Summary Judgment Reversed on Appeal for Brake Shoe Grinder Manufacturer on the Basis of Foreseeable Hazard With Inevitable Use and Normal Operation of its Non-asbestos Containing Product

The plaintiff’s decedent, who developed breathing difficulties and lung damage as a result of asbestos exposure, filed a lawsuit in state court alleging that from approximately 1958-62, he was a mechanic who utilized brake shoe arcing machines (known as “grinders”) manufactured by the defendant for the purpose of grinding down/reshaping the friction material of brake shoes via mechanical abrasion. When a grinder came into contact with a brake shoe which contained asbestos in is lining, it would release asbestos into the air. Accordingly, it was alleged that the defendant failed to warn about the dangers of using its grinders on asbestos-containing products. The trial court granted summary judgment to the defendant after it established that there was no evidence that its grinders required asbestos-containing brake pads to function and that its grinders worked on all brake linings, regardless of whether or not they contained asbestos. In doing so, the trial court found that the defendant owed no duty to warn of risks created by third parties. The plaintiff appealed alleging that a triable issue of fact had been raised concerning the defendant’s failure to warn.

The First Appellate District agreed with the plaintiff and reversed the trial court’s ruling. In doing so, it cited a string of recent appellate rulings, some specifically involving the defendant, in which it was found that where the alleged sole and intended purpose of a particular product were one in which a foreseeable hazard resulted, the “inevitable use” and “normal operation” of that product made it reasonable to expect the manufacturer to provide warnings. The cases distinguished between products such as grinders, which “invariably” resulted in the generation of asbestos dust by their ordinary use, and products such as asbestos-containing pumps and valves, the normal operation of which would not “inevitably cause the release of asbestos dust.”  In support of is position, the First Appellate District noted that it had been established that 90 to 95 percent of the original equipment market brake linings and virtually 100 percent of the aftermarket brake linings contained asbestos as of 1986, more than 20 years after the decedent had reshaped them with grinders. Therefore, even though the defendant noted that some non-asbestos containing brakes were available between 1958 and 1962, “they were only in limited use.” The First Appellate District further noted evidence that the grinders “were designed for passenger cars and vehicles, ‘the vast majority of which contained asbestos from the 1960’s to the mid-1970’s.’” It concluded its decision by embracing a policy argument raised in a substantially similar case which held that “[b]ecause the manufacturer derives an economic benefit from use of its product with certain other products, and ‘the combined use of the tool with those products inevitably created a hazardous condition, it was fair to require the tool manufacturer to share liability for the resulting injuries.’”

Read the full decision here.