Macias v. Mine Safety Appliances Co.

• Decision Date: 14 December 2010
• Docket Number: No. 39171-6-II.,39171-6-II.
• Citation: 158 Wash.App. 931,244 P.3d 978
• Parties: Leo MACIAS and Patricia Macias, husband and wife, Respondents, v. MINE SAFETY APPLIANCES CO. et al., Appellants.
• Court: Washington Court of Appeals

244 P.3d 978 158 Wash.App. 931 Leo MACIAS and Patricia Macias, husband and wife, Respondents, v. MINE SAFETY APPLIANCES CO. et al., Appellants. No. 39171-6-II. Court of Appeals of Washington, Division 2. Dec. 14, 2010.

Benjamin Robert Couture, David S. Frockt, Matthew Phineas Bergman, Bergman & Frockt PLLC, John Wentworth Phillips, John Matthew Geyman, Phillips Law Group PLLC, Seattle, WA, for Respondents.

Paul Joseph Kundtz, Wendy E. Lyon, Riddell Williams PS, Seattle, WA, Timothy Lee Ashcraft, Williams Kastner & Gibbs, Robert Joseph Sexton, Attorney at Law, Tacoma, WA, Kamela J. James, Law Offices of Kamela J. James, Olympia, WA, for Appellants.

WORSWICK, J.

¶ 1 American Optical Corporation, Mine Safety Appliances Company, and North Safety Products USA (collectively, respirator manufacturers) appeal the superior court's denial of their summary judgment motion, arguing that they had no duty to warn Leo Macias, a retired tool worker, that he could be exposed to harmful asbestos dust while cleaning their respirators at a Seattle shipyard. We hold that the respirator manufacturers owed no duty to Macias, reverse the superior court's denial of their motion, and remand for entry of an order granting summary judgment to the respirator manufacturers.

FACTS

¶ 2 Macias worked as a tool keeper at Todd Shipyards in Seattle from 1978 to 2004. As a tool keeper, Macias supplied shipyard workers with tools and equipment, including respirators manufactured by the respirator manufacturers.These respirators were manufactured to protect against a variety of contaminants. Different filter cartridges could be inserted into the respirators to protect the workers against specific contaminants, including welding fumes, paint fumes, asbestos particles, and dust.

¶ 3 After their shifts, shipyard workers returned "filmy" and "dusty" respirators to the tool room. II Clerk's Papers (CP) at 230. Macias threw these respirators into a nearby basket, sometimes bouncing them off an adjacent window, creating "little poofs of dust." II CP at 233. When the basket was full, Macias disassembled the respirators, causing "dust, sand, [and] dirt" to "fly out." II CP at 234-37. Macias then scrubbed the respirators with a nylon brush, rinsed them in the sink, and stacked them in. a drying oven. During a busy work shift, Macias handled hundreds of dirty respirators.

¶ 4 In May 2008, a physician diagnosed Macias with mesothelioma. The following month, Macias filed a complaint for personal injuries against several defendants, including the respirator manufacturers. He asserted, in part, that the respirator manufacturers were negligent and strictly liable for failing to warn him of the dangers of asbestos exposure.

¶ 5 In January 2009, the respirator manufacturers moved for summary judgment. The respirator manufacturers argued that, under our Supreme Court's recent decisions in Simonetta v. Viad Corp., 165 Wash.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 198 P.3d 493 (2008), they had no duty to warn Macias of the dangers associated with asbestos in another company's product. The trial court denied the motion, stating, without further comment, that Simonetta and Braaten were distinguishable. Our commissioner granted discretionary review after concluding that the trial courthad committed "obvious error." ¹See Ruling Granting Discretionary Review.

ANALYSIS

¶ 6 This case turns on the applicability of Simonetta and Braaten to Macias's duty to warn claims. The respirator manufacturers argue that Simonetta and Braaten preclude Macias's duty to warn claims because those cases hold that "the duty to warn is limited to those in the chain of distribution of the hazardous product." Br. of Appellant at 6. Macias acknowledges that Simonetta and Braaten "did announce a general rule that manufacturers have no duty to warn of dangers of a product that the manufacturer did not make[,]" but he argues that "[t]he specific safety purpose of respirators distinguishes them from the equipment at issue" in those cases. Br. of Resp't at 1-2. We agree with the respirator manufacturers. We review a trial court's denial of summary judgment de novo. Tiffany Family Trust Corp. v. City of Kent, 155 Wash.2d 225, 230, 119 P.3d 325 (2005). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). "If ... the plaintiff 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' then the trial court should grant the motion' " because " 'a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.' " Young v. Key Pharmaceuticals., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).

