Waters Kraus & Paul, Paul C. Cook, Michael B. Gurien and Jonathan George for Plaintiffs and Appellants.
Gordon & Rees, Don Willenburg and Mitchell B. Malachowski for Defendant and Respondent.
Appellant Michael Sherman, individually and as successor in interest to Debra Jean Sherman, together with appellants Richard Sherman and Vicki Marlow, asserted claims for negligence, strict liability, and loss of consortium against respondent Hennessy Industries, Inc. (Hennessy), alleging that a brake lining arcing machine made by its predecessor in interest released asbestos dust that caused Debra Jean Sherman’s mesothelioma. The trial court granted summary judgment in Hennessy’s favor on appellants’ claims, concluding that Hennessy was not liable for injury caused by asbestos dust from brake linings its predecessor in interest neither manufactured nor distributed. We reverse.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In March 2012, appellants initiated the underlying action. Their first amended complaint, filed March 22, 2012, contains claims against Hennessy for negligence, strict liability, false representation, failure to warn, and loss of consortium. The claims rely on allegations that Hennessy’s predecessor in interest, the Automotive Maintenance Machinery Company (AMMCO), designed and sold an arcing machine whose “sole function” was to abrade asbestos-containing brake linings by means of sand paper moving at high speeds, and that the machine released asbestos dust when applied to the linings. Appellants further alleged that from 1962 to 1977, Michael Sherman used the AMMCO machine while working as a mechanic, and that his wife Debra Jean Sherman, who is deceased, developed mesothelioma as the result of exposure to asbestos dust he carried home from work.
Relying on O’Neil v. Crane Co. (2012) 53 Cal.4th 335 [135 Cal.Rptr.3d 288, 266 P.3d 987] (O'Neil), Hennessy sought summary adjudication or summary judgment on appellants’ claims, contending that the AMMCO machine itself contained no asbestos, and that appellants could not establish the circumstances necessary for the imposition of strict liability on a manufacturer for injury from products it neither made nor distributed. Hennessy
maintained that under O’Neil, no such liability arose unless the AMMCO machine’s sole intended purpose was to abrade asbestos-containing brake linings. That condition, Hennessy argued, could not be demonstrated because the AMMCO machine had the capacity to abrade asbestos-free brake linings, which were available in the 1960’s and 1970’s. In opposing summary adjudication and summary judgment, appellants submitted evidence that the machine was designed to grind brake linings only of a certain type, and that during the pertinent period, those linings “almost universally” incorporated asbestos.
The trial court granted summary judgment, concluding that the AMMCO machine “did not contain asbestos, was not designed to be operated exclusively with asbestos-containing brakes, and could be operated with asbestos-free brakes.” On September 6, 2013, judgment was entered in favor of Hennessy and against appellants. This appeal followed.
Appellants challenge the grant of summary judgment, contending there are triable issues regarding Hennessy’s potential liability for their injuries. For the reasons discussed below, we agree.
A. Standard of Review
“A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].) In moving for summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action -- for example, that the plaintiff cannot prove element X.” (Id. at p. 853.)
“‘Review of a summary judgment motion by an appellate court involves application of the same three-step process required of the trial court. [Citation.]’” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662 [42 Cal.Rptr.2d 669].) The three steps are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made a
an adequate showing that negates the opponent’s claim, and (3) determining whether the opposing party has raised a triable issue of fact. (Ibid.) Following a grant of summary judgment, we review the record de novo for the existence of triable issues, and consider the evidence submitted in connection with the motion, with the exception of evidence to which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)
B. Governing Principles
In view of the trial court’s ruling, the key issue is whether under O’Neil, Hennessy can be liable for injuries arising from the application of the AMMCO machine to asbestos-containing brake linings.
1. Products Liability
A plaintiff may seek recovery in a “products liability” case either on a theory of strict liability or on a theory of negligence. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478 [110 Cal.Rptr.2d 370, 28 P.3d 116].) Under either theory, the plaintiff must prove that a defect in the product caused injury. (Ibid.) In addition, to establish a negligence theory, a plaintiff must prove that the defect in the product was due to the defendant’s negligence. (Ibid.) Generally, recovery is permitted for three kinds of defects: manufacturing defects, design defects, and warning defects, that is, inadequate warnings or failures to warn. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995 [281 Cal.Rptr. 528, 810 P.2d 549]; Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 479; Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 363-364 [212 Cal.Rptr. 395].)
Here, Hennessy sought summary adjudication or summary judgment on appellants’ products liability claims, which sound in strict liability and negligence, and their related claims. The claims are founded on allegations that Hennessy failed to give adequate warnings that the AMMCO machine released asbestos dust, and that the machine was defectively designed due to that result of its operation.
