Sherman v. Hennessy Industries

Filed 7/8/15 Unmodified version attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B252566
MICHAEL SHERMAN et al., (Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. JCCP4674)
v.
HENNESSY INDUSTRIES, INC., ORDER MODIFYING OPINION
Defendant and Respondent. AND DENYING PETITION FOR
REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:*
It is ordered that the opinion filed herein on June 18, 2015 be modified as
follows:
On page 14, line 13, delete the sentence beginning with “Although” and
substitute the following sentence: 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.
The petition for rehearing by respondent Hennessey Industries, Inc. is
denied. The modification does not change the judgment.
_________________________________________________________________
*EPSTEIN, P. J. MANELLA, J. WILLHITE, J.
Filed 6/18/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B252566
MICHAEL SHERMAN et al., (Los Angeles County
Super. Ct. No. JCCP4674)
Plaintiffs and Appellants,
v.
HENNESSY INDUSTRIES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Emilie H. Elias, Judge. Reversed and remanded with directions.
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 (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
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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.
DISCUSSION
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.) 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
3
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, fn. & italics omitted.) 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.) The
three steps are (1) identifying the issues framed by the complaint, (2) determining
whether the moving party has made 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
1
Cal.4th 317, 334.)
1
Here, our review encompasses all the evidence submitted by the parties, even
though they raised numerous written evidentiary objections to the showing proffered by
their adversary. Because the trial court did not expressly rule on the objections, we
presume them to have been overruled. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)
As no objection has been reasserted on appeal, all have been forfeited.
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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.) 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; Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 749; Powell v.
Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 363-364.)
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, 59-60, 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
5
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 (Cronin); Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 366.)
“Generally, foreseeability is relevant in a strict liability analysis to determine
whether injury is likely 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.)
2. O’Neil
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 U.S. 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
6
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 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, in which the widow of a U.S. 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-
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Cordova v. Campbell-Hausfeld/Scott Fetzger (2004) 129 Cal.App.4th 577, 579-
2
581 (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. (Ibid.) 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
2
The other two decisions were Deleon v. Commercial Manufacturing & Supply Co.
(1983) 148 Cal.App.3d 336 (Deleon) and Wright v. Stang Manufacturing Co. (1997) 54
Cal.App.4th 1218, 1222 (Wright). In Deleon, the plaintiff, a worker in a fruit processing
plant, was injured when her arm was caught in a rotating power shaft located three feet
above a fruit bin she had been cleaning. (148 Cal.App.3d at pp. 340-341.) She sued the
bin’s manufacturer, which obtained summary judgment on her strict liability claims. (Id.
at pp. 340-342.) The appellate court reversed, concluding there were triable issues
regarding the application of the component parts doctrine, as there was evidence the
manufacturer had participated in the design of the production line that incorporated the
bin. (Id. at p. 345.) In distinguishing Deleon, the O’Neil court noted that there was no
evidence the valve and pump manufacturers played such a role regarding the use of their
products on warships. (O’Neil, supra, 53 Cal.4th at p. 359.)
In Wright, the defendant manufactured a water cannon that had been mounted on a
fire engine. (Wright, supra, 54 Cal.App.4th at p. 1222.) When the plaintiff, a firefighter,
used the water cannon, it broke loose, threw him to the ground, and fell on him. (Ibid.)
The defendant obtained summary judgment on the plaintiff’s strict liability claim on the
theory that the cannon’s mount, rather than the cannon itself, was defective. (Id. at
pp. 1222-1223.) In reversing the grant of summary judgment, the appellate court
concluded there were triable issues whether the cannon suffered from a design defect
because it was incompatible with a sufficiently strong mounting system; in addition, the
court determined there were triable issues whether the defendant had failed to warn about
a potential mismatch between the cannon’s water pressure and the strength of its mount.
(Id. at p. 1236.) The O’Neil court concluded that Wright was distinguishable because the
firefighter’s injuries arose from a failure of the entire water cannon assembly, rather than
from the failure of a component part not made by the defendant. (O’Neil, supra, 53
Cal.4th at pp. 359-360.)
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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
9
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.’” (Id. at p. 361.) 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 (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,
10
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, fn. omitted.)
In Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103,
1106-1110 (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.)
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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 40’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.
12
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
13
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.” Although metallic brake pads were offered for use on later Corvette models,
the AMMCO machine was not designed to grind such pads.
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
14
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 limit.
D. Analysis
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
3
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
3
Although we may affirm the summary judgment on a ground not relied upon by
the trial court if the parties have had an adequate opportunity to address that ground
(Byars v. SCME Mortgage Banker, Inc. (2003) 109 Cal.App.4th 1134, 1147; Code Civ.
