O'NEIL v. Crane Co.

Filed 1/12/12

IN THE SUPREME COURT OF CALIFORNIA

BARBARA J. O’NEIL et al., )

)

Plaintiffs and Appellants, )

) S177401

v. )

) Ct.App. 2/5 B208225

CRANE CO. et al., )

) Los Angeles County

Defendants and Respondents. ) Super. Ct. No. BC360274

____________________________________)

This case involves the limits of a manufacturer’s duty to prevent

foreseeable harm related to its product: When is a product manufacturer liable for

injuries caused by adjacent products or replacement parts that were made by others

and used in conjunction with the defendant’s product? We hold that a product

manufacturer may not be held liable in strict liability or negligence for harm

caused by another manufacturer’s product unless the defendant’s own product

contributed substantially to the harm, or the defendant participated substantially in

creating a harmful combined use of the products.

Defendants Crane Co. (Crane) and Warren Pumps LLC (Warren) made

valves and pumps used in Navy warships. They were sued here for a wrongful

death allegedly caused by asbestos released from external insulation and internal

gaskets and packing, all of which were made by third parties and added to the

pumps and valves post sale. It is undisputed that defendants never manufactured

or sold any of the asbestos-containing materials to which plaintiffs’ decedent was

exposed. Nevertheless, plaintiffs claim defendants should be held strictly liable

and negligent because it was foreseeable workers would be exposed to and harmed

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by the asbestos in replacement parts and products used in conjunction with their

pumps and valves.

Recognizing plaintiffs’ claims would represent an unprecedented expansion

of strict products liability. We decline to do so. California law has long provided

that manufacturers, distributors, and retailers have a duty to ensure the safety of

their products, and will be held strictly liable for injuries caused by a defect in

their products. Yet, we have never held that these responsibilities extend to

preventing injuries caused by other products that might foreseeably be used in

conjunction with a defendant’s product. Nor have we held that manufacturers

must warn about potential hazards in replacement parts made by others when, as

here, the dangerous feature of these parts was not integral to the product’s design.

The broad rule plaintiffs urge would not further the purposes of strict liability.

Nor would public policy be served by requiring manufacturers to warn about the

dangerous propensities of products they do not design, make, or sell.

BACKGROUND

I. Defendants’ Pump and Valve Products on Navy Warships

During World War II, defendants sold parts to the United States Navy for

use in the steam propulsion systems of warships. These propulsion systems were

vast and complex. Massive boilers generated steam from seawater. The steam

flowed through a maze of interconnected pipes to power the ship’s engines and

provide energy for use throughout the vessel. A single ship contained several

miles of piping. Because the steam flowing through this system was extremely hot

and highly pressurized, the pipes and attached components required insulation to

prevent heat loss and protect against accidental burns. Navy specifications

required the use of asbestos-containing insulation on all external surfaces of the

steam propulsion systems. Asbestos insulation was also used as an internal sealant

within gaskets and other components of the propulsion system. The Navy

preferred asbestos over other types of insulating materials because it was

lightweight, strong, and effective. Indeed, asbestos was considered to be such an

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important resource that a 1942 federal regulation ordered its conservation for the

war effort. (Conservation order No. M-123, 7 Fed.Reg. 2472 (Mar. 31, 1942).)

Plaintiffs’ expert admitted there was no acceptable substitute for asbestos until at

least the late 1960’s. Warships could not have been built without it.

The Navy’s Bureau of Ships oversaw the design and construction of

warships. Naval engineers created specifications that provided detailed design,

material, and performance requirements for equipment to be used on board.

Equipment that did not conform with the Navy’s specifications was rejected.

Product manufacturers were required to comply with naval specifications,

including those mandating the use of asbestos.

Crane produced valves for Navy ships according to these strict military

specifications. The steam propulsion system in a typical warship included

hundreds of valves of different sizes and functions. In general, valves controlled

the flow of steam from one point to another through the system. Packing materials

inside valves were used as sealants, to protect against leakage of high-pressure

steam or liquids. Although cotton packing was sometimes used for colder-

temperature applications, the majority of packing used on Navy ships contained

asbestos. Gaskets were also used inside the valves to seal the joints between metal

surfaces. Although some gaskets were made of metal, the gaskets used in valves,

flanges, or pump casings generally contained asbestos. During the early 1940’s,

Navy specifications required that the internal gaskets and packing materials in

valves contain asbestos. At that time, asbestos was the only insulating material

that could withstand the extremely high temperatures and pressures produced by a

warship’s steam propulsion system. Following mandated Navy specifications,

Crane used asbestos in its valves and packing. However, no evidence was

presented that asbestos, as opposed to some other type of insulation material, was

needed in order for the valves to function properly. Indeed, Crane made some

valves of corrugated iron, which contained no asbestos. Crane did not

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manufacture the asbestos packing or gaskets used in its valves. It purchased these

components from Navy-approved vendors.

Warren supplied pumps. Navy ships contained hundreds of pumps used for

various purposes. In the steam propulsion system of a warship, pumps moved

liquids and condensed steam. Like Crane, Warren built its pumps for specific

ships in accordance with stringent naval specifications. Most of these pumps had

internal gaskets and packing that contained asbestos.1 One Warren pump also had

asbestos insulation around a valve stem, but it was covered with a layer of sheet

metal. The pumps were not made or shipped with external insulation. As with

Crane’s valves, no evidence was presented that Warren’s pumps required the use

of internal components made with asbestos in order to operate.

Once the parts were received, shipbuilders integrated them into a complex

steam-propulsion system. Pumps and valves were connected to other components,

such as boilers and piping, with asbestos-containing flange gaskets. Neither Crane

nor Warren produced these flange gaskets. All metal components of the steam-

propulsion system, including miles of piping, were then covered in a layer of

asbestos insulation. This insulation was made and sold by other companies, most

notably Johns Manville. Neither Crane nor Warren produced the external

insulation. The valves and pumps did not need external insulation in order to

function.

The gaskets and packing inside Crane’s valves and Warren’s pumps were

replaced during routine maintenance. No evidence was presented that Warren

ever made or sold these replacement parts. Crane did not manufacture asbestos

packing or gaskets. Although Crane did at one time sell replacement packing and

gaskets for use in maintaining and repairing its valves, these products were

generally shipped under the label of the packing or gasket manufacturer and often

1 However, pumps that were not used for high-temperature applications often

had no asbestos-containing parts. For example, some pumps contained gaskets

made of plant fiber, with plastic packing.

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shipped directly from that manufacturer to the customer. There was no evidence

that the Navy ever purchased replacement gaskets or packing materials from

Crane.

II. Plaintiff’s Exposure to Asbestos

Patrick O’Neil served on the USS Oriskany (Oriskany) from 1965 to 1967.

The Oriskany was a large “Essex class” aircraft carrier carrying up to 4,000 crew

members. The ship was authorized in 1942, launched in 1945, and commissioned

to active service in 1950. Crane and Warren supplied equipment for the

Oriskany’s steam propulsion system in 1943 or earlier, at least 20 years before

O’Neil worked aboard the ship.

Among his other duties on the Oriskany, O’Neil supervised the enlisted

men who repaired equipment in the engine and boiler rooms. This work exposed

him to airborne asbestos fibers. Asbestos-containing products are not dangerous

when intact. The health hazard arises when the products are cut or damaged,

releasing asbestos fibers that can be inhaled. (See San Francisco Unified School

Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1325.) To access a piece

of equipment, repairmen first had to remove the outer layer of insulation, which

generated large amounts of asbestos dust. Removal of the flange gaskets

connecting pumps and valves to other components also produced asbestos dust, as

did removal and replacement of the packing and gaskets inside pumps and valves.

