Take-Home Exposure and Stream of Commerce

by Low, Ball & Lynch
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Joseph Petitpas v. Ford Motor Company, et al.

Court of Appeal, Second Appellate District, 13 Cal.App.5th 261 (July 5, 2017)

Plaintiffs Marline and Joseph Petitpas sued Exxon Mobil Corporation, Ford Motor Company, and numerous other defendants, alleging that Marline developed mesothelioma as a result of exposure to asbestos-containing products. Exxon and Ford won motions for summary adjudication on strict liability and take-home liability. The Court of Appeal affirmed the defense verdict.

The Court found that summary adjudication based on secondary exposure was appropriate because Exxon did not have a duty to Marline Petitpas since she was not a member of Joseph Petitpas’ household at the time he worked at an Enco service station. The Court declined to expand Kesner v. Superior Court (2016) 1 Cal.5th 1132. The Kesner court held: “The duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.” (p. 1140.) Since the Kesner court was very specific and limited this duty to only members of the employee’s household, there was no “take-home” exposure in the instant case because Marline and Joseph did not live together at the time of the claimed exposure.

The Court of Appeal also found that summary adjudication of the strict liability cause of action in favor of Exxon was appropriate because the evidence did not show that Exxon was within the stream of commerce for any asbestos-containing products. Exxon submitted undisputed evidence that, at the Pomona Enco station where Joseph Petitpas worked in 1966 and 1967, the asbestos-containing replacement clutches and gaskets came from an independent auto parts store, and the asbestos-containing replacement brakes were supplied by a mobile brake service. None of these products were manufactured by Exxon.

The Court held that Exxon (via the Enco station) was a provider of automobile repair services and not a supplier of products. Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249 was distinguished from this case. In Hernandezcueva, defendant drywall installer E. F. Brady’s contracts always involved the provision of drywall and related materials. E.F. Brady had an ongoing relationship with the drywall manufacturer which was significant enough for E.F. Brady to exert pressure on the manufacturer to influence product safety.

The evidence in this case did not suggest such a relationship between Exxon and the manufacturers of asbestos-containing auto parts. The Court of Appeal held that the relationship between Exxon and the manufacturers of the asbestos-containing auto parts was similar to that in Monte Vista Development Corp. v. Superior Court (1991) 226 Cal.App.3d 1681, in which plaintiff alleged that a ceramic soap dish installed in her home by contractor Willey Tile was defective and caused laceration. The trial court granted summary adjudication on plaintiff’s strict liability claims against Willey Tile, who selected and purchased the soap dish in bulk from a supplier and installed it along with the tile. Willey Tile was performing a service, and was not a “supplier” of tile in the stream of commerce. Monte Vista was considered controlling as to Exxon’s status in this case.

After analyzing the premises liability theory against Exxon, the Court turned to the strict liability claim against Ford. Plaintiffs argued that the trial court should not have permitted use of two separate jury instructions on causation. CACI 430 explains that a substantial factor in causing harm “must be more than a remote or trivial factor.” CACI 435 does not include the language of a remote or trivial factor, and only requires plaintiff to prove that exposure to asbestos from the product contributed to the risk of developing cancer. The Court analyzed the leading cases and the use notes for these two instructions and concluded that it was appropriate to use both because there was a premises defendant as well as a products defendant remaining in the case when it went to the jury.

Citing the O’Neil case, the Court reiterated that a product manufacturer is not strictly liable or negligent for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm. The Court followed the Johnson v. Arvin Meritor case, which held: “As with the products in O’Neil, there is no evidence that the brake assemblies required asbestos-containing materials in order to function generally.” Based on the evidence in the instant case, the Court held that plaintiffs’ design defect claim failed.

The Court also addressed plaintiffs’ failure-to-warn claim against Ford. Unlike a brake arcing machine whose purpose is to create dust by grinding, the use of brakes to stop a car did not create airborne dust that exposed the user to asbestos fibers. The brake dust could be removed by vacuuming or the use of wet rags, and the manner in which Joseph Petitpas chose to clean brake drums was not under Ford’s control.

Plaintiffs presented evidence that Ford knew that cleaning brake dust from brake drums with compressed air could cause the release of respirable asbestos fibers. The Court stated: “While such evidence may have been relevant to a duty to warn, which plaintiffs do not assert here, without more it was not relevant to the design defect claim plaintiffs assert.” This footnote creates a loophole for plaintiffs to claim failure to warn even when a design defect claim fails.

COMMENT

This decision addressed significant issues impacting product and premises liability. The Court of Appeal refused to expand liability for take-home secondary exposure to asbestos, which could have opened the door for numerous new claims.

For a copy of the complete decision, see:Petitpas v. Ford

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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