Oddone v. Superior Court

• Decision Date: 24 November 2009
• Docket Number: No. B213784.,B213784.
• Citation: 179 Cal.App.4th 813,101 Cal. Rptr. 3d 867
• Court: California Court of Appeals Court of Appeals
• Parties: GERALDINE ODDONE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; TECHNICOLOR, INC., Real Party in Interest.

179 Cal.App.4th 813

101 Cal. Rptr. 3d 867

GERALDINE ODDONE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent TECHNICOLOR, INC., Real Party in Interest.

No. B213784.

Court of Appeals of California, Second District, Division Eight.

November 24, 2009.

Gonzalez & Robinson, Joseph D. Gonzalez and Keith A. Robinson for Petitioner.

No appearance for Respondent.

Mitchell Silberberg & Knupp, Hayward J. Kaiser and Paul Guelpa for Real Party in Interest.

OPINION

FLIER, Acting P. J.

James Oddone worked for real party in interest Technicolor, Inc. (Technicolor), from 1973 until 2006; he died from a brain tumor (glioblastoma multiforme) in January 2007. His wife, petitioner Geraldine Oddone (hereafter petitioner), filed an action against Technicolor in 2008, in substance on the theory that her husband's brain tumor was caused by exposure to toxic chemicals while her husband was working for Technicolor.

Petitioner alleged three causes of action against Technicolor. Only the third cause of action is at issue in these proceedings.¹ This cause of action is asserted by petitioner solely on her own behalf on the theory that her husband brought home toxic vapors and chemicals on his clothing and person and that petitioner was injured by exposure to these materials; this cause of action is predicated on Technicolor's alleged negligence in exposing petitioner's husband to toxic chemicals.

The trial court sustained Technicolor's demurrer to the third cause of action without leave to amend on the ground that Technicolor did not owe a duty of due care to petitioner. We issued an order to show cause, received further briefing and heard oral argument. We conclude that Technicolor does not owe petitioner a duty of due care. Accordingly, we deny the petition.

FACTS

The pertinent facts are set forth in the complaint.² Technicolor was in the business of processing motion picture film and "used certain chemical substances (hereinafter collectively and singularly referred to as `the chemical substances') which were of a toxic nature. . . . The chemical substances used by Defendant Technicolor include but are not limited to: formaldehyde, perchloroethylene, trichloroethylene, and acetone. Both formaldehyde and perchloroethylene are known to cause cancer." James Oddone was continually exposed "to the chemical substances" while at work. As a proximate cause of being continuously exposed "to the chemical substances," James Oddone developed glioblastoma multiforme and died of that disease in January 2007.

Technicolor knew that the solution of formaldehyde and perchloroethylene "mixed in equal parts in the wet gate printing area to wet film during printing, evaporates into the room and that the solvent's vapors linger in their employees' breathing zone." Throughout his employment, James suffered from dermatitis and rashes that were caused by the toxic chemicals used by Technicolor but the only remedy that Technicolor made available was cortisone cream. Technicolor knew that James's injuries were caused by toxic chemicals, but it failed to inform James of this fact and failed to take any measures to cure or prevent James's injuries caused by toxic chemicals.

Petitioner made two attempts to state a cause of action for her own alleged injuries.

The original complaint alleged that, while he was at work, James's "clothing would absorb some of the chemical substances he was using as part of his employment and would also remain on his skin. [Petitioner] was exposed to these toxic substances as a result of her contact with her husband when he came home from work." After alleging that Technicolor had a duty to safely operate its premises, the complaint alleged that this duty "included protecting the spouses and family members of employees from coming into contact with the chemical substances used at the Technicolor facility." This complaint also alleged that Technicolor had a duty to warn James of the dangerous condition on its premises, that Technicolor failed to do so and that this "failure to warn caused James Oddone to return home after work with chemicals on his body and clothing, thereby causing his wife, [petitioner], to suffer secondary chemical exposure when [petitioner] slept next to her husband at night, washed James Oddone's work clothes, and was intimate with James Oddone."

Technicolor demurred to these allegations on the ground that it did not owe a duty of due care to petitioner. The court sustained this demurrer "on the ground there is no duty." The court gave petitioner leave to amend her complaint since it also sustained demurrers to the other causes of action, in part on the ground that the complaint was uncertain.