Our focus is on strict liability, as O’Neil places special emphasis on that type of products liability. The doctrine of strict products liability is traceable to Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57,
[27 Cal.Rptr. 697, 377 P.2d 897], in which the plaintiff asserted claims against a power tool manufacturer based on injuries he suffered as a result of using the tool. In imposing strict liability for the injuries on the manufacturer, our Supreme Court held that “it was sufficient that plaintiff proved that he was injured while using the [tool] in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the [tool] unsafe for its intended use.” (Id. at p. 64.) “The purpose of such liability, ” the court explained, “is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market[, ] rather than by the injured persons who are powerless to protect themselves.” (Id. at p. 63.)
In later decisions, the Supreme Court established that under the doctrine, courts ordinarily must look beyond the product’s “‘normal’” or intended use to its reasonably foreseeable uses. (Cronin v. J.B.E Olson Corp. (1972) 8 Cal.3d 121, 126 [104 Cal.Rptr. 433, 501 P.2d 1153] (Cronin): see Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 366 [131 Cal.Rptr. 78, 551 P.2d 398].) "Generally, foreseeability is relevant in a strict liability analysis to determine whether injury is likely to result from a potential use or misuse of a product.” (O’Neil, supra, 53 Cal.4th at p. 362.) That determination is appropriate because “[t]he design and manufacture of products should not be carried out in an industrial vacuum[, ] but with recognition of the realities of their everyday use.” (Cronin, supra, 8 Cal.3d at p. 126; accord, Horn v. General Motors Corp., supra, 17 Cal.3d at p. 366.)
In O’Neil, our Supreme Court examined the extent to which a manufacturer may be liable for injuries arising from “adjacent” products, that is, products made and sold by others, but used in conjunction with the manufacturer’s own product. (O’Neil, supra, 53 Cal.4th at p. 342.) There, the family of a deceased United States Navy seaman asserted claims for negligence and strict liability against manufacturers of pumps and valves used on warships, alleging that the serviceman’s exposure to asbestos dust from asbestos-containing materials used in connection with the pumps and valves caused his fatal mesothelioma. (Id. at pp. 342-347.) The court rejected the claims, concluding 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.” (Id. at p. 342.)
In assessing the scope of a manufacturer’s liability for injuries arising from “adjacent” products, the court’s attention centered on the strict liability d
doctrine. (O’Neil, supra, 53 Cal.4th at pp. 342, 348.) The court observed that from the outset, that doctrine had been premised on deficiencies in the defendant’s own product, and that courts had generally rejected strict liability claims -- including “design defects” and “duty to warn” claims -- predicated on injuries from “entirely distinct” products neither made nor supplied by the defendant. (Id. at pp. 335-353.) The court took special note of Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 571-572 [90 Cal.Rptr.3d 414], in which the widow of a United States Navy seaman sued several valve and pump manufacturers, alleging that they were responsible for her husband’s asbestos-related injuries. (O’Neil, supra, at pp. 351-352.) In affirming summary judgment in favor of the defendants on the plaintiff's "duty to warn” strict liability claims, the appellate court in Taylor relied in part on the so-called “component parts doctrine, ” which shields the manufacturer of a component part from liability for injuries arising from a finished product into which the component has been integrated, unless the component was defective when it left the manufacturer, or the manufacturer substantially participated in the integration of the component into the finished product. (Taylor, supra, 171 Cal.App.4th at pp. 570-571, 584-586.)
The O’Neil court distinguished three decisions in which liability had been imposed on a manufacturer, one of which is pertinent here, namely, Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, 579-581 [28 Cal.Rptr.3d 744] (Tellez-Cordova). There, the plaintiff asserted strict liability claims based on defective warnings and design
defects against manufacturers of grinding, sanding, and cutting tools the plaintiff had used. The plaintiff’s complaint alleged that the defendants’ tools released toxic dust from other manufacturers’ products, and that the dust caused his injuries. (129 Cal.App.4th at pp. 579-581.) The defendants successfully demurred to the complaint on the basis of the component parts doctrine. (Id. at p. 581.) In reversing, the appellate court concluded that the component parts doctrine was inapplicable: “The facts before us are not that respondents manufactured component parts to be used in a variety of finished products, outside their control, but instead that respondents manufactured tools which were specifically designed to be used with the abrasive wheels or discs they were used with, for the intended purpose of grinding and sanding metals, that the tools necessarily operated with those wheels or discs, that the wheels and discs were harmless without the power supplied by the tools, and that when the tools were used for the purpose intended by respondents, harmful respirable metallic dust was released into the air.” (Id. at p. 582.)
