Preview
JEFFERY J. FADEFF, ESQ. (SBN 111497)
RESHMA A. BAJAJ, ESQ. (SBN 227106)
BASSL EDLIN, HUIE & BLUM LLP
351 California Street, Suite 200
San Francisco, CA 94104
Telephone: — (415) 397-9006
Facsimile: (415) 397-1339
Attorneys for Defendants
J.T. THORPE & SON, INC.
ELECTRONICA
FILED
Superior Court of Calif
County of San Franc
LY
wnia,
CO
2009
AUG 04
GORDON PARK-LI
BY: JUANITA D. MUR
Deput}
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
JIM BATTS, JR., and SHIRLEY BATTS,
Plaintiffs,
VS.
ASBESTOS DEFENDANTS (BP),
Defendants.
105249
Case No. 450490
DEFENDANT J.T. THORPE & SON,
INC.’S MOTION IN LIMINE TO
PROHIBIT EVIDENCE THAT J.T.
THORPE & SON, INC. IS A STRICT
PRODUCTS LIABILITY DEFENDANT
Motion in Limine No. 9
Trial Date: August 4, 2009
Time: 9:30 a.m.
Dept.: 501
Judge: Honorable Ronald E.
Quidachay
Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANT
Clerk
PHY
ClerkI. INTRODUCTION
Plaintiff intend to introduce evidence on, and allege a strict products liability claim
against, J. T. THORPE & SON, INC. (hereafter “JTTS”), which hereby moves this court for an
order precluding the application of strict products liability to this defendant. JTTS is nota
manufacturer, seller or distributor of asbestos-containing products, as construed by Torts
Restatement (Second) Section 402 A, the law of California and other jurisdictions. In Monte
Vista Development Corp. v. Super. Ct. 226 Cal. App. 3d 1681, 1687 (1991), the court held that
strict products liability does not apply to a subcontractor who is not a seller within the meaning
of the rule imposing strict products liability. Moreover, courts have declined to apply strict
liability where the transaction’s service aspect predominates and any product supplied is merely
incidental to a contract and the provision of the service. Services, even when provided
commercially, are not products. Based on the holding in Monte Vista, analogous California
jaw, case law in other jurisdictions and the decisions of several judges in the San Francisco
Superior Court, this court should grant this motion to preclude a claim for strict products
liability against JTTS.
Ik. FACTUAL BACKGROUND
Plaintiff, Jim Batts, Jr. alleges that he suffers from asbestosis as a result of exposure to
asbestos against JTTS. Mr. Batts served in the United States Navy from 1962 to 1976. He
worked as a boilertender at the Weyerhaeuser plant in Longview, Washington from 1977 to
1981. He worked as a salesman at McCord Datsun in Longview, Washington from 1980 to 1981
and as a helper at the Mint Valley Golf Course in Longview, Washington from 1981 to 1982. Hel
worked at the Southern California Edison plant in Ventura, California in 1983. He worked as an
insurance salesman in Texas from 1984 to 2004. Specifically as to JTTS, Plaintiff claims
exposure to asbestos through his service in the United States Navy and at Weyerhaeuser.
JTTS was incorporated in California in 1922 and since that time has specialized in the
installation and repair of refractory materials inside high temperature units such as furnaces and
boilers, primarily in Northern California. Any new installation or repair work performed by
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTJTTS was ultimately governed by the terms and conditions of new installation and/or
inaintenance contracts that JTTS had with its customers.
The issue is whether JTTS is subject to strict products liability for their work as
refractory contractors.
UL LEGAL ANALYSIS
A. The Greenman Rule And Tort Restatement (Second) Section 402A Only
Apply To Manufacturers, Sellers, Retail Dealers Or Distributors Of
Defective Products.
The strict products liability doctrine was established in California through Greenman v.
Yuba Power Products. Inc., 59 Cal. 2d 57 (1963). There, the Supreme Court held that
“manufacturer is strictly liable in tort when an article he places on the market, knowing that it is
to be used without inspection for defects, proves to have a defect that causes injury to a human
being.” /d. at p. 62. The strict liability theory was then embodied in the Restatement (Second) of
Torts, section 402A. 6 Witkin, Summary of Cal. Law g* ed, 1988) § 1243, p. 678. Section
402A of the Restatement (Second) of Torts provides in pertinent part: “(1) One who sells any
product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to
liability for physical harm thereby caused to the ultimate user or consumer . . . If (a) the seller is
engaged in the business of selling such a product, and (b) it is expected to and does reach the
user or consumer without substantial change in the condition in which it is sold. (2) The rule
stated in Subsection (1) applies although (a) the seller has exercised all possible care in the
preparation and sale of his product, and (b) the user or consumer has not bought the product from)
or entered into any contractual relation with the seller.” California has adopted the Restatement
(Second) of Torts section 402A. See, Barth v. B.F. Goodrich Tire Co., 265 Cal. App. 2d 228,
250 (1968); Jenkins v. T&N PLC, 45 Cal. App. 4th 1224, 1228 (1996).
The doctrine of strict products liability applies to all persons in the chain of distribution
of a defective product, including manufacturers, wholesalers and retailers. Soule v. General
Motors Corp., 8 Cal. 4th 548, 560 (1994); Bay Summit Community Assn. v. Shell Oil Co.. 51
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTCal. App. 4th 762, 773 (1996). Strict products liability is imposed on retailers because, “like
manufacturers, [they] are engaged in the business of distributing goods to the public. They are
an integral part of the overall producing and marketing enterprise that should bear the cost of
injuries resulting from defective products.” Arena v, Owens-Corning, 63 Cal. App. 4th 1178,
1197 n. 12 (1998). “In some cases the retailer may be the only member of that enterprise
reasonably available to the injured plaintiff. In other cases the retailer himself may play a
substantial part in insuring that the product is safe or may be in a position to exert pressure on the!
manufacturer to that end; the retailer’s strict liability thus serves as an added incentive to safety.”
Id., quoting, Vandermark v. Ford Motor Co. 61 Cal. 2d 256, 262 (1964).
“Most significantly, courts have been mindful that the strict liability doctrine derives
from judicially perceived public policy considerations and therefore should not be expanded
beyond the purview of these policies.” Bay Summit Community Association at 774. Labels
such as “wholesaler,” “retailer,” and “distributor” have an important and inescapable role in the
case law relevant to the identification of culpable links in the product liability chain. The chain
analogy, however, is but a tool and the court must consider substance over form.
No matter what the label, it is the substance of the function not its designated label that
normally determines whether a defendant may be held strictly liable. “The courts have eschewed|
legal Jabels and have taken a very practical approach, focusing on the actual connection between
the defendants’ activities and the defective product . . . [and] the defendant's legal status or
formal relationship with the manufacturer or the consumer is not dispositive.” Id. at 774.
