In Hetzel v. Hennessy Indus., __ Cal.App.4th ___, 2016 Cal. App. LEXIS 398 (Cal. App. 1st Dist. Apr. 28, 2016), California’s First Appellate District held that a manufacturer of a non-asbestos containing product (in this case a machine) can be held liable if the product’s “inevitable use” would include asbestos containing products manufactured by others. The court held this even though the non-asbestos containing machine could have been used with non-asbestos containing products. In doing so, the First District adopted the Second District’s holding in Sherman v. Hennessy Industries, Inc., 237 Cal.App.4th 1133 (2015).
Defendant Hennessy Industries manufactured brake shoe arcing machines, also known as grinders, that were used to grind brakes. During the relevant time period, nearly all automotive brakes contained asbestos, and the grinding of the brakes would result in the release of asbestos fibers. The trial court granted summary judgment in Hennessy’s favor upon a showing that non-asbestos containing automotive brakes were available during the relevant time period. The court reasoned that, under O'Neil v. Crane Co., 53 Cal.4th 335 (2012), the manufacturer of a non-asbestos containing product does not have the duty to warn of hazards arising exclusively from that product’s use with other manufacturers’ products. Because the grinder itself was not hazardous and could have been used with non-asbestos containing brakes, the manufacturer had no duty to warn.
The First District reversed and distinguished O’Neil, noting that, during the time period relevant to the facts before it, 90-95% of all brake linings contained asbestos. As such, the “inevitable use” of the grinder was that it would be used with asbestos containing products, and, thus, “the intended use of the product [was to] inevitably create a hazardous situation.” Under those circumstances, even though the grinder contained no asbestos itself and could have been used with non-asbestos brake linings, its “inevitable use” included use with asbestos containing brake linings.
With another California appellate court adopting the “inevitable use” standard, we can expect additional lawsuits against manufacturers of products that never contained asbestos and were designed to be used with both non-asbestos products and asbestos containing products. The question becomes how far the courts will take this jurisprudence.