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Petitpas v. Ford Motor Co.

California Court of Appeals, Second District, Fourth Division

July 5, 2017

JOSEPH PETITPAS, Plaintiff and Appellant,
FORD MOTOR COMPANY et al. Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. BC473216 JCCP4674, Emilie Elias and Richard Fruin, Judges. Affirmed.

          The Arkin Law Firm, Sharon J. Arkin; Farrise Firm; Simona A. Farrise for Plaintiff and Appellant.

          Dykema Gossett, John M. Thomas, Jill M. Wheaton and Tamara A. Bush for Defendant and Respondent Ford Motor Company.

          McKenna Long & Aldridge, Jayme C. Long, Frederic W. Norris and David K. Schultz; Theodore J. Boutrous for Defendant and Respondent Exxon Mobil Corporation.

          Selman Breitman, Brad D. Bleichner, Jerry C. Popovich and Dennis M. Alexander for Defendant, Respondent and Intervenor Fireman's Fund Insurance Company.

          COLLINS, J.

         Plaintiffs Marline Petitpas[1] and Joseph Petitpas sued Ford Motor Company, Exxon Mobil Corporation, Rossmoor Corporation, [2] and others, alleging that exposure to asbestos caused by these defendants resulted in Marline's mesothelioma. Motions for summary adjudication were granted before trial, narrowing the claims against Exxon and Ford. During trial, the court granted nonsuit for Rossmoor. The jury returned defense verdicts for Exxon and Ford.

         Plaintiffs assert five contentions on appeal. First, they argue that the trial court erred by granting summary adjudication in favor of Exxon as to strict product liability and secondary, or “take home, ” exposure. Second, they contend that the trial court erred by granting nonsuit for Rossmoor as to both direct and secondary exposure. Third, plaintiffs maintain that the trial court failed to properly instruct the jury regarding design defect issues involving Ford. Fourth, plaintiffs argue that the trial court erred by granting summary adjudication in favor of Ford as to plaintiffs' punitive damages claims. Finally, plaintiffs assert that the jury verdict in favor of Exxon was not supported by the evidence.

         We affirm on all challenged grounds. First, summary adjudication for Exxon appropriately was granted because the evidence did not show that Exxon was within the stream of commerce for any asbestos-containing products, and Exxon did not have a duty to Marline regarding secondary exposure because Marline was not a member of Joseph's household at the relevant time. Second, nonsuit as to Rossmoor was appropriate because the causation evidence against Rossmoor presented at trial was insufficient to support a verdict for plaintiffs. Third, jury instructions relating to Ford accurately reflected the law, and Ford was not liable under a design defect theory for products it did not manufacture or supply. Fourth, because we affirm the defense verdict in favor of Ford, plaintiffs' challenge to the summary adjudication of punitive damages claims against Ford is moot. Finally, since plaintiffs have not demonstrated that they were entitled to a verdict in their favor as to Exxon as a matter of law, there is no basis for reversing the defense verdict in favor of Exxon.


         Plaintiffs filed a complaint against more than 30 defendants alleging that Marline developed mesothelioma as a result of exposure to asbestos-containing products. Against all defendants, plaintiffs alleged causes of action for negligence and strict liability based on alleged exposure to the defendants' products. Plaintiffs also asserted premises liability claims against Exxon, Rossmoor, and others, alleging that Joseph worked on premises owned by those defendants, where “he was exposed to asbestos products and dust from asbestos products and consequently exposed” Marline. Joseph also alleged loss of consortium.

         Marline's alleged exposure to asbestos stemmed from many sources and spanned several years. The evidence presented in pretrial motions and at trial is discussed in detail below. In short, plaintiffs allege that Marline suffered from both direct exposure and secondary exposure to asbestos-containing dust. They assert that the direct exposures occurred when Marline visited Joseph while he worked at an Enco service station owned by Exxon, from Joseph's work on Ford vehicles at the Enco station and at home while Marline was present, from exposure to dust when Marline visited a Rossmoor construction site, and from drywall compound and stucco in two of plaintiffs' homes built by defendant Shea Homes, which is not a party to this appeal. As for secondary exposure, plaintiffs allege that Marline was exposed to asbestos-containing dust that collected on Joseph's clothing while Joseph worked at the Enco station, as he worked on Ford vehicles at home, and when he visited construction sites as part of his work as an architectural drafter at Rossmoor.

