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Cullen v. Industrial Holdings Corp.11/21/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Edward and Marie Cullen appeal from a summary judgment entered in favor of respondent Industrial Holdings Corporation (IHC). The Cullens sued IHC for damages resulting from Edward Cullen's exposure to asbestos while using a grinding wheel manufactured by IHC's predecessor. Although the grinding wheel itself contained no asbestos, it was designed for use with asbestos pipe and caused asbestos fibers from the pipe to be released into the air during normal use. The Cullens contend that IHC failed to meet its burden of negating at least one of the elements of their strict liability and negligence causes of action. Even if IHC met its initial burden, the Cullens assert that material issues of fact remained as to IHC's liability for failing to warn Mr. Cullen to avoid inhaling asbestos dust. We affirm the judgment because Cullen has not established a viable products liability or negligence claim against IHC.
BACKGROUND
Edward Cullen (Cullen) worked in the sheet metal trade for 41 years. During his career, Cullen was exposed to asbestos-containing products at a large number of work sites. In May 1999, he was diagnosed with lung cancer.
In June 2000, Cullen and his wife, Marie Cullen, filed a complaint for personal injury and loss of consortium arising from Cullen's exposure to asbestos and asbestos-containing products. The Cullens amended their complaint in November 2000, to add IHC, successor-in-interest to The Carborundum Company, as a defendant. The Cullens asserted causes of action against IHC for negligence, strict liability, false representation, intentional tort, and loss of consortium.
In May 2001, IHC moved for summary judgment. The motion was based on the following relevant facts summarized from IHC's Separate Statement of Undisputed Material Facts (Separate Statement):
1) Cullen's exposure to asbestos occurred through his alleged use of an IHC grinding wheel to cut transite pipe;
2) Cullen used an IHC grinding wheel for approximately one day in 1948;
3) The IHC grinding wheel identified by Cullen did not contain asbestos; and
4) Cullen contends that IHC is liable because IHC failed to warn him that using the wheel to cut asbestos-containing transite pipe would expose him to respirable asbestos and to the risk of contracting lung cancer.
Based on these facts asserted to be undisputed, IHC argued that it could not be liable to Cullen either on the theory that its predecessor's grinding wheel contained asbestos or on the theory that the predecessor had a duty to warn persons in Cullen's position that using the wheel to cut asbestos-containing products was hazardous.
Cullen did not dispute facts 1 or 3. Although he took issue with the precise wording of facts 2 and 4, he did not dispute them in substance or offer conflicting evidence. However, in his opposition to the motion, Cullen asserted that the undisputed facts did not negate IHC's potential liability for failure to warn of the dangers in using IHC's product under either a strict products liability theory or a negligence theory. He identified the following disputed facts as being material to IHC's liability under either failure-to-warn theory:
1) The IHC grinding wheel described by Cullen was specifically designed for cutting cementicious products, as o
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