I. Negligence

¶ 7 The respirator manufacturers argue that, as part of their duty to exercise ordinary care, they had no duty to warn Macias of the dangers of asbestos exposure that could result from cleaning their products. We agree.

A. Standard of Review

¶ 8 Under the law of negligence, "[a] manufacturer's duty of ordinary care includes a duty to warn of hazards involved in the use of a product, which are or should be known to the manufacturer."Simonetta, 165 Wash.2d at 348, 197 P.3d 127 (citing Restatement (Second) of Torts § 388 (1965)). Whether a manufacturer owes a duty to warn of hazards involved in the use of its product is a question of law that "generally depends on mixed considerations of logic, common sense, justice, policy, and precedent." Simonetta, 165 Wash.2d at 349, 197 P.3d 127. We review questions of law de novo. Lunsford v. Saberhagen Holdings, Inc., 166 Wash.2d 264, 270, 208 P.3d 1092 (2009).

¶ 9 Section 388 of the Restatement, supra, which governs a manufacturer's duty to warn in the negligence context, states:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

See Simonetta, 165 Wash.2d at 348 n. 3, 197 P.3d 127 (citingFleming v. Stoddard Wendle Motor Co., 70 Wash.2d 465, 467-68, 423 P.2d 926 (1967)). A plaintiff must satisfy each of section 388's three subsections in order to assert a viable negligence claim. Simonetta, 165 Wash.2d at 349 n. 3, 197 P.3d 127.

B. Negligence Analysis in Simonetta and Braaten

¶ 10 In Simonetta, a navy machinist performed maintenance work on an evaporator, a machine that converts seawater to freshwater. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. To service the evaporator, Simonetta had to use a hammer to "pry or hack away" asbestos-containing insulation that enveloped the evaporator. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. The evaporator's manufacturer, Viad,² did not manufacture the asbestos-containing insulation or insulate the evaporator; rather, Viad shipped the evaporator to the navy without insulation. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. An unidentified company manufactured the insulation, and the navy or an unidentified company installed the evaporator. Simonetta, 165 Wash.2d at 346, 197 P.3d 127.

¶ 11 Simonetta developed lung cancer and sued Viad for failing to warn him of the hazard of asbestos exposure. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. Our Supreme Court rejected Simonetta's negligence claim, stating that the duty to warn under section 388 "is limited to those in the chain of distribution of the hazardous product." Simonetta, 165 Wash.2d at 354, 197 P.3d 127. Accordingly, the court stated, "[b]ecause Viad did not manufacture, sell, or supply the asbestos insulation, we hold that as a matter of law it had no duty to warn under section 388." Simonetta, 165 Wash.2d at 354, 197 P.3d 127.

¶ 12 The Simonetta court observed that the court of appeals had concluded that the danger of asbestos exposure was inherent in the evaporator's use "because the evaporator was built with the knowledge that insulation was required for proper operation and that workers would needto invade the insulation for maintenance." ³Simonetta, 165 Wash.2d at 350, 197 P.3d 127. Our Supreme Court, however, rejected the argument that the manufacturer's knowledge about the necessity of asbestos use gave rise to a duty to warn. Simonetta, 165 Wash.2d at 350, 197 P.3d 127. The Simonetta court observedthat the Washington cases that had interpreted a manufacturer's duty to warn under section 388 involved claims against the product's manufacturer, supplier, or seller, all of whom are parties in the product's chain of distribution. Simonetta, 165 Wash.2d at 350-52, 197 P.3d 127 (citing numerous cases). Because those cases "generally limit the analysis of the duty to warn of the hazards of a product to those in the chain of distribution of the product," the Simonetta court found "little to no support under our case law for extending the duty to warn to another manufacturer's product." Simonetta, 165 Wash.2d at 353, 197 P.3d 127. The court also concluded that case law from other jurisdictions "similarly limits the duty to warn in...