The O’Neil court concluded that Tellez-Cordova marked an exception to the general rule barring imposition of strict liability on a manufacturer for harm caused by another manufacturer’s product. (O’Neil, supra, 53 Cal.4th at p. 362.) That exception is applicable when “the defendant’s own product contributed substantially to the harm. . . ." (Ibid.) In expounding the exception, the court rejected the notion that imposition of strict liability on manufacturers is appropriate when it is merely foreseeable that their products will be used in conjunction with products made or sold by others. (Id. at pp. 361-362.) The O’Neil court further explained: “Recognizing a duty to warn was appropriate in Tellez-Cordova because there the defendant’s product was intended to be used with another product for the very activity that created a hazardous situation. Where the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings. Conversely, where the hazard arises entirely from another product, and the defendant’s product does not create or contribute to that hazard, liability is not appropriate. We have not required manufacturers to warn about all foreseeable harms that might occur in the vicinity of their products.” (Ibid.)
The O’Neil court further concluded that the facts in Tellez-Cordova differed from the situation before it in two key respects. (O’Neil, supra, 53 Cal.4th at p. 361.) As the “sole purpose” of the power tools in Tellez-Cordova was to grind metals, they could only be used in a potentially injury-producing manner, unlike the defendant manufacturers’ pumps and valves, whose “normal operation... did not inevitably cause the release of asbestos dust.” (Ibid.) Moreover, unlike the pumps and valves, “it was the action of the
power tools... that caused the release of harmful dust, even though the dust itself emanated from another substance.” (Ibid, italics omitted.) In view of those differences, the pumps and valves did not satisfy two requirements identified by the underlying appellate court for the imposition of strict liability under Tellez-Cordova, namely, that the manufacturer’s product “‘is necessarily used in conjunction with another product, ” and that “the danger results from the use of the two products together.' " (Ibid.) The O’Neil court determined that “[the] pumps and valves were not ‘necessarily’ used with asbestos components, and danger did not result from the use of [the] products ‘together.’” (Ibid.)
After determining that the plaintiffs asserted no tenable strict liability claim, the O’Neil court turned to their negligence claims. (O’Neil, supra, 53 Cal.4th at p. 365.) The court declined to impose a duty of care, stating that “[t]he same policy considerations that militate against imposing strict liability in this situation apply with equal force in the context of negligence.” (Id. at p. 366.)
3. Relevant Post-O’Neil Decisions
Following O’Neil, two appellate courts have applied the Tellez-Cordova exception to products liability claims resembling those presented here. In Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782, 784 [140 Cal.Rptr.3d 268] (Shields), the plaintiffs’ complaints asserted products liability claims predicated on allegations that they suffered injury due to exposure to asbestos dust released by the application of the AMMCO machine to asbestos-containing brake linings. The appellate court reversed judgments on the pleadings in favor of Hennessy, concluding that the plaintiffs’ allegations satisfied the Tellez-Cordova exception to the rule confining strict liability to a manufacturer’s own products, as described in O’Neil. (Id. at pp. 797-798.) The court stated: “Taken as true, the causes of action contend that Hennessy distributed a machine directly to consumers designed only to grind asbestos-containing brake linings, a machine that was defective because its intended operation necessarily released asbestos fibers into the air and was not a machine manufactured for use as a component in another finished product .....[T]he alleged sole and intended use of the brake arcing machine resulted in the release of contained asbestos particles.” (Id. at p. 798.)
In Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1106-1110 [141 Cal.Rptr.3d 167] (Bettencourt), which also involved products liability claims based on the AMMCO machine, the appellate court reached a similar conclusion. After Hennessy obtained judgments on the pleadings without leave to amend, the appellate court reversed, concluding that the plaintiffs’ proposed amendments stated facts satisfying the Tellez-Cordova
exception. (Id. at pp. 1110-1120.) According to the proposed allegations, “the sole and intended purpose” of the AMMCO machine “was to grind asbestos-containing brake linings. At the time in question, all brakeshoe linings used on automobiles and trucks in the United States contained asbestos, and it was not only foreseeable that [the] machines would be used to grind such linings, this was their inevitable use. The asbestos fibers bundles were physically bound in a matrix in the nonfriable linings, and only when subjected to the action of [the] machines were the fibers released into the air where they posed a danger to those exposed. Thus, when used as designed and intended, [the] machines caused the release of the toxic agent that injured plaintiffs, although that agent did not emanate from [the] machines.” (Id. at p. 1117.)
C. The Parties’ Showings
We next examine the parties’ showings, with special attention to the evidence bearing on the Tellez-Cordova exception.
