Simonetta v. Viad Corp.

Stephens, J.

¶38 (dissenting) — Under Washington common law, a product manufacturer owes a duty sounding in both negligence and strict liability to warn of hazards involved in the use of its product. Here, the use of Viad *364Corporation’s evaporator9 required insulation, which in the 1950s, in navy distilling units, was asbestos-containing insulation. Routine maintenance of the evaporator exposed users to aspirable asbestos. Thus, the simple answer to the question of whether Viad owed Joseph Simonetta a duty in this case is yes. That the majority requires over 30 pages to answer no is telling. Its extended discussion of the ersatz duty “to warn of the hazards of another manufacturer’s product,” majority at 345, obscures the issue and introduces confusion into otherwise settled product liability law. Because I conclude that the Court of Appeals correctly recognized Viad owed Simonetta a duty to warn under both negligence and strict liability principles, I respectfully dissent.

ANALYSIS

¶39 Recognition of Viad’s duty in this case follows from the application of settled legal principles to this new set of facts. The law that controls, Restatement (Second) of Torts §§ 388 (negligence) and 402A (strict liability) (1965), contemplates the scenario presented here, where the danger to users arises from the anticipated use of the product.

¶40 Negligence. Under doe Restatement (Second) of Torts § 388 (§ 388), a product manufacturer owes a duty to warn of hazards involved in the use of its product that are known or should be known to the manufacturer and are not obvious to the user. Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 467-68, 423 P.2d 926 (1967) (adopting § 388). Our courts interpret this section to mean that a manufacturer has a duty to warn about the dangers associated with a product’s intended and potential uses. Haysom v. Coleman Lantern Co., 89 Wn.2d 474, 478, 573 P.2d 785 (1978) (“Washington has for many years recognized the common-law negligence principle that a manufacturer is *365under a duty to warn consumers of hazards associated with the use of potentially dangerous products.”); Novak v. Piggly Wiggly Puget Sound Co., 22 Wn. App. 407, 412, 591 P.2d 791 (1979) (“A manufacturer can also be found negligent for failure to give adequate warning of the hazards involved in the use of the product which are known, or in the exercise of reasonable care should have been known, to the manufacturer.”); Lockwood v. AC&S, Inc., 44 Wn. App. 330, 339, 722 P.2d 826 (1986) (“The manufacturer’s knowledge of its product and the foreseeability of the dangers latent in that product or in its intended and potential uses is the relevant inquiry in order to determine the reasonableness of the manufacturer’s conduct in failing to give, or in giving, the warning that it did.”), aff’d, 109 Wn.2d 235, 744 P.2d 605 (1987).10

¶41 Here, the product supplied was an evaporator, and its function was to evaporate seawater and convert it into freshwater, as part of a distilling unit. Evidence before the trial court was that the evaporator could not function without insulation. Although Viad did not sell the evaporator with the insulation already attached, the trial court recognized that the manufacturer “knew or reasonably should have known that its product would be insulated with asbestos-containing material.” Clerk’s Papers (CP) at 1229. Indeed, a defense expert testified that “everyone involved with the sale of distilling units would know that asbestos-containing insulation would be used by the United States Navy on the exterior of a distilling plant.” CP at 744. *366Routine maintenance of the evaporator required the removal and replacement of the asbestos insulation every three to six months, as evidenced by instructions in Viad’s product manual. And, evidence before the trial court suggested that Viad knew of the harmful effects of asbestos.

¶42 Based on this record, Simonetta presented sufficient evidence of a duty to warn under § 388 to withstand a summary judgment motion. The Court of Appeals properly concluded that this result follows from an application of the common law to these particular facts. Simonetta v. Viad Corp., 137 Wn. App. 15, 25, 151 P.3d 1019 (2007).

¶43 Viad insists that existing law does not recognize a duty because any danger posed to Simonetta was not caused by its product, but rather by asbestos insulation that it did not manufacture. But, the focus under § 388 is on dangers involved in the use of a product. Simply put, the duty to warn contemplates that a product will actually be used. The hazard of exposure to aspirable asbestos was integral to the ability to use Viad’s evaporator, given that the unit could not function without insulation and service of the unit required periodic removal and replacement of the necessary insulation. Viad’s argument, accepted by the majority, imagines that we are dealing with a perfect platonic form of an evaporator rather than the functional product. Once a manufacturer releases a product for use, its duty of reasonable care under negligence law includes “a duty to warn of hazards involved in the use of a product which are or should be known to the manufacturer.” Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 772, 733 P.2d 530 (1987).

¶44 We have never limited a manufacturer’s duty by requiring that harm be inflicted by the product itself, as opposed to a hazard arising from its use. To the contrary, we have recognized a duty to warn even when the immediate cause of injury was something other than the product itself — including another manufacturer’s product. See, e.g., Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 155, 570 P.2d 438 (1977) (plaintiff injured while using defendant’s prod*367uct when “Viton O-ring,” not manufactured by defendant, failed); Haysom, 89 Wn.2d 474 (plaintiff injured while using defendant’s camp stove when stove fuel ignited); see also Bich v. Gen. Elec. Co., 27 Wn. App. 25, 33, 614 P.2d 1323 (1980) (plaintiff injured when another manufacturer’s fuse was used in General Electric’s transformer, which contained no warning about using another’s fuse). These cases make clear that the duty to warn is not limited to physical properties of the product at issue, as the majority suggests, but includes hazards arising from the anticipated use of the product under particular circumstances.

¶45 Teagle speaks directly to this situation. There, we affirmed summary judgment in favor of the plaintiff on a theory of strict liability, concluding that reasonable persons could only find that the product at issue, a flowrater used to measure liquids in a chemical fertilizer plant, was not reasonably safe in the absence of warnings about the dangers of measuring liquids above 50 pounds per square inch and of using Viton O-rings when measuring ammonia.

¶46 The Court of Appeals observed that Teagle is somewhat different from this case because the flowrater itself exploded when the Viton O-ring failed. Simonetta, 137 Wn. App. at 30-31. While this is a factual distinction, the analysis in Teagle did not turn on how the plaintiff was injured in terms of the direct agent of injury, but instead on the unreasonable danger posed by the flowrater in the absence of warnings, including as to the proper Viton O-rings that should have been used with the flowrater when measuring strong alkaline liquids. Teagle, 89 Wn.2d at 155-56. In fact, the product itself was not the direct agent of injury; rather, injury was due to the ammonia that was sent into the plaintiff’s eyes during the explosion. Id. at 151. The majority’s dismissal of Teagle is tenuous. Recognizing, as it must, our conclusion in Teagle that “[t]he lack of this warning [not to use Viton O-rings], by itself, would render the flowrater unsafe,” 89 Wn.2d at 156, the majority suggests this portion of our opinion was “tangential” and not *368“central to the holding.” Majority at 359. Yet, we plainly held that the duty to warn encompassed both of the dangers involved in the use of the flowrater. Teagle, 89 Wn.2d at 155-56. Consistent with Teagle’s focus on the use of the product, Viad owed a duty to warn of the dangers posed by the necessary insulation that allowed the evaporator to be used as intended.11

¶47 Ultimately, the majority rejects the existence of a duty under § 388 and distinguishes the case law cited above by redefining the product at issue, insisting it is the asbestos insulation, rather than the evaporator. Of course, Viad neither manufactured nor supplied the asbestos insulation. For the majority, this is a crucial fact because the “duty to warn [under § 388] is limited to those in the chain of distribution of the hazardous product.” Majority at 354. This entire discussion of the chain of distribution, which is the core of the majority’s negligence analysis, is unnecessary. The product at issue is Viad’s evaporator, not the insulation, just as the product at issue in Teagle was the flowrater, not the Viton O-ring or the ammonia. When the evaporator is properly the focus of the inquiry under § 388, the majority’s arguments regarding the chain of distribution have little relevance. It is undisputed that the evaporator was in Viad’s chain of distribution.12

*369¶48 The majority appears to accept Viad’s plea that if this court acknowledges a duty to warn here, the result will be unchecked liability for manufacturers who fail to warn about the products of others that may be used in conjunction with their own. For example, Viad asserts that were this court to hold that it had a duty to warn about the evaporator’s use with asbestos insulation, then orange juice producers must warn about the dangers of mixing their product with vodka. Suppl. Br. of Resp’t at 19. The fallacy here is in disregarding the importance under a § 388 analysis of the manufacturer’s knowledge of how its product will be used. Viad owes a duty to warn not because asbestos insulation might happen to be used in conjunction with its evaporator, but because such insulation was known to be necessary for the evaporator to function. See Lockwood, 44 Wn. App. at 339 (noting duty to warn extends to hazards involved in intended and potential uses of product). Recognizing a duty in this instance will not broaden the duty of manufacturers to anticipate and warn of every conceivable use of their products. Instead, it is consistent with settled negligence law that imposes a duty to warn of “the hazards involved in reasonably foreseeable uses of the product.” Lockwood, 109 Wn.2d at 252.

¶49 Strict Liability. Imposition of a duty under the common law theory of strict liability follows similar reasoning as under a negligence analysis. Section 402A of the Restatement (Second) of Torts instructs that a product is unreasonably dangerous if, though faultlessly designed, it lacks adequate warning of the dangers inherent in its use that are not obvious or known to the user. Restatement (Second) of Torts § 402A (§ 402A) cmts. h, j; Little v. PPG Indus., Inc., 92 Wn.2d 118, 120-21, 594 P.2d 911 (1979) (rejecting comment h’s designation of a product as “defective” where warnings are inadequate in favor of comment j’s designation of the product as “unreasonably dangerous”). “Strict liability may be established if a product, though faultlessly manufactured, is unreasonably dangerous when placed in the hands of the ultimate user by a manufacturer *370without giving adequate warnings concerning the manner in which to use it safely.” Baughn v. Honda Motor Co., 107 Wn.2d 127, 137, 727 P.2d 655 (1986) (emphasis added); see also Terhune v. A.H. Robins Co., 90 Wn.2d 9, 12, 577 P.2d 975 (1978) (same); Teagle, 89 Wn.2d at 155 (same). The focus of strict liability is on the adequacy of the warning itself and the reasonable expectations of the user, rather than upon the defendant’s conduct. Little, 92 Wn.2d at 122. The foreseeability of harm is not an element of a strict liability warning claim. Lockwood, 109 Wn.2d at 254. The use of the product, however, must be foreseeable. Galvan v. Prosser Packers, Inc., 83 Wn.2d 690, 693-94, 521 P.2d 929 (1974) (noting that the use of the product, which gave rise to injury, must be one that is foreseeable to the manufacturer).13

¶50 Rather than addressing the facts of this case according to the standard for strict liability under § 402A, the majority again shifts focus to the wrong product, suggesting that the Court of Appeals’ decision holds Viad strictly liable for defects in asbestos products made by another. Majority at 355-56. But Viad’s duty under § 402A, as under a negligence theory, is to warn of hazards associated with the *371use of its own product, the evaporator.14 The majority drifts away from the appropriate inquiry under § 402A when it states that the evaporator functioned as designed and suggests that “the dangers inherent in the asbestos insulation, a product Viad did not manufacture or supply, . . . was the proximate cause of Simonetta’s alleged injury.” Majority at 358. It then places primary reliance on a case that involved the issue of causation, not duty, and did not discuss a failure to warn claim at all. Majority at 362 (discussing Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005)).

¶51 Whether the evaporator functioned as designed is not the issue, of course, as a product may be unreasonably dangerous in the absence of adequate warnings notwithstanding that it is not itself “defective.” Little, 92 Wn.2d at 120-21. Nor is it accurate to speak of “the” proximate cause of Simonetta’s injury being another entity’s product. There may be multiple proximate causes of an injury, so the fact that the asbestos manufacturers’ failure to warn also caused Simonetta’s injury has no bearing on whether Viad owed a duty.15

¶52 Instead, the focus of the inquiry under § 402A is on the warnings required to make the evaporator reasonably safe, including what a reasonable user would expect to be *372told about the dangers inherent in the use of the evaporator. Lockwood, 109 Wn.2d at 254. This inquiry does not allow for the artificial segregation of the evaporator from the asbestos insulation that Simonetta necessarily encountered in order to use the product. Viad does not suggest that Simonetta’s maintenance of the evaporator was not a foreseeable use. Thus, the question is simply whether the risk of exposure to aspirable asbestos during required maintenance of the evaporator is a risk inherent in the use of the product. Based on the record in this case, the Court of Appeals properly concluded that it is. I would affirm that conclusion and recognize a duty here.

CONCLUSION

¶53 While this case presents a new set of facts from others we have considered, it requires no unprecedented expansion of the law to recognize a duty here. In deciding whether a duty is owed under a negligence theory, we look to logic, common sense, justice, policy, and precedent. Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005) (quoting Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001)). Here, all of these considerations suggest that Viad owed a duty of care to Simonetta. Our precedent interpreting § 388 compels this conclusion. If Viad can show that it did not breach its duty to warn or that any breach was not a proximate cause of Simonetta’s injury, then it will and should avoid liability. But to hold that it had no duty to warn of a serious hazard it knew or should have known was involved in the use of its product ignores logic, common sense, and justice.

¶54 Similarly, a duty arises under strict Lability when a product, though not defective in itself, is unreasonably dangerous for use in the absence of adequate warnings as to its inherent risks. The paramount policy goal of strict liability is to place the cost of protecting product users on those in a better position to offer that protection. § 402A cmt. c. Joseph Simonetta had an expectation that he would *373be warned of potential dangers associated with Viad’s evaporator, and Viad was in a superior position to offer warnings about the dangers involved in the use of its product. While it is certainly true that the asbestos manufacturers also could have warned about the dangers of their insulation, this does not negate Viad’s duty.

¶55 I would hold that Simonetta established a prima facie case of negligence and strict liability against Viad and that his claims should proceed to trial. Accordingly, I dissent.

Sanders and Chambers, JJ., concur with Stephens, J.

I refer to the evaporator as Viad’s product for simplicity, as Viad’s status as successor in interest to Griscom Russell, the manufacturer of the evaporator, is assumed for purposes of this appeal.

There is much discussion in the parties’ briefing and the majority opinion of the role of foreseeability. The Court of Appeals below and in the companion case of Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 151 P.3d 1010 (2007), correctly observed that the foreseeability of injury does not give rise to a duty in the first instance but sets the parameters of the duty once imposed. Simonetta v. Viad Corp., 137 Wn. App. 15, 23 n.2, 151 P.3d 1019 (2007); Braaten, 137 Wn. App. at 48. Insofar as the question involves a product manufacturer’s knowledge of the hazards posed by its product, foreseeability of harm is generally a question for the trier of fact. McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 (1953). As noted below, foreseeability of harm should not be confused with foreseeability of the use of a product, which is an element of both a negligence and a strict liability claim. Galvan v. Prosser Packers, Inc., 83 Wn.2d 690,521 P.2d 929 (1974).

The majority further argues that Teagle does not apply here because the flowrater required “specialized parts,” while Viad’s evaporator did not. Majority at 359. The basis for this factual assertion is unclear, as Viad has not made this argument and the majority does not identify portions of the record to support it. The evidence before the trial court was that the evaporator required insulation sufficient to withstand extremely high temperatures and that Viad knew or should have known that the insulation that would meet this requirement contained asbestos.

The one aspect of the majority’s negligence analysis that does not concern the “chain of distribution” addresses Sepulveda-Esquivel v. Central Machine Works, Inc., 120 Wn. App. 12, 84 P.3d 895 (2004), upon which Viad relies. As the majority acknowledges, Sepulveda involves the liability of a component part seller under the Washington product liability act, chapter 7.72 RCW, and reflects the general rule that such sellers are not liable unless the component part itself is defective. Sepulveda, 120 Wn. App. at 19. There is no argument in this case that the evaporator is merely a component of another’s product — certainly it is not a component of the asbestos insulation that the majority mistakenly identifies as the product at issue. Sepulveda does not support Viad’s argument.

The majority states that we have not consistently maintained a clear distinction between strict liability and negligence in the failure to warn context. Majority at 356. It criticizes the Court of Appeals for blurring the line between these two doctrines by use of the phrase “ ‘duty to warn.’ ” Id. (quoting Simonetta, 137 Wn. App. at 27-32). Such criticism is unwarranted, as the Court of Appeals accurately stated the law under § 402A. I am more troubled that the majority cites two relatively early cases involving negligence and strict liability theories as evidence of our asserted confusion, without acknowledging that we subsequently clarified the distinction between these two theories. See Lockwood, 109 Wn.2d at 251-52, 254; Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 759-63, 818 P.2d 1337 (1991). The excellent Court of Appeals opinion in Lockwood explains that while negligence considers the defendant’s conduct by asking what it knew or should have known about hazards involved in the use of its product, under strict liability, focus is on the product itself, and it is immaterial whether the unwarned danger, which rendered the product unreasonably dangerous, was known or knowable at the time the product was sold. Lockwood, 44 Wn. App. at 346-48. My concern is that by suggesting there is confusion, the majority opinion will reintroduce confusion.

Because the relevant product is the evaporator, not asbestos, the majority’s recurrent reference to the chain of distribution in its strict liability discussion is also unnecessary.

This entire portion of the majority’s discussion seems at odds with the procedural posture of this case, which involves only the question of duty on Viad’s motion for summary judgment. The majority at one point suggests Simonetta must prove he is entitled to judgment as a matter of law. Majority at 357 (“Thus, we must determine whether reasonable persons could conclude only that the evaporator was not reasonably safe when it was sold without a warning of the dangers of asbestos exposure.”). Then, it purports to address the adequacy of the warnings. Majority at 358 (“[W]e likewise hold that foreseeability has no bearing on the question of adequacy of warnings in these circumstances.”). Finally, the majority reaches beyond the scope of the limited summary judgment motion before us and holds that Viad’s evaporator was reasonably safe. Majority at 363. We should limit our consideration to the issue of duty that is presented. Because I would hold merely that Viad was not entitled to summary judgment on the issue of duty, I would leave for trial the resolution of the other elements of Simonetta’s negligence and strict liability claims.