         Summary adjudication in favor of Exxon

         Motion, opposition, and trial court ruling

         Joseph and Marline testified in their depositions that they met while Joseph was working at an Enco service station in Pomona. Exxon's predecessor, Humble Oil, owned the Enco service station at the relevant time. Marline visited Joseph at work in 1966 and 1967, while Joseph worked on automotive friction products: brakes, clutches, and gaskets. Marline was present when Joseph used compressed air to clean brake drums, and as he swept the service bays before closing. Occasionally, Marline was present when a mobile brake service van was on site preparing brakes for installation. Plaintiffs alleged that these activities directly exposed Marline to airborne asbestos. Joseph said in his deposition that auto parts used at the Enco station came from independent auto parts suppliers or the mobile brake service.

         Joseph briefly worked at a different Enco service station in Ontario in 1968, and Marline also visited him there. Joseph also worked at an Enco service station in Pleasanton in 1970 and 1971, after he and Marline were married. In Pleasanton, Marline laundered Joseph's work pants and came into contact with his clothing.[3]

         Exxon argued that summary adjudication should be granted on two separate bases that plaintiffs challenge on appeal. First, Exxon argued that it could not be liable under plaintiffs' strict product liability theory because plaintiffs “have no evidence, and cannot reasonably obtain evidence, that Mrs. Petitpas was indirectly or secondarily exposed to asbestos from an asbestos-containing product manufactured, distributed, or sold by Exxon.” Exxon submitted undisputed evidence showing that at the Pomona Enco station, asbestos-containing replacement clutches and gaskets came from an independent auto parts store, and asbestos-containing replacement brakes were supplied by the mobile brake service. None of these products was manufactured by Exxon. Exxon argued that because it supplied these parts only through the provision of automotive services, not as a seller or retailer of parts, it could not be strictly liable because it was not within the stream of commerce.

         Second, Exxon argued that it did not have a duty to protect Marline from secondary exposure from “allegedly toxic materials that are carried off the premises on the clothing of an employee.” Citing Rowland v. Christian (1968) 69 Cal.2d 108 and Oddone v. Superior Court (2009) 179 Cal.App.4th 813 (Oddone), Exxon argued that as a matter of law it did not have a duty to prevent a non-employee's secondary exposure to asbestos.

         After Exxon's motion was filed, the Court of Appeal decided Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 (Campbell). The plaintiff in Campbell alleged she developed mesothelioma as a result of asbestos exposure from laundering her father's and brother's clothing during the time they worked as independent contractors installing asbestos insulation at a Ford plant. (Id. at p. 19.) The Campbell court considered “whether a premise[s] owner [Ford] has a duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business.” (Id. at p. 29.) The court concluded that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business.” (Id. at p. 34.)

         Plaintiffs opposed Exxon's motion. They argued Exxon knew in the 1930's that asbestos exposure was hazardous, and it took steps to minimize refinery workers' exposure to asbestos. Because of this knowledge, plaintiffs argued, “a ‘reasonably thoughtful' employer would not only have protected its employees from the risk of asbestos exposure, but would have protected its employees' household members who would be subjected to that exposure from the asbestos debris taken home to the household.” Plaintiffs contended that Campbell was wrongly decided.

         Plaintiffs also argued that Exxon failed to shift the burden on the product liability causes of action because it did not present evidence showing that the Enco station did not sell asbestos-containing auto parts. Automotive repair and maintenance facilities usually charge for both parts and services, plaintiffs asserted, and Exxon failed to provide evidence that it did not engage in such a practice.

         At the hearing on the motion, after argument from the parties, the court granted Exxon's motion for summary adjudication as to strict product liability and secondary exposure. On appeal, plaintiffs assert that the trial court erred in granting on both bases. We address each below.

