Baione v. Owens-Illinois, Inc.
| Decision Date | 20 May 1992 |
| Docket Number | OWENS-ILLINOI,INC,No. 90-00959,90-00959 |
| Citation | 599 So.2d 1377 |
| Parties | 17 Fla. L. Weekly D1298, Prod.Liab.Rep.(CCH)P. 13,174 Dorothy BAIONE, as Personal Representative for the Estate of Nickolas Baione, Deceased, Appellant, v., an Ohio Corporation, Appellee. |
| Court | Florida District Court of Appeals |
John F. Venable, Tampa, for appellant.
Henry W. Jewett, II, and Robert A. Hannah of Hannah, Marsee, Beik & Voght, P.A., Orlando, for appellee.
This appeal concerning asbestos litigation arises from a defense verdict in favor of the appellee. The appellant argues that the trial court erred in dismissing her causes of action sounding in strict liability and in striking her claim for punitive damages. We agree and reverse.
The appellee is the manufacturer of Kaylo, a product containing asbestos. The decedent, Nickolas Baione, was a boiler tender on United States Navy ships between 1946 and 1953 and, in this capacity, was exposed to products containing asbestos. He thereafter contracted mesothelioma, an asbestos-induced form of cancer, and died.
This case began as a personal injury action instituted by Baione and his wife, Dorothy. Baione's death occurred during the course of litigation and the action was amended to one of wrongful death brought by Dorothy as the personal representative of Baione's estate. The appellant's first amended complaint sought recovery on three theories: negligence, breach of implied warranty of merchantability, and strict liability. Strict liability was pled in two counts, one asserting that the product was "deleterious, poisonous, and highly harmful" and the other additionally asserting that the product failed to carry an adequate warning of its dangerous nature. On pretrial motion of the appellee, the trial court dismissed the counts of breach of warranty and strict liability. In regard to the strict liability counts, the trial judge apparently concluded that those theories were a duplication of the negligent failure-to-warn count and were therefore improper. 1
The doctrine of strict liability is a recognized cause of action in this state. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). When a set of facts will support both a theory of common law negligence and strict liability, a plaintiff is entitled to proceed on either theory or both. Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981). Injury or death from exposure to a product containing asbestos clearly falls within this category of cases. See Carlson v. Armstrong World Indus., Inc., 693 F.Supp. 1073 (S.D.Fla.1987). Thus, it was error to dismiss the counts of the first amended complaint sounding in strict liability during the pleading stage of this case.
On the issue of punitive damages, the trial court granted the appellee's motion to strike punitive damages for the reason "that the defendant, Owens-Illinois, Inc., has previously had punitive damages assessed against them in other cases." We know of no authority which would support the striking of a claim for punitive damages, as a matter of law, for this sole-stated reason. To the contrary, punitive damages are appropriate in asbestos litigation and the trial court's reason, if relevant at all, would be an issue of mitigation to be considered by the trier of fact. See Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984), review denied, 467 So.2d 999 (Fla.1985).
We, therefore, reverse the final judgment, reinstate counts three and four of the first amended complaint, together with the claim for punitive damages, and remand for further proceedings consistent with this opinion.
In that the appellant suffered an adverse verdict on the theory of common law negligence and has not appealed that determination, the appellant is not entitled to retrial on the negligence count of the amended complaint.
Under the controlling precedent, I agree that the trial court committed error by dismissing the plaintiff's theory of strict liability and by striking the claim for punitive damages. I write separately for three reasons: 1) to question the fundamental fairness of this result; 2) to emphasize that we have reached no decision concerning the precise nature of the claim for strict liability or the potential preclusive effect of the jury's verdict on future proceedings; and 3) to question the legal justification for punitive damages concerning conduct that occurred more than twenty years ago.
First, although the parties did not rely upon existing precedent from this district we have previously held that it is error to dismiss a strict liability claim in the context of asbestos litigation. Bennett v. National Gypsum Co., 491 So.2d 1161 (Fla. 2d DCA 1986). Strict liability has become an accepted theory in asbestos litigation and provides a remedy in some circumstances when negligence would not. See 9 American Law of Products Liability 3d Sec. 113:24 (T. Travers ed.1988). Accordingly, I agree that this case must be remanded to the trial court.
While constrained to follow established precedent in this area, I question the fundamental fairness of subjecting conduct outside the state of Florida during World War II and the Korean War to a Florida theory of liability first recognized in 1976. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). The supreme court has clearly announced the rule that strict liability applies to conduct preceding the creation of this legal theory. Linder v. Combustion Eng'g, Inc., 342 So.2d 474 (Fla.1977). The Linder rule is arguably fair in its application to those who manufactured their products in the 1960s when Section 402A of the Restatement (Second) of Torts (1965) was being proposed and adopted. In this case, however, the defendant's acts and the plaintiff's exposure to asbestos occurred more than a decade prior to that period. Manufacturers should be required to compensate victims under standards of care that were reasonably predictable at the time their products were manufactured. No Floridian would think it fair to be tested by a new and foreign standard of conduct created decades after he or she had engaged in the challenged conduct. It is at least possible that we have misinterpreted Linder, and the supreme court never intended this extreme retroactive application of a new rule of tort law.
Second, our decision involves two distinct theories of strict liability. The plaintiff alleged a cause of action...
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...in its care, and when the infant died, “the lawsuit was amended to assert a claim for wrongful death”); Baione v. Owens–Illinois, Inc., 599 So.2d 1377, 1378 (Fla.2d Dist.Ct.App.1992) (plaintiff filed a personal injury lawsuit after he contracted mesothelioma, an asbestos-induced form of can......
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...judge suggested giving a corporation the benefit of the above argument is weak. See Baione v. Owens–Illinois, Inc. , 599 So. 2d 1377, 1378, 1380 (Fla. Dist. Ct. App. 1992) (Altenbrand, J., concurring). Defendants' argument, if accepted, would apply with equal force to compensatory awards ag......
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