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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
ained. Respondents seek to distance any failure
to warn from the harm caused. They claim Petery's illegal behavior of discharging hazardous wastes and of violating the waste discharge orders acted as a superseding cause of the harm.
Restatement Second of Torts, section 449 provides: "If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby."
The foregoing statement has been cited with approval both by this court and the California Supreme Court. (Richardson v. Ham (1955) 44 Cal. 2d 772, 777 [285 P.2d 269]; Wallace v. Der-Ohanian (1962) 199 Cal. App. 2d 141, 144 [18 Cal. Rptr. 892].) Thus here, if we can say improper disposal or storage of the chemicals was the likely consequence of the chemical suppliers' failure to warn, the fact that such disposal or storage was "negligent, intentionally tortious, or criminal " would not relieve the suppliers of potential liability for the harm caused.
Certainly, it appears that, prior to the receipt of the waste discharge orders, any improper storage or disposal of the chemicals or treated products was one of the "hazards" which made the chemical companies' omissions negligent. The effect of the orders, and Petery's claimed violation thereof, at best appear to present questions of fact as to whether they were sufficient to relieve the chemical companies of the duty to warn or to cut off their liability based upon the notion of superseding cause.
From the foregoing we conclude Schuessler and SPTC could state claims for equitable indemnity against Osmose for Osmose's contribution or assistance in the creation of a nuisance insofar as Osmose helped design the system of chemical waste disposal used at SPTC. Similarly, Petery and SLC state facts sufficient to support a cause of action for equitable indemnity against the chemical companies; we find that, in failing to warn an unknowledgeable Petery of the hazards to the environment which they knew could flow from the improper handling and disposal of the wood treating chemicals, their failure could be found to be a substantial factor in the creation of the nuisance. Under the principles of equitable indemnity, they should be liable for their share of the harm.
Several of the respondents cite, some at length, from various federal cases assessing potential liability under CERCLA of various chemical suppliers to support their arguments of nonliability here. First, the cases cited interpret the limited federal statutory provisions relative to liability; we have no
such statute here. Second, in Edward Hines Lumber Co. v. Vulcan Materials Co. (N.D.Ill. 1988) 685 F.Supp. 651, 657, the court recognized that failure to state a claim under the CERCLA provisions would not act as a bar to seeking indemnity or contribution for CERCLA cleanup costs under applicable state law. The question before us is the availability of a state law theory which would allow appellants to pursue equitable indemnity for the state's claims, not respondents' liability under CERCLA.
Vulcan claims appellants cannot seek indemnity here because any money owed to the State under the complaint will be in the nature of economic loss. Respondent relies upon the principle that in tort causes of action only damages flowing from the injury of person or property are recoverable; in order to recover for economic loss, a cause of action for warranty, or the like, is nece
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