.*fn1

Judgment was entered in Hennessy's favor and this appeal followed.


Challenging only the interpretation and not the admission of the evidence offered in connection with the summary judgment motion, appellants contend that Hennessy owed a duty to warn about and a duty of care to prevent the risk of harm created by the intended use of its machines. As alleged, the facts in this case arguably fall in the margin between Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564 (Taylor), which held a manufacturer owes no duty to warn of the risk of asbestos-containing products used in combination with its own products, and Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577 (Tellez-Cordova), 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.

But here we have moved beyond appellants' allegations. The admissible evidence on summary judgment establishes that this case falls squarely within O'Neil, supra, 53 Cal.4th 335,*fn2 which confined the reach of Tellez-Cordova and held that a defendant product manufacturer may be held strictly liable for harm caused by another manufacturer's product when "the defendant's product was intended to be used with another product for the very activity that created a hazardous situation." (O'Neil, supra, at p. 361.) Because the undisputed evidence showed nothing more than the foreseeable--and not the intended and inevitable--use of asbestos-containing products with Hennessy's machines, Hennessy could not be held liable for failing to warn of the risk of harm from those products and summary judgment was properly granted.

I. Standard of Review.

To be entitled to summary judgment, the moving party must show by admissible evidence that the "action has no merit or that there is no defense" thereto. (Code Civ. Proc., § 437c, subd. (a).) To satisfy this burden, a moving defendant is not required to "conclusively negate an element of the plaintiff's cause of action. . . . All that the defendant need do is to 'show[] that one or more elements of the cause of action . . . cannot be established' by the plaintiff. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. omitted.) Once the defendant makes this showing, the burden shifts to the plaintiff to show the existence of a triable issue of material fact, which must be demonstrated through specific facts based on admissible evidence and not merely the allegations of the pleadings. (Code Civ. Proc., § 437c, subd. (p)(2); Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1188.)

"The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues. Thus, where the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing. [Citations.] For this purpose, responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact. [Citations.]" (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

We review a grant of summary judgment de novo, independently examining the evidence and determining whether the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Peart v. Ferro (2004) 119 Cal.App.4th 60, 69.) "It is well settled that 'in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal. [Citations.]' [Citations.]" (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962.)

Although we independently review a grant of summary judgment, we review the trial court's evidentiary rulings for an abuse of discretion. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) But in order to demonstrate an abuse of discretion, an appellant must affirmatively challenge the evidentiary rulings on appeal. That is, the asserted erroneous evidentiary rulings must be identified "as a distinct assignment of error" and be supported by analysis and citation to authority. (Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114.) Here, appellants have not challenged the trial court's evidentiary rulings and, in their reply brief, they affirmatively conceded they had not raised any claim of error relating to those rulings, describing them as "immaterial." When an appellant does not challenge the trial court's sustaining objections to evidence offered in support of a summary judgment motion, "any issues concerning the correctness of the trial court's evidentiary rulings have been waived. [Citations.] We therefore consider all such evidence to have been properly excluded. [Citation.]"*fn3 (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)

II. The Undisputed Evidence Established That Hennessy Cannot Be Held Strictly Liable for the Failure to Warn.

In California, strict liability may be imposed on a manufacturer for three types of product defects: Manufacturing defects, design defects, and "'warning defects,' i.e., inadequate warnings or failures to warn."*fn4 (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995; accord, O'Neil, supra, 53 Cal.4th at p. 347; Taylor, supra, 171 Cal.App.4th at p. 577.) As in Taylor, supra, at page 577, "[w]e are here concerned solely with the third category, which applies to 'products that are dangerous because they lack adequate warnings or instructions.' [Citation.] Our law recognizes that even '"a product flawlessly designed and produced may nevertheless possess such risks to the user without a suitable warning that it becomes 'defective' simply by the absence of a warning." [Citation.]' [Citation.] Thus, manufacturers have a duty to warn consumers about the hazards inherent in their products. [Citation.]" (Fn. omitted.)

Asbestos has been recognized as an inherently dangerous product. (See Taylor, supra, 171 Cal.App.4th at pp. 587-588.) The evidence was undisputed that Hennessy's machines neither contained asbestos nor required asbestos-containing products to operate. Rather, according to the allegations of appellants' complaint (relevant portions of which Hennessy incorporated into its separate statement of undisputed facts), the use of Hennessy's machines by "removing, repairing, arcing, grinding, sanding, cutting, drilling and installing" asbestos-containing brake parts caused Barker to be "exposed to harmful, respirable asbestos." The evidence was likewise undisputed that Hennessy had never designed, manufactured, distributed or sold the asbestos-containing brake parts. Thus, the question before us is whether and to what extent a manufacturer owes a duty to warn of a defect in another manufacturer's product when the use of that product with the manufacturer's own product creates a risk of harm.

In explaining "the limits of a manufacturer's duty to prevent foreseeable harm related to its product," the Supreme Court in O'Neil, supra, 53 Cal.4th at page 342 answered that precise question: "We hold 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." Applying this principle, the O'Neil Court determined that valve and pump manufacturers could not be held strictly liable for harm created by asbestos-containing gaskets and insulation used in conjunction with their products. We find no basis to depart from either the reasoning or the result in O'Neil.

A. A Manufacturer Owes No General Duty to Warn of Defects in Another Manufacturer's Product.

1. A manufacturer's duty to warn does not extend to hazards arising solely from other products.

The decedent in O'Neil developed fatal mesothelioma from his exposure to asbestos while working aboard a warship where he supervised those who repaired equipment in the ship's engine and boiler rooms. (O'Neil, supra, 53 Cal.4th at pp. 345-346.) His family brought a wrongful death action alleging claims for strict liability and negligence; among the defendants were valve and pump manufacturers that had produced valves and supplied pumps, respectively, for Navy ships according to military specifications. (Id. at pp. 343-344, 346.) At all relevant times, those specifications required that the valves' internal gaskets and packing be made of materials that contained asbestos, and the defendant valve and pump manufacturers acquired those items from other manufacturers for use with their products. (Id. at p. 344.) Harmful asbestos fibers were released when the repairmen needed to access a piece of equipment, which required that they remove asbestos-containing insulation and asbestos-containing gaskets. (Id. at p. 345.) No one warned the repairmen of the hazards associated with their work. (Ibid.)

The evidence offered at trial in O'Neil showed that the defendants did not make the asbestos-containing products, and there was no evidence to show that any harmful asbestos dust came from a product they manufactured or sold. (O'Neil, supra, 53 Cal.4th at p. 345.) Moreover, at trial, the plaintiffs offered no evidence that either the valves or the pumps required the use of asbestos-containing internal components in order to function properly. (Ibid.) On the basis of this evidence, the defendants moved for non-suit, arguing there was no evidence that any defect in their products or any failure to warn by them was a substantial factor in causing the decedent injury, and the trial court granted the motion. (Id. at p. 346.)

After the Court of Appeal reversed the grant of non-suit, the Supreme Court reversed that decision, holding that the "defendants were not strictly liable for O'Neil's injuries because (a) any design defect in defendants' products was not a legal cause of injury to O'Neil, and (b) defendants had no duty to warn of risks arising from other manufacturers' products." (O'Neil, supra, 53 Cal.4th at p. 348.) In connection with the first prong of its analysis, the Court explained that the defendants' products were not defective "because they were 'designed to be used' with asbestos-containing components." (Id. at p. 350.) The Court emphasized that beyond "the Navy's specifications, no evidence showed that the ...

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