         Standard of review

         On appeal following a motion for summary adjudication, “‘[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' [Citation.]” “We liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

         “A defendant moving for summary judgment or summary adjudication need not conclusively negate an element of the plaintiff's cause of action. (Code Civ. Proc., § 437c, subd. (f)(2); Aguilar [v. Atlantic Richfield Co. (2001) 25 Cal.4th 826');">25 Cal.4th 826, ] 853, 107 Cal.Rptr.2d 841, 24 P.3d 493');">24 P.3d 493 [(Aguilar)].) Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence.” (Collin v. CalPortland Company (2014) 228 Cal.App.4th 582, 587-588.) “After the defendant meets its threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850, [107 Cal.Rptr.2d 841, 24 P.3d 493');">24 P.3d 493].) The plaintiff may not simply rely on the allegations of its pleadings but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850, [107 Cal.Rptr.2d 841, 24 P.3d 493');">24 P.3d 493].)” (Collin, supra, 228 Cal.App.4th at p. 588.)

         Summary adjudication of strict product liability claims against Exxon

         As an initial matter, plaintiffs argue that summary adjudication should have been denied. Plaintiffs contend that Exxon failed to meet its summary adjudication burden because the evidence Exxon submitted with its motion was insufficient to prove that Exxon did not supply asbestos-containing vehicle parts. “[T]he party moving for summary [adjudication] bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “When a defendant seeking summary judgment submits the plaintiff's... deposition testimony indicating the plaintiff does not possess any evidence to support one or more elements of the plaintiff's claim, the burden shifts to the plaintiff to present evidence sufficient to raise a triable issue of material fact. [Citation.]” (Sweeting v. Murat (2013) 221 Cal.App.4th 507, 514 fn. 8.)

         California cases have found that a defendant involved in the marketing/distribution process may be held strictly liable “if three factors are present: (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 defendant's conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process. [Citation.]” (Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 776 (Bay Summit).) In addition, “strict liability is not imposed even if the defendant is technically a ‘link in the chain' in getting the product to the consumer market if the judicially perceived policy considerations are not satisfied. Thus, a defendant will not be held strictly liable unless doing so will enhance product safety, maximize protection to the injured plaintiff, and apportion costs among the defendants.” (Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1537.) “The application of strict liability in any particular factual setting is determined largely by the policies that underlie the doctrine.” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 576.)

         Exxon met its summary adjudication burden here. Exxon stated in its separate statement that Joseph “replaced brakes, clutches and head gaskets at the Pomona Enco station, ” and that “the replacement clutches and gaskets used at the Enco station came from a local independent auto parts stores [sic].” It also stated that replacement brakes “were obtained from a mobile brake service company which not only provided brakes but also came to the station to do brake work.” With its motion, Exxon submitted excerpts from Joseph's deposition to support these statements. This evidence was sufficient to support an inference that Enco was not primarily in the business of supplying asbestos-containing vehicle parts. Because the Enco station was able to complete vehicle repairs with asbestos-containing parts only through the use of the mobile brake service or with parts purchased from auto parts stores, defendants demonstrated that the Enco station did not generally stock these parts for sale to consumers. In addition, Joseph stated in his deposition that the workers at the Enco station installed the parts as part of its repair and maintenance services. This evidence, and the inferences that can be drawn from it, was sufficient to meet Exxon's burden under Aguilar.

         Plaintiffs also assert that even if the summary adjudication burden had been shifted, the motion should have been denied because there was a triable issue of fact as to whether Exxon played a role in the stream of commerce for these parts, and therefore summary adjudication on strict product liability was unwarranted. Plaintiffs assert that Exxon's evidence did not constitute “actual proof” that the brake service company, rather than Exxon, was the supplier or seller of the brakes. Plaintiffs also argue there was no evidence “that Exxon did not sell [replacement] parts but merely included them as part of the cost of the services provided.” Plaintiffs point to Joseph's deposition, in which he said the Enco station displayed motor oil, windshield wipers, dust rags, transmission fluid, brake fluid, and perhaps tires and fan belts. Plaintiffs argue that this “evidence demonstrates that the Exxon station was in the business of selling vehicle parts and supplies and frequently supplied its customers with replacement brakes, clutches and engine gaskets.”

