discussing secondary assumption of risk where the plaintiff purchased a building “knowing that its fireproofing contained asbestos”
How later courts described this case
- discussing secondary assumption of risk where the plaintiff purchased a building “knowing that its fireproofing contained asbestos”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
THE BOARD OF TRUSTEES OF THE Case No. 18-cv-01199-VC
LELAND STANFORD JUNIOR
UNIVERSITY,
ORDER RE MOTION FOR
Plaintiff, RECONSIDERATION AND MOTION
FOR DETERMINATION OF GOOD
v. FAITH SETTLEMENT
AGILENT TECHNOLOGIES, INC., et al., Re: Dkt. Nos. 149, 235, 249
Defendants.
I.
The motion for reconsideration of the Court’s July 17, 2020 order, Dkt. No. 149, is
granted in part and denied in part. “Reconsideration is appropriate if the district court (1) is
presented with newly discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” School District No.
1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
It was clear error to grant summary judgment as to Agilent’s affirmative defenses when
Stanford only moved for summary judgment as to HP’s affirmative defenses. Agilent has only
moved to reinstate its seventeenth (waiver and estoppel), eighteenth (assumption of risk) and
thirty-fourth (release or waiver) affirmative defenses. Those defenses are reinstated as to Agilent.
It bears repeating, however, that the jury will not receive an instruction on a defense that is inapt
or for which there is no evidence.
It was not clear error to grant summary judgment on HP’s assumption of risk defense, but
the Court clarifies the scope of its prior order. The Court granted summary judgment as to HP’s
potential assertion of a contractual or primary assumption of risk defense, and that decision was
correct. Secondary assumption of risk, in contrast, is merely a “form of comparative negligence,”
not a separate affirmative defense. Truong v. Nguyen, 156 Cal. App. 4th 865, 878 (2007). As part
of HP’s comparative negligence defense, HP may present evidence of Stanford’s secondary
assumption of risk. Consistent with the Court’s prior order, HP may argue at trial that Stanford
bears some responsibility for the clean-up because it knew about the contamination and allowed
it to happen. HP may also argue that Stanford’s damages should be offset by the $7 million
discount it allegedly received on the purchase of the ground lease to account for the
contamination. Standing alone, however, Stanford’s decision to buy back the lease early is not a
form of secondary assumption of risk or comparative negligence. Stanford already owned the
contaminated land; its decision to buy back the ground lease early did not expose Stanford to any
additional risk. Compare to T.H.S. Northstar Associates v. W.R. Grace & Co., 66 F.3d 173, 175
(8th Cir. 1995) (discussing secondary assumption of risk where the plaintiff purchased a building
“knowing that its fireproofing contained asbestos”).
Il.
For the reasons discussed at the hearing, the Court will rule on the motion for determination
of good faith settlement during or immediately after trial.
IT IS SO ORDERED.
Dated: September 2, 2022 =
VINCE CHHABRIA
United States District Judge