A coworker testified that O’Neil encountered dust from all of these sources. As

early as 1922, the Navy was aware that airborne asbestos could potentially cause

lung diseases. Its industrial hygienists conducted studies on the health effects of

asbestos exposure from the prewar period until well into the 1960’s. Nevertheless,

the Navy did not warn seamen about the hazards of working with asbestos-

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containing materials and did not advise them to wear respirators or take other

precautions during dusty work.2

To the extent O’Neil was exposed to dust generated during work on pumps

and valves, no evidence was presented that any of the asbestos-containing dust

came from a product made by Crane or Warren. Neither company manufactured

or sold the external insulation or flange gaskets that repairmen removed.

Although Crane’s valves and Warren’s pumps contained internal asbestos-

containing gaskets and packing when the Oriskany was built, these original

components had been replaced long before O’Neil boarded the ship 20 years later.

There was no evidence that any of these replacement parts were made by Crane or

Warren.

In 2004, nearly 40 years after he worked on the Oriskany, O’Neil

developed mesothelioma, a fatal cancer of the lining of the lung caused by

asbestos exposure. He died just over a year later, at age 62. In 2006, O’Neil’s

family filed a wrongful death complaint raising strict liability and negligence

claims against several companies that had allegedly supplied asbestos-containing

products to the Navy.

Following the close of evidence, Crane moved for nonsuit on all causes of

action. Among other things, Crane argued there was no evidence O’Neil had been

exposed to asbestos from any Crane product, and no evidence that any product

defect or failure to warn by Crane was a substantial factor in causing O’Neil’s

mesothelioma. Warren joined Crane’s motion and also sought nonsuit on the

ground that no evidence showed O’Neil had been exposed to any asbestos from

the repair or maintenance of a Warren pump. In response, plaintiffs’ counsel

argued that even if O’Neil was not exposed to asbestos released from a Crane or

2 The Navy is immune from liability for injuries arising from the use of

asbestos in shipyards and warships. (Collins v. Plant Insulation Co. (2010) 185

Cal.App.4th 260, 270; Sea-Land Service, Inc. v. United States (3d Cir. 1990) 919

F.2d 888, 892-893.)

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Warren product, these manufacturers bore responsibility for his injuries because

their products originally included asbestos-containing components, and it was

foreseeable that these parts would wear and be replaced with other asbestos-

containing components, and that these repair and maintenance procedures would

release harmful asbestos dust.

The trial court granted the motions and dismissed all claims against Crane

and Warren.3 The court found there was no evidence defendants’ products were

inherently dangerous except for the undisturbed internal asbestos components

some contained. Further, although the nonsuit motions did not raise this ground,

the court found that the component parts doctrine shielded defendants from

liability because the Navy integrated defendants’ nondefective products into a

larger, sophisticated system, and defendants did not control or participate in this

integration process. (See Artiglio v. General Electric Co. (1998) 61 Cal.App.4th

830; Rest.3d Torts, Products Liability, § 5, p. 130.) On appeal, this decision was

reversed.

The Court of Appeal held that the component parts defense applies only to

manufacturers of “multiuse or fungible products” designed to be altered and

incorporated into another product. It then concluded defendants’ products did not

meet these requirements. The Court of Appeal also rejected defendants’ argument

that they could not be found strictly liable because they did not manufacture or

supply the asbestos-containing products that caused O’Neil’s mesothelioma. The

court announced a broad definition of strict products liability: “[A] manufacturer

is liable in strict liability for the dangerous components of its products, and for

dangerous products with which its product will necessarily be used.” Even though

it was replacement gaskets and packing that caused O’Neil’s disease, the court

concluded these replacement parts were “no different” from the asbestos-

3 The court also dismissed claims against Yarway Corporation, a pump

manufacturer that had moved for nonsuit on the same grounds asserted by Crane

and Warren. In January 2009, plaintiffs dismissed their appeal against Yarway.

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containing components originally included in defendants’ products. The court

remarked, “If respondents had warned the hypothetical original user, or protected

that person by avoiding defective design, subsequent users, too, would have been

protected.” The Court of Appeal asserted defendants’ products were defectively

designed “because they required asbestos packing and insulation.” This factual

assertion is unsupported by the record. Trial evidence established that the

requirement for asbestos derived from military specifications, not from any

inherent aspect of defendants’ pump and valve designs.4

We granted review and now reverse.

DISCUSSION

In reviewing a judgment of nonsuit, “we must view the facts in the light

most favorable to the plaintiff. ‘[C]ourts traditionally have taken a very restrictive

view of the circumstances under which nonsuit is proper. The rule is that a trial

court may not grant a defendant’s motion for nonsuit if plaintiff's evidence would

support a jury verdict in plaintiff’s favor. [Citations.] [¶] In determining whether

plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider

the credibility of witnesses. Instead, the evidence most favorable to plaintiff must

be accepted as true and conflicting evidence must be disregarded. The court must

give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . .

indulging every legitimate inference which may be drawn from the evidence in

plaintiff[’s] favor . . . .” ’ [Citation.] The same rule applies on appeal from the

grant of a nonsuit. [Citation.]” (Castaneda v. Olsher (2007) 41 Cal.4th 1205,

1214-1215.)

I. Strict Liability

Strict liability has been imposed for three types of product defects:

manufacturing defects, design defects, and “ ‘warning defects.’ ” (Anderson v.

Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.) The third category

4 Defendants raised this issue in a petition for rehearing, which was denied.

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describes “products that are dangerous because they lack adequate warnings or

instructions.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 428.) A

bedrock principle in strict liability law requires that “the plaintiff’s injury must

have been caused by a ‘defect’ in the [defendant’s] product.” (Daly v. General

Motors Corp. (1978) 20 Cal.3d 725, 733.)

Plaintiffs argue defendants’ products were defective because they included

and were used in connection with asbestos-containing parts. They also contend

defendants should be held strictly liable for failing to warn O’Neil about the

potential health consequences of breathing asbestos dust released from the

products used in connection with their pumps and valves. These claims lack

merit. We conclude that defendants were not strictly liable for O’Neil’s injuries

because (a) any design defect in defendants’ products was not a legal cause of

injury to O’Neil, and (b) defendants had no duty to warn of risks arising from

other manufacturers’ products.

A. No Liability Outside a Defective Product’s Chain of Distribution

From the outset, strict products liability in California has always been

premised on harm caused by deficiencies in the defendant’s own product. We first

announced the rule in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d

57, 62 (Greenman): “A manufacturer is strictly liable in tort when an article he

places on the market, knowing that it is to be used without inspection for defects,

proves to have a defect that causes injury to a human being.” (Italics added.) We

explained that “[t]he purpose of such liability is to insure that the costs of injuries

resulting from defective products are borne by the manufacturers that put such

products on the market rather than by the injured persons who are powerless to

protect themselves.” (Id. at p. 63.) A year later, we extended strict liability to

retailers, reasoning that, as an “integral part of the overall producing and

marketing enterprise,” they too should bear the cost of injuries from defective

products. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262; see also

Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 130 [listing other entities in the

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chain of commerce to whom strict liability has been applied]; Elmore v. American

Motors Corp. (1969) 70 Cal.2d 578, 586 [extending the protection of strict

liability to bystanders].)

Strict liability encompasses all injuries caused by a defective product, even

those traceable to a defective component part that was supplied by another.

(Vandermark v. Ford Motor Co., supra, 61 Cal.2d at p. 261.) However, the reach

of strict liability is not limitless. We have never held that strict liability extends to

harm from entirely distinct products that the consumer can be expected to use

with, or in, the defendant’s nondefective product. Instead, we have consistently

adhered to the Greenman formulation requiring proof that the plaintiff suffered

injury caused by a defect in the defendant’s own product. (Cronin v. J.B.E. Olson

Corp., supra, 8 Cal.3d at pp. 131-135.) Regardless of a defendant’s position in the

chain of distribution, “the basis for his liability remains that he has marketed or

distributed a defective product” (Daly v. General Motors Corp., supra, 20 Cal.3d

at p. 739), and that product caused the plaintiff’s injury.

In Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1189, the plaintiff

was injured when she fell in a hotel bathtub. We concluded it would be improper

to impose strict liability on the hotel proprietor for injuries caused by an alleged

defect in hotel premises that the proprietor did not build or market. (Id. at

p. 1188.) We stressed that strict products liability should be imposed only on

those entities responsible for placing a defective product into the stream of

commerce. (Id. at pp. 1198-1199.) Because those outside the marketing

enterprise “generally ha[ve] no ‘continuing business relationship’ with the

manufacturer of the defective product,” they “cannot exert pressure upon the

manufacturer to make the product safe and cannot share with the manufacturer the

costs of insuring the safety” of the product’s user. (Id. at p. 1199.) We also

observed that, although many potentially defective products are used in a hotel or

restaurant setting, “[t]he mere circumstance that it was contemplated customers of

these businesses would use the products . . . or be benefited by them does not

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transform the owners of the businesses into the equivalent of retailers of the

products. [Citation.]” (Id. at pp. 1199-1200.) The mere foreseeability of injury to

users of a defective product was not sufficient justification for imposing strict

liability outside the stream of commerce.

In this case, it is undisputed that O’Neil was exposed to no asbestos from a

product made by the defendants. Although he was exposed to potentially high

levels of asbestos dust released from insulation the Navy had applied to the

exterior of the pumps and valves, Crane and Warren did not manufacture or sell

this external insulation. They did not mandate or advise that it be used with their

products. O’Neil was also exposed to asbestos from the replacement gaskets and

packing inside the pumps and valves. Yet, uncontroverted evidence established

that these internal components were not the original parts supplied by Crane and

Warren. They were replacement parts the Navy had purchased from other

sources.5

It is fundamental that the imposition of liability requires a showing that the

plaintiff’s injuries were caused by an act of the defendant or an instrumentality

under the defendant’s control. (Sindell v. Abbott Laboratories (1980) 26 Cal.3d

588, 597.) “A manufacturer is liable only when a defect in its product was a legal

cause of injury.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.)

Although the internal gaskets and packing originally supplied with defendants’

products contained asbestos, none of these original parts remained on board the

Oriskany by the time O’Neil arrived decades later. Accordingly, even assuming

the inclusion of asbestos makes a product defective, no defect inherent in

defendants’ pump and valve products caused O’Neil’s disease.

Nor does the record support plaintiffs’ claim that defendants’ products were

defective because they were “designed to be used” with asbestos-containing

5 Although Crane did at one time sell replacement gaskets and packing, there

is no evidence the Navy ever purchased these replacement parts from Crane or

installed them on the Oriskany.

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components. The products were designed to meet the Navy’s specifications.

Moreover, there was no evidence that defendants’ products required asbestos-

containing gaskets or packing in order to function. Plaintiffs’ assertion to the

contrary is belied by evidence that defendants made some pumps and valves

without asbestos-containing parts. As alternative insulating materials became

available, the Navy could have chosen to replace worn gaskets and seals in

defendants’ products with parts that did not contain asbestos. Apart from the

Navy’s specifications, no evidence showed that the design of defendants’ products

required the use of asbestos components, and their mere compatibility for use with

such components is not enough to render them defective.6

Plaintiffs and some amici curiae also suggest that defendants’ products

were defective because they became hot during high-temperature applications, and

this heat “baked on” the thermal insulation, causing asbestos in the insulation to

become “friable.” Friable insulation materials may crumble and release respirable

asbestos fibers into the air. (San Francisco Unified School Dist. v. W.R. Grace &

Co., supra, 37 Cal.App.4th at p. 1325.) Of course, a high operating temperature

was unavoidable given the intended use of these pumps and valves. Because

transferring heat was integral to the products’ functioning, it cannot be labeled a

“defect.” (See Rest.2d Torts, § 402A, com. i, p. 352 [for strict liability to apply,

“[t]he article sold must be dangerous to an extent beyond that which would be

6 A stronger argument for liability might be made in the case of a product

that required the use of a defective part in order to operate. In such a case, the

finished product would inevitably incorporate a defect. One could argue that

replacement of the original defective part with an identically defective one

supplied by another manufacturer would not break the chain of causation.

Similarly, if the product manufacturer specified or required the use of a defective

replacement part, a stronger case could be made that the manufacturer’s failure to

warn was a proximate cause of resulting injury. In both contexts, however, the

policy rationales against imposing liability on a manufacturer for a defective part it

did not produce or supply would remain. (See post, at pp. 29-30.) These difficult

questions are not presented in the case before us, and we express no opinion on

their appropriate resolution.

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contemplated by the ordinary consumer who purchases it, with the ordinary

knowledge common to the community as to its characteristics”].) Moreover, the

product that had the propensity to become friable and release a hazardous

substance was the asbestos-containing thermal insulation made by other

manufacturers and applied by others to defendants’ pumps and valves. The

defective product in this setting was the asbestos insulation, not the pumps and

valves to which it was applied after defendants’ manufacture and delivery.

B. No Duty to Warn of Defects in Another Manufacturer’s Product

Plaintiffs also argue that defendants had a duty to warn O’Neil about the

hazards of asbestos because the release of asbestos dust from surrounding products

was a foreseeable consequence of maintenance work on defendants’ pumps and

valves.

1. General Principles

“Generally speaking, manufacturers have a duty to warn consumers about

the hazards inherent in their products. (Anderson [v. Owens-Corning Fiberglas

Corp.], supra, 53 Cal.3d at p. 1003.) The requirement’s purpose is to inform

consumers about a product’s hazards and faults of which they are unaware, so that

they can refrain from using the product altogether or evade the danger by careful

use. (Ibid.) Typically, under California law, we hold manufacturers strictly liable

for injuries caused by their failure to warn of dangers that were known to the

scientific community at the time they manufactured and distributed their product.

[Citations.]” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64-65.)

However, we have never held that a manufacturer’s duty to warn extends to

hazards arising exclusively from other manufacturers’ products. A line of Court

of Appeal cases holds instead that the duty to warn is limited to risks arising from

the manufacturer’s own product.

In Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634, 636-637, an

explosion resulted from a leak in the propane gas tubing system attached to the

defendant’s nondefective stove. The Court of Appeal held that the stove

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manufacturer had no duty to warn about the potential for gas leaks from other

products, even though the explosion was ignited by a flame on the stove. It

explained: “The use of any product can be said to involve some risk because of

the circumstances surrounding even its normal use. Nonetheless, the makers of

such products are not liable under any theory, for merely failing to warn of injury

which may befall a person who uses that product in an unsafe place or in

conjunction with another product which because of a defect or improper use is

itself unsafe.” (Id. at p. 638.) In Blackwell v. Phelps Dodge Corp. (1984) 157

Cal.App.3d 372, 375, workers were injured by the explosion of a tank car filled

with sulfuric acid. The plaintiffs alleged the tank car was defective because it

allowed pressure to build in the cargo compartment. They further claimed the

sulfuric acid supplier had a duty to warn them of possible harm from a defective

container. (Id. at p. 377.) The court rejected this theory, explaining that “[w]hile

failure to warn may create liability for harm caused by use of an unreasonably

dangerous product, that rule does not apply where it was not any unreasonably

dangerous condition or feature of defendant’s product which caused the injury.

[Citation.]” (Ibid.)

The decision in Powell v. Standard Brands Paint Co. (1985) 166

Cal.App.3d 357 is relevant to plaintiffs’ claim that defendants had a duty to warn

O’Neil of the hazardous nature of replacement gaskets and packing. In Powell,

workers were injured in an explosion caused by use of an electric buffer with

lacquer thinner. (Id. at p. 361.) Although they had used the defendant’s lacquer

thinner earlier in the job, on the day of the explosion they were using thinner made

by another manufacturer. (Ibid.) The Court of Appeal rejected the workers’

argument that the defendant should be liable for failing to warn them about the

flammable nature of lacquer thinner, noting, “no reported decision has held a

manufacturer liable for its failure to warn of risks of using its product, where it is

shown that the immediate efficient cause of injury is a product manufactured by

someone else.” (Id. at p. 362.) The defendant owed a duty to warn about

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hazardous characteristics of its own lacquer thinner, and had breached that duty by

failing to provide a warning, but it bore no liability because “the immediate

efficient cause” of the workers’ injuries was the explosion of a product made by

someone else. (Id. at p. 363; see Sindell v. Abbott Laboratories, supra, 26 Cal.3d

at p. 597.)7

So too here. Crane and Warren gave no warning about the dangers of

asbestos in the gaskets and packing originally included in their products.