         Because this case involves strict liability for products causing exposure to asbestos, however, the relevant question is not whether the Enco station sold parts such as oil and windshield wipers to customers, but instead whether Exxon was within the stream of commerce for automotive parts that may have exposed Marline to asbestos. In supplemental briefing, Plaintiffs argue that our recent decision in Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249 (Hernandezcueva) supports reversal of Exxon's motion for summary adjudication of plaintiffs' strict liability claims.[4] Hernandezcueva, the plaintiff was a janitor at an industrial building complex. Defendant E.F. Brady was a drywall subcontractor that helped build the complex in the 1970's. The plaintiff was diagnosed with mesothelioma, and alleged that E.F. Brady supplied and installed drywall and related products that included asbestos. (Id. at p. 253-254.) The trial court granted a partial nonsuit on the plaintiff's strict liability claims, and we reversed. We discussed the stream-of-commerce theory of strict product liability (see id. at pp. 257-258), and noted that “‘[s]ervices, even when provided commercially, are not products.'” (Id. at p. 259, quoting Rest. 3d Torts, § 19, subd. (b).) We said, “[W]hen injury arises from a component integrated in another product, the imposition of strict liability on a party hinges on its role in the relevant transaction. Generally, manufacturers and suppliers of a component to be integrated into a final product may be subject to strict liability when the component itself causes harm.” (Id. at p. 259.) On the other hand, “parties involved in passing a defective component to the ultimate user or consumer are not subject to strict products liability when their sole contribution to the pertinent transaction was a service, namely, the installation of the component into the pertinent final product.” (Ibid.) Therefore, “[t]he propriety of imposing strict liability on a party that both supplies and installs a defective component hinges on the circumstances of the transaction.” (Id. at p. 260.)

         In Hernandezcueva, the evidence presented at trial showed that “E.F. Brady was a large drywall installation firm whose relevant contracts always involved the provision of drywall and related materials.” (Hernandezcueva, supra, 243 Cal.App.4th at p. 263.) In other words, providing drywall to customers constituted a substantial portion of E.F. Brady's business. E.F. Brady also had significant, ongoing relationships with two different drywall manufacturers, which were “sufficient to command the personal attention of” both companies' representatives when E.F. Brady had some problems with one brand of drywall compound while working on the job at issue. (Id. at p. 263.) This type of relationship is relevant in a strict liability context, because it speaks to the defendant's “position to enhance product safety or exert pressure on the manufacturer to promote” a product. (Id. at p. 262.) Based on this evidence, “a jury could reasonably find that E.F. Brady was more than an ‘occasional seller' of drywall and joint compounds.” (Id. at pp. 262-263.)

         Exxon argues that the holding in Hernandezcueva reinforces earlier strict liability cases, and supports its argument that summary adjudication of plaintiffs' strict liability claims was appropriate. Exxon also contends that none of the factors supporting a finding of strict liability in Hernandezcueva exist in this case. We agree that the evidence here is dissimilar to that in Hernandezcueva and that reversal is not warranted.

         The evidence here does not indicate that supplying asbestos-containing gaskets, clutches, and brakes was a central part of the Pomona Enco station's business. Joseph's testimony showed that the Enco station did not supply brake parts. Instead, a mobile brake service came to the Enco station, supplied brake parts, and performed services relating to those parts such as turning brake drums and arcing brake linings. In addition, Joseph's testimony demonstrated that providing gaskets and clutches was not a significant portion of the Pomona Enco station's business. Joseph said that in the year he worked at the Pomona Enco station, clutch replacements were done rarely, less than once per month. In that year, he and the other mechanics performed two to three engine rebuilds involving gaskets. Joseph rebuilt carburetors using gaskets about once per month. This evidence of sporadic work with asbestos-containing parts does not support a finding that supplying asbestos-containing parts was a primary aspect of the Enco station's business.

         Moreover, Joseph testified that the Enco station obtained gaskets and clutch parts from local auto parts stores. There is no suggestion in the record that the Enco station managers or Exxon had any direct relationship with the parts manufacturers. As previous cases have noted, a relationship between the defendant and the manufacturer is a significant consideration in a strict liability analysis. In Hernandezcueva, for example, E.F. Brady had an ongoing relationship with the drywall manufacturer that was significant enough to exert pressure on the manufacturer to influence product safety. (Hernandezcueva, supra, 243 Cal.App.4th at p. 263.) In Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711, 725, the court noted that an “individual defendant's control over the cause of defect in the product” is not determinative, but is a “significant factor” in a strict liability analysis. And the court in Bay Summit, supra, 51 Cal.App.4th at p. 776, said that strict liability may be appropriate where “the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.” The evidence here offers no suggestion that such a relationship existed between Enco or Exxon and the manufacturers of asbestos-containing auto parts.