Proc., § 437c, subd. (m)(2)), Hennessy has identified no ground on appeal unrelated to
the Tellez-Cordova exception.
15
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.) 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
16
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
4
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
4
The AMMCO machine is thus distinguishable from matches and saws, which
O’Neil states are outside the scope of the Tellez-Cordova exception. In explaining why
the exception is inapplicable when it is merely foreseeable that a product will be used in
conjunction with another hazardous product, the O’Neil court stated that such a view
“would require match manufacturers to warn about the dangers of igniting
dynamite . . . . [¶] . . . 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 would be used together. Were it otherwise, manufacturers of the saws used to
cut [asbestos-containing] insulation would be the next targets of asbestos lawsuits.”
(O’Neil, supra, 53 Cal.4th at p. 361.) Unlike matches and saws, which are used with a
wide array of different products, the AMMCO machine’s role in the creation of the
relevant hazardous condition was not merely foreseeable, but intended and contributed
substantially to the condition itself. Similarly, unlike the pumps and valves in O’Neil, did
not cause the release of asbestos fibers, here, it was the grinding action of AMMCO’s
machine that generated the release of harmful asbestos dust.
17
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 due to an “adjacent” product. (O’Neil, supra, 53
5
Cal.4th at p. 362.) As explained in O’Neil, strict liability for such injuries is
ordinarily imposed only on the manufacturer of the “adjacent” product, as product
manufacturers generally lack continuing business relationships, and thus cannot
exert pressure on one another to ensure that all make safe products. (Id. at p. 363.)
Moreover, it is unfair to impose strict liability on manufacturers that derive no
economic benefit from the sale of the injurious product. (Ibid.)
Although O’Neil does not discuss the policy rationale underlying the Tellez-
Cordova exception, the key consideration relevant to it appears to be derived
economic benefit, as nothing in Tellez-Cordova suggests that the tool manufacturer
there had continuing business relationships with the manufacturers of the other
relevant products. Because the manufacturer’s tool was useable only with certain
5
None of the cited decisions required satisfaction of the proposed condition. In
Tellez-Cordova, which addressed the legal adequacy of products liability claims in the
context of a demurrer, the appellate court found that the complaint’s allegation that the
pertinent tools “had no function without the abrasives which disintegrated into toxic dust”
sufficed to state strict liability claims. (Tellez-Cordova, supra, 129 Cal.App.4th at
p. 585.) In O’Neil, the court distinguished Tellez-Cordova from the factual situation
presented to it by reference to that allegation, but did not expressly confine the Tellez-
Cordova exception to products possessing a sole or unique harm-producing purpose or
function. (O’Neil, supra, 53 Cal.4th at pp. 361-362.) Shields and Bettencourt, which
also addressed the legal adequacy of products liability claims in the context of a
demurrer, concluded only that such an allegation sufficed for the imposition of liability.
(Shields, supra, 205 Cal.App.4th at p. 798; Bettencourt, supra, 205 Cal.App.4th at
p. 1107.)
18
other products, it indirectly derived economic benefit from their sale. Accordingly,
as the combined use of the tool with those products inevitably created a hazardous
condition, it was fair to require the tool manufacturer to share liability for the
resulting injuries.
Here, AMMCO derived a similar economic benefit from the sale of drum
brake linings for passenger vehicles and light trucks as the tool manufacturer in
Tellez-Cordova reaped from the sale of the products on which its grinders, sanders
and saws operated. And, as in Tellez-Cordova, owing to the near-universal use of
asbestos-containing drum brake linings during the pertinent period, Sherman’s use
of the machine “for the very activity that created a hazardous situation” was not
merely possible, but inevitable (O’Neil, supra, 53 Cal.4th at p. 361, italics deleted).
We find the relevant question not whether asbestos-containing brake linings were
necessary to the operation of AMMCO’s machine, as Hennessy maintains, but
whether someone using the grinder as intended during the period in question would
invariably have been subjected to asbestos dust. On this record, the answer is
“yes.”
Hennessy’s reliance on this court’s decision in Sanchez v. Hitachi Koki, Co.,
Ltd. (2013) 217 Cal.App.4th 948 is misplaced. There, a worker, disregarding
express warnings to the contrary, inserted a saw blade into a power grinder, and
suffered injury from the saw blade while using the grinder. (Sanchez v. Hitachi
Koki, Co., Ltd., supra, 217 Cal.App.4th at pp. 950-951.) He asserted products
liability claims against the grinder’s manufacturer, which sought summary
judgment under O’Neil on the ground that it neither made nor sold the blade, and
that the grinder was never intended to be used with a saw blade. (Id. at p. 952.) In
affirming the grant of summary judgment, this court concluded that O’Neil barred
imposition of liability on the manufacturer for the worker’s conceded misuse of its
product. (Id. at pp. 954-959.) Distinguishing Tellez-Cordova, we noted that
19
“[Plaintiffs’] own expert opined that the grinder was not intended to be used with a
saw blade, and the manual expressly warned that use of a saw blade was
‘dangerous and may cause personal injury or property damage.’” (Id. at p. 957.)