1. Hennessy’s Evidence
To establish that the Tellez-Cordova exception was inapplicable to the AMMCO machine, Hennessy relied primarily on declarations from Dennis Bridge, an expert on industrial safety, and Craig Mountz, a Hennessy engineer. According to Bridge, asbestos-free brake linings have been available in the United States since 1936. In the 1930’s and 1940's, some domestic corporations obtained patents for such linings, and certain German-made cars used asbestos-free metallic linings. In the 1950’s, asbestos-free linings were sold for use with trucks and the Chevrolet Corvette. In the 1960’s and 1970’s, asbestos-free metallic brake linings were available for the increasingly popular “muscle” cars and some passenger cars. Since 1961, “Velvetouch” and “Velvetouch Metalik” asbestos-free linings were “well known in the performance and muscle car industry, but were not... limited to such use.” Other brands of asbestos-free linings were also available.
Mountz stated that AMMCO machines were designed to reshape a brake lining by mechanical abrasion, regardless of whether the lining contained asbestos. The machines themselves incorporated no asbestos-containing parts, and AMMCO had otherwise never manufactured, designed, or marketed the brake linings to which the machine had been applied. After AMMCO began making the machine, it manufactured abrasives and other components intended “to better tailor” the machine to certain metallic and high performance linings. In the 1960s, due to the increasing presence of metallic and high performance linings, AMMCO created a special abrasive belt for high volume use of the machine with such linings.
Hennessy thus maintained that from 1962 to 1974, when Michael Sherman allegedly worked with and around AMMCO machines, asbestos-free brake
linings were commercially available in the United States for use on automobiles and light trucks. As Hennessy noted, Sherman acknowledged that he had encountered Velvetouch linings at Pitzer’s Garage, where he worked for three months in or about 1962 and seven years commencing in the late 1960’s.
2. Appellants’ Evidence
Appellants contended their claims fell within the Tellez-Cordova exception, offering evidence (1) that the AMMCO machine was designed to abrade only a certain type of lining, namely, drum brake linings for passenger cars and light trucks, and (2) that from the late 1960s to the mid-1970’s, when Michael Sherman suffered his principal exposure to asbestos dust, brake linings of that type “almost universally” contained asbestos. Appellants relied on deposition testimony from Mountz, who stated that AMMCO manufactured the machine from 1949 to the 1980’s. Although AMMCO offered different models during that period, they were “‘basically all the same machine.’” All were designed to abrade only drum brake linings for passenger cars and light trucks. From the outset, AMMCO knew that the machine generated dust by sanding and abrading the linings. Thus, every machine was equipped and sold with a dust collection system.
Appellants also submitted a declaration from industrial safety expert Mark Levin, who stated: “[C]ommercially available drum brake linings for passenger cars and light trucks in the United States in the 1960[’]s and 1970[’]s contained asbestos.... Although other friction materials were available at the time to a very limited extent, [those] materials were not appropriate for brakes on passenger cars and light trucks designed in the United States.... [M]etallic brake drum linings, while used for heavy duty applications or for applications involving severe usage conditions, such as in race cars, were too sensitive to prior usage, temperature and moisture for use in passenger cars and light trucks.... Semi-metallic formulations were [also] not commercially acceptable.... Manufacturers experimented with various non-asbestos formulations for drum brake linings beginning in the 1980’s, but did not eliminate the use of asbestos brake linings until 2000.... As late as 1986, asbestos brake linings still accounted for 90 to 95 percent of the original equipment market and virtually 100 percent of the aftermarket.”
Levin further stated that “[t]he rare exception to the near universal use of asbestos-containing drum brake linings in the 1950[’]s, 1960[’]s and 1970[’]s was the limited availability of metallic drum brake linings as an option for certain high- performance cars. Cerametallic drum brake linings could be purchased as an option for the 1958 Corvette, but this application was for racing only, not for road use." According to Levin, unconventional metallic
brake pads were offered for use on a later Corvette model, but the AMMCO machine was not designed for use on such pads, which required no grinding.
Appellants also submitted evidence regarding AMMCO’s efforts to mitigate the hazard created by the machine’s generation of asbestos dust. According to that showing, from 1940 to 1973, the machine’s dust collection system relied on a fabric bag. In January 1973, a study conducted for AMMCO by the National Loss Control Service Corporation (NLCSC) disclosed that use of the machine with the then-existing dust collection system resulted in exposure to asbestos fibers under OSHA limits. At some point in 1973, AMMCO began offering a system that it advertised as a “‘highly efficient means of collecting... dangerous asbestos dust.’” (Italics omitted.) Affixed to the system was a label stating “‘BRAKE LINING MATERIALS CONTAIN ASBESTOS.’”
