WORSWICK, J.
¶ 1 American Optical Corporation, Mine Safety Appliances Company, and North Safety Products USA (collectively, respirator manufacturers) appeal the superior court's denial of their summary judgment motion, arguing that they had no duty to warn Leo Macias, a retired tool worker, that he could be exposed to harmful asbestos dust while cleaning their respirators at a Seattle shipyard. We hold that the respirator manufacturers owed no duty to Macias, reverse the superior court's denial of their motion, and remand for entry of an order granting summary judgment to the respirator manufacturers.
¶ 2 Macias worked as a tool keeper at Todd Shipyards in Seattle from 1978 to 2004. As a tool keeper, Macias supplied shipyard workers with tools and equipment, including respirators manufactured by the respirator manufacturers. These respirators were manufactured to protect against a variety of contaminants. Different filter cartridges could be inserted into the respirators to protect the workers against specific contaminants, including welding fumes, paint fumes, asbestos particles, and dust.
¶ 4 In May 2008, a physician diagnosed Macias with mesothelioma. The following month, Macias filed a complaint for personal injuries against several defendants, including the respirator manufacturers. He asserted, in part, that the respirator manufacturers were negligent and strictly liable for failing to warn him of the dangers of asbestos exposure.
¶ 5 In January 2009, the respirator manufacturers moved for summary judgment. The respirator manufacturers argued that, under our Supreme Court's recent decisions in Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008), they had no duty to warn Macias of the dangers associated with asbestos in another company's product. The trial court denied the motion, stating, without further comment, that Simonetta and Braaten were distinguishable. Our commissioner granted discretionary review after concluding that the trial court had committed "obvious error."
¶ 6 This case turns on the applicability of Simonetta and Braaten to Macias's duty to warn claims. The respirator manufacturers argue that Simonetta and Braaten preclude Macias's duty to warn claims because those cases hold that "the duty to warn is limited to those in the chain of distribution of the hazardous product." Br. of Appellant at 6. Macias acknowledges that Simonetta and Braaten "did announce a general rule that manufacturers have no duty to warn of dangers of a product that the manufacturer did not make[,]" but he argues that "[t]he specific safety purpose of respirators distinguishes them from the equipment at issue" in those cases. Br. of Resp't at 1-2. We agree with the respirator manufacturers. We review a trial court's denial of summary judgment de novo. Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 230, 119 P.3d 325 (2005). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). "If... the plaintiff `fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' then the trial court should grant the motion'" because "`a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Young v. Key Pharmaceuticals., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).
¶ 7 The respirator manufacturers argue that, as part of their duty to exercise ordinary care, they had no duty to warn Macias of the dangers of asbestos exposure that could result from cleaning their products. We agree.
¶ 8 Under the law of negligence, "[a] manufacturer's duty of ordinary care includes a duty to warn of hazards involved in the use of a product, which are or should be known to the manufacturer." Simonetta,
¶ 9 Section 388 of the RESTATEMENT, supra, which governs a manufacturer's duty to warn in the negligence context, states:
See Simonetta, 165 Wash.2d at 348 n. 3, 197 P.3d 127 (citing Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 467-68, 423 P.2d 926 (1967)). A plaintiff must satisfy each of section 388's three subsections in order to assert a viable negligence claim. Simonetta, 165 Wash.2d at 349 n. 3, 197 P.3d 127.
¶ 10 In Simonetta, a navy machinist performed maintenance work on an evaporator, a machine that converts seawater to freshwater. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. To service the evaporator, Simonetta had to use a hammer to "pry or hack away" asbestos-containing insulation that enveloped the evaporator. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. The evaporator's manufacturer, Viad,
¶ 11 Simonetta developed lung cancer and sued Viad for failing to warn him of the hazard of asbestos exposure. Simonetta, 165 Wash.2d at 346, 197 P.3d 127. Our Supreme Court rejected Simonetta's negligence claim, stating that the duty to warn under section 388 "is limited to those in the chain of distribution of the hazardous product." Simonetta, 165 Wash.2d at 354, 197 P.3d 127. Accordingly, the court stated, "[b]ecause Viad did not manufacture, sell, or supply the asbestos insulation, we hold that as a matter of law it had no duty to warn under section 388." Simonetta, 165 Wash.2d at 354, 197 P.3d 127.
¶ 12 The Simonetta court observed that the court of appeals had concluded that the danger of asbestos exposure was inherent in the evaporator's use "because the evaporator was built with the knowledge that insulation was required for proper operation and that workers would need to invade the insulation for maintenance."
¶ 13 The court also disagreed that the language of section 388 supported Simonetta's argument. Simonetta, 165 Wash.2d at 352-54, 197 P.3d 127. According to the court, section 388 "discusses the supplier's responsibility to warn of the dangers of a product" and "limit[s]" liability to "any person, who for any purpose or in any manner gives possession of a chattel for another's use. . . without disclosing his knowledge that the chattel is dangerous for the use for which it is supplied or for which it is permitted to be used." Simonetta, 165 Wash.2d at 352, 197 P.3d 127 (quoting the definition of "supplier" from RESTATEMENT (SECOND) OF TORTS § 388 cmt. c (1965)). The Simonetta court noted that Washington case law was "consistent with the limitation established under the RESTATEMENT." Simonetta, 165 Wash.2d at 352, 197 P.3d 127.
¶ 14 Braaten, a companion case to Simonetta, involved several pump and valve manufacturers that supplied products to the navy. Braaten, 165 Wash.2d at 381, 198 P.3d 493. The navy subsequently added to the pumps and valves asbestos-containing insulation, which was not manufactured by the pump and valve manufacturers. Braaten, 165 Wash.2d at 381, 198 P.3d 493. Braaten, a pipefitter, removed and replaced packing and insulation on the pumps and valves. Braaten, 165 Wash.2d at 381, 198 P.3d 493. To complete his work, Braaten "ground, scraped, [and] chipped" asbestos gaskets, packing, and insulation from the pumps and valves. Braaten, 165 Wash.2d at 381, 198 P.3d 493. He then installed replacement packing and insulation. Braaten, 165 Wash.2d at 381, 198 P.3d 493. Braaten's labors released respirable asbestos. Braaten, 165 Wash.2d at 381, 198 P.3d 493.
¶ 15 Braaten developed mesothelioma and sued the pump and valve manufacturers. Braaten, 165 Wash.2d at 379, 198 P.3d 493. Our Supreme Court relied on its analysis in Simonetta to reject Braaten's contention that the pump and valve manufacturers had a duty to warn him about the dangers of asbestos exposure in the course of his work:
Braaten, 165 Wash.2d at 390-91, 198 P.3d 493 (quoting Simonetta, 165 Wash.2d at 354, 197 P.3d 127).
Braaten, 165 Wash.2d at 397, 198 P.3d 493.
¶ 16 Under Simonetta and Braaten, the respirator manufacturers had no duty to warn Macias of the dangers of asbestos exposure here. The connection between the manufacturers' product and the asbestos here is even more remote than the connection in Simonetta and Braaten. Here, the respirators were manufactured to protect against a variety of contaminants, not just asbestos.
¶ 17 Macias argues that the purpose of a manufacturer's product is relevant to the question of whether the manufacturer owes a duty to warn of the dangers of another manufacturer's hazardous product. In his view, [r]espirators are "different from products such as hammers and wrenches, because respirators belong to a category of products whose specific design and purpose is to prevent exposure to hazardous substances." Br. of Resp't at 2. Accordingly, he argues, the respirator manufacturers here and the product manufacturers in Simonetta and Braaten "stand in very different positions with respect to such considerations of logic, common sense, justice, policy, [or] social ideas of where loss should fall." Br. of Resp't at 23.