However, O’Neil never encountered these original parts. His exposure to asbestos

came from replacement gaskets and packing and external insulation added to

defendants’ products long after their installation on the Oriskany. There is no

dispute that these external and replacement products were made by other

manufacturers. “[N]o case law . . . supports the idea that a manufacturer, after

selling a completed product to a purchaser, remains under a duty to warn the

purchaser of potentially defective additional pieces of equipment that the

purchaser may or may not use to complement the product bought from the

manufacturer.” (In re Deep Vein Thrombosis (N.D.Cal. 2005) 356 F.Supp.2d

1055, 1068.)8

7 Although the Powell court expounded at length on the legal and policy

rationales for limiting a manufacturer’s duty to warn to harms arising from its own

product, and endeavored to describe the limited circumstances under which

liability for failure to warn could extend to injuries caused by a “generically

identical” product with the same risks as the manufacturer’s product (Powell v.

Standard Brands Paint Co., supra, 166 Cal.App.3d at pp. 363-365), the court did

not decide whether such liability could be imposed in the case before it because

this theory had not been pleaded in the complaint. (Id. at pp. 365-366.)

8 In In re Deep Vein Thrombosis, passengers who allegedly developed injury

from defective airline seating sued the airplane manufacturer, Boeing Company.

The evidence showed that Boeing manufactured planes with no installed seating;

instead, airlines purchased seating from a separate manufacturer and installed the

seats without Boeing’s involvement. (In re Deep Vein Thrombosis, supra, 356

F.Supp.2d at pp. 1058-1059.) The district court held Boeing had no duty to warn

the airlines or passengers about the risk of injury from unsafe seating designs. (Id.

at pp. 1067-1069.)

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Decisions from other jurisdictions are in accord. Rastelli v. Goodyear Tire

& Rubber Co. (1992) 79 N.Y.2d 289 [591 N.E.2d 222] (Rastelli) and Baughman v.

General Motors Corp. (4th Cir. 1986) 780 F.2d 1131 (Baughman) both involved

injuries resulting from the explosion of a multipiece wheel rim during a tire

change. In Rastelli, the plaintiff sued the tire manufacturer, arguing that Goodyear

should have warned about the inherent dangers of multipiece rims because its tires

were compatible for use with such rims. (Rastelli, 591 N.E.2d at p. 225.) New

York’s highest court refused to impose such a duty based solely on foreseeability.

The court stressed that Goodyear had no control over the defective rim’s

production or marketing, it derived no benefit from the rim’s sale, and Goodyear’s

own product did not create the defect or combine with the rim to create a

hazardous condition that did not previously exist. (Id. at pp. 225-226.) The

plaintiff in Baughman sued a vehicle manufacturer on the theory that, even though

General Motors did not make the wheel that exploded, the company shipped its

trucks with a similar type of wheel that was also dangerous. (Baughman, at

p. 1132.) A federal court of appeals rejected this argument for the same reasons

expressed by the New York court: “Where, as here, the defendant manufacturer

did not incorporate the defective component part into its finished product and did

not place the defective component into the stream of commerce, the rationale for

imposing liability is no longer present. The manufacturer has not had an

opportunity to test, evaluate, and inspect the component; it has derived no benefit

from its sale; and it has not represented to the public that the component part is its

own.” (Id. at pp. 1132-1133; see also Brown v. Drake-Willock Internat., Ltd.

(1995) 209 Mich.App.136, 145, 149 [530 N.W.2d 510, 514, 516] [manufacturer of

a dialysis machine had no duty to warn about the health risks of formaldehyde

used to clean the machine].)

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2. Application in the Asbestos Context

a. The Taylor v. Elliott Turbomachinery Co. Decision

In 2009, the First District Court of Appeal addressed the very question

presented here. In Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171

Cal.App.4th 564, 571-572 (Taylor), a serviceman developed mesothelioma from

his exposure to asbestos on a warship. Like O’Neil, Taylor worked in the ship’s

engine room. In the course of his duties, Taylor sometimes removed and replaced

the internal gaskets, packing, and insulation pads used in pumps and valves.

(Ibid.) After his death, Taylor’s family sued the manufacturers of these pumps

and valves.9 They argued, as plaintiffs do here, “that a ‘manufacturer has a duty to

warn of hazards arising from the foreseeable uses of its product, even if that

hazard arises from the addition of a product that, although manufactured by

another, is used in the normal and intended operation of the defendant’s

product.’ ” (Taylor, at pp. 572-573.) The Court of Appeal determined that pump

and valve manufacturers could not be held strictly liable for failing to warn about

the dangers of asbestos exposure. It gave three reasons for this conclusion.

“First, California law restricts the duty to warn to entities in the chain of

distribution of the defective product.” (Taylor, supra, 171 Cal.App.4th at p. 575.)

Based on authorities discussed above, including Peterson v. Superior Court,

9 Crane and Warren were among the defendants. (Taylor, supra, 171

Cal.App.4th at p. 570, fn. 1.) Some commentators have observed that, due to the

bankruptcies of Johns Manville and other major suppliers of asbestos-containing

products, asbestos personal injury litigants have shifted their focus in the past

decade to “ever-more peripheral defendants,” like pump and valve manufacturers.

(Calnan & Stier, Perspectives on Asbestos Litigation: Overview and Preview

(2008) 37 Sw.U. L. Rev. 459, 463; see also Stephen J. Carroll et al., Asbestos

Litigation (RAND Inst. for Civil Justice 2005) p. xxiii

<http://www.rand.org/pubs/monographs/2005/RAND_MG162.pdf> [as of January

12, 2012] [in the late 1990’s, bankruptcy-related litigation stays drove plaintiffs

“to press peripheral non-bankrupt defendants to shoulder a larger share of the

value of asbestos claims and to widen their search for other corporations that

might be held liable”].)

17

supra, 10 Cal.4th 1185, and Soule v. General Motors Corp., supra, 8 Cal.4th 548,

the Taylor court observed that our strict products liability precedents have

recognized “a bright-line legal distinction” imposing liability only on those entities

responsible for placing an injury-producing product into the stream of commerce.

(Taylor, at p. 576.) The pump and valve manufacturers could not be strictly liable

for failure to warn, the court concluded, because these companies “were not part

of the ‘chain of distribution’ of the gaskets, packing, discs, and insulation that Mr.

Taylor encountered.” (Id. at p. 579.)

Second, in a related holding, the Court of Appeal determined that “in

California, a manufacturer has no duty to warn of defects in products supplied by

others and used in conjunction with the manufacturer’s product unless the

manufacturer’s product itself causes or creates the risk of harm.” (Taylor, supra,

171 Cal.App.4th at p. 575.) The court rejected the notion that a manufacturer has

a duty to warn whenever the intended use of its product will expose consumers to

risks arising from the product of another. (Id. at p. 580.) Relying on analogous

failure to warn cases, the court concluded that, in general, a manufacturer’s duty to

warn is limited to the dangerous propensities of its own products. (Id. at pp. 580-

583; see Garman v. Magic Chef, Inc., supra, 117 Cal.App.3d 634, Blackwell v.

Phelps Dodge Corp., supra, 157 Cal.App.3d 372; Powell v. Standard Brands

Paint Co., supra, 166 Cal.App.3d 357; see also In re Deep Vein Thrombosis,

supra, 356 F.Supp.2d 1055.) “Although a manufacturer may owe a duty to warn

when the use of its product in combination with the product of another creates a

potential hazard, that duty arises only when the manufacturer’s own product

causes or creates the risk of harm.” (Taylor, at p. 580.)

Third, the Taylor court determined that the component parts doctrine

provided an alternate basis for concluding the pump and valve manufacturers

owed no duty to warn about the dangers of asbestos. (Taylor, supra, 171

Cal.App.4th at pp. 584-586.) The component parts doctrine provides that the

manufacturer of a component part is not liable for injuries caused by the finished

18

product into which the component has been incorporated unless the component

itself was defective and caused harm. (Jimenez v. Superior Court (2002) 29

Cal.4th 473, 480-481; Rest.3d Torts, Products Liability, § 5(a), p. 130; Taylor, at

p. 575.) Based on evidence that the pumps and valves were designed to operate

“as part of a larger ‘marine steam propulsion system’ ” (Taylor, at p. 584), the

court concluded the manufacturers could be held liable only if defects in these

components caused injury or if the manufacturers participated in the integration of

their pumps and valves into the ship’s propulsion system. (Id. at p. 585.) Because

neither of these requirements was met, the manufacturers could not be held liable

for asbestos-induced injuries. (Ibid.)10

b. Out-of-state Decisions

As additional support for its holdings, the Taylor court discussed a pair of

asbestos cases from Washington state and a federal case from Ohio. These

decisions are instructive.

In Simonetta v. Viad Corp. (2008) 165 Wn.2d 341, 345 [197 P.3d 127, 129]

(Simonetta), the Washington Supreme Court proposed to answer “whether under

the common law a manufacturer can be held liable for failure to warn of the

hazards of another manufacturer’s product.” When Simonetta served as a fireman

and machinist aboard a Navy vessel from 1958 to 1959, he performed

maintenance on a seawater evaporator manufactured by the defendant’s

predecessor. The evaporator was insulated with asbestos mud and cloth, and

Simonetta had to remove this insulation to service the machine. (Id., 197 P.3d at

p. 130.) Over 40 years later, Simonetta developed lung cancer and sued. He

claimed the evaporator manufacturer had a duty to warn about the dangers of

10 In so finding, the court rejected an argument that the component parts

doctrine shields only manufacturers of “fungible, multi-use components.” (Taylor,

supra, 171 Cal.App.4th at p. 584.) We express no opinion on whether the pumps

and valves used in marine propulsion systems are “fungible,” or whether the

component parts defense is limited to fungible products.

19

respirable asbestos because it knew or reasonably should have known that asbestos

would be used to insulate its product and would have to be removed in the course

of normal maintenance and repairs. (Ibid.) An intermediate appellate court

accepted this argument, holding 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.’ ” (Ibid.)

Washington’s highest court disagreed. It held that the duty to warn, in negligence

or strict liability, extends only to those entities in the chain of distribution of a

hazardous product. (197 P.3d at pp. 133-134, 138.) Because the hazardous

product was the asbestos insulation applied to the evaporator, not the evaporator

itself, and because the defendant did not manufacture, sell, or supply this asbestos

insulation, the defendant had no duty to warn about the dangers of asbestos

exposure. (Id. at p. 138.)

While Simonetta speaks to liability for injuries arising from external

insulation, its companion case, Braaten v. Saberhagen Holdings (2008) 165

Wn.2d 373 [198 P.3d 493] (Braaten), also addressed the problem of injuries

arising from asbestos-containing replacement parts. Braaten, a pipefitter on Navy

ships, was exposed to asbestos from 1967 until the early 1980’s. Braaten

performed regular maintenance on steam pumps and valves, which required him to

remove and replace asbestos-containing external insulation, gaskets, and packing.

(Id., 198 P.3d at p. 496.) He developed mesothelioma in 2003 and sued several

pump and valve manufacturers, arguing they had a duty to warn him about the

dangers of exposure to asbestos in external insulation and in replacement packing

and gaskets. Although the defendants’ products had originally included asbestos-

containing packing and gaskets, these parts had been replaced several times before

Braaten encountered the pumps and valves. The defendants did not manufacture

or sell these replacement parts. (Id. at pp. 495-496.) The Washington Supreme

Court concluded that the holding in Simonetta applied equally to internal asbestos-

containing components made by others: “[T]he general rule that there is no duty

20

under common law products liability or negligence principles to warn of the

dangers of exposure to asbestos in other manufacturers’ products applies with

regard to replacement packing and gaskets. The defendants did not sell or supply

the replacement packing or gaskets or otherwise place them in the stream of

commerce, did not specify asbestos-containing packing and gaskets for use with

their valves and pumps, and other types of materials could have been used.”

(Braaten, at pp. 495-496.) Accordingly, the court held that pump and valve

makers had no duty to warn about the risks of exposure to asbestos, either from

thermal insulation applied to their products by the Navy or from replacement

gaskets and packing materials. (Id. at p. 503.)

The Simonetta and Braaten decisions both discussed Lindstrom v. A-C

Product Liability Trust (6th Cir. 2005) 424 F.3d 488 (Lindstrom), a case involving

very similar facts. Lindstrom, a merchant seaman, developed mesothelioma after

years of working in the engine rooms of numerous ships. (Id. at p. 491.) After the

federal district court dismissed his claims against certain pump and valve

manufacturers, Lindstrom appealed. As in the Washington cases, and here,

Lindstrom alleged he was exposed to asbestos-containing gaskets and packing

materials when he worked on pumps and valves, but the evidence established that

all of this exposure was to replacement parts manufactured by other companies.

The gaskets and packing originally supplied with the pumps and valves had been

replaced several times before Lindstrom worked on the defendants’ products. (Id.

at pp. 494-497.) The Court of Appeals for the Sixth Circuit upheld dismissal of

the pump and valve manufacturers, ruling insufficient evidence connected

Lindstrom with asbestos released from the defendants’ products. “Lindstrom

almost certainly could not have handled the original packing or gasket material,

and this fact compels the conclusion that any asbestos that he may have been

exposed to in connection with [the defendant’s] product would be attributable to

some other manufacturer.” (Id. at p. 495.) The court did not consider whether a

duty to warn could ever extend to replacement parts, but rejected Lindstrom’s

21

claims as simply lacking in causation. It reasoned that a manufacturer “cannot be

held responsible for material ‘attached or connected’ to its product” (ibid.) or

otherwise “incorporated into its product post-manufacture.” (Id. at p. 497; see also

Stark v. Armstrong World Indus., Inc. (6th Cir. 2001) 21 Fed.Appx. 371, 378,

381.)

The issue of liability for replacement parts has also arisen in other types of

asbestos cases. In Ford Motor v. Wood (1998) 119 Md.App. 1, 33 [703 A.2d

1315, 1330], family members of mechanics who died of mesothelioma sued an

auto manufacturer for failing to warn about the dangers involved in replacing

asbestos-containing brakes and clutches on its vehicles. It was undisputed that the

mechanics were exposed to asbestos from replacement parts and not from the

original brakes and clutches shipped in Ford vehicles. (Ibid.) A Maryland

appellate court refused to hold Ford strictly liable and rejected the plaintiffs’

belatedly raised failure to warn theory, concluding Ford had no duty to warn about

the dangers of a product it did not place into the stream of commerce. (703 A.2d

at p. 1332.) 11 Similarly, a federal court in Illinois refused to hold an aircraft

manufacturer liable for injuries caused by a repairman’s exposure to asbestos-

containing replacement parts. (Niemann v. McDonnell Douglas Corp. (S.D.Ill.

1989) 721 F.Supp. 1019.) The district court found it of no moment that the

defendant had originally installed asbestos chafing strips on its airplanes because

these strips had been replaced many times before the repairman’s exposure, and

the defendant did not supply the replacement strips. (Id. at pp. 1029-1030.)

Reliance on the “adjacent products” theory of liability was stretched

perhaps the farthest in Macias v. Mine Safety Appliances Co. (2010) 158 Wn.App.

11 Contrary to the plaintiffs’ assertion on appeal, the case had not been tried or

submitted to the jury on the theory that Ford had a duty to warn about hazards in

replacement brakes and clutches. (Ford Motor v. Wood, supra, 703 A.2d at

pp. 1330-1331.) The court observed that, even assuming the issue had been

properly preserved, “we would not find liability under that theory as a matter of

law.” (Id. at p. 1331.)

