Simonetta v. Viad Corp.

197 P.3d 127

165 Wn.2d 341

Joseph A. SIMONETTA and Janet E. Simonetta, a married couple, Respondents, v. VIAD CORPORATION f/k/a The Dial Corporation, individually and as Successor to Griscom Russell Company, Petitioner, and Saberhagen Holdings, Inc., as successor to Tacoma Asbestos Company and The Brower Company; Bartells Asbestos Settlement Trust; Aqua-Chem, Inc., individually and as successor to Cleaver-Brooks Company; Foster Wheeler Energy Corporation; General Electric Company; General Refractories Company; IMO Industries, Inc., individually and as successor-in-interest to De Laval Turbine, Inc.; Ingersoll-Rand Company; Viacom Inc., individually and as successor by merger to CBS Corporation, f/k/a Westinghouse Electric Corporation; Warren Pumps, Inc.; Dial Corporation, individually and as successor to Griscom Russell Company; Elliott Company, a/k/a Elliott Turbomachinery Co., Inc.; Carrier Corporation, individually and as successor-in-interest to Bryant Heating & Manufacturing Co.; J.T. Thorpe & SON, INC a/k/a J.T. Thorpe Company; Allis-Chalmers Corporation, individually and as successor to The Buda Company; and Quimby Equipment Co., Inc., Defendants.

No. 80076-6.

Supreme Court of Washington, En Banc.

December 11, 2008.

Ronald Clayton Gardner, David D. Mordekhov, Gardner Bond Trabolsi PLLC, Seattle, WA, for Petitioner.

Matthew Phineas Bergman, David S. Frockt, Brian F. Ladenburg, Bergman & Frockt PLLC, John Wentworth Phillips, John Matthew Geyman, Phillips Law Group PLLC, Seattle, WA, for Respondents.

Frederick D. Baker, Brian R. Thompson, Sedgwick, Detert, Moran & Arnold, San Francisco, CA, John Alan Knox, William Kastner & Gibbs, PLLC, Seattle, WA, for Amicus Curiae, Caterpillar, Inc.

Jeanne F. Loftis, Bullivant Houser Bailey PC, Erich Gleber, Steven Rosenblatt, Amy Fenno, Segal McCambridge Singer & Mahoney, New York, NY, Allen E. Eraut, Rizzo Mattingly Bosworth PC, Portland OR, for Amicus Curiae, Flowserve Corporation.

Mark Bradley Tuvim, Corr Cronin Michelson Baumgardner & Preece, Seattle, WA, for Amicus Curiae, Ingersoll-Rand Company, Leslie Controls.

Deborah J. La Fetra, Timothy Sandefur, Alissa J. Strong, Elizabeth A. Yi, Pacific Legal Foundation, Sacramento, CA, Diana M. Kirchheim, Washington State Senate, Olympia, WA, for Amicus Curiae, Pacific Legal Foundation.

William Joel Rutzick, Schroeter Goldmark & Bender, Seattle, WA, for Amicus Curiae, Schroeter Goldmark & Bender.

Stewart Andrew Estes, Keating Bucklin & McCormack, Seattle, WA, for Amicus Curiae, Washington Defense Trial Lawyers.

C. JOHNSON, J.

¶ 1 This case presents the issue of whether under the common law a manufacturer can be held liable for failure to warn of the hazards of another manufacturer's product. Joseph Simonetta claims his lung cancer was the result of exposure to asbestos while employed by the United States Navy. Simonetta performed maintenance on an evaporator, a device that desalinates seawater, manufactured by Griscom Russell, a company of which Viad Corporation is the purported successor. After the evaporator was shipped from the Griscom Russell plant in 1941 or 1942, it was insulated with asbestos products manufactured by another company and installed by the navy or another entity. The exposure contributing to the lung cancer allegedly occurred in 1958 or 1959 when, during maintenance work on the evaporator, asbestos insulation had to be removed from the equipment. While the trial court granted summary judgment for Viad, the Court of Appeals reversed, holding that under common law negligence and strict product liability, Griscom Russell had a duty to warn about the dangers of respirable asbestos released during the use of its product. We reverse the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Joseph Simonetta served in the United States Navy from 1954 to 1974. From 1958 to 1959, he served as a fireman and machinist mate aboard the USS Saufley. Clerk's Papers (CP) at 191. He performed maintenance on an evaporator, also called a distilling plant (a device that converts seawater to freshwater), manufactured by Viad's purported predecessor, Griscom Russell.¹ After the evaporator was shipped from the manufacturer's plant, in 1941 or 1942, while the Saufley was under construction, it was insulated with asbestos mud and cloth products manufactured by another company and installed by the navy or another entity. To service the evaporator, Simonetta claims he would "pry or hack away" the asbestos insulation with a hammer and then re-insulate the machine after he was done. CP at 197-98.