         This case is more like Monte Vista Development Corp. v. Superior Court (1991) 226 Cal.App.3d 1681, in which the plaintiff alleged that a ceramic soap dish installed with her home's bathtub tile was defective and broke, causing a severe laceration. Defendant Willey Tile was a subcontractor that installed the tile and soap dishes in the plaintiff's home and other homes in that development. Willey Tile selected and purchased the soap dish in bulk from a supplier. The trial court granted summary adjudication on plaintiff's strict liability claims against Willey Tile, and the Court of Appeal affirmed. The appellate court said, “The focus of our analysis is... whether the tile company came within the chain of commerce as a supplier of the soap dish to the extent that it became strictly liable if the item was defective. We conclude liability should not be extended under these circumstances.” (Monte Vista, supra, 226 Cal.App.3d at p. 1687.) The court explained, “Willey Tile was not in the business of selling soap dishes or any other fixtures. It purchased the soap dish that injured plaintiff, as well as other fixtures, in order to complete its subcontract with Monte Vista [the developer]. Obviously, it mattered not to Willey Tile whether Monte Vista or someone else supplied the tile fixtures.” (Ibid.)

         Similarly, in Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, the Court of Appeal affirmed nonsuit for a seat belt installer who was not in the stream of commerce. The plaintiff alleged that his seat belt failed in a car accident, contributing to injuries. (Endicott, supra, 73 Cal.App.3d at p. 923-924.) An independent contractor installed the seat belts: “When a vehicle arrived in California, its belts were already in the trunk of the vehicle, and the locations for their installation were marked. Installer's employees took the belts out of the trunk and attached them to the vehicle according to the manufacturer's directions. The manufacturer supplied all materials for attaching the belts.” (Id. at p. 925.) The Court of Appeal held that nonsuit for the installer was appropriate. “[W]e find no evidence that Installer was an integral part of the overall marketing enterprise that produces Datsun automobiles or that it played any significant role in placing Datsun's product in the stream of commerce that could render Installer liable in tort for defects in Datsun's automobiles. [Citation.] As a mere provider of services Installer is not liable for defects in the product.” (Id. at p. 930.)

         Here, the Enco station was in a similar situation. If a customer needed a clutch facing or gasket, the Enco station needed to purchase one that fit the particular make and model of the vehicle. There is no suggestion in the record that Joseph, other Enco station workers, or Exxon had any control over which clutch parts or gaskets could be used to complete these repairs or whether those parts were made with asbestos. The evidence therefore shows that the Enco station was a “provider of services” rather than a seller or distributor of asbestos-containing vehicle parts.

         In sum, the evidence submitted with Exxon's motion for summary adjudication was sufficient to shift the burden to plaintiffs under Aguilar. Plaintiffs' evidence does not support a finding that there was a triable issue of fact as to whether the Enco station or Exxon was within the stream of commerce for asbestos-containing vehicle parts to the extent that strict liability is warranted. Summary adjudication on plaintiffs' strict liability claims against Exxon was properly granted.

         Summary adjudication of secondary exposure claims relating to Exxon

         Plaintiffs also argue that the court erred by granting summary adjudication of their claims against Exxon based on Marline's secondary exposure to asbestos. The trial court granted summary adjudication based on the reasoning of Campbell, which held that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business.” (Campbell, supra, 206 Cal.App.4th at p. 34.)

         While this appeal was pending, the Supreme Court disapproved Campbell and Oddone in Kesner v. Superior Court (2016) 1 Cal.5th 1132 (Kesner). In Kesner, the Court held, “[T]he duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.” (Kesner, 1 Cal.5th at p. 1140.) The Court was very specific that this duty extended only to members of the employee's household: “We hold that an employer's or property owner's duty to prevent take-home exposure extends only to members of a worker's household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time.” (Id. at pp. 1154-1155.) Although other people might regularly have contact with a worker whose clothing carries asbestos fibers, the Court's foreseeability analysis relied “on the fact that a worker can be expected to return home each work day and to have close contact with household members on a regular basis over many years.” (Id. at p. 1155.) Limiting liability to household members “strikes a workable balance between ensuring that reasonably foreseeable injuries are compensated and protecting courts and defendants from the costs associated with litigation of disproportionately meritless claims.” (Ibid.)

