14 Cal.4th 1282A, Richards v. Owens-Illinois, Inc.

Decision Date23 January 1997
Docket NumberNo. S046001,INC,OWENS-ILLINOI,S046001
Citation60 Cal.Rptr.2d 103,14 Cal.4th 985
CourtCalifornia Supreme Court
PartiesA, 14 Cal.4th 985, 928 P.2d 1181, 65 USLW 2568, Prod.Liab.Rep. (CCH) P 14,851, 97 Cal. Daily Op. Serv. 534, 97 Daily Journal D.A.R. 891 Harvey RICHARDS, Plaintiff and Respondent, v., Defendant and Appellant

Morgenstein & Jubelirer, Eliot S. Jubelirer, Lee Ann Huntington and Bruce A. Wagman, San Francisco, for Defendant and Appellant.

Thelen, Marrin, Johnson & Bridges, Ronald F. Lopez, Miruni Soosaipillai, San Francisco, Haight, Brown & Bonesteel, Roy G. Weatherup, William J. Sayers, Caroline E. Chan, Santa Monica, Brobeck, Phleger & Harrison, Thomas M. Peterson, San Francisco and Merdith N. Landy as Amici Curiae on behalf of Defendant and Appellant.

John C. Robinson, Vallejo, and Bryce C. Anderson, Clayton, for Plaintiff and Respondent.

Steven M. Woodside, County Counsel (Santa Clara), Ann M. Ravel, Chief Assistant County Counsel, William C. Katzenstein, County Counsel (Riverside), Karen Keating Jahr, County Counsel (Shasta), Louise E. Renne, City Attorney (San Francisco), Patrick Mahoney, Elizabeth D. Laporte, San Francisco, Lieff, Cabraser, Heimann & Bernstein, Richard M. Heimann, Elizabeth J. Cabraser, William B. Hirsch, Robert J. Nelson and Jacqueline E. Mottek, San Francisco, as Amici Curiae.

BAXTER, Associate Justice.

Proposition 51 (Civ.Code § 1431 et seq.), 1 adopted by the voters in 1986, provides that in a tort action governed by principles of comparative fault, a defendant shall not be jointly liable for the plaintiff's "non-economic damages," but shall only be severally liable for such damages "in direct proportion to that defendant's percentage of fault." (§ 1431.2, subd. (a).) Section 1714.45, adopted by the Legislature in 1987, provides that with specified exceptions, a manufacturer or seller "shall not be liable" in a "product liability action" for harm caused by the ingestion of a "common consumer product intended for personal consumption, such as ... tobacco" which is "inherently unsafe" and consumed with "ordinary [community] knowledge" of its danger.

We confront a narrow but significant question: To the extent section 1714.45 protects tobacco companies from direct "liab[ility]" for harm caused by smoking, does it also preclude the allocation of proportionate "fault" to absent tobacco companies in a smoker's suit for asbestos-related lung injury, in order to reduce the "non-economic" damages payable by the asbestos defendant under Proposition 51?

The Court of Appeal concluded that section 1714.45 applies only in direct actions against suppliers of the products described by the statute, and has no effect when Proposition 51 is invoked in a suit from which such suppliers are absent. Hence, the Court of Appeal reasoned, the defendant in an asbestos action may reduce its own "non-economic damage" exposure by proving that tobacco suppliers share "fault" for lung injuries suffered by a plaintiff who smoked.

For its holding, the Court of Appeal relied primarily on DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 7 Cal.Rptr.2d 238, 828 P.2d 140 (DaFonte). DaFonte held that Proposition 51 permits a tort defendant to apportion "fault" among all "tortfeasors" responsible for the injury, whether or not present in the action, including those who are immune from direct suit. There we concluded that in a farm employee's suit against a harvester manufacturer for injury caused by a defect in the machine's design, the defendant could limit its liability for "non-economic" damages by showing that the employer's negligence contributed to the injury, even though employers are statutorily immune from tort damages for job-related injuries to their employees.

However, we are persuaded that DaFonte does not govern here. The employer's immunity at issue in DaFonte derives narrowly from an alternate scheme of workers' compensation; as we made clear in DaFonte, this immunity does not imply that a negligent employer lacks legal "fault" or is not a "tortfeasor." The immunity accorded by section 1714.45 to suppliers of certain unhealthy consumer products such as tobacco is of a materially different kind. Section 1714.45 represents a legislative judgment that to the extent of the immunity afforded, such companies have no "fault" or responsibility, in the legal sense, for harm caused by their products. To the same extent, such companies are thus not "tortfeasors" to whom comparative "fault" can be assigned for purposes of Proposition 51.

Our conclusion in this regard disposes of the sole basis on which the appellant in this case has contended that the trial court should have allowed its "tobacco company defense." It follows that the judgment of the Court of Appeal must be reversed.

FACTS

Plaintiff Harvey Richards (Richards), who was born in 1918, held various shipyard jobs from 1939 until his retirement in 1983. From 1950 until his retirement, he worked at Mare Island Naval Shipyard (Mare Island). In 1988, he sued Owens-Illinois, Inc. (Owens-Illinois) and numerous other manufacturers of asbestos products, claiming respiratory injury and fear of cancer arising from exposure to asbestos on the job. The complaint alleged causes of action based on negligence, strict liability for a "defective" product, and negligent and intentional infliction of emotional distress. Richards's case was consolidated for trial with the similar claims of four other plaintiffs.