The Restatement (Second) of Torts, section 19 provides: “(b) Services, even when
provided commercially, are not products.” California courts have not extended the scope of
strict liability to transactions whose primary objective are obtaining services and have declined
to apply strict liability where the transaction’s service aspect predominates and any product sale
is merely incidental to the provision of the service. Pierson v. Sharp Memorial Hospital. Inc.
216 Cal. App. 3d 340, 344 (1989): Hyland Therapeutics v. Super. Ct., 175 Cal. App. 3d 509,
513 (1985); Endicott v. Nissan Motor Corp., 73 Cal. App. 3d 917, 930 (1977). “A service is no
more than direct human action or human performance ... . In light of the infinite subtle
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTnuances of human performance, the law reasonably imposes only a standard of negligence
rather than strict liability in the provision of human services.” Pierson at 345.
B. California And Other Jurisdictions Hold That Strict Products Liability Does
Not Apply To A Defendant Who Is Not A Seller Within The Meaning Of The
Rule Imposing Strict Liability,
To classify JTTS as a “seller” of a product would require this court to distort and
expand existing California precedent which holds that a contractor or sub-contractor is not a
“seller” within the scope of Section 402A, and is therefore not liable for any component part it
may supply in compliance with the performance of a job or service.
In Monte Vista, 226 Cal. App. 3d 1681 (1981), the court affirmed summary
adjudication, holding that a subcontractor who was in the business of installing commercial and
residential ceramic tile was not strictly liable for supplying a defective soap dish since it was not
in the business of selling soap dishes. Pursuant to the terms of the accepted bid, defendant was
to install soap dishes and other tile fixtures it purchased from a third-party supply company. The
bid did not specify the type or brand of soap dish to be installed. The court also noted that the
defendant was not in the business of manufacturing soap dishes nor did it have any financial
interest in completion of the job, except for the monies due pursuant to the bid. Id. at 1684,
The focus of the court’s analysis was whether defendant came within the chain of
commerce as a supplier of the soap dish to the extent that it became strictly liable for the
defective item. Id. at 1687. The court reasoned that since there was no evidence that defendant
was in the business of selling soap dishes or other fixtures, that it purchased all of its fixtures in
order to complete its subcontract with the developer, that it did not matter to defendant who
supplied the fixtures, and that it was defendant's job simply to do the work, that defendant was
not subject to strict liability under the guidelines of the Restatement (Second) of Torts. Id.
In La Jolla Village Homeowner's Association, Inc. v. The Superior Court of San Diego County.
212 Cal. App. 3d 1131 (1989), the court affirmed the trial court’s ruling granting a judgment on
the pleadings without leave to amend and striking plaintiffs causes of action for strict liability
and nondisclosure as to all subcontractors. The court acknowledged that although strict liability
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANToO OD WD
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had been recently extended to developers of large property developments and tract homes, it
refused to extend the strict liability doctrine to a subcontractor hired by the developer to perform
a particular duty: “No reported California case has held that a subcontractor hired by a developer
can be held strictly liable for defects in a mass-produced housing project and we decline to do so
now.” Id. at 1144.
“In the typical general contractor/developer-subcontractor relationship, the
general is the principal in charge of the planning, designing, constructing,
supervising, inspecting and then selling of the residential units. The general hires
subcontractors to carry out the planning, designing, and constructing of the units.
Normally, numerous subcontractors will be retained by the general to assist on the
project before the residential units are finished products ready for mass
consumption. The subcontractors usually follow set plans and specifications
given to them by the general contractor to do a particular job or “component part”
in the “manufacturing of the product” and leave the project when that job is
completed and approved by the general. The subcontractor customarily performs
one task which is integrated into a whole. It does not control the trades which
precede or follow it on the job. For example, the subcontractor who lays tile in an
entryway has no choice but to accept the cement slab or the wooden footing
which has previously been installed by other subcontractors, and it cannot control
the stucco applicator that comes on the project after it leaves the project.”
The court found persuasive the fact that subcontractors in a construction project have no
control over the whole “product” nor do they have control over the component part for which
the sub-contractor was hired to perform because they generally work to the plans of the
developer. Id.
In Stuart y. Crestview Mut. Water Co., 34 Cal. App. 3d 802 (1973), while holding the
developer strictly liable, the court refused to hold the “subcontracting” engineers who designed
the defective water system strictly liable. The court there stated: “We cannot .. . find any bases
for holding the engineers on a strict liability theory. They rendered a professional service and are
in no sense analogous to manufacturers who place products on the market and who are,
therefore, in the best position to spread the cost of injuries resulting from defective products.
[Citations.] . . .’[ The] well settled rule in California is that where the primary objective of a
transaction is to obtain services, the doctrines of implied warranty and strict liability do not apply|
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANT[citation] ....°” Id. at 811.
Other jurisdictions which have addressed this issue have reached the same result, even
where a contractor or subcontractor may have supplied products in performing its work
under a contract. In Maack v. Resource Design & Constr, Inc., (Utah App. 1994) 875
P.2d 570, 581, plaintiffs alleged the exterior components of a residence - the stucco,
membranes, and adhesives - built by the defendants were defective, and defendants were
therefore strictly liable for damages under section 402A. This claim was rejected by the
trial court on the basis that the defendants were not “sellers”. /d.
The Court of Appeals of Utah agreed, stating that “We find no reason to disturb the trial
court’s conclusion . . . that [the Defendants] were not “sellers” or manufacturers of the
component parts of the exterior of the house. The [Plaintiffs] claim, nonetheless that [the
Defendants] were “sellers” of the component parts because the contract... specified that
[the Defendants] would be on a cost of work plus fee basis. However, this inclusion of
the cost of materials seems to have been solely for the purpose of calculating a fee for the
work done. The evidence is undisputed that [the Defendants] were construction
contractors who simply utilized these component parts when constructing the residence -
they were not in the business of selling stucco, adhesives, or membranes on wholesale or
retail basis. [Emphasis Added].
Another example is Delta Refining Co. v. Procon, Inc. (Tenn. Ct. App. 1976) 552 $.W.2d
387, where a fire occurred at an oil refinery due to a defective pump purchased and installed by a)
general contractor under a general construction contract with the oil refinery. The oil refinery
brought suit against the manufacturer of the pump and the contractor. Id. The trial court granted
a directed verdict in favor of the contractor, and the plaintiff appealed. Id. The Tennessee Court
of Appeals affirmed the judgment. Id. The appeals court held that the contractor was not liable
under the strict liability doctrine as a seller of the pump because the contractor was not in the
business of selling such pumps, but had merely contracted with the oil refinery to purchase and
install the pump which. the codefendant was to build according to specifications furnished by the
oil refinery, Id. at 388.