         We asked the parties for further briefing to address the effect of Kesner on plaintiffs' assertions that summary adjudication in favor of Exxon on the issue of secondary exposure should be reversed. Plaintiffs acknowledge in their supplemental briefing that “Marline and Joseph were not married and did not live together at the time Joseph worked at the Exxon station and thus technically were not members of the same household.” Plaintiffs ask us to hold that Exxon had a duty to Marline nevertheless, contending that “Marline's status is close to that of a household member” because she and Joseph hugged, kissed, and went places in Joseph's car while Joseph was wearing his work clothes. Plaintiffs thus ask us to remand for “a trial on the issue of whether Marline's exposures as a result of her close, personal contact with Joseph were factually similar to the status of a household member.”[5]

         We decline to expand Kesner's duty to apply to a non-household member. The Kesner Court was very specific in limiting the duty to non-employees “only to members of a worker's household, i.e., persons who live with the worker.” (Kesner, supra, 1 Cal.5th at pp. 1154-1155.) The Court recognized that maintaining this limitation on the scope of the duty was important: “We are mindful that recognizing a duty to all persons who experienced secondary exposure could invite a mass of litigation that imposes uncertain and potentially massive and uninsurable burdens on defendants, the courts, and society.” (Id. at p. 1156.) Inviting a trial to determine whether a non-household member's contact with the employee was “similar to the status of a household member” appears to be exactly what the Supreme Court was attempting to avoid with this bright-line rule.

         Because Marline was not a member of Joseph's household when Joseph worked at the Enco station in Pomona, Exxon did not have a duty to Marline with respect to secondary asbestos exposure. Summary adjudication in favor of Exxon is therefore affirmed.


         Trial began against defendants Union Carbide, Shea Homes, Rossmoor, Ford, and Exxon. Union Carbide and Shea Homes settled with plaintiffs during the course of the trial, the trial court granted nonsuit for Rossmoor, and Ford and Exxon proceeded to verdict. The evidence summarized below was presented at trial.

         A. Enco service station and Joseph's work on Ford cars

         Joseph and Marline both testified at trial. Joseph testified that he worked at an Enco gas and service station, operated by Exxon, [6] in Pomona from 1966 to 1967. Joseph and Marline met in 1966 at the Enco station, and after they began dating, Marline visited Joseph while he worked there several days a week. She sat in the service bay where mechanics worked on cars. Marline continued to visit Joseph at work for about a year and a half, until Joseph was drafted into the Army. Marline estimated that her visits ranged from 20 minutes to several hours.

         The cars that came into the Enco station in that time period were mostly American-made cars: about 40 percent General Motors models, 40 percent Ford models, and the rest other makes. Joseph did a variety of work on Ford cars, including brake inspections and replacements. He did brake inspections two or three times a day, and brake replacements two or three times a week. About 40 percent of these inspections and replacements were on Ford cars.

         Joseph used an air compressor to blow dust out of wheel assemblies to check or change brakes. Marline estimated that she watched Joseph do brake work on a total of seven to ten cars at the Enco station, and she could not identify the make or model of any of those cars. Marline observed that when Joseph did brake work, it created dust, and she breathed that dust. Marline also watched Joseph clean up at the end of the day, which involved blowing or sweeping the floor, which created dust, and Marline breathed the dust.

         A mobile brake service came to the Enco station once or twice a week to turn brake drums and arc brake linings.[7] Arcing the brake linings created airborne dust. Joseph often was in or near the mobile brake van while this work was being done. Marline testified that she approached the mobile brake van either once or several times, and she testified that she breathed the dust the work created. Some cars that went to the Enco station had brakes stamped with “FoMoCo, ” indicating original Ford-installed brakes. The replacement brakes used by the brake van and by Joseph when he worked at the Enco station were Raybestos or Bendix brakes.

         Joseph wore a uniform shirt to work, and the service station provided a cleaning service for the uniform shirts; once a week Joseph brought his shirts in and the company had them cleaned. Joseph usually wore his uniform shirt when he went out with Marline after work. Marline did not wash Joseph's clothing when they were dating.

