Braaten v. Saberhagen Holdings

Stephens J.

¶42 (dissenting) — The main issue in this case concerns the manufacturers’ duty to warn of risks involved in the use of their products. For the reasons set forth in my dissenting opinion in the companion case of Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008), I respectfully dissent.

¶43 The majority also recognizes here that as to the packing and gaskets involved in the use of the pumps and *399valves, “[t]he manufacturers do not dispute that they would be liable for failure to warn of the danger of exposure to asbestos in the packing and gaskets originally contained in their products.” Majority at 391. Nevertheless, the manufacturers argue that they had no duty to Vernon Braaten because he did not present evidence that he himself worked on new pumps and valves containing original parts. Id. The majority adopts this assertion. Id. at 394. But the manufacturers’ argument goes to causation, not to duty. The majority errs by rejecting the existence of a legal duty because Braaten allegedly did not show that exposure to the original packing and gaskets caused his injury. Summary judgment was on the issue of duty only.

¶44 Akin to the majority’s reasoning in Simonetta, the majority here disassociates the manufacturers from the replacement packing and gaskets necessary to the use of their products simply because they did not manufacture the replacement parts. Id. As I explained in my dissent to Simonetta, this is a false disassociation under both negligence and strict liability. The Court of Appeals properly recognized that the manufacturers’ duty “was not to warn of dangers associated with a third party’s product, but of dangerous aspects of their own product: namely, that using their products as intended would very likely result in asbestos exposure.” Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 49, 151 P.3d 1010 (2007).

¶45 Because the majority concludes the defendants owed no duty to warn Braaten, it does not reach the issue of whether collateral estoppel bars the plaintiff’s action. Defendants IMO Industries, Inc., Crane Company, and Buffalo Pumps did not seek summary judgment based on collateral estoppel below but urge that it is an alternative basis on which to affirm the superior court’s order of dismissal. Suppl. Br. of IMO at 19-20; Suppl. Br. of Crane at 19-20; Suppl. Br. of Buffalo Pumps at 19-20.

¶46 While we have discretion to affirm a trial court decision based on grounds not presented to the trial court, the record must have been sufficiently developed below in *400order to fairly consider the ground. RAP 2.5(a); Plein v. Lackey, 149 Wn.2d 214, 222, 67 P.3d 1061 (2003). Importantly, we will not resolve a case on an issue not presented below unless it is clear that the parties had a full and fair opportunity to develop facts relevant to the issue. Bernal v. Am. Honda Motor Co., 87 Wn.2d 406, 414, 553 P.2d 107 (1976). This standard is not met here, and the defendants offer only cursory briefing on the issue of collateral estoppel. Accordingly, I would not find this a basis to affirm the lower court, and I dissent.

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