In contrast, appellants’ claims are predicated on the intended use of the AMMCO
6
machine, and thus fall within the Tellez-Cordova exception.
6
The other decisions upon which Hennessy relies also are distinguishable. Most
exemplify the component parts doctrine, which is inapplicable here because the AMMCO
machine cannot reasonably be regarded as a component of a finished product over which
AMMCO lacked control. (Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634, 637-
638 [propane stove manufacturer had no duty to warn regarding hazards associated with
pipe connecting stove to propane tank when it did not supply or install pipe]; Powell v.
Standard Brands Paint Co., supra, 166 Cal.App.3d at pp. 360-367 [manufacturer of paint
thinner used in construction project was not liable for injuries arising from use of similar
thinner made by another manufacturer]; Garcia v. Joseph Vince Co. (1978) 84
Cal.App.3d 868, 872-880 [manufacturer of fencing mask was not liable for injuries
arising from use of defective fencing sabre made by another manufacturer]; Blackwell v.
Phelps Dodge Corp. (1984) 157 Cal.App.3d 372, 377-378 [acid manufacturer had no
duty to warn about dangers of pressure formation from acid when manufacturer lacked
control over shipping arrangements, and placed the acid as ordered in defective tank cars
provided by other parties]; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d
621, 627-629 [supplier of tires lacking valves was not liable for injuries arising from
defective valve, as intermediate manufacturer attached valve to tire before providing it to
injured party]; McGoldrick v. Porter Cable Tools (1973) 34 Cal.App.3d 885, 888-891
[manufacturer of saw stand was not liable for injuries arising from defective saw made by
another manufacturer]; Zambrana v. Standard Oil Co. (1972) 26 Cal.App.3d 209, 216
[tire manufacturer was not liable for injuries due to tire valve extension made by another
manufacturer].)
All but one of the remaining cases stand for the general proposition that absent
special circumstances, a defendant that neither makes nor distributes a defective product
is not liable for injuries arising from that product. (Peterson v. Superior Court (1995) 10
Cal.4th 1185, 1188 [hotel was not liable for injuries arising from defective bathtub in
hotel room]; Ontiveros v. 24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424, 426-
435 [fitness club was not liable for injuries arising from defective exercise machine];
Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523-524 [former supplier of
asbestos insulation to Navy was not strictly liable for seaman’s injuries from exposure to
asbestos insulation, absent evidence that former supplier had role in design and marketing
of asbestos insulation to which seaman was actually exposed].) As explained above,
(Fn. continued on next page.)
20
Hennessy also contends that appellants cannot demonstrate another fact
crucial to the Tellez-Cordova exception, namely, that the relevant brake linings
were safe absent the use of the AMMCO machine. In seeking summary judgment,
“a defendant may rely on the complaint’s factual allegations, which constitute
judicial admissions. [Citations.] Such admissions are conclusive concessions of
the truth of a matter and effectively remove it from the issues.” (Foxborough v.
Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3.) The crux of Hennessy’s
argument is that the allegations in the first amended complaint foreclose
appellants’ ability to show the pertinent fact. For the reasons discussed below,we
disagree.
Our focus is on whether appellants can show that the brake linings did not
release asbestos fibers in their ordinary baseline state, absent the operation of the
7
AMMCO machine. As Hennessy notes, in Tellez-Cordova, Shields, and
appellants’ showing, if credited, is sufficient to establish the Tellez-Cordova exception to
that general proposition.
The remaining decision stands for the proposition that a product manufacturer is
not liable for injuries due to modifications of the product by a sophisticated purchaser
aware of the potential dangers arising from the modifications. (Fierro v. International
Harvester Co. (1982) 127 Cal.App.3d 862, 865-869 [manufacturer of skeletal truck
chassis had no duty to warn packing company that modifying the chassis’s battery system
could create a fire hazard].) Nothing before us suggests that appellants constitute such
sophisticated purchasers.
7
We observe that Hennessy’s contention is directed at the propriety of the
imposition of strict liability, not appellants’ ability to prove causation of their injuries.
Generally, to establish a strict products liability claim, the plaintiff must prove that “there
was a defect in the manufacture or design of the product and that such defect was a
proximate cause of the injuries.” (Cronin, supra, 8 Cal.3d at p. 133, italics added.)