Under procedures adopted by the Solano County Superior Court for general use in asbestos litigation, the trial took place in two phases. In the first phase, the jury was to determine, as to each plaintiff, whether exposure to asbestos was a proximate cause of injury and, if so, the total amount of damages. Richards presented medical evidence that he has asbestosis, or reduced lung volume which results when inhalation of asbestos particles causes lung tissue to scar and thicken. The evidence further suggested that Richards, a longtime smoker, also has obstructive airway disease most likely due to smoking. According to Richards's expert, however, this condition was mild and would be asymptomatic absent the asbestosis.

Richards testified that he was exposed to uncontained insulation products at all his places of employment, though he was uncertain which, if any, contained asbestos. He further indicated that he has serious breathing problems, is progressively weakening, and fears he will contract cancer. The jury found that Richards had suffered an asbestos-related injury, and that he had sustained $5,000 in economic damages and $275,000 in "non-economic" damages. Between the first and second stages of trial, all the defendants except Owens-Illinois settled.

The second phase of trial, against Owens-Illinois alone, addressed liability and apportionment of damages. At this phase, plaintiffs received the benefit of a "burden-shifting" instruction generally applicable in Solano County asbestos litigation. Under this instruction, once the plaintiff has proved that a particular asbestos supplier's product was "defective," that the plaintiff's injury was legally caused by asbestos exposure, and that he was exposed to asbestos fibers from the defendant's product, the burden shifts to the defendant to prove that its product was not a legal cause of the injury.

Each plaintiff sought to show that he had been exposed to asbestos from a product manufactured by Owens-Illinois. Richards testified that during the 1950's at Mare Island, he sometimes worked around, and occasionally handled, uncontained insulation products when dust from these materials was in the air. Evidence was presented that Owens-Illinois' asbestos insulation product "Kaylo" was extensively used at Mare Island during this period, and that "Kaylo" gave off dust when used.

Owens-Illinois was allowed to show, in turn, that other asbestos manufacturers, and the plaintiffs' various employers, shared "fault" for the plaintiffs' long-term exposure to asbestos. Owens-Illinois was also permitted to present evidence that smoking was a "negligent" contributing factor to each plaintiff's condition. Richards himself acknowledged that he had smoked between one and two packs of cigarettes per day from 1941 until 1984. Undisputed evidence indicated that smoking sharply increases the risk of lung disease, including cancer, and works "synergistically" with asbestos exposure to enhance the severity of resulting damage to the lungs.

By in limine motions, Owens-Illinois sought permission to establish that, in addition to plaintiffs' own "negligence" for smoking, and the "fault" assigned to other asbestos manufacturers and employers, cigarette manufacturers also shared "fault" for plaintiffs' injuries because they supplied the harmful tobacco products plaintiffs had consumed. Under Proposition 51, Owens-Illinois urged, the proportionate "fault" of tobacco companies for plaintiffs' injuries should further reduce, to that extent, Owens-Illinois' liability for the plaintiffs' "non-economic" damages.

Plaintiffs' counsel objected. Counsel did not cite section 1714.45 by number, but he argued that because the "law in California" says tobacco companies "haven't committed a tort" when consumption of their products causes injury, they cannot "share in the wealth as ... tort-feasors." The court ruled that no "tobacco company defense" could be presented, because the tobacco companies "aren't on trial here." The court thereafter excluded all proffered evidence concerning the "fault" of tobacco manufacturers, and it refused to allow a verdict form in which "fault" could be apportioned to these entities. 2

In his argument to the jury, Owens-Illinois's counsel urged at length that the plaintiffs were negligent because they continued to smoke long after they had notice that smoking was hazardous to health, and that the long-term consumption of tobacco products was a contributing...

To continue reading

Request your trial
31 cases
  • B.B. v. Cnty. of L. A.
    • United States
    • United States State Supreme Court (California)
    • 10 Agosto 2020
    ......, for Coalition for Litigation Justice, Inc. as Amicus Curiae on behalf of Defendants and ...Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 959, fn. 1, 67 ... by principles of comparative fault"); Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, ......
  • Arena v. Owens Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • California Court of Appeals
    • 12 Mayo 1998
    ...... Corning bought the division of Owens-Illinois which manufactured Kaylo. Appellant ACL, a ... asbestos fibers to Eagle-Picher Industries, Inc., between 1935 and 1957. Eagle-Picher, which was ... Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, ......
  • Kransco v. American Empire Surplus Lines Ins. Co., A070954
    • United States
    • California Court of Appeals
    • 7 Mayo 1997
    ...... Compensatory damages were assessed at over $14 million, in apparent acceptance of Kransco's ... is entitled." (Western Polymer Technology, Inc. v. Reliance Ins. Co. (1995) 32 Cal.App.4th 14, ... the development of special rules." (See Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, ......
  • Rutherford v. Owens-Illinois, Inc., OWENS-ILLINOI
    • United States
    • United States State Supreme Court (California)
    • 28 Agosto 1997
    ...... regard was error requiring reversal under our recent holding in Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 988-989, 60 Cal.Rptr.2d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT