Washington High Court: Duty to Warn Limited to Those in Chain of Distribution, published in Asbestos, a Harris Martin Publication, December 2008

Washington High Court: Duty to Warn Limited to Those in Chain of Distribution, published in Asbestos, a Harris Martin Publication, December 2008

OLYMPIA, Wash. -- The Washington Supreme Court has weighed in on whether an asbestos defendant can be held responsible for asbestos affixed to its product by another manufacturer, ruling that such liability cannot be imposed on a defendant that was not in the chain of distribution. Simonetta, et al. v. Viad Corp., et al., No. 80076-6 (Wash. Sup. Ct.).

In the opinion, the high court held that because the unreasonably dangerous product in the proceedings was the asbestos insulation, and not the evaporator encasing the insulation, the evaporator manufacturer can not be held liable for the plaintiff’s injuries.

At the outset, the high court noted that the 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 worked for the U.S. Navy as a machinist mate from 1958 to 1959, during which time he maintained and serviced a Griscom Russell evaporator. In order to examine and repair the internal tubing of the evaporator, Simonetta removed block insulation, asbestos mud and asbestos cloth, and then reinsulated the unit with the same materials after completing repairs.

After Simonetta developed lung cancer, he filed negligence and strict liability claims against Viad Corp., as a successor to Griscom Russell, for failure to warn. A trial court, however, dismissed the claims of duty to warn against the defendant, ruling that despite Viad’s knowledge that the evaporator would be insulated with asbestos-containing materials, the evaporator itself did not cause Simonetta’s injury.

An intermediate court reversed the trial court’s decision, concluding that Viad had a duty to warn about its product’s inherent dangers if the product required the use of another product and the two together caused the release of a hazardous substance. For more on the appellate court’s decision see the February 2007 issue of COLUMNS-Asbestos.

Viad appealed the decision to the state’s Supreme Court, who opined that the trial court’s original decision was proper.

“Washington cases discussing and analyzing … liability generally limit the analysis of the duty to warn of the hazards of a product to those in the chain of distribution of the product, such as manufacturers, suppliers or sellers,” the high court said with regard to the negligence claim. “Therefore, we find little to no support under our case law for extending the duty to warn to another manufacturer’s product.”

“[W]e hold the duty to warn is limited to those in the chain of distribution of the hazardous product,” the court continued. “Because Viad did not manufacture, sell, or supply the asbestos insulation, we hold that as a matter of law it had no duty to warn.”

The high court then addressed the strict liability claims, saying that while it is justifiable to impose liability on a manufacturing, selling or marketing defendant that was in the best position to warn of dangers, those parameters do not apply in the instant proceedings.

“Here, Viad did not manufacture or market the asbestos insulation,” the court said. “Nor did Viad have control over the type of insulation the navy selected. Thus, … Viad is not strictly liable for failure to warn.”

The court noted in its analysis that in the past it has not established a “clear distinction between strict liability and negligence theories in the failure to warn context.”

“This blurring of doctrines is poignantly apparent throughout the Court of Appeals’ strict liability analysis, which frequently and without distinction refers to the ‘duty to warn,’” the court said.

“Although the theories are similar in certain contexts, distinctions exist,” the high court continued. “We recognize strict liability as a theory that may or may not be asserted alongside negligence in the failure to warn context and emphasize the contrast in analytical focus between the theories: in a negligence action, the focus is on the conduct of the defendant; in a strict liability action, the focus is on the product itself and the reasonable expectations of the user. Under strict liability, a product is not reasonably safe when it is unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer.”

In the instant proceedings, the court determined that it was not the evaporator, but the asbestos insulation, that proximately caused Simonetta’s alleged injury.

“Case law supports the conclusion that there is no strict liability for failure to warn of the dangers inherent in another product,” the court opined. “Therefore, as we discussed above, under negligence theory, we likewise hold that foreseeability has no bearing on the question of adequacy of warnings in these circumstances.”

The court also found the instant proceedings distinguishable from past cases in that the plaintiffs do not claim the evaporator itself was unsafe in design.

In a dissenting opinion, Justice Stephens wrote that routine maintenance of the evaporator exposed users to asbestos, so Viad did in fact owe Simonetta a duty to warn under negligence and strict liability theories of liability.

Counsel for Simonetta are Matthew P. Bergman, David S. Frockt, LeAnn McDonald, Glenn S. Draper, Ari Y. Brown and Brian F. Ladenburg of Bergman & Frockt in Seattle, and Charles S. Siegel of Waters & Kraus in Dallas.

National counsel for Viad Corp. is Ellen G. Margolis of Mound, Cotton Wollan & Greengrass in New York. Ronald C. Gardner of Gardner Bond Trabolsi in Seattle argued on behalf of Viad before the Washington Supreme Court.

Document is Available
Call (800) 496-4319 or
Search www.harrismartin.com
Supreme Court Opinion Ref# ASB-0812-07
Court of Appeals Opinion Ref# ASB-0702-13