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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
zard associated with a particular use by the supplier is accepted almost universally as a necessary predicate to the duty to warn. (See Brown v. Superior Court (1988) 44 Cal. 3d 1049, 1065-1066 [245 Cal. Rptr. 412, 751 P.2d 470]; but see Beshada v. Johns-Manville Products Corp. (1982) 90 N.J. 191 [447 A.2d 539, 33 A.L.R.4th 353].) Petery does, however, make such allegations in association with his claim in the thirteenth cause of action.
"Defendants and each of them, as manufacturers, designers, sellers, suppliers, transporters, and distributors of inherently dangerous and ultra hazardous wood-treating chemical products and associated wood-treating and pollution control equipment, knew, or should have known, of the dangers and risks inherent in the handling, transportation, utilization and disposal of wood-treating chemicals, by-products, and wastes, and, more specifically, knew, or should have known, of the substantial and unreasonable threat to human health and safety and the environment posed by wood-treating chemicals, by-products and wastes placed in direct contact with soil or dirt overlying domestic or agricultural water resources, including ground water aquifers, intruding into and contaminating such water resources." Amendment to include these allegations will suffice for pleading purposes.
Fourth, Petery disclaims knowledge of dangers inherent in improper disposal of the chemicals. The duty to warn is predicated upon the notion that the user does not know of the dangers or hazards associated with the use of the product. Here, Petery disclaimed knowledge; this should be sufficient to survive a demurrer. The mere fact that Petery uses the chemicals in a business enterprise, as opposed to being a citizen consumer, does not relieve the chemical suppliers of the duty to warn. (See Martinez v. Dixie Carriers, Inc. (5th Cir. 1976) 529 F.2d 457, 466; Beede Waste Oil v. Recycling Industries, Inc. (D.Mass. 1982) 533 F.Supp. 484.) Indeed, it can be the defendant's duty to demonstrate a user has sufficient expertise to be charged with the knowledge of risks associated with a particular product. (Hall v. Ashland Oil Co. (D.Conn. 1986) 625 F.Supp. 1515, 1521.) Additionally, a user's knowledge as to some dangers associated with a product does not relieve a supplier of the duty to warn of other dangers unknown to the user. (Billiar v. Minnesota Mining and Mfg. Co. (2d Cir. 1980) 623 F.2d 240, 245.)
Further, it does not appear we need now decide what effect the 1972, 1978 and 1981 orders had upon Petery's knowledge and the chemical suppliers' duty to warn. Allegations include evidence that the operations and discharging of chemicals at the plant began at least as early as 1964. At the pleading stage, we cannot say whether or to what degree the unwarned appellants' pre-1972 conduct contributed to the harm (i.e., whether 0 percent or 90 percent of the injurious chemical disposal occurred during this period). This is a question of fact. The effect of the 1972, etc., orders on appellants' knowledge as to the dangers associated with chemical contacts with the soil is also a question of fact. If governmental knowledge and requirements were known by the chemical companies to be insufficient to guard against harm, the companies still had a duty to warn. (See Stevens v. Parke, Davis & Co., supra, 9 Cal. 3d at p. 65.)
Fifth, Petery alleges the companies failed to warn of the dangers involved surrounding ground contact of the chemicals. This allegation suffices for purposes of demurrer.
Sixth, Petery claims the failure to warn was a substantial factor in causing any loss or damage sust
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