22

931 [244 P.3d 978]. Macias, a tool keeper, used respirators made by different

companies to mitigate exposure to asbestos and other toxic dust and fumes. (Id.,

244 P.3d at p. 979.) When Macias developed mesothelioma, he sued the respirator

makers for failing to warn him about the dangers of exposure to asbestos dust. On

discretionary review from a denial of summary judgment, the Washington

appellate court observed that the connection between the defendants’ products and

the plaintiff’s asbestos exposure was “even more remote” than in Simonetta and

Braaten. (Macias, 244 P.3d at p. 982.) Because the respirator manufacturers did

not manufacture, sell, or supply the asbestos that harmed Macias, and thus were

not in the chain of distribution of a harmful product, the court held they had no

duty to warn about the dangers of asbestos. (244 P.3d at p. 983.) The court

stressed that a duty to warn arises when the manufacturer is in a harmful product’s

chain of distribution. It declined to extend that duty when the purpose of the

defendant’s product is to prevent exposure to a hazardous substance. The

foreseeability that customers will have such exposure is not enough to establish a

duty to warn: “The respirator manufacturers’ ability to foresee that their products

would be used in tandem with hazardous substances like asbestos, and that

cleaning and maintaining their respirators might expose workers to asbestos, does

not give rise to a duty to warn under [Rest.2d Torts] section 388 where the

respirator manufacturers were not involved in manufacturing, supplying, or

distributing the asbestos.” (Ibid.; see also Simonetta, supra, 197 P.3d at p. 131, fn.

4 [“ ‘Foreseeability does not create a duty but sets limits once a duty is

established.’ ”].)

3. Plaintiffs’ Authorities Are Distinguishable

The Court of Appeal here disagreed with Taylor and ignored the out-of-

state decisions discussed above. Instead, the court relied on its own prior decision

in Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129

Cal.App.4th 577 (Tellez-Cordova), and two other Court of Appeal opinions, as

support for its conclusion that “a manufacturer is liable in strict liability for the

23

dangerous components of its products, and for dangerous products with which its

product will necessarily be used.” (Italics added.) The reliance is misplaced.

These cases do not support the broad expansion of strict liability law proposed in

the second clause of the Court of Appeal’s holding.

In DeLeon v. Commercial Manufacturing & Supply Co. (1983) 148

Cal.App.3d 336, 340 (DeLeon), the question was whether “custom-made factory

equipment which is safe to use in some locations [is] ‘defective’ because in a

particular location its use may bring the operator in contact with an adjacent

rotating line shaft built and maintained by the plant owners.” DeLeon was injured

when she was cleaning the defendant’s shaker bin and her arm became tangled in

an exposed rotating line shaft located above the bin. (Id. at pp. 340-341.) She

sued both her employer, which had designed and installed the line shaft, and the

manufacturer of the shaker bin. On appeal from the manufacturer’s dismissal on

summary judgment, the court found a triable issue of fact regarding whether the

bin’s designed proximity to the line shaft presented an “ ‘excessive preventable

danger.’ ” (Id. at p. 344.) Because the intended use of the bin included periodic

cleaning, the court reasoned that the bin’s dimensions and its placement near an

exposed line shaft arguably constituted design defects and gave rise to a duty to

warn. (Id. at pp. 346, 348-349.)

In some respects, DeLeon’s facts resemble those presented here. Like

DeLeon, O’Neil suffered a foreseeable injury not from the defendant’s product,

but from another manufacturer’s product located nearby. An important difference,

however, is that the bin manufacturer in DeLeon was heavily involved in creating

the dangerous condition that gave rise to the plaintiff’s injury. DeLeon’s injury

resulted not from any intrinsic defect in the bin or the line shaft, but in the

dangerous proximity of these two products. The bin manufacturer contributed to

this dangerous condition because it designed the bin specifically for use in the

particular site where it was located. (DeLeon, supra, 148 Cal.App.3d at pp. 341-

342, 345.) The bin’s designer visited the site but “never noticed the shaft

24

overhead, did not know what it was,” and did not investigate to determine whether

it presented a safety hazard. (Id. at p. 341.)

The DeLeon court itself observed that the case did not pose “a clear-cut

legal question of component part liability,” but instead presented “a factual issue

of [the manufacturer’s] involvement in design which will permit variations in the

applicable rules of law depending upon how the trier of fact determines the extent

of [the manufacturer’s] design responsibility.” (DeLeon, supra, 148 Cal.App.3d at

p. 343.) The case is distinguishable on its facts and offers no rule of law

supporting plaintiffs’ position. “There is nothing in DeLeon that suggests that a

manufacturer may be liable for failing to warn of the dangerous qualities of

another manufacturer’s product.” (Taylor, supra, 171 Cal.App.4th at pp. 589-

590.)

Plaintiffs’ reliance on Wright v. Stang Manufacturing Co. (1997) 54

Cal.App.4th 1218 likewise fails. Firefighter Wright was injured when a deck gun

he was using broke loose from its mounting assembly under high water pressure.

(Id. at pp. 1222-1223.) Even though the deck gun itself did not break or “fail” in

the accident, the Court of Appeal found a triable issue as to whether the gun was

defectively designed because it did not include a “flange” mounting system and

was not compatible for use with this safer mounting system. (Id. at p. 1229.) The

court also concluded that the deck gun manufacturer could be liable for failing to

warn users about the danger that could result from a foreseeable mismatch of the

deck gun with inadequate attachment parts. (Id. at p. 1236.) Wright is factually

distinguishable because the plaintiff was injured due to a failure of the entire deck

gun assembly, of which the defendant’s product was a component part. His injury

was not traceable to a single product made by another manufacturer; it was

allegedly caused by a foreseeable failure of the entire system to withstand high

water pressure. An interpretation of Wright that would require a manufacturer to

warn about all potentially hazardous conditions surrounding the use of a product,

even when those hazards arise entirely from the product of another manufacturer,

25

reaches too far. There is no precedent in California law for such a broad

expansion of a product manufacturer’s duty.

Finally, the Court of Appeal below maintained that the result here was

controlled by its prior decision in Tellez-Cordova, supra, 129 Cal.App.4th 577.

We disagree. Tellez-Cordova is distinguishable on its facts, and its holding does

not create a broader duty for manufacturers to warn about hazards arising solely

from other products.

Tellez-Cordova developed lung disease from breathing toxic substances

released from metals he cut and sanded and from abrasive discs on the power tools

he used. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 579.) He sued

manufacturers of these tools, arguing they were “specifically designed” to be used

with abrasive discs for grinding and sanding metals, and it was therefore

reasonably foreseeable that toxic dust would be released into the air when the tools

were used for their intended purpose. (Id. at p. 580.) Relying on Garman v.

Magic Chef, Inc., supra, 117 Cal.App.3d 634, and Powell v. Standard Brands

Paint Co., supra, 166 Cal.App.3d 357, the tool manufacturers argued California

law imposed no duty on them to warn of hazards in the product of another.

(Tellez-Cordova, at p. 585.) The tools themselves released no hazardous dust; the

dust came from the abrasive discs that were attached to the tools and the metals

they contacted. However, the Court of Appeal remarked that this argument

“misse[d] the point,” because the intended purpose of the tools was to abrade

surfaces, and toxic dust was a foreseeable by-product of this activity. According

to the complaint’s allegations, “the tools had no function without the abrasives

which disintegrated into toxic dust,” and “the abrasive products were not

dangerous without the power of the tools.” (Ibid.)

The facts in Tellez-Cordova differed from the present case in two

significant respects. First, the power tools in Tellez-Cordova could only be used in

a potentially injury-producing manner. Their sole purpose was to grind metals in a

process that inevitably produced harmful dust. In contrast, the normal operation of

26

defendants’ pumps and valves did not inevitably cause the release of asbestos dust.

