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Becker v. Baron Bros.

Decided: November 15, 1994.

EDITH BECKER, AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ALBERT BECKER, PLAINTIFF-RESPONDENT,
v.
BARON BROTHERS, COLISEUM AUTO PARTS, INC.; D & M AUTO PARTS; C & M AUTOMOTIVE WAREHOUSE, INC.; COUNTY AUTO PARTS; R & B AUTO SUPPLY; UNITED MOTORS PARTS, INC.; PARTS PLACE; TENAFLY FOREIGN & DOMESTIC CARS, INC.; MAREMONT, INC.; NUTURN, INC.; NATIONAL BRAKE BLOCK, INC.; SMS AUTOMOTIVE PRODUCTS, INC.; CONSOLIDATED UNIT; MORAK; ALLENDALE AUTOMOTIVE ENTERPRISE; MOTOR AGE WAREHOUSE; SUPREME AUTOMOTIVE WAREHOUSE; AUTOMOTIVE SYSTEMS, INC.; STATE CAR AND TRUCK PARTS WAREHOUSE; WHITE PLAINS/BWP DISTRIBUTORS, INC.; UCI DISTRIBUTION CENTER/UCI WAREHOUSE WESTCHESTER; RAYMARK CORPORATION AND RAYMARK INDUSTRIES, INC., AS SUCCESSOR TO RAYBESTOS-MANHATTAN; BENDIX CORPORATION; MOPAR; FORD MOTOR COMPANY; ABC; BORG WARNER; RAYLOC; EIS; WAGNER; PRIVATE BRANDS; VERA IMPORTED PARTS; SANYO AUTOMOTIVE; INTERCO PARTS CORPORATION; LUCAS INDUSTRIES INC.; I.A.P. IMPORTED PARTS; COLUMBIA MOTORS CORPORATION; GLOBE AUTO IMPORTS; EPE, INC.; AND JOHN DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE SUPPLIERS OR DISTRIBUTORS OF ASBESTOS CONTAINING PRODUCTS TO PLAINTIFF'S EMPLOYERS); AND RICHARD ROE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE MANUFACTURERS, OF ASBESTOS CONTAINING PRODUCTS), DEFENDANTS, AND GENERAL MOTORS CORPORATION (ORIGINALLY IMPLEADED AS DELCO) AND ENGLEWOOD BRAKE CO., INC., DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

Clifford, Handler, Pollock, Garibaldi, Stein

Clifford

The opinion of the court was delivered by

CLIFFORD, J.

On the strength of Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982), the Appellate Division ruled that all asbestos products marketed without warnings are defective as a matter of law. It therefore affirmed the judgment of the Law Division, entered on a verdict by a jury that had been instructed that that was the law.

We granted the petitions for certification of defendant General Motors Corp., 134 N.J. 476 (1993), and of defendant Englewood Brake Company, Inc., N.J. (1994), and now reverse.

I

Albert Becker was diagnosed in October 1984 as having contracted mesothelioma, a rare form of incurable cancer that affects the pleural membrane, the layer of cells surrounding the lungs and the chest cavity. He and his wife commenced this strict-liability, toxic-tort action in November 1985, seeking recovery from various miners, manufacturers, and sellers for personal injuries and consequent losses that they had sustained because of Becker's exposure to asbestos-containing products. After Albert Becker's death from mesothelioma at age fifty-five, in the course of this litigation, his wife added a count for her husband's wrongful death. Although she is correctly denominated the plaintiff, reference henceforth in this opinion to "plaintiff" is to Albert.

Plaintiff worked as an automobile mechanic for various employers from 1953 to 1967. In that year he opened his own service station, Tenafly Getty, which he operated until 1985. Throughout much of his career as a mechanic, Becker performed approximately one to five brake jobs per week and one to four clutch jobs per month. The products he used to perform those jobs did not provide any warnings regarding asbestos exposure until sometime around 1975, when manufacturers apparently began putting warnings on some of their products. Plaintiff was exposed to dust allegedly containing chrysotile-asbestos fibers as the result of his work in the following ways: (1) through removal of old parts from cars to replace them with new ones, which caused dust to come off the old parts near his face; (2) through using a wire brush to clean the dust out of the parts or through washing the dust off the parts, which caused the dust eventually to settle to the floor, to dry, and to float around in his shop; (3) through sanding parts with grease on them, which caused dust to come off the brakes; and (4) through watching one of his distributors grind old parts on a lathe during the remanufacturing process, thereby releasing dust into the air.