The first amended complaint alleges in an introductory paragraph that "[petitioner] alleges on information and belief that defendants, and each of them, knew or should have known that workers would carry these toxic chemical substances home with them and expose the workers' family members and as such defendants, and each of them, created an unreasonable risk of harm to [petitioner]." The third cause of action, which states petitioner's own claim, alleges that Technicolor had a "direct duty to [petitioner] not to allow clothing or people which are contaminated with toxic chemical substances to leave [Technicolor's] places of business under circumstances where it is reasonable that family members will come into contact with the toxic chemical substances. [¶] [Petitioner] is informed and believes and thereon alleges that as a direct and proximate result of the aforesaid negligence and carelessness of Defendant Technicolor, [petitioner] was caused to and did become exposed to toxic vapors and chemicals, and as a direct result, suffered injuries and damage to her person."

The court sustained Technicolor's demurrer to the foregoing cause of action without leave to amend.

DISCUSSION

1. Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 [11 Cal.Rptr.2d 51, 834 P.2d 745]

Technicolor supports, of course, the trial court's conclusion that it owed no duty to petitioner. Technicolor predicates its analysis of the duty issue on six factors identified in Bily v. Arthur Young & Co., supra, 3 Cal.4th 370, 397-398 (Bily). These factors are: the extent to which the transaction was intended to affect the plaintiff; the foreseeability of harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; and the policy of preventing future harm. (Ibid.) Petitioner appears to agree that Bily represents at least an appropriate starting point for analysis.

We do not agree with the proposition that Bily sets forth the appropriate analytical framework for the case before us.

In Bily, the accountancy firm of Arthur Young & Co. had prepared financial statements for the Osborne Computer Corporation. The plaintiffs in the action against Arthur Young & Co. were investors in the Osborne Computer Corporation and their claim was that the financial statements prepared by Arthur Young & Co. were seriously in error, that the plaintiffs had relied on those statements and that, as a result, they had sustained substantial economic harm. The contract under which Arthur Young & Co. had prepared the financial statements was with the Osborne Computer Company; the plaintiffs in Bily were not parties to that contract.

Significantly, the court introduced the checklist of the aforesaid factors with the statement that "[w]e have employed a checklist of factors to consider in assessing legal duty in the absence of privity of contract between a plaintiff and a defendant." (Bily, supra, 3 Cal.4th at p. 397.) This statement, and the underlying facts of Bily, demonstrate that there are three reasons why this decision is not the appropriate starting point for analyzing the issue before us.

First. The first of these factors, i.e., the extent to which the transaction was intended to affect the plaintiff, makes sense in the context of the facts of Bily, but it makes no sense in a case like the one before us. In this case, Technicolor, if it was negligent, harbored no intent to affect anyone nor, of course, are we dealing in this case with a "transaction" that would "affect" anyone. It is evident that this factor in Bily envisages the performance of services to a client or patron and a plaintiff who is someone other than the client or patron; it is in this setting that one can speak of a "transaction" that was intended to "affect" someone, the "transaction" being the service that was performed.

(1) Second. The duty of the defendant in Bily was to act in conformance with professional standards and that duty was owed, in the first place, to the defendant's client. This case poses the question whether the scope of Technicolor's duty includes petitioner, i.e., whether, in another formulation of the issue, petitioner is a foreseeable plaintiff. It is true that, from a broad conceptual perspective, factual settings such as found in Bily are also cases about the scope of the defendant's duty. But cases involving the rendition of professional or business services involve considerations that are unique to such cases,³ and they are therefore dealt with in a class by themselves. (See generally 3 Harper et al., Torts, supra, § 18.5A, pp. 845-853.) Cases arising in this specialized setting are not necessarily instructive in settings outside of this context.

(2) Third. When it comes to the scope of duty, i.e., to whether the plaintiff is foreseeable, there appears to be a difference between cases when the negligent act results in physical injury and cases when negligence results in economic loss. "The expectation that an actor will be subject to liability for harm caused by mere negligence is greatest where the negligence results in physical injury." (3 Harper et al., Torts, supra, § 18.5A, p. 846....