¶ 3 Simonetta was diagnosed with lung cancer in 2000 and 2002. His medical expert testified that there was a causal link between the cancer and Simonetta's exposure to asbestos while in the navy. Simonetta filed negligence and strict liability claims against Viad for failure to warn of the hazards of asbestos exposure. He did not know the identity of the company that manufactured or installed the insulation on the evaporator.

¶ 4 The trial court denied Viad's motion for summary judgment as to corporate successor liability and exposure to asbestos-containing gaskets due to genuine issues of material fact. The trial court granted Viad's motion for summary judgment on the issue of duty to warn, reasoning that though Viad knew or reasonably should have known that its product would be insulated with asbestos-containing material, the evaporator itself did not produce the injury. Simonetta voluntarily dismissed all remaining claims and appealed.² CP at 1374-75.

¶ 5 The Court of Appeals, Division One, reversed the grant of summary judgment. Simonetta v. Viad Corp., 137 Wash.App. 15, 151 P.3d 1019 (2007), linked with Braaten v. Saberhagen Holdings, 137 Wash.App. 32, 151 P.3d 1010 (2007). On the common law negligence claim, the court held that Viad had a duty to warn of the risk of asbestos exposure with respect to servicing the evaporator. It found that Viad was aware that exposure would occur during the use and maintenance of its product because the evaporator needed insulation to operate properly, the navy used asbestos insulation, and workers would have to disturb the asbestos insulation to perform maintenance. The court determined that "[w]hile this duty has not traditionally applied to products manufactured by another, this present case represents a set of facts that compels another logical extension of the common law." Simonetta, 137 Wash.App. at 25, 151 P.3d 1019.

¶ 6 Regarding strict liability, the court found that although the evaporator left the factory without insulation, it was defective. The court based its reasoning on the conclusion that the evaporator had to be encapsulated in insulation for use, yet it included no warning about the risk of exposure to a known danger that would result from disturbing the insulation during ordinary use and maintenance. Accordingly, the court held that "when a product requires the use of another product and the two together cause a release of a hazardous substance, the manufacturer has a duty to warn about the inherent dangers." Simonetta, 137 Wash.App. at 31, 151 P.3d 1019.

¶ 7 The Court of Appeals denied Viad's motion for reconsideration and/or clarification. We granted Viad's petition for review. Simonetta v. Saberhagen Holdings, 162 Wash.2d 1011, 175 P.3d 1094 (2008).

ISSUE

Whether Viad may be liable for failure to warn of the dangers of asbestos exposure resulting from another manufacturer's insulation under common law negligence or common law strict liability.

ANALYSIS

¶ 8 Because Simonetta's claimed asbestos exposure occurred prior to the 1981 enactment of the Washington product liability act (WPLA), chapter 7.72 RCW, we analyze the common law of strict liability and negligence.

Negligence

¶ 9 Under the law of negligence, a defendant's duty is to exercise ordinary care. 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. Restatement (Second) of Torts § 388 (1965).³ Thus, in a negligence action alleging failure to warn, the focus is on the conduct of the manufacturer. The only issue pertaining to negligence raised on appeal is whether Viad owed a duty of care to Simonetta. Whether such a duty is owed is a question of law that generally depends on mixed considerations of logic, common sense, justice, policy, and precedent.⁴

¶ 10 Simonetta claims that Viad breached its duty to warn him of the risks from the intended use of the evaporator, which included routine and necessary maintenance and which caused his physical condition. He argues that neither § 388 nor Washington case law requires that physical harm be inflicted by the product itself in order for a duty to warn to arise. In support, he emphasizes language in § 388 that the physical harm must be caused by the use of the chattel in the manner for which it is intended and by a person for whose use it is supplied. Thus, Simonetta argues that the relevant inquiry is whether the manufacturer of a potentially dangerous product must warn of the hazards associated with the product's use—the hazard here being the risks arising from the expected use of the evaporator in conjunction with asbestos insulation. He asserts that he introduced evidence on every element of Viad's liability for failure to warn under § 388. He claims that Viad's own expert witness testified that the evaporator required insulation to function properly, that such insulation contained asbestos, that the company knew or should have known of the use, and that the insulation would be disturbed during normal maintenance.

¶ 11 Viad argues that it was not negligent because it did not have a duty to warn of the dangers of asbestos—a product it did not manufacture, supply, or sell. The Court of Appeals disposed of this argument, finding that the danger of asbestos exposure was inherent in the use of the evaporator because the evaporator was built with the...