Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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                                LLP

KNOX RICKSEN

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Kenneth J. McCarthy - SBN 120875
Gregory D. Pike - SBN 124847

KNOX RICKSEN LLP ELECTRONICALLY
1300 Clay Street, Suite 500
Oakland, CA 94612-1427 sopeh tilt ED oe
Tecmo (aa Sa

. NOV 09 2011
Attorneys for Defendant Clerk of the Court
BIGGE CRANE AND RIGGING CO. BY: JUDITH NUNEZ

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, No. CGC-09-275098

Plaintiff, BIGGE CRANE & RIGGING
COMPANY’S MOTION IN LIMINE
v. NO. 4:

ASBESTOS DEFENDANTS (BP). et al., TO PRECLUDE ANY CLAIM BY
PLAINTIFF BASED ON A STRICT
Defendants. LIABILITY THEORY

Trial Date: November 14, 2011
Dept. : 206

Time: 11:15 a.m.

Judge: TBD

Action Filed: March 2, 2009

L INTRODUCTION

Defendant BIGGE CRANE AND RIGGING CO (BIGGE) anticipates that the plaintiff will
attempt to proceed on a strict liability theory, specifically under the first prong of Barker v. Lull
Engineering: the consumer expectation theory.

If the plaintiff elects to proceed against defendant, BIGGE, on a strict liability theory, he
must prove that BIGGE was “engaged in the business” of producing, manufacturing, distributing,
leasing or selling on a retail level, asbestos-containing products and that BIGGE’s conduct was a
substantial factor in causing the damages for which he complains. However, under California law,
plaintiff cannot proceed on a strict products liability theory against BIGGE for the reasons stated

herein.

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I. ARGUMENT
THE PLAINTIFF CANNOT PROCEED ON A STRICT PRODUCTS LIABILITY
THEORY AGAINST BIGGE AS A PROVIDER OF SERVICES

The doctrine of strict products liability was adopted in California in Greenman v. Yuba
Power Products, Inc. (1963) 58 Cal.2d 57. Since the landmark decision, the doctrine of strict
liability has been extended to retailers, Gulden v. Conway (1976) 55 Cal.App.2d 948; bailors see,
McCafjlin v. Bay Shore Equipment Rental Company (169) 274 Cal.App.2d 446; and sellers and
developers of track homes see, Delmar Beach Club Owner's Association v. Imperial Contracting
Company, Ine. (1981) 123 Cal App.3d 898.

In the above-cited cases, the defendants played “an integral and vital part in the overall
producing or marketing enterprises.” Silverhart v. Mt. Zion Hospital (1971) Cal.App.3d 1022,

In addition, it has also been held that subcontractors, hired by developers, cannot be held
strictly liable for defects in mass produced housing projects. La Jolla Village Homeowner's
Association v. Superior Court (1989) 212 Cal. App.3d 1131.

Strict liability has never been extended, however, to companies that independently contract

to provide services. In the instant case, evidence will show that BIGGE fell within this exempt
category as a service provider and therefore, is not strictly liable in tort for the plaintiffs injuries.

In Endicott v. Nissan Motor Corporation (1977) 73 Cal.App.3d 917, defendant Nissan hired
an independent contractor, defendant Vehicle Maintenance, to install seatbelts in Nissan
automobiles. When the automobiles arrived in California, the seatbelts were in the trunk, and
Nissan had marked the interior of the automobiles where the seatbelts were to be installed. The
plaintiff's seatbelt ruptured when his Datsun 411 rolled over after hitting an embankment.

The Appellate Court affirmed the lower court’s granting of Vehicle Maintenance’s motion
for nonsuit. The court found no evidence that the installer as a provider of service was an integral
part of Nissan’s overall marketing enterprises. It further held that there was no evidence that the
installers played a significant role in placing Nissan’s automobile into the stream of commerce that

could render it strictly liable in tort for Nissan’s defective component part. “As a mere provider of

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services, [the installer] is not liable for defects in the products.” (/d., at 930.)

Another example of a company that provided services and was not held to be strictly liable
in tort was Allied Properties v. John A. Blume & Associates (1972) 25 Cal.App.3d 848. In that case,
the plaintiff hotel owner contracted with defendant to perform services, namely to do a feasibility
study and design a pier for small boats. Subsequent to the pier’s construction, it proved to be
unstable for much of the time. The plaintiff brought suit, but the court refused to give an instruction
on implied warranty and strict liability. The court stated: Where the primary object of a transaction
is to obtain services, the doctrines of implied warranty and strict liability do not apply.

In addition, in Monte Vista Development Corporation v. Superior Court (1991) 226
Cal.App.3d 1681, the court held that a subcontractor who supplied and installed defective ceramic
soap dishes could not be held liable on a theory of products liability. In Monte Vista, 1991 supra,
the plaintiff was injured when a handle on a soap dish, on which she was bracing herself, broke.
The plaintiff brought an action for general negligence and strict liability against the developer,
general contractor Monte Vista and Willey Tile Company.

Willey Tile Company was in the business of installing residential and commercial ceramic
tile. In 1983, Monte Vista accepted Wiley Tile’s bid for work on their project known as Cougar
Estates. Pursuant to the terms of the accepted bid, Willey Tile was to install soap dishes and other
tile fixtures that were purchased in bulk from Bedrosian. Willey Tile was not in the business of
manufacturing soap dishes nor did it have any financial interest in the project except for monies due
pursuant to its bid. Willey Tile charged Monte Vista for the acquisition of the soap dishes.

The trial court granted Willey Tile Company’s motion for summary judgment on the cause
of action for strict liability. Monte Vista as cross-complainant against Willey Tile, sought a writ of
mandate.

In its decision, the Monte Vista court stated, at page 1687: The focus of our analysis is not
on whether Willey Tile was a subcontractor but whether the tile company came within the chain of
commerce as a supplier of the soap dish to the extent that it became strictly liable if the item was

defective.

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The court concluded that liability should not be extended under the circumstance of that
case. The court based its decision on its analysis of Restatement of Torts 2d 402A. The court stated
that Willey Tile was not in the business of selling soap dishes or any other fixtures. It purchased the
soap dish that injured the plaintiff, as well as other fixtures, in order to complete its subcontract with
Monte Vista. Obviously, it mattered not to Willey Tile whether Monte Vista or someone else
supplied the tile fixtures. Willey Tile’s job was to do the tile work. Accordingly, under the
guidelines of the Restatement of Torts 2d, “Willey Tile is not an entity which is subject to strict
liability for supplying a defective product.”

The position of BIGGE, in relation to the plaintiff in this case, is no different from that of
Willey Tile Company’s in the Monte Vista Development Corporation case. BIGGE, as a crane and
rigging contractor, was hired by various general contractors to provide crane and rigging services on
jobs when necessary. BIGGE was not “engaged in the business” of producing, manufacturing,
distributing, leasing or selling on a retail level, asbestos-containing products. The job of BIGGE
was to rig, lift, and/or hoist equipment and material at jobs where plaintiff may have been present.

itl, CONCLUSION
Based on the above, defendant BIGGE respectfully submits that it cannot be held

strictly liable in tort for the injuries claimed by plaintiff.

DATED: November 4, 2011 KNOX RICKSEN LLP

By:_/s/ Gregory D. Pike.

Gregory D. Pike

Attorneys for Defendant

BIGGE CRANE AND RIGGING CO.

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Re: Husband v. Asbestos Defendants (BP), et al.
San Francisco Superior Court No. CGC-09-275098

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

1, the undersigned, declare: that | am and was at the time of service of the documents herein referred
to, over the age of 18 years, and not a party to the action; and | am employed in the County of
Alameda, California, My business address is 1300 Clay Street, Suite 500, Oakland, California
94612-1427.

On the date executed below, ! electronically served the document(s) via LexisNexis File & Serve
described as:

BIGGE CRANE & RIGGING COMPANY’S MOTION IN LIMINE NO. 4:

TO PRECLUDE ANY CLAIM BY PLAINTIFF BASED ON A STRICT LIABILITY
THEORY

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. | declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on November 9, 2011 at Oakland, California.

/s/ Nicholas J, Bertolino
Nicholas J, Bertolino

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