Macias v. Mine Safety Appliances Co. ( 2010 )

Penoyar, C.J.

¶38 (concurring) — In my view, the facts here are quite different than those in Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008). In those cases, a third party added the hazardous product to the defendant manufacturer’s product after the original sale. Here, the respirators’ intended purpose was to capture hazardous substances and thus protect the user. For the respirators to function properly, as intended by the user and the manufacturer, the user or a co-worker needed to clean the respirators’ surfaces and the filters containing concentrated hazardous products. Under these facts, Macias strongly argues that the respirator manufacturers owed a justiciable duty to the person cleaning the respirators under both common law negligence and strict liability, as well as under chapter 7.72 RCW. However, under the broad language of Simonetta and Braaten, Macias’s claims must fail. Whether the Supreme Court may choose in the future to paint with a narrower brush in cases such as this remains to be seen.

Review granted at 171 Wn.2d 1012 (2011).