In Scordino v. Hopeman Brothers, Inc. 662 So. 2d 640, 642 (1995) the Supreme Court
of Mississippi, applying Section 402A and relying on the reasoning outlined in Monte Vista
Development Corp. v. Superior Court, supra, and decisions of other jurisdictions, rejected a strict
liability claim against an independent contractor that installed and supplied asbestos paneling on
board ships as required under its subcontract. The court concluded that a joiner subcontractor in
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTthe business of installing shipboard furniture, beds, box berthing, non-structural bulkheads,
overheads and installation was not a manufacturer or a seller under Section 402A or liable under
a negligence claim for failure to warn. Id.
In Scordino, former employees of Ingalls Shipyard Corporation alleged that while
employed at Ingalls they were exposed to asbestos, which was a component of Marinite and
Micarta, a fire-resistant wall paneling supplied and installed by defendant Hopeman Brothers,
Inc. Plaintiffs claimed that irreparable and progressive lung damage was caused due to being
exposed to the dust generated by the installation of the paneling and, that during this exposure
period, they had no reason to believe or otherwise have knowledge that the Marinite was
dangerous when inhaled or otherwise ingested. The Plaintiffs alleged that Hopeman, among
others, knew or should have known about the dangers of asbestos and had failed to warn
Plaintiffs about said dangers by ignoring or actively and fraudulently concealing the danger.
Thus, Plaintiffs alleged Hopeman was negligent and strictly liable for its conduct, which resulted
in their injury. In response, Hopeman claimed that because it was an installer and not a seller or
manufacturer of asbestos, it was neither negligent nor strictly liable.
At trial, following the testimony of witnesses for Plaintiffs and Hopeman, Hopeman
moved for a directed verdict that the trial court granted. The trial court reasoned that the Micarta
and Marinite installed by Hopeman was not Hopeman’s product. Rather, the trial court
concluded, Hopeman was “a subcontractor of labor to assemble and install various materials”
pursuant to the subcontract which contained exact specifications. Plaintiffs appealed.
The Scerdino court's refusal to extend strict liability to an independent contractor on facts
remarkably similar to the issues in this case is compelling: “The facts of this case are: (1) that
Hopeman is in the business of joiner subcontracting, i.e., building the interior outfitting of a ship
which consisted of installing shipboard furniture, beds, box berthing, non-structural bulkheads,
overheads, insulation, etc.; (2) that the materials Hopeman purchased to fulfill a joiner
subcontract were not purchased for resale: (3) that the services and materials Hopeman provided
were specified in the contract with Ingalls and the vessel owners; and (4) that the total price of a
job included both the services and materials that were provided. Based on this evidence, it is
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTclear that Hopeman was not a seller in the business of selling Micarta and Marinite. Rather, as a
subcontractor, Hopeman merely supplied the materials to complete the service for which it was
hired pursuant to the contract between the parties. It follows that Hopeman is not strictly liable
under the Restatement. [402A].” Id.
Other cases which follow this rule include: Freitas v. Twin City Fisherman’ s Cooperative
Association (Tx. Ct. App. 1970) 452 S.W.2d 931; the Trustees of Columbia University in the
City of New York v. Gwathnmey Siegel and Associates Architects (N.Y. App. Div. 1993) 192
A.D.2d 151, 601 N.Y.8.2d 116; Sapp v. Morton Buildings, Inc. (7" Cir. 1992) 973 F.2d 539.
See also, Chenango Ind. Dev. Agency v. Lockwood Greene Eng’rs, Inc.. (N.Y. App. Div. 1985)
114 A.D.2d 728, 494 N.Y.S.2d 832, 834 (affirming dismissal of strict liability count against
roofer that installed defective roofing material, and explaining that roofer “was engaged
primarily to install [the] material and that any transfer of personal property was purely incidental
to the performance of this service”), appeals dismissed, 67 N.Y.2d 757, 490 N.E.2d 1233, 500
N.Y.S.2d 1027 (1986).
Cc Torts Restatement Second Section 402A Does Not Apply To Occasional
Sellers or Installers of Products Within Contract Specifications.
Even though JTTS cannot be classified as a “seller,” the textual limitation of section
402A that the supplier be in the business of selling or supplying the product has also been
applied to exclude from its reach the occasional seller. Oliver v. Superior Court 211 Cal. App.
3d 86, 89 (1989) (“doctrine of strict products liability does not apply to ‘the occasional
construction and sale of residences”); See, comment (f) of Restatement (Second) of Torts
section 402A, which exempts from this rule the "occasional seller" who is not engaged in the
activity as a regular part of its business.
Courts have refused to hold a defendant strictly able even when the defendant could be
technically viewed as a “link in the chain” in getting the product to the consumer market.
Peterson v. Superior Court (1995) 10 Cal. 4° 1185 (determining that landlords and hotel
proprietors are not strictly liable for product defects as the policy justifications underlying the
strict liability doctrine are inapplicable); Tauber-Arons Auctioneers Co. v, Superior Court (1980)
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANT101 Cal. App. 3d 268, 281-282 (secondhand dealer is not strictly liable for a defective used
product); See also, McKenna v. Art Pearl Works, Inc. (Pa. Super. Ct.1973) 225 Pa.Super. 362,
365 n.2, 310 A.2d 677, 679 n.2; Lemley v. J & B Tire Co. (W.D. Pa. 1977) 426 F. Supp. 1378,
1379,
In Griffin Industries, Inc. v. Jones (Ky.1998) 975 S.W. 2d 100, 102, the Kentucky
Supreme Court applied the “occasional seller” exception of 402A, comment (f), and rejected a
strict liability claim against defendant:
“The otherwise valuable rule of strict liability does not apply to the occasional seller of
an allegedly defective product. When a product is sold only on an occasion or incident to’
the business of the seller, the transaction does not come within the purview of the
doctrine of strict liability.”
Id. at 103.
Moreover, a party who provides nonprofessional services such as repair, maintenance and|
service, while subject to liability for negligence, is not usually subject to strict products liability.
See, Lemley at 1379; Hoffman v. Simplot Aviation, Inc. (1975 Idaho) 539 P.2d 584; Steckal v.
Haughton Elevator Co. (N.Y. 1983) 59 N.Y.2d 628, 449 N.E.2d 1264.
Lemley involved an action brought against a repairman for injuries sustained as a result
of negligent installation of new brake shoes and a self-adjusting mechanism. In granting
defendant's partial summary judgment for dismissal of the strict liability claims, the Lemley
court held that while the term "sellers" had been interpreted to include retailers and
manufacturers, as well as wholesalers, distributors and suppliers, it had not been expanded to
include persons who supply a service. Lemley at 1379. The court reasoned that the social policy
of protecting consumers against the mass producer or distributor did not apply in this case. Id. at
1380.
Similarly, in Hoffman, the Idaho Supreme Court refused to extend the rule of strict
products liability beyond sales and into the area of personal services. In that case, plaintiff
contracted with the defendant aviation repair company to repair a vintage aircraft. Based upon
its analysis of Section 402A and related case law, the court declined to apply strict liability in tort
to personal services by finding claims against a party that performed personal services are
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTfundamentally different from claims against a mass producer of a defective product. Id. at 587.
The court reasoned it nearly impossible to prove negligence against the manufacturer of a mass
produced defective product because it is extremely difficult to identify the individuals whose
conduct caused the defect. In contrast, the beneficiary of personal services comes into direct
contact with the one offering the service and can easily determine what work. was performed and
who performed it.
In Steckal, the New York Court of Appeals considered the applicability of strict products
liability when plaintiff was injured while riding in a defective elevator. The court held that the
fact that the defendant both supplied and serviced the elevator did not warrant imposing strict
liability for a defect that developed after installation was complete. Steckal at 628.
A contractor or installer will not be held strictly liable where it is determined its activity
amounts, at most, to that of an occasional seller. In Barham v. Turner Construction Co. 803
S.W.2d 731 (Tex. Ct. App. 1990), the defendant general contractor was held not strictly liable
for injuries caused by steel columns purchased from a third party and used in the construction of
a building. The court found nothing to indicate the contractor did anything more than sells its
general contracting services. Id. at 738. At most, the court reasoned, the contractor was an
“occasional seller" of components of buildings and was not engaged in the sale of steel columns
as part of its business and, therefore, the underlying principles of strict liability did not apply. Id.
Similarly, in Mini Mart, Inc. v. Direct Sales Tire Co., 876 F.2d 63 (8" Cir.1989), applying South
Dakota law, the court held the defendant company that installed the defective underground
storage tank at a plaintiff's store could not held strictly liable, even where plaintiff purchased the
tank from defendant, because there was no evidence to show the defendant was in the business of|
selling tanks.
D. Strict Products Liability Does Not Apply To J.T. THORPE & SON, INC,
JTTS, as an independent contractor, performed work as specified by the U.S. Navy as
part of a massive and historic shipbuilding effort during World War IL JTTS was a brickwork
contractor, not a seller of products. Consistent with standards articulated in Monte Vista and
holdings in other jurisdictions, JTTS is not subject to strict products liability under the
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTRestatement (Second) of Torts, Section 402A. JTTS specialized in the installation of refractory
products pursuant to contract. There is no basis for imposing strict liability where the products
and materials used were incidental to providing the service of refractory installation. Anything
used on these ships had to conform to rigid specifications issued by the United States Navy.
JTTS was not in business as a refractory supplier and did not provide any materials to the U.S
Navy beyond that which they installed on the vessels themselves. Thus, any sales by JTTS were
incidental to the work they performed in installing the products. California and other
jurisdictions have consistently refused to apply the doctrine of strict liability to situations where
the service was the predominant factor and the supply of a product is incidental to the
performance of the contract.
Finally, the public policy reasons underlying the application of strict liability in tort do
not apply to JITS. A purpose of strict liability is the promotion of product safety. Greenman v.
Yuba Power Products, Inc., supra, 59 Cal. 2d at 63; Vandermark vy. Ford Motor Co.. supra, 61
Cal. 2d at 262; Bay Summit Community Assn. v. Shell Oil Co., supra, 51 Cal. App. 4" at 772-
773. Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453,
462 (1944) (cited with approval in Greenman, supra, at p. 63) stated: “Public policy demands
that responsibility be fixed wherever it will most effectively reduce the hazards to life and health
inherent in defective products that reach the market.” In Bay Summit, supra, the court held:
“Viewing the existing case law and the policies underlying the doctrine, we agree with
Shell that the mere fact an entity “promotes” or “endorses” or “advertises” a product does}
not automatically render that entity strictly liable for a defect in the product. (See
Hanberry y. Hearst Corp, (1969) 276 Cal. App. 2d 680, 687-688 [81 Cal. Rptr. 519, 39
A.L.R.3d 173]; Harmon v. National Automotive Parts Assn., supra, 720 F. Supp. At p.
81.) It would be unlikely that such defendant could significantly affect product safety or
that the defendant could effectively spread the risk of the cost of protection. [Citations
omitted].” (emphasis added).
Id., 51 Cal App.4" at 775-776.
Applying strict liability to JTTS in this instance would not serve to protect the consumer
from produced and distributed defective products, a policy that is at the heart of strict liability
theory. Further, such a holding would set a precedent that no California court has ever adopted
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTor recognized. JTTS was not in a position to control defects in asbestos-containing products or
to spread the cost through pricing. This is particularly true in this case where the US Navy
specified the materials to be used based on rigid military specifications as part of a wartime
military buildup. Having to incorporate potential strict liability costs into JTTS’ job bids, given
its specialized market, would prevent it from remaining competitive in the installation business.
For this reason, JTTS could not recuperate its costs of compensating asbestos-related injuries by
increasing its prices.
Assuming for the sake of discussion that JTTS occasionally recommended a particular
asbestos-containing product based on its performance standards, courts hold occasional sellers of
building components who are not engaged in the sale of such products as a part of their overall
business are not strictly liable for any resulting injuries. Finally, even where an installer such as
JTTS may have merely supplied materials within the specifications and plans of another, strict
liability does not apply.
Iv. CONCLUSION
The policies articulated by the Greenman rule and Restatement (Second) of Torts
Section 402A do not apply to JTTS. For the reasons discussed above, defendant JTTS
respectfully requests that its motion to preclude plaintiffs from proceeding against it under strict
products liability be granted.
Date: August 4, 2009 BASSI EDLIN, HUIE & BLUM LLP
/S/ RESHMA A. BAJAJ
By
"RESHMA BAJAJ
Attorneys for Defendants
J.T. THORPE & SON, INC.
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Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTRe: Jim Batts, Jr., et al. v. Asbestos Defendants (BP)
San Francisco County Superior Court Case No. 450490
PROOF OF SERVICE ~ ELECTRONIC TRANSMISSION
STATE OF CALIFORNIA/COUNTY OF San Francisco
fam a citizen of the United States and an employee in the County of San Francisco. |
am over the age of eighteen (18) years and not a party to the within action. My business
address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San
Francisco, California 94104.
On the date executed below, I electronically served the document(s) via LexisNexis
File & Serve, described below, on the recipients designated on the Transaction Receipt located
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DEFENDANT J.T. THORPE & SON, INC.’S MOTION IN LIMINE TO
PROHIBIT EVIDENCE THAT J.T. THORPE & SON, INC. IS A STRICT PRODUCTS
LIABILITY DEFENDANT
On the following parties:
PLEASE SEE SERVICE LIST PROVIDED BY LEXISNEXIS
I declare under penalty of perjury that the foregoing is true and correct and that this
document is executed on August 4, 2009, at San Francisco, California.
/sf ALISHA C, PEMBER
ALISHA C. PEMBER
108293
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PROOF OF SERVICE108293
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PROOF OF SERVICE
Preview
JEFFERY J. FADEFF, ESQ. (SBN 111497) RESHMA A. BAJAJ, ESQ. (SBN 227106) BASSL EDLIN, HUIE & BLUM LLP 351 California Street, Suite 200 San Francisco, CA 94104 Telephone: — (415) 397-9006 Facsimile: (415) 397-1339 Attorneys for Defendants J.T. THORPE & SON, INC. ELECTRONICA FILED Superior Court of Calif County of San Franc LY wnia, CO 2009 AUG 04 GORDON PARK-LI BY: JUANITA D. MUR Deput} SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO JIM BATTS, JR., and SHIRLEY BATTS, Plaintiffs, VS. ASBESTOS DEFENDANTS (BP), Defendants. 105249 Case No. 450490 DEFENDANT J.T. THORPE & SON, INC.’S MOTION IN LIMINE TO PROHIBIT EVIDENCE THAT J.T. THORPE & SON, INC. IS A STRICT PRODUCTS LIABILITY DEFENDANT Motion in Limine No. 9 Trial Date: August 4, 2009 Time: 9:30 a.m. Dept.: 501 Judge: Honorable Ronald E. Quidachay Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANT Clerk PHY ClerkI. INTRODUCTION Plaintiff intend to introduce evidence on, and allege a strict products liability claim against, J. T. THORPE & SON, INC. (hereafter “JTTS”), which hereby moves this court for an order precluding the application of strict products liability to this defendant. JTTS is nota manufacturer, seller or distributor of asbestos-containing products, as construed by Torts Restatement (Second) Section 402 A, the law of California and other jurisdictions. In Monte Vista Development Corp. v. Super. Ct. 226 Cal. App. 3d 1681, 1687 (1991), the court held that strict products liability does not apply to a subcontractor who is not a seller within the meaning of the rule imposing strict products liability. Moreover, courts have declined to apply strict liability where the transaction’s service aspect predominates and any product supplied is merely incidental to a contract and the provision of the service. Services, even when provided commercially, are not products. Based on the holding in Monte Vista, analogous California jaw, case law in other jurisdictions and the decisions of several judges in the San Francisco Superior Court, this court should grant this motion to preclude a claim for strict products liability against JTTS. Ik. FACTUAL BACKGROUND Plaintiff, Jim Batts, Jr. alleges that he suffers from asbestosis as a result of exposure to asbestos against JTTS. Mr. Batts served in the United States Navy from 1962 to 1976. He worked as a boilertender at the Weyerhaeuser plant in Longview, Washington from 1977 to 1981. He worked as a salesman at McCord Datsun in Longview, Washington from 1980 to 1981 and as a helper at the Mint Valley Golf Course in Longview, Washington from 1981 to 1982. Hel worked at the Southern California Edison plant in Ventura, California in 1983. He worked as an insurance salesman in Texas from 1984 to 2004. Specifically as to JTTS, Plaintiff claims exposure to asbestos through his service in the United States Navy and at Weyerhaeuser. JTTS was incorporated in California in 1922 and since that time has specialized in the installation and repair of refractory materials inside high temperature units such as furnaces and boilers, primarily in Northern California. Any new installation or repair work performed by 105249 2 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTJTTS was ultimately governed by the terms and conditions of new installation and/or inaintenance contracts that JTTS had with its customers. The issue is whether JTTS is subject to strict products liability for their work as refractory contractors. UL LEGAL ANALYSIS A. The Greenman Rule And Tort Restatement (Second) Section 402A Only Apply To Manufacturers, Sellers, Retail Dealers Or Distributors Of Defective Products. The strict products liability doctrine was established in California through Greenman v. Yuba Power Products. Inc., 59 Cal. 2d 57 (1963). There, the Supreme Court held that “manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” /d. at p. 62. The strict liability theory was then embodied in the Restatement (Second) of Torts, section 402A. 6 Witkin, Summary of Cal. Law g* ed, 1988) § 1243, p. 678. Section 402A of the Restatement (Second) of Torts provides in pertinent part: “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused to the ultimate user or consumer . . . If (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from) or entered into any contractual relation with the seller.” California has adopted the Restatement (Second) of Torts section 402A. See, Barth v. B.F. Goodrich Tire Co., 265 Cal. App. 2d 228, 250 (1968); Jenkins v. T&N PLC, 45 Cal. App. 4th 1224, 1228 (1996). The doctrine of strict products liability applies to all persons in the chain of distribution of a defective product, including manufacturers, wholesalers and retailers. Soule v. General Motors Corp., 8 Cal. 4th 548, 560 (1994); Bay Summit Community Assn. v. Shell Oil Co.. 51 105249 3 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTCal. App. 4th 762, 773 (1996). Strict products liability is imposed on retailers because, “like manufacturers, [they] are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.” Arena v, Owens-Corning, 63 Cal. App. 4th 1178, 1197 n. 12 (1998). “In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the! manufacturer to that end; the retailer’s strict liability thus serves as an added incentive to safety.” Id., quoting, Vandermark v. Ford Motor Co. 61 Cal. 2d 256, 262 (1964). “Most significantly, courts have been mindful that the strict liability doctrine derives from judicially perceived public policy considerations and therefore should not be expanded beyond the purview of these policies.” Bay Summit Community Association at 774. Labels such as “wholesaler,” “retailer,” and “distributor” have an important and inescapable role in the case law relevant to the identification of culpable links in the product liability chain. The chain analogy, however, is but a tool and the court must consider substance over form. No matter what the label, it is the substance of the function not its designated label that normally determines whether a defendant may be held strictly liable. “The courts have eschewed| legal Jabels and have taken a very practical approach, focusing on the actual connection between the defendants’ activities and the defective product . . . [and] the defendant's legal status or formal relationship with the manufacturer or the consumer is not dispositive.” Id. at 774. The Restatement (Second) of Torts, section 19 provides: “(b) Services, even when provided commercially, are not products.” California courts have not extended the scope of strict liability to transactions whose primary objective are obtaining services and have declined to apply strict liability where the transaction’s service aspect predominates and any product sale is merely incidental to the provision of the service. Pierson v. Sharp Memorial Hospital. Inc. 216 Cal. App. 3d 340, 344 (1989): Hyland Therapeutics v. Super. Ct., 175 Cal. App. 3d 509, 513 (1985); Endicott v. Nissan Motor Corp., 73 Cal. App. 3d 917, 930 (1977). “A service is no more than direct human action or human performance ... . In light of the infinite subtle 105249 4 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTnuances of human performance, the law reasonably imposes only a standard of negligence rather than strict liability in the provision of human services.” Pierson at 345. B. California And Other Jurisdictions Hold That Strict Products Liability Does Not Apply To A Defendant Who Is Not A Seller Within The Meaning Of The Rule Imposing Strict Liability, To classify JTTS as a “seller” of a product would require this court to distort and expand existing California precedent which holds that a contractor or sub-contractor is not a “seller” within the scope of Section 402A, and is therefore not liable for any component part it may supply in compliance with the performance of a job or service. In Monte Vista, 226 Cal. App. 3d 1681 (1981), the court affirmed summary adjudication, holding that a subcontractor who was in the business of installing commercial and residential ceramic tile was not strictly liable for supplying a defective soap dish since it was not in the business of selling soap dishes. Pursuant to the terms of the accepted bid, defendant was to install soap dishes and other tile fixtures it purchased from a third-party supply company. The bid did not specify the type or brand of soap dish to be installed. The court also noted that the defendant was not in the business of manufacturing soap dishes nor did it have any financial interest in completion of the job, except for the monies due pursuant to the bid. Id. at 1684, The focus of the court’s analysis was whether defendant came within the chain of commerce as a supplier of the soap dish to the extent that it became strictly liable for the defective item. Id. at 1687. The court reasoned that since there was no evidence that defendant was in the business of selling soap dishes or other fixtures, that it purchased all of its fixtures in order to complete its subcontract with the developer, that it did not matter to defendant who supplied the fixtures, and that it was defendant's job simply to do the work, that defendant was not subject to strict liability under the guidelines of the Restatement (Second) of Torts. Id. In La Jolla Village Homeowner's Association, Inc. v. The Superior Court of San Diego County. 212 Cal. App. 3d 1131 (1989), the court affirmed the trial court’s ruling granting a judgment on the pleadings without leave to amend and striking plaintiffs causes of action for strict liability and nondisclosure as to all subcontractors. The court acknowledged that although strict liability 105249 s Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANToO OD WD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had been recently extended to developers of large property developments and tract homes, it refused to extend the strict liability doctrine to a subcontractor hired by the developer to perform a particular duty: “No reported California case has held that a subcontractor hired by a developer can be held strictly liable for defects in a mass-produced housing project and we decline to do so now.” Id. at 1144. “In the typical general contractor/developer-subcontractor relationship, the general is the principal in charge of the planning, designing, constructing, supervising, inspecting and then selling of the residential units. The general hires subcontractors to carry out the planning, designing, and constructing of the units. Normally, numerous subcontractors will be retained by the general to assist on the project before the residential units are finished products ready for mass consumption. The subcontractors usually follow set plans and specifications given to them by the general contractor to do a particular job or “component part” in the “manufacturing of the product” and leave the project when that job is completed and approved by the general. The subcontractor customarily performs one task which is integrated into a whole. It does not control the trades which precede or follow it on the job. For example, the subcontractor who lays tile in an entryway has no choice but to accept the cement slab or the wooden footing which has previously been installed by other subcontractors, and it cannot control the stucco applicator that comes on the project after it leaves the project.” The court found persuasive the fact that subcontractors in a construction project have no control over the whole “product” nor do they have control over the component part for which the sub-contractor was hired to perform because they generally work to the plans of the developer. Id. In Stuart y. Crestview Mut. Water Co., 34 Cal. App. 3d 802 (1973), while holding the developer strictly liable, the court refused to hold the “subcontracting” engineers who designed the defective water system strictly liable. The court there stated: “We cannot .. . find any bases for holding the engineers on a strict liability theory. They rendered a professional service and are in no sense analogous to manufacturers who place products on the market and who are, therefore, in the best position to spread the cost of injuries resulting from defective products. [Citations.] . . .’[ The] well settled rule in California is that where the primary objective of a transaction is to obtain services, the doctrines of implied warranty and strict liability do not apply| 105249 6 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANT[citation] ....°” Id. at 811. Other jurisdictions which have addressed this issue have reached the same result, even where a contractor or subcontractor may have supplied products in performing its work under a contract. In Maack v. Resource Design & Constr, Inc., (Utah App. 1994) 875 P.2d 570, 581, plaintiffs alleged the exterior components of a residence - the stucco, membranes, and adhesives - built by the defendants were defective, and defendants were therefore strictly liable for damages under section 402A. This claim was rejected by the trial court on the basis that the defendants were not “sellers”. /d. The Court of Appeals of Utah agreed, stating that “We find no reason to disturb the trial court’s conclusion . . . that [the Defendants] were not “sellers” or manufacturers of the component parts of the exterior of the house. The [Plaintiffs] claim, nonetheless that [the Defendants] were “sellers” of the component parts because the contract... specified that [the Defendants] would be on a cost of work plus fee basis. However, this inclusion of the cost of materials seems to have been solely for the purpose of calculating a fee for the work done. The evidence is undisputed that [the Defendants] were construction contractors who simply utilized these component parts when constructing the residence - they were not in the business of selling stucco, adhesives, or membranes on wholesale or retail basis. [Emphasis Added]. Another example is Delta Refining Co. v. Procon, Inc. (Tenn. Ct. App. 1976) 552 $.W.2d 387, where a fire occurred at an oil refinery due to a defective pump purchased and installed by a) general contractor under a general construction contract with the oil refinery. The oil refinery brought suit against the manufacturer of the pump and the contractor. Id. The trial court granted a directed verdict in favor of the contractor, and the plaintiff appealed. Id. The Tennessee Court of Appeals affirmed the judgment. Id. The appeals court held that the contractor was not liable under the strict liability doctrine as a seller of the pump because the contractor was not in the business of selling such pumps, but had merely contracted with the oil refinery to purchase and install the pump which. the codefendant was to build according to specifications furnished by the oil refinery, Id. at 388. In Scordino v. Hopeman Brothers, Inc. 662 So. 2d 640, 642 (1995) the Supreme Court of Mississippi, applying Section 402A and relying on the reasoning outlined in Monte Vista Development Corp. v. Superior Court, supra, and decisions of other jurisdictions, rejected a strict liability claim against an independent contractor that installed and supplied asbestos paneling on board ships as required under its subcontract. The court concluded that a joiner subcontractor in 105249 7 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTthe business of installing shipboard furniture, beds, box berthing, non-structural bulkheads, overheads and installation was not a manufacturer or a seller under Section 402A or liable under a negligence claim for failure to warn. Id. In Scordino, former employees of Ingalls Shipyard Corporation alleged that while employed at Ingalls they were exposed to asbestos, which was a component of Marinite and Micarta, a fire-resistant wall paneling supplied and installed by defendant Hopeman Brothers, Inc. Plaintiffs claimed that irreparable and progressive lung damage was caused due to being exposed to the dust generated by the installation of the paneling and, that during this exposure period, they had no reason to believe or otherwise have knowledge that the Marinite was dangerous when inhaled or otherwise ingested. The Plaintiffs alleged that Hopeman, among others, knew or should have known about the dangers of asbestos and had failed to warn Plaintiffs about said dangers by ignoring or actively and fraudulently concealing the danger. Thus, Plaintiffs alleged Hopeman was negligent and strictly liable for its conduct, which resulted in their injury. In response, Hopeman claimed that because it was an installer and not a seller or manufacturer of asbestos, it was neither negligent nor strictly liable. At trial, following the testimony of witnesses for Plaintiffs and Hopeman, Hopeman moved for a directed verdict that the trial court granted. The trial court reasoned that the Micarta and Marinite installed by Hopeman was not Hopeman’s product. Rather, the trial court concluded, Hopeman was “a subcontractor of labor to assemble and install various materials” pursuant to the subcontract which contained exact specifications. Plaintiffs appealed. The Scerdino court's refusal to extend strict liability to an independent contractor on facts remarkably similar to the issues in this case is compelling: “The facts of this case are: (1) that Hopeman is in the business of joiner subcontracting, i.e., building the interior outfitting of a ship which consisted of installing shipboard furniture, beds, box berthing, non-structural bulkheads, overheads, insulation, etc.; (2) that the materials Hopeman purchased to fulfill a joiner subcontract were not purchased for resale: (3) that the services and materials Hopeman provided were specified in the contract with Ingalls and the vessel owners; and (4) that the total price of a job included both the services and materials that were provided. Based on this evidence, it is 105249 8 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTclear that Hopeman was not a seller in the business of selling Micarta and Marinite. Rather, as a subcontractor, Hopeman merely supplied the materials to complete the service for which it was hired pursuant to the contract between the parties. It follows that Hopeman is not strictly liable under the Restatement. [402A].” Id. Other cases which follow this rule include: Freitas v. Twin City Fisherman’ s Cooperative Association (Tx. Ct. App. 1970) 452 S.W.2d 931; the Trustees of Columbia University in the City of New York v. Gwathnmey Siegel and Associates Architects (N.Y. App. Div. 1993) 192 A.D.2d 151, 601 N.Y.8.2d 116; Sapp v. Morton Buildings, Inc. (7" Cir. 1992) 973 F.2d 539. See also, Chenango Ind. Dev. Agency v. Lockwood Greene Eng’rs, Inc.. (N.Y. App. Div. 1985) 114 A.D.2d 728, 494 N.Y.S.2d 832, 834 (affirming dismissal of strict liability count against roofer that installed defective roofing material, and explaining that roofer “was engaged primarily to install [the] material and that any transfer of personal property was purely incidental to the performance of this service”), appeals dismissed, 67 N.Y.2d 757, 490 N.E.2d 1233, 500 N.Y.S.2d 1027 (1986). Cc Torts Restatement Second Section 402A Does Not Apply To Occasional Sellers or Installers of Products Within Contract Specifications. Even though JTTS cannot be classified as a “seller,” the textual limitation of section 402A that the supplier be in the business of selling or supplying the product has also been applied to exclude from its reach the occasional seller. Oliver v. Superior Court 211 Cal. App. 3d 86, 89 (1989) (“doctrine of strict products liability does not apply to ‘the occasional construction and sale of residences”); See, comment (f) of Restatement (Second) of Torts section 402A, which exempts from this rule the "occasional seller" who is not engaged in the activity as a regular part of its business. Courts have refused to hold a defendant strictly able even when the defendant could be technically viewed as a “link in the chain” in getting the product to the consumer market. Peterson v. Superior Court (1995) 10 Cal. 4° 1185 (determining that landlords and hotel proprietors are not strictly liable for product defects as the policy justifications underlying the strict liability doctrine are inapplicable); Tauber-Arons Auctioneers Co. v, Superior Court (1980) 105249 9 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANT101 Cal. App. 3d 268, 281-282 (secondhand dealer is not strictly liable for a defective used product); See also, McKenna v. Art Pearl Works, Inc. (Pa. Super. Ct.1973) 225 Pa.Super. 362, 365 n.2, 310 A.2d 677, 679 n.2; Lemley v. J & B Tire Co. (W.D. Pa. 1977) 426 F. Supp. 1378, 1379, In Griffin Industries, Inc. v. Jones (Ky.1998) 975 S.W. 2d 100, 102, the Kentucky Supreme Court applied the “occasional seller” exception of 402A, comment (f), and rejected a strict liability claim against defendant: “The otherwise valuable rule of strict liability does not apply to the occasional seller of an allegedly defective product. When a product is sold only on an occasion or incident to’ the business of the seller, the transaction does not come within the purview of the doctrine of strict liability.” Id. at 103. Moreover, a party who provides nonprofessional services such as repair, maintenance and| service, while subject to liability for negligence, is not usually subject to strict products liability. See, Lemley at 1379; Hoffman v. Simplot Aviation, Inc. (1975 Idaho) 539 P.2d 584; Steckal v. Haughton Elevator Co. (N.Y. 1983) 59 N.Y.2d 628, 449 N.E.2d 1264. Lemley involved an action brought against a repairman for injuries sustained as a result of negligent installation of new brake shoes and a self-adjusting mechanism. In granting defendant's partial summary judgment for dismissal of the strict liability claims, the Lemley court held that while the term "sellers" had been interpreted to include retailers and manufacturers, as well as wholesalers, distributors and suppliers, it had not been expanded to include persons who supply a service. Lemley at 1379. The court reasoned that the social policy of protecting consumers against the mass producer or distributor did not apply in this case. Id. at 1380. Similarly, in Hoffman, the Idaho Supreme Court refused to extend the rule of strict products liability beyond sales and into the area of personal services. In that case, plaintiff contracted with the defendant aviation repair company to repair a vintage aircraft. Based upon its analysis of Section 402A and related case law, the court declined to apply strict liability in tort to personal services by finding claims against a party that performed personal services are 105249 10 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTfundamentally different from claims against a mass producer of a defective product. Id. at 587. The court reasoned it nearly impossible to prove negligence against the manufacturer of a mass produced defective product because it is extremely difficult to identify the individuals whose conduct caused the defect. In contrast, the beneficiary of personal services comes into direct contact with the one offering the service and can easily determine what work. was performed and who performed it. In Steckal, the New York Court of Appeals considered the applicability of strict products liability when plaintiff was injured while riding in a defective elevator. The court held that the fact that the defendant both supplied and serviced the elevator did not warrant imposing strict liability for a defect that developed after installation was complete. Steckal at 628. A contractor or installer will not be held strictly liable where it is determined its activity amounts, at most, to that of an occasional seller. In Barham v. Turner Construction Co. 803 S.W.2d 731 (Tex. Ct. App. 1990), the defendant general contractor was held not strictly liable for injuries caused by steel columns purchased from a third party and used in the construction of a building. The court found nothing to indicate the contractor did anything more than sells its general contracting services. Id. at 738. At most, the court reasoned, the contractor was an “occasional seller" of components of buildings and was not engaged in the sale of steel columns as part of its business and, therefore, the underlying principles of strict liability did not apply. Id. Similarly, in Mini Mart, Inc. v. Direct Sales Tire Co., 876 F.2d 63 (8" Cir.1989), applying South Dakota law, the court held the defendant company that installed the defective underground storage tank at a plaintiff's store could not held strictly liable, even where plaintiff purchased the tank from defendant, because there was no evidence to show the defendant was in the business of| selling tanks. D. Strict Products Liability Does Not Apply To J.T. THORPE & SON, INC, JTTS, as an independent contractor, performed work as specified by the U.S. Navy as part of a massive and historic shipbuilding effort during World War IL JTTS was a brickwork contractor, not a seller of products. Consistent with standards articulated in Monte Vista and holdings in other jurisdictions, JTTS is not subject to strict products liability under the 105249 1 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTRestatement (Second) of Torts, Section 402A. JTTS specialized in the installation of refractory products pursuant to contract. There is no basis for imposing strict liability where the products and materials used were incidental to providing the service of refractory installation. Anything used on these ships had to conform to rigid specifications issued by the United States Navy. JTTS was not in business as a refractory supplier and did not provide any materials to the U.S Navy beyond that which they installed on the vessels themselves. Thus, any sales by JTTS were incidental to the work they performed in installing the products. California and other jurisdictions have consistently refused to apply the doctrine of strict liability to situations where the service was the predominant factor and the supply of a product is incidental to the performance of the contract. Finally, the public policy reasons underlying the application of strict liability in tort do not apply to JITS. A purpose of strict liability is the promotion of product safety. Greenman v. Yuba Power Products, Inc., supra, 59 Cal. 2d at 63; Vandermark vy. Ford Motor Co.. supra, 61 Cal. 2d at 262; Bay Summit Community Assn. v. Shell Oil Co., supra, 51 Cal. App. 4" at 772- 773. Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 462 (1944) (cited with approval in Greenman, supra, at p. 63) stated: “Public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” In Bay Summit, supra, the court held: “Viewing the existing case law and the policies underlying the doctrine, we agree with Shell that the mere fact an entity “promotes” or “endorses” or “advertises” a product does} not automatically render that entity strictly liable for a defect in the product. (See Hanberry y. Hearst Corp, (1969) 276 Cal. App. 2d 680, 687-688 [81 Cal. Rptr. 519, 39 A.L.R.3d 173]; Harmon v. National Automotive Parts Assn., supra, 720 F. Supp. At p. 81.) It would be unlikely that such defendant could significantly affect product safety or that the defendant could effectively spread the risk of the cost of protection. [Citations omitted].” (emphasis added). Id., 51 Cal App.4" at 775-776. Applying strict liability to JTTS in this instance would not serve to protect the consumer from produced and distributed defective products, a policy that is at the heart of strict liability theory. Further, such a holding would set a precedent that no California court has ever adopted 105249 12 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTor recognized. JTTS was not in a position to control defects in asbestos-containing products or to spread the cost through pricing. This is particularly true in this case where the US Navy specified the materials to be used based on rigid military specifications as part of a wartime military buildup. Having to incorporate potential strict liability costs into JTTS’ job bids, given its specialized market, would prevent it from remaining competitive in the installation business. For this reason, JTTS could not recuperate its costs of compensating asbestos-related injuries by increasing its prices. Assuming for the sake of discussion that JTTS occasionally recommended a particular asbestos-containing product based on its performance standards, courts hold occasional sellers of building components who are not engaged in the sale of such products as a part of their overall business are not strictly liable for any resulting injuries. Finally, even where an installer such as JTTS may have merely supplied materials within the specifications and plans of another, strict liability does not apply. Iv. CONCLUSION The policies articulated by the Greenman rule and Restatement (Second) of Torts Section 402A do not apply to JTTS. For the reasons discussed above, defendant JTTS respectfully requests that its motion to preclude plaintiffs from proceeding against it under strict products liability be granted. Date: August 4, 2009 BASSI EDLIN, HUIE & BLUM LLP /S/ RESHMA A. BAJAJ By "RESHMA BAJAJ Attorneys for Defendants J.T. THORPE & SON, INC. 105249 13 Derenpant J.T. THORPE & SON, INC.’s MOTION IN Liming 'Fo PROHIBIT EVIDENCE THAT IT Is A STRICT PRODUCTS LIABILITY DEFENDANTRe: Jim Batts, Jr., et al. v. Asbestos Defendants (BP) San Francisco County Superior Court Case No. 450490 PROOF OF SERVICE ~ ELECTRONIC TRANSMISSION STATE OF CALIFORNIA/COUNTY OF San Francisco fam a citizen of the United States and an employee in the County of San Francisco. | am over the age of eighteen (18) years and not a party to the within action. My business address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San Francisco, California 94104. On the date executed below, I electronically served the document(s) via LexisNexis File & Serve, described below, on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. DEFENDANT J.T. THORPE & SON, INC.’S MOTION IN LIMINE TO PROHIBIT EVIDENCE THAT J.T. THORPE & SON, INC. IS A STRICT PRODUCTS LIABILITY DEFENDANT On the following parties: PLEASE SEE SERVICE LIST PROVIDED BY LEXISNEXIS I declare under penalty of perjury that the foregoing is true and correct and that this document is executed on August 4, 2009, at San Francisco, California. /sf ALISHA C, PEMBER ALISHA C. PEMBER 108293 14 PROOF OF SERVICE108293 15 PROOF OF SERVICE