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Dow Chemical Company v. Mahlum12/31/1998
ed).
In addition, the California Supreme Court held that silicone breast implant plaintiffs failed to make a case under section 324A based on much of the same evidence that is now before this court. See Artiglio, 957 P.2d at 1318-21. The Artiglio court noted:
"The foundational requirement of [section 324A] is that in order for liability to be imposed upon the actor, he must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully." Id. at 1318 (quoting Blessing v. United States, 447 F. Supp. 1160, 1188-89 (E.D. Pa. 1978)). After reviewing the evidence the court stated:
"In sum, the record before the trial court on summary judgment would not support a finding that Dow Chemical's was "an undertaking of such breadth and magnitude as to create a duty on the part of Dow Chemical to ensure the safety of all of Dow Corning's silicone products." Moreover, many years elapsed between Dow Chemical's seminal toxicology research activities on behalf of Dow Corning and plaintiffs, alleged injuries. When that research was done, any possible consequence for plaintiffs -- who years later allegedly received medical treatments traceable to its influence -- was exceedingly attenuated and remote. We conclude that, at the times Dow Chemical allegedly conducted or reported for Dow Corning the toxicology research services on which plaintiffs premise their section 324A claim, it cannot reasonably be concluded that Dow Chemical "should [have] recognize " those services were "necessary for the protection ofil (ยง 324A) plaintiffs. Accordingly, under the theory articulated in section 324A, no duty of care running to plaintiffs arose from Dow Chemical's undertaking." Artiglio, 957 P-2d at 1320 (alteration in original) (quoting TMJ Implants, 113 F.3d at 1495, and section 324A).
The Mahlums cite Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989), for the proposition that a duty arises when a defendant asserts control over a person for whom that defendant undertakes a task. In Wright, our only prior case specifically dealing with a section 324A claim, a tenant's dog escaped the premises, and attacked and severely injured a child. Prior to the incident, the landlord had voluntarily implemented safety measures to have the dog secured within the tenant's yard, for the protection of the general public. The evidence showed that the landlord had exercised his control over the tenant's behavior by threatening eviction if the tenant did not comply with the request to secure the dog. Because the landlord had assumed to some degree the duty of securing the dog --originally only the tenant's duty -- and then negligently performed that duty, the negligent undertaking claim against the landlord was allowed to go before a jury. Id.
The case at bar bears little resemblance to the facts in Wright. That Dow Corning lacked a toxicology laboratory until 1968 and commissioned Dow Chemical to perform various toxicology tests provides no reasonable basis for concluding that Dow Chemical "controlled" Dow Corning's development or testing of breast implants. The other evidence in support of this contention, including the trademark agreement, also fails to establish such an inference. Accordingly, the evidence was legally insufficient to show that Dow Chemical controlled Dow Corning regarding the creation and safety of its breast implants.
The Mahlums argue that the trademark agreement between Dow Chemical and Dow Corning is indicative of an undertaking and of control. The trademark agreement, however, does not, in my view, support
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