Although the evidence regarding those elements may overlap, they are distinct
requirements. (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572-573;
Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 862-864.) Beyond
showing an “abstract ‘defect’” in the product, the plaintiff must demonstrate that the
(Fn. continued on next page.)
21
Bettencourt, the allegations identified as sufficient to state a products liability
claim included an allegation that the products to which the pertinent tool or
machine was applied released no hazardous dust when the tool or machine was not
operating. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 585; Shields, supra, 205
Cal.App.4th at p. 797; Bettencourt, supra, 205 Cal.App.4th at p. 1117.) Hennessy
argues that appellants cannot establish that fact because their first amended
complaint alleges that the “sawing, chipping, hammering, scraping, sanding,
breaking, removal, ‘rip-out’, and other manipulation” of asbestos-containing
products “result[s] in the release of airborne asbestos fibers . . . .” However,
although the complaint alleges that asbestos fibers generally may be released from
products in many ways, it contains no specific allegations regarding how or when
the pertinent asbestos-containing linings did so. Thus, the complaint’s general
allegations cannot reasonably be regarded as a binding admission that the linings
released asbestos fibers regardless of whether they were being abraded by the
machine. Accordingly, Hennessy has failed to carry its initial burden on summary
judgment regarding whether the brake linings were safe when not acted upon by
8
the AMMCO machine.
defect was appropriately causally related to the alleged injuries. (Soule, supra, 8 Cal.4th
at pp. 572-573.) Specifically, in an action based on injuries attributed to asbestos from
potentially more than one source, to establish proximate causation regarding a
manufacturer’s product, the plaintiff must show a threshold exposure to asbestos from the
product, and a reasonable medical probability that a particular exposure or series of
exposures was a substantial factor in bringing about the risk of the alleged injuries.
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) As Hennessy’s
contention concerns the Tellez-Cordova exception, it targets appellants’ ability to
demonstrate an essential predicate for an “abstract” defect in the AMMCO machine
itself, namely, that it was capable of generating exposures to asbestos fibers satisfying the
requirement for proximate causation.
8
To the extent Hennessy contends that under the Tellez-Cordova exception,
(Fn. continued on next page.)
22
Moreover, an allegation that is not dispositive regarding a matter does not
preclude the plaintiff from offering additional evidence. (Electronic Equipment
Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 850.) Here,
appellants submitted evidence that when linings were placed on the machine while
it was not operating, the linings emitted no measurable amounts of fibers. The July
1978 NLCSC report regarding the asbestos dust collection system stated when the
machines were prepared for testing, no “countable” asbestos fibers were detected
near the machines prior to “activity,” and that measureable concentrations of fibers
arose during grinding operations. In addition, the October 1986 NLCSC report
stated that no detectable asbestos fibers were found during certain maintenance
operations on drum brake linings not involving the machine. Those reports are
sufficient to raise triable issues whether the linings emitted fibers in the absence of
grinding activity upon them. We therefore conclude that summary judgment was
9
improperly granted.
appellants must establish that the brake linings released asbestos fibers only when
abraded by the AMMCO machine, we disagree. In Tellez-Cordova, the products liability
claims involved multiple metal working machines that performed different operations on
metal parts, including grinding, sanding, and cutting. (129 Cal.App.4th at p. 579.) The
appellate court held that liability was properly imposed on the machines’ manufacturers
for injuries due to each type of machine, although they created toxic dust through distinct
operations. Thus, the Tellez-Cordova exception is applicable to a machine that releases
asbestos fibers from brake linings, even though other operations on the brake linings may
also release asbestos fibers, provided that the linings are safe in their baseline state.
9
In a related contention, Hennessy suggests that the Tellez-Cordova exception is
inapplicable because during the pertinent period, most of the brake jobs at one of Michael
Sherman’s workplaces involved asbestos-free brake linings. Hennessy points to a
declaration from Lee Statler, who stated that in the 1960’s he worked at Pitzer’s Garage
for four years, and that during that period approximately 70 percent of the brake jobs
involved metallic Velvetouch linings. In opposing summary judgment, appellants too
submitted a declaration from Stadler, stating that he worked at Pitzer’s Garage from 1959
to 1963, prior to Michael Sherman’s principal period of exposure to asbestos. In our
(Fn. continued on next page.)
23
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with
directions to vacate the grant of summary judgment, and enter an order denying
Hennessy’s motion for summary judgment or summary adjudication. Appellants
are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
view, although Statler’s declarations may challenge appellants’ ability to show that the
AMMCO machine was, in fact, a proximate cause of the alleged injuries, they do not
nullify the existence of triable issues regarding application of the Tellez-Cordova
exception.
24