Barker v. Hennessy Indus., Inc.

• Decision Date: 22 May 2012
• Docket Number: No. B232316.,B232316.
• Citation: 141 Cal.Rptr.3d 616
• Court: California Court of Appeals Court of Appeals
• Parties: Fern BARKER et al., Plaintiffs and Appellants, v. HENNESSY INDUSTRIES, INC., Defendant and Respondent.

141 Cal.Rptr.3d 616

Fern BARKER et al., Plaintiffs and Appellants,

v.HENNESSY INDUSTRIES, INC., Defendant and Respondent.

No. B232316.

Court of Appeal, Second District, Division 2, California.

May 22, 2012.

Ordered Not to be Officially Published Aug. 29, 2012.^*

Keller, Fishback & Jackson, Stephen M. Fishback and J. Bruce Jackson for Plaintiffs and Appellants.

Gordon & Rees, Los Angeles, Roger M. Mansukhani, Steven A. Sobel, Matthew G. Kleiner, and Kevin Whelan for Defendant and Respondent.

DOI TODD, J.

The trial court granted summary judgment in favor of defendant and respondent Hennessy Industries, Inc. (Hennessy) on the asbestos-related wrongful death complaint filed by plaintiffs and appellants Fern Barker, James Barker, Carmen Barker and Tamara Worthen (appellants), the widow and surviving children of decedent Richard Barker (Barker). Hennessy manufactured machines Barker had used in his work. The trial court ruled that Hennessy could not be held liable for Barker's death under the theories of strict liability or negligence because the undisputed evidence showed that any harm was caused by products containing asbestos and not Hennessy's machines.

We affirm. The undisputed evidence showed that Hennessy's machines did not contain asbestos and could be operated independently without asbestos-containing materials. Guided by the principle recently articulated by the California Supreme Court in O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 361, 135 Cal.Rptr.3d 288, 266 P.3d 987 (O'Neil ), that "California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together," we conclude 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.

FACTUAL AND PROCEDURAL BACKGROUND

Barker worked as a mechanic in an automotive repair garage from 1967 to 1995. Asbestos-containing clutch components, brake linings and brake shoes were necessary component parts to the automobiles, trucks, tractors and heavy equipment on which he worked. Barker's work included repairing, arcing, grinding, sanding, cutting, drilling and installing these asbestos products. In performing repairs, Barker worked with or near brake shoe arcing machines and brake drum lathes (machines), which were manufactured by Hennessy's predecessor Ammco Tools, Inc. (Ammco). Barker was diagnosed with asbestosis and asbestos-related lung cancer and died of those diseases in December 2008.

In May 2009, appellants filed a wrongful death action against Hennessy and several other entities, alleging causes of action for negligence, strict liability, false representation, and concealment, as well as a survival claim. They characterized Hennessy as "a manufacturer, supplier, seller of AMMCO lathes and/or grinders" and alleged that Barker worked with and around others using the machines "to lathe and grind asbestos containing products including brake linings/shoes and clutch linings/facings." Appellants alleged that Barker's exposure to harmful respirable asbestos dust occurred as a result of Hennessy's failure to warn of the dangers of such exposure.

Hennessy moved for summary judgment on the ground that its machines did not cause or create the risk of harm to which Barker was exposed. It argued that it could not be held liable for injuries caused by another's inherently dangerous, asbestos-containing products, even if it was foreseeable that its machines would be used in conjunction with those products. In support of the motion, Hennessy submitted appellants' case report and discovery responses, as well as the declaration of product engineer Craig Mountz, who authenticated documents showing the parts specifications for the machines.

Mountz averred that he was employed by Ammco, and subsequently Hennessy, continuously from 1975 to the present. He was personally involved with the design of the machines and had detailed knowledge of their engineering, construction and component parts. As part of his job, he was also familiar with the function and operation of brake shoes and drums, and the proper use of the machines with those brake parts. He declared that the machines, as manufactured and as supplied with replacement parts, were not comprised of any asbestos-containing parts, did not contain respirable asbestos and did not use asbestos in order to operate. Rather, he averred that the machines were designed to reshape brake parts regardless of whether those brake parts were composed of or contained asbestos. He declared that the machines did not require asbestos-containing brake parts to operate and, correspondingly, any asbestos-containing brake parts did not require the machines in order to function. Hennessy's machines were complete, independent products, in and of themselves. Mountz added that neither Hennessy nor its predecessor had any role in designing, manufacturing, marketing or selling any asbestos products used with its machines, including brake shoes, brake linings, brake pads, clutches, clutch linings, or clutch facings.

Appellants opposed the motion. They took the position that Hennessy had not shifted the burden of producing evidence, primarily arguing that Mountz's declaration was inadmissible. Separately, they filed evidentiary objections to the declaration. In support of their opposition, they submitted counsel's declaration which attached Hennessy's discovery responses, pleadings in other matters and asbestos study reports conducted by the National Loss Control Service Corporation. They sought to establish that Hennessy had known for years that the operation of its machines with asbestos-containing brake parts created the release of respirable asbestos dust. Hennessy, in turn, filed evidentiary objections to appellants' counsel's declaration and attached exhibits.

At the January 2011 hearing on the motion, the trial court sustained Hennessy's evidentiary objections in their entirety, and overruled appellants' objections. Given the state of the admissible evidence, the trial court ruled that Hennessy had affirmatively shown its machines were stand-alone products that did not contain asbestos or require asbestos to operate. It reasoned that the evidence showed "it is someone else's products that create the exposure of risk of injury to the user, not Hennessy's." The trial court ruled that there was no triable issue of fact on the question of duty as to any cause of action and granted summary judgment.¹

Judgment was entered in Hennessy's favor and this appeal followed.

DISCUSSION

Challenging only the interpretation and not the admission of the evidence offered in connection with the summary judgment motion, appellants contend that Hennessy owed a duty to warn about and a duty of care to prevent the risk of harm created by the intended use of its machines. As alleged, the facts in this case arguably fall in the margin between Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 90 Cal.Rptr.3d 414 (Taylor ), which held a manufacturer owes no duty to warn of the risk of asbestos-containing products used in combination with its own products, and Tellez–Cordova v. Campbell–Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, 28 Cal.Rptr.3d 744 (Tellez–Cordova ), which held 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.

But here we have moved beyond appellants' allegations. The admissible evidence on summary judgment establishes that this case falls squarely within O'Neil, supra, 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987,² which confined the reach of Tellez–Cordova and held that a defendant product manufacturer may be held strictly liable for harm caused by another manufacturer's product when "the defendant's product was intended to be used with another product for the very activity that created a hazardous situation. " (O'Neil, supra, at p. 361, 135 Cal.Rptr.3d 288, 266 P.3d 987.) Because the undisputed evidence showed nothing more than the foreseeable—and not the intended and inevitable—use of asbestos-containing products with Hennessy's machines, Hennessy could not be held liable for failing to warn of the risk of harm from those products and summary judgment was properly granted.

I. Standard of Review.

To be entitled to summary judgment, the moving party must show by admissible evidence that the "action has no merit or that there is no defense" thereto. ( Code Civ. Proc., § 437c, subd. (a).) To satisfy this burden, a moving defendant is not required to "conclusively negate an element of the plaintiff's cause of action.... All that the defendant need do is to ‘show[ ] that one or more elements of the cause of action ... cannot be established’ by the plaintiff. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Once the defendant makes this showing, the burden shifts to the plaintiff to show the existence of a triable issue of material fact, which must be demonstrated through specific facts based on admissible evidence and not merely the allegations of the pleadings. ( Code Civ. Proc., § 437c, subd. (p)(2) ; Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1188, 29 Cal.Rptr.3d 176.)

"The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues. Thus, where the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant...