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Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co.12/1/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This interesting product liability case was decided on demurrer. Plaintiff and appellants are Gill and Francisca Tellez-Cordova, and respondents are Campbell Hausfeld/Scott Fetzger Company, Fisher Tool Company, and Makita USA. The trial court found that the first amended complaint failed to state a cause of action. We reverse.
Facts
Gill Tellez-Cordova worked as a lamp-maker. He cut, sanded, and ground metal parts, working "with and around" mini die grinders, angle head die grinders, straight shaft die grinders, disc grinders, random orbital sanders, and cut-off saws manufactured by respondents. (The complaint identifies each tool by manufacturer, and, for most of the tools, by model number.) He developed interstitial pulmonary fibrosis as a result of exposure to airborne toxic substances produced and released from the metal parts and from the discs, belts, and wheels used on the grinders, sanders, and saws.
As to respondents, the causes of action are negligence, strict liability based on failure to warn, strict liability based on design defect (that the tools lacked exhaust ventilation systems), fraudulent concealment, breach of implied warranty, and (with Mrs. Tellez-Cordova as plaintiff) loss of consortium.
Factually, the complaint alleged that the tools were specifically designed to be used with abrasive wheels or discs, "for the intended purpose of grinding and sanding metals," that the tools "necessarily operated" with wheels or discs composed of aluminum oxide and other inorganic material, that when the tools were used for their intended purpose, respirable metallic dust from the metal being ground and from the abrasive wheels and discs was generated and released into the air, causing the injury, and that the "specifically designed, intended, and reasonably foreseeable use" of the tools resulted in the injury.
Appellants describe the complaint as alleging that the discs and wheels do not create respirable metallic dust unless they are used with respondents' power tools, because it is the speed and force of those tools which cause the dust to become airborne. This is perhaps not crisply alleged, but the complaint must be liberally construed (King v. Central Bank (1977) 18 Cal.3d 840, 843), and the allegation is certainly inferable from the complaint's references to the "force and abrasive action" of the tools, alleged to create respirable dust.
The complaint alleges that respondents were aware of the danger, and that Mr. Tellez-Cordova was not.
On the design defect cause of action, the allegations are that the tools lacked "local exhaust ventilation devices necessary to prevent or minimize the release of metallic or inorganic dusts during the intended use of . . ." the tools. The allegations on the failure to warn cause of action are the usual ones, that the tools lacked warnings that their intended use would result in the release of dust capable of causing disease, and lacked instructions concerning such safety precautions as use of a respirator. The fraudulent concealment cause of action alleges failure to disclose and concealment of hazards. The allegations of the breach of implied warranty cause of action are similar.
Legally, appellants relied on standard products liability law. They contended that respondents had duty to warn of the known
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