This is true even if “normal operation” is defined broadly to include the dusty

activities of routine repair and maintenance, because the evidence did not establish

that defendants’ products needed asbestos-containing components or insulation to

function properly. It was the Navy that decided to apply asbestos-containing

thermal insulation to defendants’ products and to replace worn gaskets and

packing with asbestos-containing components. Second, it was the action of the

power tools in Tellez-Cordova that caused the release of harmful dust, even

though the dust itself emanated from another substance. Tellez-Cordova is

arguably an example of a “case where the combination of one sound product with

another sound product creates a dangerous condition about which the

manufacturer of each product has a duty to warn [citation].” (Rastelli, supra, 591

N.E.2d at p. 226.) The same is not true here. The asbestos dust that injured

O’Neil came from thermal insulation and replacement gaskets and packing made

by other manufacturers. Nothing about defendants’ pumps and valves caused or

contributed to the release of this dust. The Court of Appeal here characterized

Tellez-Cordova as holding “that a manufacturer is liable when its product is

necessarily used in conjunction with another product, and when danger results

from the use of the two products together.” In this case, neither requirement was

met. Defendants’ pumps and valves were not “necessarily” used with asbestos

components, and danger did not result from the use of these products “together.”

The hazardous dust to which O’Neil was exposed resulted entirely from work

performed on asbestos products that defendants did not manufacture, sell, or

supply. The Court of Appeal’s extension of Tellez-Cordova beyond its unique

factual context could easily lead to absurd results. It would require match

manufacturers to warn about the dangers of igniting dynamite, for example.

Moreover, as noted, 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. Were it otherwise,

27

manufacturers of the saws used to cut insulation would become the next targets of

asbestos lawsuits. Recognizing a duty to warn was appropriate in Tellez-Cordova

because there the defendant’s product was intended to be used with another

product for the very activity that created a hazardous situation. Where the

intended use of a product inevitably creates a hazardous situation, it is reasonable

to expect the manufacturer to give warnings. Conversely, where the hazard arises

entirely from another product, and the defendant’s product does not create or

contribute to that hazard, liability is not appropriate. We have not required

manufacturers to warn about all foreseeable harms that might occur in the vicinity

of their products. “From its inception, . . . strict liability has never been, and is not

now, absolute liability. As has been repeatedly expressed, under strict liability the

manufacturer does not thereby become the insurer of the safety of the product’s

user. [Citations.]” (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 733.)

4. Conclusion

We reaffirm that a product manufacturer generally may not be held strictly

liable for harm caused by another manufacturer’s product. The only exceptions to

this rule arise when the defendant bears some direct responsibility for the harm,

either because the defendant’s own product contributed substantially to the harm

(see Tellez-Cordova, supra, 129 Cal.App.4th at p. 585), or because the defendant

participated substantially in creating a harmful combined use of the products (see

DeLeon, supra, 148 Cal.App.3d at p. 343).

Plaintiffs here seek to expand these exceptions to make manufacturers

strictly liable when it is foreseeable that their products will be used in conjunction

with defective products or replacement parts made or sold by someone else.

However, the foreseeability of harm, standing alone, is not a sufficient basis for

imposing strict liability on the manufacturer of a nondefective product, or one

whose arguably defective product does not actually cause harm. (Cf. Peterson v.

Superior Court, supra, 10 Cal.4th at pp. 1199-1200 [refusing to extend strict

liability to hotel operators based on “[t]he mere circumstance that it was

28

contemplated” that occupants would use potentially defective products installed in

their rooms].) Generally, foreseeability is relevant in a strict liability analysis to

determine whether injury is likely to result from a potential use or misuse of a

product. (See Daly v. General Motors Corp., supra, 20 Cal.3d at p. 733.) That the

defendant manufactured, sold, or supplied the injury-causing product is a separate

and threshold requirement that must be independently established. Moreover, in

strict liability as in negligence, “foreseeability alone is not sufficient to create an

independent tort duty.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 552; cf. Artiglio

v. General Electric Co., supra, 61 Cal.App.4th at pp. 838-839 [foreseeability of

harm from a finished product is not sufficient to impose a duty to warn on a

component part manufacturer]; Taylor, supra, 171 Cal.App.4th at p. 586 [same].)

Generally, foreseeability is relevant in a strict liability analysis to determine

whether injury is likely from a potential use or misuse of a product. (See Daly v.

General Motors Corp., supra, 20 Cal.3d at p. 733.)

The question whether to apply strict liability in a new setting is largely

determined by the policies underlying the doctrine. (Anderson v. Owens-Corning

Fiberglas Corp., supra, 53 Cal.3d at p. 995.) “[T]he strict liability doctrine

derives from judicially perceived public policy considerations and therefore

should not be expanded beyond the purview of these policies.” (Bay Summit

Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 774.) The

conclusion we reach here is most consistent with the policies the strict liability

doctrine serves. Although “an important goal of strict liability is to spread the

risks and costs of injury to those most able to bear them” (Anderson, at p. 1003),

“it was never the intention of the drafters of the doctrine to make the manufacturer

or distributor the insurer of the safety of their products. It was never their

intention to impose absolute liability.” (Id. at pp. 1003-1004.) Like the landlords

and hotel owners we excused from strict liability in Peterson v. Superior Court,

supra, 10 Cal.4th at page 1199, product manufacturers “generally ha[ve] no

‘continuing business relationship’ ” with each other. (See Vandermark v. Ford

29

Motor Co., supra, 61 Cal.2d at p. 263.) This means that a manufacturer cannot be

expected to exert pressure on other manufacturers to make their products safe and

will not be able to share the costs of ensuring product safety with these other

manufacturers. (Peterson v. Superior Court, at p. 1199.) It is also unfair to

require manufacturers of nondefective products to shoulder a burden of liability

when they derived no economic benefit from the sale of the products that injured

the plaintiff.

A contrary rule would require manufacturers to investigate the potential

risks of all other products and replacement parts that might foreseeably be used

with their own product and warn about all of these risks. “It does not comport

with principles of strict liability to impose on manufacturers the responsibility and

costs of becoming experts in other manufacturers’ products.” (Braaten, supra,

198 P.3d at p. 502.) Such a duty would impose an excessive and unrealistic

burden on manufacturers. (See Baughman, supra, 780 F.2d at p. 1133; see also

Braaten, at p. 502 [evidence showed that more than 60 types of packing were

approved for naval use].) Perversely, such an expanded duty could also

undermine consumer safety by inundating users with excessive warnings. “To

warn of all potential dangers would warn of nothing.” (Andre v. Union Tank Car

Co., Inc. (1985) 213 N.J. Super. 51, 67 [516 A.2d 277, 286].)

II. No Duty of Care to Prevent Injuries from Another Manufacturer’s

Product

Defendants also moved for nonsuit of plaintiffs’ negligence claims.

Although the Court of Appeal declined to address these claims, plaintiffs continue

to assert negligence as an alternative basis for liability. Because the negligence

issue here concerns the scope of defendants’ duty, and the existence of duty is a

pure question of law (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477), we

need not remand to the Court of Appeal for an initial determination.

“ ‘ “[D]uty” is not an immutable fact of nature “ ‘but only an expression of

the sum total of those considerations of policy which lead the law to say that the

30

particular plaintiff is entitled to protection.’ ” [Citation.]’ [Citation.]” (Parsons v.

Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) Courts of this state have

traditionally considered several factors in determining the existence and scope of

duty: “the foreseeability of harm to the plaintiff, the degree of certainty that the

plaintiff suffered injury, the closeness of the connection between the defendant’s

conduct and the injury suffered, the moral blame attached to the defendant’s

conduct, the policy of preventing future harm, the extent of the burden to the

defendant and consequences to the community of imposing a duty to exercise care

with resulting liability for breach, and the availability, cost, and prevalence of

insurance for the risk involved. [Citations.]” (Rowland v. Christian (1968) 69

Cal.2d 108, 113.)

