Opinion
Plaintiffs in these consolidated actions appeal from judgments on the pleadings in favor of defendant Hennessy Industries, Inc. (Hennessy), the manufacturer of a brake arcing machine. Each of the plaintiffs alleged Hennessy’s machine was designed and used exclusively for the purpose of shaping, by grinding action, brake linings that were manufactured by others, but contained asbestos fibers that were dangerously released into the air by the normal action of Hennessy’s machine. The trial court ruled that, because Hennessey’s machine itself was not made with asbestos and Hennessy did not itself manufacture or distribute any product made with
As discussed below, we conclude, in light of the Supreme Court’s recent decision in O’Neil v. Crane Co. (2012)
Background
Leonard Shields alleged he worked predominantly as a mechanic and suffered exposure to asbestos resulting in injuries, including asbestos-related pleural disease diagnosed in 1994, asbestosis diagnosed in 1996, and lung cancer diagnosed in 2008. The other plaintiffs pleaded similar work experience as mechanics, ironworkers, or pipefitters, with similar exposure to asbestos and similar injuries.
Each of the plaintiffs’ complaints, filed between July 2008 and May 2010, named numerous defendants including Hennessy. All plaintiffs are represented by the same law firm, which in 2003 had filed a “Master Complaint” pursuant to general order No. 55-—issued by the trial court in 1996—which allowed the use of master pleadings in asbestos litigation. Each complaint thus incorporated most, if not all, of its causes of action from the firm’s Master Complaint, designating the defendants to which each incorporated cause of action applied. The five complaints pleaded four or five causes of action against Hennessy in this manner.
Of these incorporated causes of action, two in each complaint are referred to as the Master Complaint’s “Brake Shoe Grinding Machine” causes of action—one based on negligence and the other on strict products liability. These two commonly pleaded causes of action are the focus of all five appeals.
In June and July 2010, Hennessy filed motions for judgment on the pleadings against each of plaintiffs’ complaints. Between late July and late
Each of the plaintiffs appealed.
Discussion
I. Standard of Review
Each of the plaintiffs contends the trial court erred in granting Hennessy’s motion for judgment on the pleadings and in denying leave to amend.
The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. The trial court determines whether it appears from the pleadings, together with matters that may be judicially noticed, the moving party is entitled to judgment as a matter of law. We review the trial court’s determination de novo. In doing so, we assume the truth of, and liberally construe all properly pleaded factual allegations in the complaint. (Bezirdjian v. O’Reilly (2010)
We review the trial court’s denial of leave to amend for abuse of discretion, which the plaintiffs must establish by offering proposed amendments to this court that state a legally sufficient cause of action. (Palm Springs Tennis Club v. Rangel (1999)
II. The Pleadings
In reviewing the two “Brake Shoe Grinding Machine” causes of action at issue, we focus on the proposed amended version submitted to the trial court by each of the plaintiffs in early September 2010.
Hennessy has objected, with respect to three of the five consolidated appeals, that plaintiffs may not rely on the proposed amended version,
The proposed amended version of the first “Brake Shoe Grinding Machine” cause of action—grounded on negligence—alleged Hennessy was engaged in the design, manufacture, and distribution of “asbestos brake shoe grinding machines.”
Hennessy “negligently . . . manufactured [and] designed . . . certain asbestos brake shoe grinding machines ... in that [these machines], while being used in a manner that was reasonable, failed to protect users . . . and others, including the plaintiff . . . from exposure to and inhalation and ingestion of asbestos fibers caused to be released from asbestos-containing brake liningfs] by the intended use of the asbestos brake shoe grinding machines . . . .”
Hennessy “knew or should have known, and intended, that the . . . brake shoe grinding machines . . . would be used by consumers, workers, bystanders, and others, including [plaintiff] in conjunction with asbestos-containing brake linings.” “During all relevant time periods, all brake shoe linings used with or on automobiles, light trucks and commercial trucks, as serviced by [Hennessy’s] products in the United States contained asbestos.” “Until subjected to [Hennessy’s] products, asbestos fiber bundles were physically bound
Hennessy “knew, or should have known, that [its] brake shoe grinding machines would be used on asbestos-containing brake linings and, when used in the manner intended, would cause the release of asbestos fibers into the air around the users and bystanders, and others, including the plaintiff . . . and create a hazard from [the machines’] intended and only use.” Hennessy “specifically designed [its] machines for grinding asbestos-containing brake linings [and they] had no other function than to grind asbestos-containing brake linings.” This was “[t]hus [the] only ‘inevitable use’ of the machines, within the meaning of Tellez-Cordova v. Campbell-Hausfied[, supra,]
Hennessy’s “asbestos brake shoe grinding machines . . . were defective and unsafe for their intended purpose in that [they] caused, and failed to prevent, the inhalation and ingestion of asbestos fibers by plaintiff [and the] use of [the] machines created the asbestos harm that injured plaintiff.” “The defect” in these machines “existed ... at the time they left [Hennessy’s possession, the use]” of these machines “did, in fact, lead to inhalation and ingestion of asbestos fibers[, and the] defect . . . did, in fact, cause personal injuries, including asbestosis, other lung damage, and cancer to ‘exposed persons,’ including [plaintiff].”
