California Appeals Court Applies “Inevitable Use” and Reverses Grant of Summary Judgment as to Brake Arcing Defendant

The appellant brought an appeal on behalf of her late husband, Frank Rondon, arguing that the trial court erred in its grant of summary judgment as to her claims for strict liability and negligence. Frank Rondon worked as a mechanic using defendant Hennessy’s (Ammco Tools) brake arcing machines designed to grind asbestos brake shoes.

Hennessy moved for summary judgment, arguing that it did not manufacturer, distribute, or design asbestos containing products. Hennessy relied upon expert declarations that non-asbestos brake show linings were available in the 1960s and 1970s. Another expert declaration submitted to the court argued that the arcing machines were designed to grind brake shoes of any composition, not just asbestos brake shoes. Moreover, Hennessy argued that two recent decisions, Shields and Bettencourt, were different than the instant case because the facts illustrated that the machines were not “designed exclusively to be used with asbestos containing brakes.” Appellant opposed the motion for summary judgment, stating that the “inevitable use” of the arcing machines was to grind asbestos. Appellant also submitted declarations that contended that non-asbestos brakes were limited in use prior to 1980. Another declaration included the assertion that Hennessy started to supply an asbestos dust collector bag in 1973. The trial court fund that Rondon could not establish that the grinders were made to be used exclusively and inevitably with asbestos brakes. However, the Appellate Court reversed.

As to the strict liability claim, the Appellate court analyzed several cases, specifically the O’Neil case, and held that O’Neil’s “exclusive use” is not required but rather a showing of “inevitable use” is required. The court honed in on the question of whether the intended use would inevitably expose Mr. Rondon to asbestos considering that 95-99 percent of the brakes being grinded contained asbestos. The next question becomes whether that created a hazardous condition according the court. The court concluded that the “normal” operation of the grinders inevitably caused the release of asbestos dust. The court also analyzed the Tellez-Cordova decision and pointed out that in O’Neil the products at issue, valves and pumps, did not necessarily create the dust that injured the claimant in that matter. However, in the instant case, the equipment itself, i.e., the defendant’s grinders created the dust. Also relying on a decision from Sherman, the court noted that an economic benefit was gained by Hennessy for the use of its product. Consequently, Rondon should be permitted to prove her claims that Hennessy is strictly liable for the hazardous condition.

As for the negligence claims, the court outlined seven factors it reviews to determine whether a duty of care exists. The Appellant relied heavily on foreseeability, the first factor. The court stated that Hennessy “knew that the normal and intended use of its grinders was to grind brake linings, the vast majority of which contained asbestos” and concluded foreseeability in the Appellant’s favor. Hennessy argued that the third factor, the connection between Hennessy’s conduct and Rondon’s injuries was tenuous. Despite Hennessy’s contentions, the court found that a duty of care existed. However, that alone does not render Hennessy negligent according to the court. Factual issues existed that warranted an additional finding by the trial court.

Read the full decision here.