Joseph Abate, Jr. v. Advanced Auto Parts, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 215

FACTS

The plaintiff, Joseph Abate, Jr., surviving spouse and administrator of the estate of his decedent/spouse, Sharon Abate, brings this action against various defendants, including the moving defendant, Hennessy Industries, Inc. The second amended complaint, filed on June 16, 2010, alleges that “[t]he plaintiff was exposed to various asbestos containing products through direct and second hand exposure while the spouse of the plaintiff's decedent was working in Connecticut as a professional auto mechanic from 1962–1990.   Decedent was also exposed to asbestos containing products while working alongside her husband at his garage.   Such exposure in Connecticut contributed in part or totally to the plaintiff's decedent's contraction of asbestos-related [m]esothelioma and other asbestos-related pathologies.”

Count one alleges a violation of the Connecticut Products Liability Act, General Statutes § 52–572m et seq., and the second count alleges a wrongful death claim under General Statutes § 52–555.   Count three, directed solely against Metropolitan Life Insurance Company, alleges conspiracy predicated upon fraudulent misrepresentation and fraudulent nondisclosure concerning studies and medical literature allegedly revealing the dangers associated with the use of asbestos.   The fourth count claims that the conduct of the various defendants was grossly negligent, wilful and wanton, malicious and outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of the plaintiff and to all humans who were exposed.   Count five asserts a loss of consortium claim.

DISCUSSION

Hennessy Industries, Inc. filed its motion for summary judgment on February 24, 2012, as to all claims the plaintiff asserts against it.   The defendant moves on the ground that its products contained no asbestos and it owes no duty to warn about the products of other manufacturers.   It has filed a memorandum in support of its position accompanied by various exhibits.   The defendant argues that the plaintiff has identified Ammco ¹ merely as the manufacturer of a lathe and grinder that allegedly he used at his mechanic's shop.   It argues that neither the Connecticut Products Liability Act, nor Connecticut's common law negligence principles nor the Restatement (Second) of Torts impose a duty to warn about dangers associated with the product of a third party.

In his memorandum in opposition, filed on August 17, 2012, the plaintiff argues that the defendant does not understand the character of the claims against it.   He explains that he is not claiming that the Ammco products owned by the plaintiff contained asbestos, but that the Ammco products, when used for their intended purpose, threw off hazardous amounts of asbestos dust that exposed the operator and those in the vicinity to asbestos dust.   The plaintiff further argues that the defendant has conceded that its brake grinders were defective and that the grinders threw off substantial amounts of asbestos dust, exposing workers and those in the vicinity to hazardous amounts of asbestos dust.   In addition, he filed a supplemental opposition memorandum on December 12, 2012.   The plaintiff emphasizes that he has obtained newly obtained information demonstrating that the specific function of an Ammco brake grinder was to grind asbestos-containing brake linings, that Ammco asbestos collection bags failed to contain the accumulated asbestos in them and that Ammco was aware of the prevalence of asbestos in brakes.   The plaintiff has attached various exhibits in support of his memoranda in opposition.

The defendant reiterates in its reply memorandum, filed on November 9, 2012, that its summary judgment motion raises issues that are purely legal in nature and that it bears no liability for the products of a third party.   On January 15, 2013, the defendant filed an objection to the plaintiff's supplemental opposition memorandum on the basis that the plaintiff failed to comply with Practice Book § 17–45 and, further, that the plaintiff's supplemental evidence is irrelevant and duplicative.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).   “Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

The Connecticut Products Liability Act is the starting point for products liability actions in this state.   When enacting the statute, “[t]he intent of the legislature was to eliminate the complex pleading provided at common law:  breach of warranty, strict liability and negligence.”  Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993).   Specifically, General Statutes § 52–572q governs the liability of a product seller for the lack of adequate warnings or instructions.  Section 52–572q(a) provides that “[a] product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided.”   Pursuant to this statute, “a product may be defective solely because a manufacturer or seller has failed to provide adequate warnings or instructions to a claimant who has suffered harm because of the absence of such warnings or instructions.”   Gajewski v. Pavelo, 236 Conn. 27, 28–29, 670 A.2d 318 (1996) (per curiam).

The defendant maintains that it owed no duty to warn the plaintiff of a product that it did not place in the stream of commerce.   It cites Connecticut case law for the general proposition that Connecticut refuses to impose a duty to warn upon manufacturers of nonhazardous products for the hazardous products manufactured by another.   It further cites federal law and the case law of foreign jurisdictions such as California and Washington to support its position.

The plaintiff argues that the defendant's position, that it bears no liability for asbestos-containing products that were manufactured by another—has been rejected in other jurisdictions and should be rejected here.   The plaintiff cites to the law of New York, Rhode Island and Pennsylvania in support of his position.   In its supplemental memorandum, the plaintiff further argues that it has discovered new information demonstrating that the specific function of Ammco brake grinders was to grind asbestos-containing brake linings.

This court previously has cited the California Supreme Court case of O'Neil v. Crane Co., 53 Cal.4th 335, 266 P.3d 987, 135 Cal.Rptr.3d 288 (2012), with approval.   See, e.g., Abate v. AAF–McQuay, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6006228 (January 29, 2013, Bellis, J.) (Black & Decker case), citing O'Neil v. Crane Co., 53 Cal.4th 335, supra.   The issue in O'Neil was whether a product manufacturer was liable for injuries caused by asbestos-containing replacement parts, manufactured by others, used in conjunction with the defendant's own product.   The O'Neil court outlined several public policy concerns with respect to holding non-asbestos product manufacturers liable for the products of manufacturers of asbestos-containing products.   For example, the court emphasized that “it is 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.”  O'Neil v. Crane Co., supra, 53 Cal.4th 363.   This court adopts the expression of such public policy considerations as articulated by the California Supreme Court in O'Neil v. Crane Co., supra, particularly with respect to the unfairness of holding a manufacturer of a multi-purpose, non-asbestos containing product liable for the alleged harm caused by the products of the manufacturers of asbestos-containing products.

Recently, this court addressed a manufacturer's duty to warn with respect to non-asbestos-containing products that allegedly came into contact with an asbestos-containing product.   See Abate v. AAF–McQuay, Inc., supra, Superior Court, Docket No. CV 10 6006228.   The Black & Decker case involved the same plaintiff as in the present case, under a similar factual setting, but involving different tools and different defendants:  Stanley Black & Decker and Black & Decker (collectively Black & Decker).   The Black & Decker defendants moved for summary judgment on the basis that their tools, a shop vacuum, a grinding machine and a bench grinder, contained no asbestos.   The defendants argued that they had no duty to warn of the dangers associated with the actual asbestos-containing products—brakes and brake linings—because those products were distributed by another manufacturer.

When analyzing the issues presented in the Black & Decker matter, this court found the case law of foreign jurisdictions instructive—just as the parties in the present case have found foreign case law helpful.   Upon reviewing the law of foreign jurisdictions, this court relied upon several guiding principles with respect to the duty to warn as enunciated in the California Supreme Court case of O'Neil v. Crane Co., supra, 53 Cal.4th 335.   See Abate v. AAF–McQuay, Inc., supra, Superior Court, Docket No. CV 10 6006228, citing O'Neil v. Crane Co., supra, 53 Cal.4th 335.   Initially, the O'Neil court explained that, generally, no duty to warn is imposed upon a manufacturer regarding defects exclusively arising from the product of another manufacturer.   The court further observed, however, that a duty to warn may exist when a manufacturer substantially participates in the creation of a harmfully combined use of the products at issue.   The O'Neil court cited to a California Court of Appeals case, Tellez–Cordova v. Campbell–Hasfield/Scott Fetzger Co., 129 Cal.App.4th 577, 28 Cal.Rptr.3d 744 (2004), as providing an example of an exception to the general “no duty to warn” rule.   The O'Neil court emphasized that a duty to warn existed in Tellez–Cordova because the sole purpose of the power tools in that case was to grind metals in such a way that harmful dust was the inevitable result, and the action of the power tool did, indeed, cause the dust.  O'Neil v. Crane Co., supra, 53 Cal.4th 361.   The Black & Decker defendants had provided deposition testimony of the decedent's spouse indicating that the tools at issue had a variety of uses, and the plaintiff failed to refute this evidence.   This court found that the Black & Decker defendants had no duty to warn with respect to their multi-purpose tools and granted the defendants' motion for summary judgment.

In the present case, the defendant has submitted, inter alia, the affidavit of Craig Mountz, the defendant's corporate representative, who attested that “Ammco brake shoe arcing machines were not specifically designed or intended to be used solely with asbestos-containing brake linings, or any other type of brake shoe lining.”   The plaintiff, however, has provided the deposition testimony of Craig Mountz, indicating that Ammco was aware that its grinders would be utilized to grind asbestos brakes during the relevant time periods and that the collection system of its grinders were unable to contain all of the asbestos dust.   For example, Mountz was asked whether it would have been impossible for the “average worker” in the 1950s, 1960s, 1970s and into the 1980s to have worked with an Ammco grinder and “never grind an asbestos brake, Mountz responded affirmatively.   Mountz also responded affirmatively when he was asked whether it was true that Ammco “understood asbestos to be so prevalent in brakes, as of the 1970s it actually referred to its dust collection system as an ‘asbestos dust collector ․’ “

The court, upon examining the evidence presented here, finds that there is a question of material fact with respect to whether Ammco brake grinders were meant to be used as multipurpose grinders in conjunction with both non-asbestos and asbestos-containing products or whether the sole use of these products were to be used in conjunction with asbestos-containing brakes and brake linings.   For the reasons set forth above, the court denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. The defendant does not specify the nature of its relationship with Ammco..  FN1. The defendant does not specify the nature of its relationship with Ammco.

Bellis, Barbara N., J.