Reichelt v. Johns-Manville Corp.

Ringold, J.

(concurring)—I respectfully concur to clarify my view of the result. It appears that the majority opinion resolves conflicting issues of fact, contrary to the general rule governing summary judgments.

The majority takes from Sahlie v. Johns-Manville Sales Corp., 99 Wn.2d 550, 552, 663 P.2d 473 (1983) the correct legal standard to be applied to determine whether a products liability cause of action accrues. The determination itself, however, should normally be left to the trier of fact. Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 514, 598 P.2d 1358 (1979). The question before this court is, "Do plaintiffs present an issue of material fact upon which reasonable minds could disagree?" Hartley v. State, 103 Wn.2d 768, 772, 698 P.2d 77 (1985).

The Reichelts filed their complaint for products liability on October 20, 1980. A 3-year statute of limitations applies to this action. RCW 4.16.080(2). Prior to October 20, 1977, Reichelt knew that he had asbestosis caused by asbestos products in his trade, and he knew most of the sources of the products and could reasonably have discovered the others. In 1974, one of the reasons he left his trade was the potential hazard of asbestos. Yet, Reichelt alleges in his affidavit that as of January 1, 1979, he did not know asbestos was "unreasonably" dangerous.³ He admits, however, that prior to October 20, 1977, he knew the product was dangerous, hazardous, and caused clubbing of his fingers. In 1976, he also submitted a claim to the State Department of Labor and Industries, alleging he suffered difficulty breathing related to his asbestosis.

In Hartley, at 775, the court stated the rule applicable here: "Thus, when reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law." Reasonable minds could reach but one conclusion from these facts: that prior to October 20, 1977, Reichelt knew that asbestos was unreasonably dangerous. There is no material fact in dispute about which reasonable minds could differ; therefore, summary judgment was proper.

Review granted by Supreme Court May 6, 1986.

3 The Reichelts also submitted an affidavit from an attorney practicing asbestos litigation, stating that prior to October 20, 1977, the attorney had not filed any third party lawsuits against asbestos manufacturers because at that time he was unaware asbestos was unreasonably dangerous. This evidence, while perhaps pertinent to the general state of knowledge concerning asbestos in the bar, has no relevance to the state of knowledge of the particular plaintiffs in this case.