Asbestos Alert: Manufacturer of Brake Grinding Machine Has No Duty To Warn Of Asbestos Danger


Asbestos Alert!™
[author: Thomas J. LoSavio]

Barker v Hennessy Industries, Inc., California Court of Appeal No. B232316
Second Appellate District, Division 2, 2012 WL 1850538 (May 22, 2012)

Recent California law has established that a manufacturer has no duty to warn of the hazards arising solely from asbestos in components manufactured by others contained in its products (O’Neil v Crane Co. (2012) 53 Cal.4th 335). However, case law has also held that a manufacturer owes a duty to warn of the risks created by the intended and necessary operation of its own products with asbestos-containing products. (Tellez-Cordova v Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577). This case is the third in a series of cases decided in less than 45 days involving essentially the same allegations against Hennessy. In reconciling and harmonizing the existing case law, the Barker court held that existing case law and the relevant policy considerations operated against the imposition of a duty, notwithstanding the foreseeability of the injury.

Decedent Richard Barker worked as a mechanic in an automotive repair garage from 1967 to 1995. Asbestos-containing clutch components, brake linings and brake shoes were necessary component parts to the automobiles and other vehicles upon which he worked. In performing repairs, Barker worked with or near brake shoe arcing machines and brake drum lathes which were manufactured by defendant Hennessy’s predecessor Ammco Tools, Inc. Baker was diagnosed with asbestosis and asbestos-related lung cancer and died of those diseases in 2008. The widow and surviving children of Barker filed a wrongful death action against Hennessy and others alleging negligence, strict liability, false representation, concealment and a survival claim. They alleged that Barker worked with and around others using Hennessy’s machines to lathe and grind asbestos containing products and that Hennessy failed to warn of the dangers of such exposure.

Hennessy moved for summary judgment and supported its motion with a declaration of a product engineer who was personally involved with the design of the machines and had knowledge of their engineering, construction and component parts. He declared that the machines, as manufactured and as supplied with replacement parts, were not comprised of any asbestos-containing parts, did not contain respirable asbestos and did not use asbestos in order to operate. He testified that the machines were designed to reshape brake parts regardless of whether those brake parts were composed of or contained asbestos. The machines did not require any asbestos-containing brake parts to operate and, correspondingly, any asbestos-containing brake parts did not require the machines in order to function. Plaintiffs took the position that Hennessy had not shifted the burden of producing evidence, primarily arguing that the product engineer’s declaration was inadmissible and also filing evidentiary objections to it. They produced other evidence, to which Hennessy objected, tending to show that Hennessy had known for years that the operation of its machines with asbestos-containing brake parts created the release of respirable asbestos dust.

The trial court sustained Hennessy’s evidentiary objections and overruled those of plaintiffs ruling that Hennessy had affirmatively shown its machines were stand-alone products that did not contain asbestos or require asbestos to operate. It reasoned that the evidence showed that it was someone else’s product that created the exposure of risk of injury to the user. Finding no triable issue of fact on the question of duty as to any cause of action, the trial court granted summary judgment, from which plaintiffs appealed.

The Court of Appeal recognized that this case “arguably fell in the margin” between cases like O’Neil and Tellez-Cordova. However, the Court noted that O’Neil held 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. In Tellez-Cordova, the plaintiff lampmaker alleged that he cut, sanded and ground metal parts while working with and around the defendants’ grinders, sanders and saws and that he developed a pulmonary illness as a result of exposure to airborne toxic substances “produced and released from the metal parts and from the discs, belts and wheels used on the grinders, sanders and saws.” The Tellez-Cordova court found that these allegations established that defendants manufactured tools that were specifically designed to be used with the abrasive wheels and discs that created respirable asbestos dust, the tools necessarily operated with the wheels and discs, and that the asbestos was not harmful without the power supplied by the tools.

The Barker Court of Appeal found the O’Neil analysis of Tellez-Cordova persuasive. That analysis determined that the tools there could only be used in a potentially injury-producing manner; their sole purpose was to grind metals in a process that inevitably produced harmful dust; the abrasive wheels and discs were not dangerous without the use of defendants’ tools; and the manipulation and removal of the asbestos-containing products at issue would have presented a danger whether they were used in combination with respondents’ equipment, some other type of equipment or even all by themselves.

The Barker Court of Appeal took note of two recently decided cases, both of which involved Hennessy and both of which found that allegations concerning Hennessy’s machines were sufficient to state causes of action for strict liability and negligence. Bettencourt, et al. v Hennessy Industries, Inc. (May 4, 2012) 2012 Cal.App. Lexis 536 and Shields, et al. v Hennessy Industries, Inc. (Apr. 13, 2012) 2012 Cal.App. Lexis 511. In both cases, the appellate court had reversed a judgment on the pleadings that alleged, in one case, “the sole and intended purpose of defendant’s machine was to grind asbestos-containing brake linings in a process that inevitably produced harmful dust” and, in the other case, that the “sole and intended use of the brake arcing machine resulted in the release of contained asbestos particles.” The Barker court noted that, unlike the allegations in the other two cases, the undisputed evidence here showed that the Hennessy machines could be used in a non-hazardous manner and these machines were hazardous only when used in combination with asbestos-containing materials.

In coming to its conclusion, the Court noted that “foreseeability alone is not sufficient to create an independent tort duty”. After finding that the connection between Barker’s death and the use of the Hennessy machine was remote, that little moral blame can be attached to a failure to warn about dangerous aspects of other manufacturers’ products, and that the likelihood of preventing future harm was minimal, the Court found these policy considerations to weigh heavily against the imposition of a duty.

COMMENT: COMMENT: This is another in a series of recent Court of Appeal cases to find an absence of duty in the context of a claim of asbestos-injury made against a defendant which neither manufactured, sold nor distributed an asbestos-containing product.

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Low, Ball & Lynch’s Environmental and Toxic Torts Team has been successfully representing defendants in asbestos-related litigation for over 25 years. The Environmental and Toxic Torts Team also handles cases involving chemical spills and toxicity, lead, silica, and Proposition 65.

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