All but three defendants, United Motor Parts, Inc., Englewood Brake Company, Inc. (Englewood Brake), and General Motors Corp. (General Motors) settled or were dismissed prior to trial. At the close of the case, plaintiff asked the court to rule that "an asbestos[-]containing friction product [that] is friable is defective as a matter of law if it contains no warnings." Because the court believed that all asbestos products without warnings are defective, it agreed with plaintiff's position. The court stated that whether processed chrysotile asbestos can cause mesothelioma "is a proximate cause defense. It has nothing to do with whether * * * a product that contains asbestos, more specifically chrysotile, can be marketed without a warning and be considered not defective." The court therefore told the jury before the attorneys' closing arguments:

I've already ruled as a matter of law that some of the asbestos[-]containing friction products that were manufactured, sold and distributed by some of the defendants constituted an unsafe product. In other words, a defective product. The defect being the absence of any warning at all on these particular products. * * * . You must, therefore, accept that the asbestos products in this case are legally unsafe and defective products, those that contain no warnings at all.

In keeping with that ruling, the court placed the following preamble on the jury-verdict sheet: "This court has determined as a matter of law that those friction products containing asbestos which were manufactured sold and distributed without warnings were defective for the reason that they contained no warnings." The verdict sheet also asked the jury to determine whether "those asbestos-containing friction products which * * * did provide warnings [were] defective because they failed to provide adequate warnings"; whether "exposure to the type of asbestos contained in the friction products [was] a proximate cause of Albert Becker's injury and death"; whether the "products manufactured, sold and distributed by the [specified defendants were] a substantial contributing factor in the cause of Albert Becker's injury and death"; and if so, then to allocate a percentage share of responsibility for each of those defendants.

The jury returned a verdict of $250,000 for plaintiff's pain and suffering, $500,000 for his wrongful death, and $250,000 for his wife's loss of consortium and services, finding defendants Englewood Brake and General Motors, as well as several other defendants that had settled, liable. Englewood Brake and General Motors then moved for, among other relief, a new trial. In denying the new-trial motions, the court stated that its basis for ruling that asbestos products without warnings are defective as a matter of law was "pretty much * * * judicial gut reaction and instinct as well as Beshada. "

On appeal, the Appellate Division, in an unreported opinion, affirmed the judgments against General Motors and Englewood Brake on the defect-as-a-matter-of-law issue. The Appellate Division rejected defendants' argument that Beshada "focused only on the state-of-the-art defense." The court found instead that "the Beshada Court effectively concluded that asbestos products which are marketed without health warnings are defective as a matter of law." The Appellate Division cited one published opinion discussing the issue, Campolongo v. Celotex Corp., 681 F. Supp. 261 (D.N.J. 1988), which stated:

The focus of Beshada was whether the product was defective for lack of a warning. * * * . Beshada survives but is limited to the circumstances giving rise to its holding. Since New Jersey chooses to treat asbestos cases differently than other product liability cases, it does not require a quantum leap for this court to suggest that, as a matter of law and policy, an asbestos-related product without a warning is a defective product.

[Id. at 264 (citation omitted).]

The court also rejected General Motors' "argument that Beshada's absolute liability principle has no pertinence here because the product was fabricated brake linings, not bulk asbestos." It concluded that "the form of the asbestos product, whether raw fiber in bags or in a finished product, is not controlling in determining whether the asbestos product is defective as a matter of law. The key consideration is whether the asbestos product was marketed without a warning."

II

Because this case was filed before the enactment of the Products Liability Act, N.J.S.A. 2A:58C-1 to -7, that legislation does not guide our decision in this case. See L. 1987, c. 197, § 8 (stating that act applies only to products-liability actions filed after date of enactment, July 22, 1987); Herman v. Sunshine Chem. Specialties Co., 133 N.J. 329, 335, 627 A.2d 1081 (1993) (same).

This strict-products-liability case is based on an inadequate-warning theory. Strict liability "imposes liability for injury to another's person * * * without any consideration of the defendant's intent to commit the act or cause the injury, or of his moral blameworthiness." Fischer v. Johns-Manville Corp., 103 N.J. 643, 652-53, 512 A.2d 466 (1986). Successful assertion of a cause of action in strict products liability requires that a plaintiff prove several elements: "that the product was defective, that the defect existed when the product left the defendant's control, and that the defect caused injury to a reasonably foreseeable user." Feldman v. Lederle Labs., 97 N.J. 429, 449, 479 A.2d 374 (1984); see also O'Brien v. Muskin Corp., 94 N.J. 169, 179, 463 A.2d 298 (1983) (same); Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394, 451 A.2d 179 (1982) (same).

A manufacturer has "a duty to produce and distribute a product that is reasonably fit, suitable, and safe. It has not met that obligation if it puts a defective article into the stream of commerce that causes injury * * * ." Feldman, supra, 97 N.J. at 450. A failure to warn, or a failure to warn properly, can constitute a defect in a product sufficient to support an action in strict liability. See id. at 449 (stating that "defect may take one of three forms: a manufacturing flaw, a design defect, or an inadequate warning"); Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 236-41, 432 A.2d 925 (1981) (holding that inadequate warning could constitute design defect); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 176, 406 A.2d 140 (1979) ("[A] product may be unsafe ...


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