Daily Blast May 22, 2012

On May 22, 2012, Division Two of the Second Appellate District Court of Appeal (LA) filed an opinion in Barker v. Hennessy Industries, Inc. (May 22, 2012, B232316) ____ Cal.App.4th ____, holding that a manufacturer of brake shoe arcing machines “did not owe a duty to warn of the risks associated with the use of its machines on asbestos-containing brake parts, because it was merely foreseeable and not inevitable that its machines would be used with asbestos-containing products.” (Slip opn., p. 18.) The court relied upon the holding in O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 361, that a manufacturer’s duty to warn does not extend to defects in another manufacturer’s product. (Id. at pp. 9-11.)

Plaintiffs, the window and surviving children of the decedent, filed a wrongful death action against defendant Hennessy Industries, Inc. alleging causes of action for negligence, strict liability, false representation, and concealment, as well as a survival claim. (Slip opn., p. 2.) The decedent, a mechanic in an automotive repair garage, worked with or near brake shoe arcing machines and brake drum lathes, which were manufactured by Hennessy’s predecessor. (Ibid.) Asbestos-containing clutch components, brake linings and brake shoes were necessary component parts to the automobiles, trucks, tractors and heavy equipment on which the decedent worked. (Ibid.) The decedent’s work included repairing, arcing, grinding, sanding, cutting, drilling and installing these asbestos products. (Ibid.) The trial court granted Hennessy’s summary judgment motion finding that Hennessy could not be held liable for the decedent’s death since the undisputed evidence showed that any harm was caused by products containing asbestos and not Hennessy’s machines. (Ibid.)

The Court of Appeal affirmed holding that Hennessy owed neither a duty to warn about nor a duty of care to prevent the dangers arising from asbestos-containing products that were used with its machines. (Slip opn., p. 2.) According to the court, the evidence showed that Hennessy’s machines did not contain asbestos and could be operated independently without asbestos-containing materials. (Ibid.) As a result, Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, was readily distinguishable. (Id. at pp. 14-16.) In that case, the power tools at issue could only be used in a potentially injury-producing manner. (Ibid.) Accordingly, the Tellez-Cordova court held that a manufacturer owes a duty to warn of the risks created by the intended and necessary operation of its own products with other asbestos-containing products. (Id. at p. 5.) By contrast, here, Hennessy’s machines could be used in a manner that was not necessarily harmful. (Id. at pp. 15-16.)

The court noted that “a different result could be required if the evidence offered below had shown, for example, that Hennessy’s machines necessarily operated with asbestos-containing brake parts because non-asbestos-containing brake parts were not manufactured at the time Barker was exposed to asbestos dust.” (Slip opn, p. 18.) As a result, the court concluded that its holding was not inconsistent with two recent First District cases holding 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, A129379) __ Cal.App.4th __ (Bettencourt); Shields et al. v. Hennessy Industries, Inc. (Apr. 13, 2012, A130213) __ Cal.App.4th __ [2012 Cal.App. Lexis 511]. (Ibid.) According to the court, summary judgment was proper since “the undisputed evidence offered by Hennessy showed that its machines were designed to and could be used in a non-hazardous manner and that its machines were hazardous only when used in combination with asbestos-containing materials.” (Id. at p. 20.)

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