III. The Relevant Law
A. Introduction
Plaintiffs argue that the proposed amended pleadings summarized above state viable causes of action for negligence and strict liability under Taylor, supra,
B. Tellez- Cordova
In Tellez-Cordova, the court conducted an analysis of a ruling sustaining a general demurrer involving a similar issue. (Tellez-Cordova, supra,
The Court of Appeal reversed the judgment in favor of the defendants, holding the plaintiffs’ complaint alleged sufficient causes of action for negligence and strict liability. (Tellez-Cordova, supra,
C. Taylor
In the Taylor decision, involving a component part issue, the primary plaintiff suffered exposure to asbestos-containing products while serving aboard a United States Navy aircraft carrier. The defendants had furnished the various pieces of equipment to the United States Navy that were placed in the carrier when it was first commissioned during World War II, some of which included parts—such as gaskets, packing, and insulation—containing asbestos. The asbestos-containing parts to which that plaintiff had been exposed during his service in the 1960’s, however, had been supplied not by the defendants, but by other manufacturers. The plaintiffs, the former naval serviceman and his wife, sought damages based, among other causes of action, on theories of negligence and strict liability due to the defendants’ failure to warn of the dangers inherent in asbestos-containing materials. (Taylor, supra, 171 Cal.App.4th at pp. 570-571, 572, 574.) The trial court granted summary judgment as to most of the defendants on the ground that a manufacturer’s duty to warn extended only to the manufacturer’s own products. Division Five of this court affirmed, holding that California law imposed no duty on these defendants to warn of the hazards inherent in defective products manufactured or supplied by third parties. (Id. at p. 571.)
The primary plaintiff died during the pendency of the action, but his surviving wife contended on appeal that the defendants were negligently or strictly liable for failing to warn of the dangers inherent in the asbestos-containing gaskets, packing, and other parts that were used “in conjunction” or “in combination” with the defendants’ equipment. (Taylor, supra,
The Court of Appeal concluded the defendants were not strictly liable for failure to warn under the “component parts” doctrine, among other reasons.
The Court of Appeal distinguished the earlier decision in Tellez-Cordova because it involved a situation where the manufacturer’s product itself caused or created the risk of harm when it was used in a reasonably foreseeable manner in combination with another manufacturer’s product. (Taylor, supra, 171 Cal.App.4th at pp. 586-588.) That decision did not, in other words, impose “a duty to warn solely of the hazards of other manufacturers’ products.” (Id. at p. 588.) By contrast, the injuries at issue in Taylor were caused by the release of asbestos fibers from other parts manufactured by others, not by any action of the defendants’ equipment. (Id. at p. 587.) The operative principle framed by the court was that “a manufacturer may owe a duty to warn when the use of its product in combination with the product of another creates a potential hazard, [but] that duty arises only when the manufacturer’s own product causes or creates the risk of harm.” (Id. at p. 580, original italics.)
D. O’Neil
The facts presented to the Supreme Court in O’Neil were similar to those at issue in Taylor, involving component parts. The defendants in O’Neil, like those in Taylor, manufactured valves and pumps by specification for incorporation into the propulsion systems of United States Navy warships as they were first built during World War II. The plaintiffs brought a wrongful death action against them, based on their decedent’s exposure to asbestos fibers while serving aboard one of those ships. Other manufacturers had made the asbestos gaskets, packing, and insulation that were incorporated into, or used with, the valves and pumps made by the defendants, but the plaintiffs claimed they were, nevertheless, strictly liable and negligent because it was reasonably foreseeable workers would be exposed to asbestos contained in replacement parts used in conjunction with the defendants’ equipment. (O’Neil, supra, 53 Cal.4th at pp. 342-343, 345.)
The defendants in O’Neil made and supplied valves and pumps to the United States Navy, for incorporation into the aircraft carrier’s initial propulsion system, more than 20 years before the decedent served on that craft. {O’Neil, supra, 53 Cal.4th at pp. 343-345.) They built this equipment to comply with design specifications provided by the United States Navy’s Bureau of Ships, which required the inclusion of asbestos-containing gaskets and packing. {Id. at pp. 343-344.) Although the United States Navy’s specifications required the initial inclusion of asbestos-containing gaskets and packing in the valves and pumps, neither defendant made these materials, but purchased them from United States Navy-approved vendors. There was also no evidence that the valves and pumps required the use of gaskets or packing made from asbestos in order to function properly, as distinguished from their use to comply with naval specifications. {Id. at p. 344.)
At the close of evidence, the defendants moved for nonsuit on all of the plaintiffs’ causes of action, on the ground there was no evidence the decedent had been exposed to asbestos from any product they had manufactured, nor evidence that any product defect or failure to warn on their part was a substantial factor in causing the decedent’s fatal cancer. The trial court granted their motions and dismissed all claims against the defendants. The court concluded, among other things, that the “component parts” doctrine shielded the defendants from liability because the United States Navy had integrated the defendants’ nondefective valves and pumps into a larger “sophisticated system” without the defendants’ participation. {O’Neil, supra,
In reversing the contrary decision of the Court of Appeal, the Supreme Court affirmed the trial court’s judgment. {O’Neil, supra, 53 Cal.4th at
In explaining the first conclusion—that the defendants were not strictly liable because a defect in their own equipment was not a legal cause of the decedent’s injury—the Supreme Court noted that strict products liability under California law, beginning with its decision in Greenman v. Yuba Power Products, Inc. (1963)
In accordance with this principle, the court had articulated the “chain of distribution” doctrine in Peterson v. Superior Court (1995)
In O’Neil, the evidence indicated the decedent suffered exposure to asbestos in the 1960’s from the external insulation and from replacement gaskets and packing that were in place at that time. It did not show, however, either that the defendants manufactured, sold, or advised the use of the external insulation, or that they had manufactured or sold the gaskets or packing the United States Navy had used in the 1960’s to replace the original component parts the defendants had purchased from others and installed in their valves and pumps. {O’Neil, supra, 53 Cal.4th at pp. 345, 349.) The court concluded that, although the internal gaskets and packing originally supplied with the defendants’ products contained asbestos, none of these original parts remained on the carrier when the decedent arrived decades later. Thus, “even
The court in O’Neil rejected the plaintiffs’ claim that the defendants’ products were defective because they had been “ ‘designed to be used’ ” with asbestos-containing components, concluding it was not supported by the record. The evidence showed, rather, that the defendants’ valves and pumps were “designed to meet the [United States] Navy’s specifications,” and there was no evidence—“[a]part from the [United States] Navy’s specifications”— that the defendants’ products “required asbestos-containing gaskets or packing in order to function.” (O’Neil, supra,
Turning to its conclusion that the defendants were not strictly liable for failure to warn of risks arising from other manufacturers’ products—the court began with the general rule formulated in its decision in Anderson v. Owens-Coming Fiberglas Corp. (1991)
The court considered three Court of Appeal decisions, as well as several decisions from other jurisdictions, and found them to be in accord with its own conclusion. (O’Neil, supra, 53 Cal.4th at pp. 351-353; see Powell v. Standard Brands Paint Co. (1985)
The court in O’Neil noted, first, that the Taylor decision held there was no strict liability for the defendants’ failure to warn under the “ ‘[c]hain of distribution’ ” doctrine enunciated in Peterson, supra,
Second, as discussed above, the Taylor court held California law did not impose strict liability for failure to warn of “ ‘defects in products supplied by others and used in conjunction with the manufacturer’s product unless the manufacturer’s product itself causes or creates the risk of harm.’ ” (O’Neil, supra,
Third, the court in Taylor held strict liability for failure to warn was additionally precluded under the “component parts” doctrine. The Supreme Court in O’Neil expressed this doctrine as one providing “that the manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.” (O’Neil, supra,
O’Neil acknowledged that the duty to warn articulated by the Court of Appeal in Tellez-Cordova, was “appropriate” under the unique facts presented to the Court of Appeal in that case, when “the defendant’s product was intended to be used with another product for the very activity that created a hazardous situation.” (O’Neil, supra,
Concluding its analysis, and rejection, of the plaintiffs’ claim in O’Neil that the defendants were strictly liable for their failure to warn about the dangers of asbestos present in the replacement component parts manufactured by others, the Supreme Court “reaffirm[ed] that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer’s product,” except “when the defendant bears some direct responsibility for the harm,” as when, in Tellez-Cordova, “the defendant’s own product contributed substantially to the harm,” or when “defendant participated substantially in creating a harmful combined use of the products.” (O’Neil, supra,