         Joseph was drafted into the Army in early 1968, and moved to Fort Carson, Colorado after basic training. He and Marline married and lived together in Fort Carson. Joseph worked part-time at a Chevron service station in Fort Carson in 1968 and 1969, doing the same type of work he had done at the Enco station. Joseph testified that Marline came to visit him at that service station as well. After Marline and Joseph moved back to California in 1970, Joseph worked part-time at another Enco station for a year or slightly longer. Joseph did the same type of service work there that he did at the other service stations. During this time period, Marline washed Joseph's clothing.

         Joseph testified that he also worked on his family's cars at home after 1972. He did a brake inspection on their 1964 Ford Falcon Ranchero in their home garage. Joseph did two or three brake changes on their 1976 Ford Ranchero, and a 1984 Ford van. Joseph also did brake inspections on his father's 1977 Ford Thunderbird. Sometimes Marline was in the home garage working on crafts or doing laundry as Joseph worked on the cars, and she testified that she breathed dust that arose from Joseph's work. Marline also testified that during this period she did Joseph's laundry after he worked on vehicles, and she breathed the dust that was on his shirts.

         Joseph used Raybestos and Bendix replacement brakes on these cars. Plaintiffs presented part of a 1989 deposition transcript of Arnold Anderson, a Ford engineer, who testified that Ford did not make the brake linings that were in Ford cars. Instead, Ford would “buy brakes, brake assemblies from the brake system suppliers who buy the linings from lining vendors.” Anderson testified that he tested the brake linings supplied to Ford by different vendors, and all brands of brake linings he tested contained chrysotile asbestos.

         Plaintiffs also presented an interrogatory response from Ford, stating that some Ford vehicles prior to the 1980's included asbestos-containing brake linings, brake pads, and clutch facings, and that these component parts were purchased from third-party suppliers. In addition, the interrogatory response said that Ford sold asbestos-containing replacement parts under the Ford brand, although those parts were purchased from non-Ford suppliers.

         Joseph's work at Rossmoor

         Before nonsuit was granted as to Rossmoor, the following evidence was presented at trial. In 1971, Joseph began working at Rossmoor as an architectural drafter, drawing plans for construction projects. At the time, Rossmoor was building Leisure World, a large retirement community consisting of houses, condominiums, and high-rise buildings. As a drafter, Joseph worked primarily in an office. After he had been at Rossmoor for six months to a year, he began visiting the construction site as part of his work. He usually left the office first thing in the morning to visit the construction sites, where he answered questions and responded to building inspectors. He typically spent half an hour to an hour and a half at the site, and spent the rest of the day in his office. At first he drove to the site in his own car, and later he used a company car available for that purpose. Joseph testified that the Leisure World construction used gypsum drywall, joint compound, textured ceiling material, and stucco. Plaintiffs' expert Richard Hatfield testified that these materials typically contained asbestos.[8]

         Plaintiffs owned one car, and once or twice a week Marline drove Joseph to work in the morning and picked him up in the evening. When Marline picked up Joseph, they typically hugged each other. After they bought a house nearby in 1972, Joseph sometimes came home for lunch.

         Joseph testified that before he left a construction site he might stomp his feet or brush off his pants if he was dusty, but it was “very possible” that dust from the construction site might be on his lower pants at the end of the day. Plaintiff's counsel asked Hatfield whether Marline could be exposed to asbestos if Joseph had been at a construction site and he could “see like white powder, I don't know, six inches or a foot up his leg, ” and he brushed it off in Marline's presence. Hatfield testified that exposure could occur in that manner. Plaintiffs' counsel also asked Hatfield whether exposure could occur if Joseph was at a dusty work site and got dust on his shirt and pants, then Marline “comes to pick him up, she drives onto the site, ” and Joseph hugged Marline. Again Hatfield said that scenario could expose Marline to asbestos. On cross-examination, Hatfield said that if Joseph picked up dust on his clothes at the construction site in the morning and then worked the rest of the day at his office, there was no way to say with any scientific certainty whether Joseph exposed Marline to asbestos.

         Joseph testified that during this time period Marline washed some of Joseph's shirts, socks, and underclothes; Joseph's slacks and ties were dry cleaned. Hatfield said that if Marline were to shake visible dust out of Joseph's clothing when she laundered it, that could result in exposure. Neither Joseph nor Marline ...

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