Campbell v. Ford Motor Co., No. B221322.

CourtCalifornia Court of Appeals
Writing for the CourtWOODS
Citation2012 Daily Journal D.A.R. 6521,141 Cal.Rptr.3d 390,206 Cal.App.4th 15,12 Cal. Daily Op. Serv. 5459
PartiesMary CAMPBELL, Plaintiff and Respondent, v. FORD MOTOR COMPANY, Defendant and Appellant.
Docket NumberNo. B221322.
Decision Date19 June 2012

206 Cal.App.4th 15
141 Cal.Rptr.3d 390
12 Cal.
Daily Op. Serv. 5459
2012 Daily Journal D.A.R. 6521

Mary CAMPBELL, Plaintiff and Respondent,
FORD MOTOR COMPANY, Defendant and Appellant.

No. B221322.

Court of Appeal, Second District, Division 7, California.

May 21, 2012.
As Modified on Denial of Rehearing June 19, 2012.

[141 Cal.Rptr.3d 392]

Nixon Peabody, San Francisco, Ronald F. Lopez, Lauren Michals and Margarita Gevondyan; Craig Morgan, admitted pro hac vice, for Defendant and Appellant.

Waters, Kraus & Paul, El Segundo, Paul C. Cook and Michael B. Gurien for Plaintiff and Respondent.

[206 Cal.App.4th 19]INTRODUCTION

The plaintiff, a California resident (since 1956) who had lived in New Jersey until 1951, filed a premises liability action against Ford Motor Company, alleging she had been diagnosed with mesothelioma as a result of her exposure to asbestos from laundering her father's and brother's asbestos-covered clothing during the time they worked with asbestos as independent contractors hired by Ford to install asbestos insulation at its Metuchen, New Jersey plant. At trial, the jury found Ford liable for 5 percent of the plaintiff's damages and awarded her $40,000. Ford appeals, claiming (1) the New Jersey statute of repose bars the plaintiff's action and (2) it owed the plaintiff no duty in this case. We disagree on the first point but agree on the second and therefore reverse.


In 2004, Eileen Honer was diagnosed with mesothelioma.1 A few months later,

[141 Cal.Rptr.3d 393]

she filed a complaint asserting a premises liability cause of action against Ford Motor Company (among other defendants), alleging her father and brother had worked as insulators at job sites including Ford's Lincoln–Mercury plant in Metuchen, New Jersey. As a result, she alleged, they were exposed to asbestos-containing products which caused their clothing, bodies, vehicles and tools to be contaminated with great quantities of respirable asbestos fibers; Honer then breathed these fibers because of her direct and indirect contact with her father and brother as well as their clothing and other belongings and this asbestos exposure caused her mesothelioma.

According to trial testimony, Eileen Honer was born in 1933 and lived in her parents' home in New Jersey until she turned 18 in 1951. Beginning around the age of 11 or 12 and for as long as she lived there, Honer's chores included doing the family's laundry. For about 25 years, Honer's father (Joseph Mara Sr.) worked as an asbestos insulator with Charles S. Wood & Co. until becoming a supervisor with another insulation contractor in about 1948. Beginning in 1945, Honer's brother (Joseph Mara Jr.) also worked for Charles S. Wood & Co. as an asbestos insulator. Before washing her father's and brother's work clothes, Honer would have to shake them out because they were “dirty,” “dusty,” and “nasty.”

In the mid–1940s, Ford Motor Company entered into contracts for the construction of a new Lincoln–Mercury assembly plant in Metuchen, New Jersey, including asbestos insulation work on pipes, ducts and oven spray booths used for drying freshly painted cars. Ford knew asbestos was being installed on its premises; it knew of contracts between general contractor Wigton Abbott and subcontractors August Arace and Charles S. Wood for the installation of insulation at the Metuchen plant; contracts specifically referenced a wage agreement negotiated with the International Association of Heat & Frost Insulators & Asbestos Workers (Local 32); Charles S. Wood's letterhead referred to asbestos, and the general contractor's correspondence from July 30, 1947, to Ford included copies of these agreements.

Between 1947 and 1948, Honer's brother worked at the Ford plant for about one year while her father worked there for about six months. Ford owned the Lincoln–Mercury plant from the start of construction in 1945 [206 Cal.App.4th 21]through ceasing operations in 2004. Ford took possession of the property during the last three or four months Honer's brother worked there. A Ford employee regularly checked on the progress of the insulation work.

Victor Roggli, M.D. testified that, as a result of doing the family laundry, Honer received a substantial exposure to asbestos. The asbestos fibers deposited on her father's and brother's clothing would be liberated when the clothing was shaken out. Such household exposure to asbestos meant a four to eight times greater risk of contracting mesothelioma. Those exposed through family members working as insulators had the greatest exposure to asbestos and thus the greatest risk.

According to Dr. Roggli, by 1930, as evidenced by documents including the seminal Merewether Report, it was known that asbestos was a toxic substance that could cause fatal lung disease; it was known that it was important to use dust suppression methods (wet down, ventilation, protective equipment) to reduce the risk of disease; it was known that the use of products containing asbestos (not only

[141 Cal.Rptr.3d 394]

mining or manufacturing asbestos) could cause dangerous exposures; it was known that bystanders were at risk of exposure; and it was known that there was a considerable latency period between asbestos exposure and disease manifestation. As evidenced by case reports, the association between asbestos exposure and cancer was known by the 1940s.

By the early 1900s, Dr. Roggli testified, the dangers of toxic substances being transferred from the workplace to the home through workers' clothing as well as methods for preventing such “take home” exposures were known. He cited industrial hygiene textbooks, such as the 1913 textbook “Safety” by William Tolman; there was no dispute that asbestos was a known toxin by the 1930s. According to Dr. Roggli, both asbestos hazards and the risk of toxic take home exposures had been reported in the scientific literature before 1945.

Ford's own expert witness (Larry Roslinski) acknowledged that in 1930, according to the Merewether and Price article, “exposure to asbestos could be hazardous to human health,” and the occupational health community—including the industrial hygiene community—knew of these findings in the 1930s. Roslinski was a certified industrial hygienist in the late 1960s through the 1970s and [206 Cal.App.4th 22]an industrial toxicologist with Ford from 1973 through 2002; for the last two years, he was the manager of Ford's Occupational Health & Safety International Department. Beginning in 1937, Ford had industrial hygienists on staff when it established its industrial hygiene department. Ford established its industrial hygiene department in the 1930s, and that department was responsible for worker safety with respect to both acute and chronic hazards. It maintained a library of medical and scientific journals. Roslinski acknowledged the Merewether report was an authoritative source known in the occupational safety community in the 1930s, and it stated that asbestos exposure was hazardous.

Jurors were instructed as follows:

“Eileen Honer claim[s] that she was harmed because of the way Ford Motor Company managed this property. To establish this claim [she] must prove all of the following:

“One, that Ford Motor company owned the property; two, that Ford Motor Company was negligent in the use or maintenance of the property; three, that [she] was harmed; and, four, that Ford Motor Company's negligence was a substantial factor in causing [her] harm.

“A person that owns property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person that owns property must use reasonable care to discover[ ] any unsafe conditions and to repair, replace or give adequate warning of anything that could be reasonably expected to harm others. In deciding whether Ford Motor Company used reasonable care you may consider, among other factors, the following:

“ ‘A,’ the location of the property; ‘B,’ the likelihood that someone would come to the property in the same manner as Eileen Honer's father and brother did; ‘C,’ the likelihood of harm; ‘D,’ the probable seriousness of the harm; ‘E,’ whether Ford Motor Company knew or should have known of the condition that created the risk of harm; ‘F,’ the difficulty of protecting against the risks of such harm; and, ‘G,’ the extent of Ford Motor Company's control over the condition that caused the risk of harm.

“Now, Ford Motor Company was negligent in the use or maintenance of the

[141 Cal.Rptr.3d 395]

property if, one, a condition of the property created an unreasonable risk of harm; two, Ford Motor Company knew [sic, or] through the exercise of reasonable care—should have known about it, and; three, Ford Motor Company failed to repair the condition, protect against the harm from the condition, or give adequate warning of the condition.

[206 Cal.App.4th 23]“[I]f an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the owner does not have to warn others about the dangerous condition.”

Under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, Ford requested a modified version of CACI 1009B (“Liability for Unsafe Conditions—Retained Control—Modified”) stating as follows: “A premises owner, such as Ford, is not liable to Plaintiff for injuries causes [sic] by the actions of independent contractors on Ford's premises, unless Ford affirmatively contributed to plaintiff's alleged injury. [¶] Plaintiff claims that she was harmed by an unsafe condition through an employee of [name of employer] while that employee working [sic] on Ford's property. To establish this claim, Plaintiff must prove all of the following: [¶] 1. That Ford owned the property; [¶] 2. That Ford retained control over safety conditions at the worksite in a way that affirmatively contributed to Plaintiff's injury; [¶] 3. That Ford negligently exercised its...

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