Plaintiffs stress that foreseeability is the critical inquiry in evaluating

whether a duty of care is owed. (See Tarasoff v. Regents of the University of

California (1976) 17 Cal.3d 425, 434.) However, as noted, “foreseeability alone

is not sufficient to create an independent tort duty.” (Erlich v. Menezes, supra, 21

Cal.4th at p. 552; see also Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 399.)

Instead, the recognition of a legal duty of care “ ‘depends upon the foreseeability

of the risk and a weighing of policy considerations for and against imposition of

liability.’ ” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) In some

cases, when the consequences of a negligent act must be limited to avoid an

intolerable burden on society, “policy considerations may dictate a cause of action

should not be sanctioned no matter how foreseeable the risk.” (Elden v. Sheldon

(1988) 46 Cal.3d 267, 274; see also Bily v. Arthur Young & Co., at p. 398.) “In

short, foreseeability is not synonymous with duty; nor is it a substitute.” (Erlich v.

Menezes, at p. 552.)

Assuming that a manufacturer can “reasonably be expected to foresee the

risk of latent disease arising from products supplied by others that may be used

with the manufacturer’s product years or decades after the product leaves the

31

manufacturer’s control” (Taylor, supra, 171 Cal.App.4th at p. 594),12 we

nevertheless conclude strong policy considerations counsel against imposing a

duty of care on pump and valve manufacturers to prevent asbestos-related disease.

The factors set forth in Rowland v. Christian, supra, 69 Cal.2d at page 113,

do not support a finding of duty in this case. The connection between defendants’

conduct and O’Neil’s injury is extremely remote because defendants did not

manufacture, sell, or supply any asbestos product that may have caused his

mesothelioma. O’Neil did not work around defendants’ pumps and valves until

more than 20 years after they were sold, and he did not develop an injury from the

replacement parts and surrounding insulation until nearly 40 years after his

workplace contact. All of these circumstances attenuate the connection between

defendants’ products and the alleged injury. Furthermore, little moral blame can

attach to a failure to warn about dangerous aspects of other manufacturers’

products and replacement parts.13 Nor would imposing a duty of care in this

context be likely to prevent future harm. There is no reason to think a product

manufacturer will be able to exert any control over the safety of replacement parts

or companion products made by other companies. Manufacturers may also have

scant ability to influence their customers’ choices about other products. In this

case, for example, the evidence showed defendants had no control over the Navy’s

purchasing choices or specifications, either at the time they provided pumps and

valves for warships or later, when replacement parts were needed. In contrast,

12 But see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 779:

“Generally speaking, where the injury suffered is connected only distantly and

indirectly to the defendant’s negligent act, the risk of that type of injury from the

category of negligent conduct at issue is likely to be deemed unforeseeable.”

13 Indeed, there can be little doubt that defendants’ conduct was “of high

social utility.” (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 474.)

Defendants’ pumps and valves were important components in the steam

propulsion systems of warships that were vital to our country’s national defense

during World War II and later periods.

32

recognizing a duty of care would clearly impose a significant burden on

defendants and all other companies that could potentially be held liable for injuries

caused by products they neither made nor sold. Because the recognition of such a

duty could lead to an overabundance of potentially conflicting product warnings,

consumers could also suffer harm from the broad expansion of liability plaintiffs

seek. Finally, it is doubtful that manufacturers could insure against the

“unknowable risks and hazards” lurking in every product that could possibly be

used with or in the manufacturer’s product. (Anderson v. Owens-Corning

Fiberglas Corp., supra, 53 Cal.3d at p. 1003, fn. 14.)

In short, expansion of the duty of care as urged here would impose an

obligation to compensate on those whose products caused the plaintiffs no harm.

To do so would exceed the boundaries established over decades of product

liability law. “ ‘[S]ocial policy must at some point intervene to delimit liability’

even for foreseeable injury. . . .” (Parsons v. Crown Disposal Co., supra, 15

Cal.4th at p. 476.) The same policy considerations that militate against imposing

strict liability in this situation apply with equal force in the context of negligence.

(Taylor, supra, 171 Cal.App.4th at p. 596.)

Because defendants owed O’Neil no duty of care, the trial court properly

entered nonsuit on plaintiffs’ negligence claims.

33

DISPOSITION

The decision of the Court of Appeal is reversed, and the case is remanded

for entry of a judgment of nonsuit in favor of defendants.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J.

34

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion O’Neil v. Crane Co.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 177 Cal.App.4th 1019

Rehearing Granted

__________________________________________________________________________________

Opinion No. S177401

Date Filed: January 12, 2012

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Elihu Berle

__________________________________________________________________________________

Counsel:

Waters Kraus & Paul, Paul C. Cook, Michael B. Gurien; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich

for Plaintiffs and Appellants.

Brayton ♦ Purcell, Alan R. Brayton, Gilbert L. Purcell, Lloyd F. Leroy and Richard M. Grant for American

Merchant Marine Veterans as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kazan, McClain, Lyons, Greenwood & Harley, James L. Oberman and Michael T. Stewart for John and

Diane Allen, Robert and Beverly Lindenmayer, Joan Tommaney and Darrell and Suzanne Turner as Amici

Curiae on behalf of Plaintiffs and Appellants.

Marc I. Willick for Mesothelioma Applied Research Foundation as Amicus Curiae on behalf of Plaintiffs

and Appellants.

Terrence M. Johnson; Girardi | Keese, Thomas V. Girardi; Cronin & Co. and Thomas C. Cronin for

International Association of Heat and Frost Insulators and Allied Workers as Amici Curiae on behalf of

Plaintiffs and Appellants.

Simon, Eddins & Greenstone and Brian P. Barrow for Tamara Merrill and Edward Walton as Amici Curiae

on behalf of Plaintiffs and Appellants.

Horvitz & Levy, David M. Axelrad, Jason R. Litt, Curt Cutting, K&L Gates, Raymond L. Gill, Robert E.

Feyder, Geoffrey M. Davis, Paul J. Lawrence and Nicholas P. Vari for Defendant and Respondent Crane

Co.

Carroll, Burdick & McDonough, James P. Cunningham, Laurie J. Hepler and Gonzalo C. Martinez for

Defendant and Respondent Warren Pumps LLC.

Page 2 – S177401 – counsel continued

Counsel:

Shook, Hardy & Bacon, Mark A. Behrans and Kevin Underhill for Coalition for Litigation Justice, Inc.,

Chamber of Commerce of the United States of America, National Association of Manufacturers, NFIB

Small Business Legal Center, American Tort Reform Association, National Association of Mutual

Insurance Companies, Association of California Insurance Companies, American Insurance Association,

American Petroleum Institute and American Chemistry Council as Amici Curiae on behalf of Defendants

and Respondents.

Wildman, Harrold, Allen & Dixon, Clinton J. McCord, Stephen J. Landes, Douglas L. Prochnow and Rana

H. Janney for Rockwell Automation, Inc., and Invensys PLC as Amici Curiae on behalf of Defendants and

Respondents.

Debevoise & Plimpton, Roger E. Podesta, Erich O. Grosz; Gordon & Rees, Michael J. Pietrykowski and

Don Willenburg for Ingersoll Rand Company as Amici Curiae on behalf of Defendants and Respondents.

Bates White and Charles E. Bates as Amici Curiae on behalf of Defendants and Respondents.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendants

and Respondents.

Deborah J. La Fetra for Pacific Legal Foundation as Amici Curiae on behalf of Defendants and

Respondents.

Sedgwick, Detert, Moran & Arnold, Frederick D. Baker and Brian R. Thompson for Caterpillar, Inc., as

Amicus Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey Isaac Ehrlich

The Ehrlich Law Firm

411 Harvard Avenue

Claremont, CA 91711

(909) 625-5565

Nicholas Vari

K&L Gates

10100 Santa Monica Boulevard, 7th Floor

Los Angeles, CA 90067

(310) 552-5000

Laurie J. Hepler

Carroll, Burdick & McDonough

44 Montgomery Street, Suite 400

San Francisco, CA 94104

(415) 989-5900