Paul C. Cook, Esq.
Los Angeles, California

1. DeLeon v. Commercial Manufacturing (1983) 148 Cal.App.3d 336

A manufacturer has a duty to warn of hazards arising from the foreseeable uses of its product, even if the hazard arises from the addition of a product which, although manufactured by another, is used in the normal operation of the Defendant’s product. DeLeon v. Commercial Mfg. and Supply Co. (1983) 148 Cal.App.3d 336, 344.

The product manufactured by the Defendant must not be viewed in a vacuum, but must take into account the reality of the circumstances in which the product operates. DeLeon, supra, 148 Cal.App.3d 336, 344.

Triable issues of fact concerning whether defendant knew or should have known of the danger posed by the line shaft, a product separate and distinct from its own product, because defendant had inspected the factory before it manufactured the bin. The court found that even though there was a safe way to clean the bin, "the important factor is whether it is foreseeable that someone would climb onto the belt [for cleaning]…." Deleon, supra, 148 Cal.App.3d at p. 344. (emphasis added).

No summary judgment for defendant if manufacturer either knew or should have known asbestos-containing insulation and gaskets would be used with its pumps, and therefore has a duty to warn of this foreseeable hazard.

"Foreseeability is the critical factor in determining whether a subsequent substantial alteration may be attributed to the manufacturer as a proximate result of an original design defect; a design defect inherent in a safety feature of a product that foreseeably leads to a substantial alteration and an increased risk of danger may be a basis for strict products liability. A modification or alteration of a product which is essential to the product’s intended use does not insulate the manufacturer from liability."

American Jurisprudence, Second Edition, § 1449

Asbestos containing gaskets and external insulation are necessary to the operation of steam driven pumps

Though the pumps had to incorporate asbestos gaskets and packing in their normal operation, they did not have to be operated without a warning.

1. Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1233-34.

Defendant manufactured a deck gun for use on fire truck – another manufacturer made a riser pipe that connected the deck gun apparatus. Deck gun/riser apparatus detached because of failure in riser pipe, injuring plaintiff. Deck gun manufacturer’s summary judgment motion denied because of triable issues of fact concerning whether Defendant knew or should have known of risk of failure from combination of Defendant’s product with product manufactured by another. Products were combined after product left Defendant’s control.

2. Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062

Under negligence theory, foreseeable alterations to the defendant’s product will not relieve the manufacturer of liability for failure to warn. Summary judgment denied -- manufacturer of surgical tubing may have duty to warn of hazards arising from foreseeable alterations by plaintiff’s physician.

3. Gonzalez v. Cermenita Ford Truck Sales, Inc. (1987) 192 Cal.App.3d 1143

Duty to warn is not limited to unreasonably or unavoidably dangerous products, but directions or warnings are in order where reasonably required to prevent the use of a product from becoming unreasonably dangerous – including adequate warnings of dangers arising in the repair or maintenance of defendants’ product.

1. Berkowitz v. A.C.and S., Inc. (N.Y. 2001) 288 A.D.2d 148, 733 N.Y.S.2d 410

Naval pump manufacturer had a duty to warn concerning dangers of asbestos gaskets and insulation used on its pumps, despite the fact the pump manufacturer neither manufactured nor installed the asbestos containing gaskets and insulation.

2. Chicano v. General Electric Co. 2004 WL 2250990 (E.D.Pa.,2004)

"GE did not control what form of insulation would cover its turbines. However, there is at least a genuine issue of material fact as to whether the turbines were generic components or designed for a particular type of finished product and whether GE could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate warnings of the dangers of asbestos." Chicano v. General Elec. Co.  2004 WL 2250990, *6 (E.D.Pa.) (E.D.Pa.,2004)

3. Courts throughout the country hold a manufacturer or seller remains liable if the if the alteration or modification was reasonably foreseeable to the manufacturer.

Alabama: Hannah v. Gregg, Bland & Berry, Inc.  840 So.2d 839, 855 -855 (Ala.,2002) ["A manufacturer or seller remains liable if the alteration or modification did not in fact cause the injury, or if the alteration or modification was reasonably foreseeable to the manufacturer or seller"];

Arizona: Anderson v. Nissei ASB Mach. Co., Ltd.  197 Ariz. 168, 173, 3 P.3d 1088, 1093 (Ariz.App. Div. 1,1999) ["In Arizona, only an unforeseeable modification of a product bars recovery from the manufacturer."];

Connecticut: Potter v. Chicago Pneumatic Tool Co.  241 Conn. 199, 236, 694 A.2d 1319, 1341 (Conn.,1997) ["In order to rebut the defendant's allegations of substantial change, the plaintiff must prove…. [a]lternatively, … that the alteration or modification: (1) was in accordance with the manufacturer's instructions or specifications; (2) was made with the manufacturer's consent; or (3) was the result of conduct that the manufacturer reasonably should have anticipated."]

Idaho: Tuttle v. Sudenga Industries, Inc.  125 Idaho 145, 148-149, 868 P.2d 473, 476 - 477 (1994) [defense of substantial alteration or modification of product not available if "The alteration or modification was reasonably anticipated conduct, and the product was defective because of the product seller's failure to provide adequate warnings or instructions with respect to the alteration or modification."]

Illinois: Davis v. Pak-Mor Mfg. Co.  284 Ill.App.3d 214,220, 672 N.E.2d 771,775, 219 Ill.Dec.918,922 (Ill.App. 1 Dist.,1996): ["Where an unreasonably dangerous condition is caused by a modification to the product after it leaves the manufacturer's control, the manufacturer is not liable unless the modification was reasonably foreseeable. [Citations.] Foreseeability means "that which it is objectively reasonable to expect, not merely what might conceivably occur."]