From this careful analysis, the Supreme Court in O’Neil formulated this principle: “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
IV. Analysis and Conclusion
We are mindful the plaintiffs in these consolidated appeals are but a few of many injured by their exposure to asbestos-containing products, who are seeking redress for their injuries from increasingly peripheral defendants, as the more principal manufacturers and suppliers of asbestos-containing products seek the protection of bankruptcy. (See O’Neil, supra,
We conclude from O’Neil’s explication that plaintiffs’ causes of action are sufficient to withstand a motion for judgment on the pleadings. Plaintiffs alleged, essentially, Hennessy designed, manufactured and sold a machine whose only purpose and “ ‘inevitable use’ ” was to grind brakeshoe linings in order to fit them properly on brakedrums. At all “relevant” times, the brakeshoe linings that Hennessy’s machine was designed to grind “contained asbestos.” The asbestos in these brake linings was “physically bound,” but became airborne and harmful when the linings were subjected to the grinding action of Hennessy’s machine. Hennessy knew or should have known that the intended use of its machine would result in the harmful release of airborne asbestos fibers, yet it failed to take reasonable measures to protect those using the machine or in proximity during its use. The machine was defective because it did not include reasonable, protective design features such as a dust collection system or a grinding mechanism exerting sufficient revolution velocity, temperature and pressure, so as to convert any asbestos fibers into nonharmful forsterite. Hennessy’s defective grinding machine was marketed to users, and its sole use for grinding asbestos-containing brake linings caused the release of airborne asbestos fibers otherwise contained harmlessly within the linings, resulting in inhalation of asbestos fibers by plaintiffs (or plaintiffs’ decedent) and consequent injury to these persons. Hennessy’s product was intended to be used with another product for the very activity that created a hazardous situation for the user. Its sole intended use was for an activity known to Hennessy to pose an unreasonable risk of harm.
In addition, the imposition of strict liability would not require Hennessy to anticipate or incorporate safety measures into its machine that might be unnecessary for its intended uses, since the machine had only one intended function. (Taylor, supra, 171 Cal.App.4th at pp. 582-583.)
As summarized by the Supreme Court, “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.” (O’Neil, supra,
Each of the judgments in these consolidated cases is reversed and remanded for further proceedings consistent with this opinion.
Dondero, J., and Banke, J., concurred.
On May 3, 2012, the opinion was modified to read as printed above.
Notes
In one of the consolidated appeals, plaintiffs are the heirs and successors of decedent Ted Kennedy, who allegedly worked as an automobile mechanic, suffered exposure to asbestos, and died about a year and a half after being diagnosed with asbestosis and asbestos-related pleural disease in April 2008.
We note there are 21 separate appeals pending before this court, all involving plaintiffs who pleaded similar causes of action based on the law firm’s Master Complaint, and who appealed following the trial court’s grant of a motion for judgment on the pleadings. On October 17, 2011, we ordered consolidation of the five appeals assigned to Division One under the court’s internal operating procedures.
In the remaining two cases, the trial court held its hearing on the motion for judgment on the pleadings after plaintiffs submitted supplemental opposition including the proposed amended version.
For example, in their opposition to the motion, each of these plaintiffs urged that the evidence would prove that Hennessy designed, manufactured, and marketed its brakeshoe grinding machines “solely” for the purpose of abrading asbestos-containing brake linings, and these machines, when used for that purpose, caused the release of airborne asbestos that would otherwise have remained harmlessly contained within the linings.
The two “Brake Shoe Grinding Machine" causes of action pleaded in the complaint brought by the heirs and successors of decedent Ted Kennedy were identical, except they alleged injury to the decedent, leading to his death, rather than to plaintiffs heirs and successors.
A second plaintiff sought damages for loss of consortium. (Tellez-Cordova, supra,
Suppliers of component parts that have multiple industrial uses should not be forced to retain experts in a huge variety of areas in order to determine the possible risks associated with each potential use. Moreover, it is the finished product manufacturer that is generally in a better position to guarantee that the component is suitable for its particular application. (See Rest.3d Torts, Products Liability, § 5, com. a, p. 131.)
It appears the United States Navy was aware as early as 1922 that airborne asbestos could potentially cause lung diseases, yet it did not, before the decedent’s exposure to such airborne fibers, undertake to warn its seamen of this danger, nor advise them to take appropriate precautions. (O’Neil, supra,
In a footnote, the court stated, “[a] stronger argument for liability might be made in the case of a product that required the use of a defective part in order to operate.” (O’Neil, supra,
See Garman, supra,
We note the allegations do not focus in detail on the duty to warn, but that theory is necessarily implicated in the proposed amended actions.