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From Products Liability Law Daily, June 10, 2015

Manufacturer ducks liability because salvaging its asbestos-containing valves was not a foreseeable use

By Susan Lasser, J.D.

The salvaging or dismantling of asbestos-containing valves was not a reasonably foreseeable use of the product that would make the manufacturer of the asbestos-containing materials liable on design defect and failure-to-warn claims by a salvager who developed mesothelioma allegedly as a result of his exposure to the asbestos-containing valves during his work, a New York appellate division court ruled, reversing a New York trial court. The appellate court granted summary judgment to the manufacturer and the salvager’s complaint was dismissed as a result (Hockler v. The William Powell Co., June 9, 2015, per curiam).

Background. Bryan Hockler developed mesothelioma as a result of his work as a salvager during the 1980’s. In the course of his employment, Hockler dismantled and salvaged scrap metal from, among other things, the steam systems in vacant buildings. The William Powell Company (Powell), manufactured valves that contained asbestos in their packing and gaskets. Hockler filed suit against a number of defendants, including Powell. He alleged that Powell’s valves were among the metal components that he recovered as scrap metal, exposing him to asbestos fibers, dust, and debris, which he alleged caused his mesothelioma. Hockler’s claims against Powell were based on theories of strict products liability and negligence in the defective design of the valves. Powell sought the dismissal of all claims and cross-claims filed against it, asserting that it did not have a duty to warn Hockler of the hazards associated with asbestos because Hockler was not a foreseeable user of its product. Powell also argued that it had no duty to warn of the dangers associated with asbestos components manufactured by third parties, and that Hockler’s activities were not a foreseeable use or foreseeable misuse of its product. A New York trial denied Powell’s motion for summary judgment to dismiss the complaint (see Products Liability Law Daily, October 30, 2014, analysis; see also Products Liability Law Daily, February 11, 2015, analysis of another related decision by the court).

Foreseeable use. The New York Supreme Court, Appellate Division, reversed the trial court’s decision because it found that even assuming that the manufacturer’s valves were defectively designed, the salvager’s injuries did not result from their intended, or unintended but reasonably foreseeable, use. In explanation of how he was exposed to asbestos, the salvager testified that a lot of the material was old and was covered in what he later learned was asbestos, and that he and other workers would “rip it off, smash it off, cut it off” of the valves and pumps. The appellate court noted that under New York law, if a manufacturer sells a product in a defective condition, the maker is liable for the resulting injury to another “when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose.” The question before the court was whether dismantling constituted a reasonably foreseeable use of a product. The court looked to Restatement (Second) of Torts § 402A, which has been cited as authority by the New York Court of Appeals even though Restatement (Third) of Products Liability has superseded it. Section 402A has been cited as authority by courts of other jurisdictions in determining whether salvaging and demolishing constituted foreseeable uses of a product, the court said. The appellate court determined that the salvager’s salvage work was not a reasonably foreseeable use of the manufacturer’s valves, finding persuasive other courts decisions, which, relying on Section 402A, held that dismantling was not an intended use of a product. Thus, the appellate court held that because the salvager did not use the manufacturer’s product in a reasonably foreseeable manner and his salvage work was not an intended use of the product, the complaint should have been dismissed.

The case is No. 190235/13.

Attorneys: William F. Mueller (Clemente Mueller, PA) for The William Powell Co. Brendan Tully (Levy Konigsberg LLP) for Bryan Hockler.

Companies: The William Powell Co.

MainStory: TopStory SCLIssuesNews DesignManufacturingNews WarningsNews AsbestosNews NewYorkNews

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