Indiana: Smock Materials Handling Co., Inc. v. Kerr  719 N.E.2d 396, 404 (Ind.App.,1999) ["The modification or alteration defense is only applicable …where such modification or alteration is not reasonably expectable to the seller."]

Iowa: Leaf v. Goodyear Tire & Rubber Co.  590 N.W.2d 525, 529 -530 (Iowa,1999) ["….a manufacturer will remain liable for an altered product if it is reasonably foreseeable that the alteration would be made…."]

Kansas: . Howard v. TMW Enterprises, Inc.  32 F.Supp.2d 1244, 1252 (D.Kan.,1998) ["Under Kansas law, if a product is modified after delivery to the purchaser, the manufacturer may not be liable for defective design. [Citation.] The manufacturer must show, however, that the product modification was not foreseeable."]

Louisiana: Bourgeois v. Garrard Chevrolet, Inc.  811 So.2d 962, 965, (La.App. 4 Cir.,2002)["The product's characteristic that renders it unreasonably dangerous under La. R.S. 9:2800.55 must exist at the time that the product left the control of its manufacturer, or result from a reasonably anticipated alteration or modification of the product."]

Missouri: Vanskike v. ACF Industries, Inc.  665 F.2d 188, 195 (8^th Cir. 1981)(applying Missouri law) ["…subsequent changes or alterations in the product do not relieve the manufacturer of strict liability if the changes were foreseeable…."]

New Jersey: Brown v. U.S. Stove Co.  98 N.J. 155, 165-166, 484 A.2d 1234, 1239 (N.J.,1984) ["…a manufacturer can also be held liable under strict liability principles for design defects if it is objectively foreseeable that a substantial change in the product will cause injury."]

New York: Cacciola v. Selco Balers, Inc.  127 F.Supp.2d 175, 187 (E.D.N.Y.,2001) [[A]lthough it is virtually impossible to design a product to forestall all future risk-enhancing modifications that could occur after the sale, it is neither infeasible nor onerous, in some cases, to warn of the dangers of foreseeable modifications that pose the risk of injury."]

Ohio Barrett v. Waco Internatl., Inc. 123 Ohio App.3d 1, 8, 702 N.E.2d 1216, 1220 (Ohio App. 8 Dist.,1997) ["Ohio courts have held that design defect claims may include the failure to design a product to prevent foreseeable misuse, including modifications. Welch Sand & Gravel, Inc. v. O & K Trojan, Inc. (1995), 107 Ohio App.3d 218, 224, 668 N.E.2d 529, 533. Although manufacturers need not guarantee that a product is incapable of causing injury, they must consider, inter alia, "the likelihood that the design would cause harm in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product."]

Pennsylvania: Shouey ex rel. Litz v. Duck Head Apparel Co., Inc.  49 F.Supp.2d 413, 422  (M.D.Pa.,1999) ["A manufacturer or seller will not be liable if the product is made unsafe by subsequent changes unless the manufacturer or seller reasonably could have foreseen the alteration."]

South Carolina: Small v. Pioneer Machinery, Inc.  329 S.C. 448, 466, 494 S.E.2d 835, 844 (S.C.App.,1997) ["An essential element of any products liability claim is proof that the product at the time of the accident was in essentially the same condition as when it left the hands of the defendant. However, …liability may be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product when the alteration could have been anticipated by the manufacturer or seller….’]

Texas: Webb v. Rodgers Machinery Mfg. Co.  750 F.2d 368, 372 (C.A.Tex.,1985) ["…it is widely accepted that, for a manufacturer to be held liable under a strict liability theory, the product must "reach the user ... without substantial change in the condition in which it is sold." Restatement (Second) of Torts § 402A(1)(b). …. Texas courts likewise have noted that a manufacturer may be held liable where the subsequent alteration leading to the accident was foreseeable by the manufacturer."]

Asbestos defendants often cite cases for the general proposition that a component part manufacturer will not be liable for "defects that did not exist at the time the product left the manufacturer’s factory." Generalization does not trump the concepts of forseeability and hazards that are known or knowable to the manufacturer. However, defect must be foreseeable at the time it leaves the defendant’s control.

1. Zambrana v. Standard Oil Co. of Calif. (1972) 26 Cal.App.3d 209

Combination of metal valve stem and extension on tire valve created a dangerous condition which was "obvious to a person of ordinary intelligence." Zambrana, supra, 26 Cal.App.2d at 218. Manufacturer has only has "a duty to warn the buyer by reason of dangers in use which are not generally known and recognized." Ibid. There is nothing "obvious" about the hazard of breathing odorless, tasteless asbestos dust, which is seemingly innocuous when breathed in, but causes terminal cancer 15 to 30 years later.

Zambrana does not apply because the foreseeable use of asbestos containing insulation, disturbed in the normal maintenance of defendant’s product, involves the unsafe use of a defective part.

Risk-benefit analysis applied by Zambrana, not satisfied in asbestos insulation context.

2. Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621

The court found Firestone could not be liable for a defective valve assembly installed by Ford, because "[i]n dealing with an automotive manufacturer which designs and produces automotive products, Firestone could reasonably believe Ford Motor Company would take appropriate measures to insure proper design and installation of the valve stem." Wiler, supra, 95 Cal.App.3d at p. 629. In other words, Firestone could not foresee that Ford would install a defective valve assembly on the tire.