In January 1978, at AMMCO’s request, the NLCSC conducted a study of the asbestos dust collection system. The study showed that although the system potentially reduced exposure to asbestos fibers below OSHA limits, the machine generated measurable levels of fiber when the system was attached, and “excessive” levels when removed. Later, in July 1978, the NLCSC conducted a study of the machines for AMMCO. The NLCSC noted that “‘[t]he major product liability’” associated with the machines was the potential exposure of workers to asbestos fibers, and advised AMMCO to provide adequate instructional materials regarding the operation of the asbestos dust collection system.
In October 1986, the NLCSC conducted another study of the machines for AMMCO. The NLCSC reported that the machines, when used to grind brake linings, generated concentrations of asbestos fibers in excess of then-permissible OSHA limits.
Our focus is on the Tellez-Cordova exception, even though that exception directly attaches to the rule shielding a product manufacturer from strict liability for injuries from “adjacent” products, as the grant of summary judgment relied solely on a determination that the exception is inapplicable. We therefore limit our inquiry to whether the AMMCO machine “contributed
substantially to the harm” (O’Neil, supra, 53 Cal.4th at p. 362). For the reasons discussed below, we conclude that summary judgment was improperly granted.
The application of the Tellez-Cordova exception, as expounded in O’Neil, requires a special relationship between the manufacturer’s product and the alleged harm. O’Neil provided no definition of that relationship, but identified factors relevant to its existence. (O’Neil, supra, 53 Cal.4th at pp. 361-362.) Although the O’Neil court rejected the underlying appellate court’s imposition of strict liability on the defendant manufacturers, the O’Neil court appears to have agreed that at least two factors proposed by the underlying court are required for the relationship, namely, that the manufacturer’s product “‘is necessarily used in conjunction with another product, ’” and that “‘danger results from the use of the two products together.’” (O’Neil, supra, 53 Cal.4th at p. 361.) However, the O’Neil court explained the requisite relationship in more stringent terms, stating that a duty to warn was properly imposed in Tellez-Cordova because “the defendant’s product was intended to be used with another product for the very activity that created a hazardous situation.” (Ibid.) Thus, such a duty is imposed when “the intended use of a product inevitably creates a hazardous situation . . . ," but not when that situation is merely foreseeable and is due solely to another product. (Id. at pp. 361-362, italics added.)
Appellants’ showing, if credited, establishes that the relationship between the AMMCO machine and the related harm closely resembles the product-harm relationship in Tellez-Cordova. For purposes of the strict liability doctrine, evidence regarding a product manufacturer’s target market and “‘marketing scheme’” is relevant to show the product’s intended and foreseeable uses. (Dosier v. Wilcox Crittendon Co. (1975) 45 Cal.App.3d 74, 78-79 [119 Cal.Rptr. 135].) According to appellants’ evidence, AMMCO designed the machine to abrade drum brake linings for passenger cars and light trucks, the vast majority of which contained asbestos from the 1960’s to the mid-1970’s. Although the machine could be used with all available drum brake linings for passenger cars and light trucks, AMMCO gave special attention to machine users who applied it to asbestos-containing linings, as AMMCO began to market an asbestos dust collection system for the machine in 1973. That attention was unsurprising, as asbestos-containing drum brake linings were “near universal.” Because the machine necessarily created dust
in its intended use, its application to the linings then available made it virtually inevitable that the average user would be exposed to hazardous asbestos dust.
In our view, the product-harm relationship involving the AMMCO machine satisfies the factors identified in O’Neil for application of the Tellez-Cordova exception. Appellants’ evidence shows that the AMMCO machine was necessarily used with drum brake linings, and that asbestos dust resulted from that joint use. Furthermore, the machine was intended to be used with drum brake linings “for the very activity” that generated the asbestos dust, the creation of which was “inevitabl[e]” -- rather than merely foreseeable -- due to the overwhelming prevalence of asbestos-containing linings. (Italics omitted.)
Hennessy contends that the Tellez-Cordova exception is inapplicable because the machine was designed to abrade all available drum brake linings for passenger cars and light trucks, regardless of the composition of the linings. Pointing to Tellez-Cordova, as well as O’Neil, Shields, and Bettencourt, Hennessy argues that a product falls outside the exception unless it can be used only in an injury-producing manner. We disagree.
Because those decisions do not expressly impose Hennessy’s proposed condition, to determine the scope of the Tellez-Cordova exception, we may properly examine the policies underlying the rule shielding a product manufacturer from strict liability for injuries ...