¶ 18 As Simonetta and Braaten make clear, however, it is not a product's purpose that determines whether a duty exists but, rather, whether the manufacturer is "in the chain of distribution of the hazardous product." Simonetta, 165 Wash.2d at 354, 197 P.3d 127; Braaten, 165 Wash.2d at 390, 198 P.3d 493. The Simonetta court rejected the argument that the manufacturer's knowledge that its evaporator would be used in conjunction with asbestos-containing insulation created a duty to warn under section 388. Simonetta, 165 Wash.2d at 349-50, 197 P.3d 127. Here, the respirator manufacturers knew that their products would be used to filter hazardous substances, including not only asbestos particles, but also dust and fumes from painting and welding. The respirator manufacturers' ability to foresee that their products would be used in tandem with hazardous substances like asbestos, and that cleaning and maintaining their respirators might expose workers to asbestos, does not give rise to a duty to warn under section 388 where the respirator manufacturers were not involved in manufacturing, supplying, or distributing the asbestos. As the Simonetta court noted, "`Foreseeability does not create a duty but sets limits once a duty is established.'" Simonetta, 165 Wash.2d at 349, 197 P.3d 127 (quoting Simonetta v. Viad Corp., 137 Wn.App. 15, 23, 151 P.3d 1019 (2007)), overruled on other grounds by Simonetta, 165 Wash.2d at 341, 197 P.3d 127.
¶ 19 Macias also emphasizes that Simonetta and Braaten's "general rule that manufacturers have no duty to warn of dangers of a product that the manufacturer did not make" is subject to "numerous potential exceptions." Br. of Resp't at 10 (emphasis omitted). Macias's claim against the respirator manufacturers, however, does not fit into an established exception. Macias does not allege, for example, that the respirator manufacturers incorporated a defective component into their respirators such that they had a duty to warn under the theory known as "assembler's liability." See Braaten, 165 Wash.2d at 388, 198 P.3d 493. Additionally, the Braaten court left open the possibility that "a duty to warn might arise with respect to the danger of exposure to asbestos-containing products specified by the manufacturer to be applied to, in, or connected to their products, or required because of a peculiar, unusual, or unique design." Braaten, 165 Wash.2d at 397, 198 P.3d 493. But Macias has not presented evidence that the respirator manufacturers here specified that asbestos should be "applied to, in, or connected to" their respirators due to the respirators' peculiar or unique design.
¶ 20 The single Washington case and numerous out-of-state cases that Macias cites do not support his claim that case law interpreting section 388 "consistently hold[s] that manufacturers of safety products such as respirators have a duty to warn and may be
¶ 21 Two other cases that Macias cites revolve around the inadequacy of jury instructions, not a manufacturer's duty to warn. See Petes v. Hayes, 664 F.2d 523, 524 (5th Cir.1981) (reversing jury verdict for respirator manufacturer where trial court's special interrogatories were inconsistent with the jury instructions and therefore likely to mislead the jury); Yates v. Norton Co., 403 Mass. 70, 525 N.E.2d 1317, 1318-21 (1988) (reversing jury verdict for respirator manufacturer due to deficient jury instructions on the manufacturer's implied warranty of merchantability). Finally, Macias cites two unpublished federal district court decisions, which are distinguishable because they involve coal miners' claims against respirator manufacturers that the respirators which the miners wore during their labors did not adequately protect them from harmful coal dust.
¶ 22 Essentially, Macias urges us to adopt a new exception to what he characterizes as Simonetta and Braaten's "general rule." Macias asks us to adopt a rule which no other court has adopted. Specifically, Macias urges us to conclude that under section 388, a product manufacturer has a duty to warn of a hazardous substance's dangers where the product's purpose is to protect users from exposure to the hazardous substance.
¶ 23 The respirator manufacturers also argue that they did not have a duty to warn Macias about the dangers of asbestos exposure under the theory of common law strict liability.
¶ 24 Whether a manufacturer owes a duty to warn is a question of law that we review de novo. Lunsford, 166 Wash.2d at 270, 208 P.3d 1092; See Simonetta, 165 Wash.2d at 349, 197 P.3d 127; We apply the RESTATEMENT (SECOND) OF TORTS § 402A (1965) to determine whether a manufacturer is strictly liable for its "unreasonably dangerous" products.
¶ 25 Thus, under section 402A, "a product, though faultlessly manufactured and designed, may not be reasonably safe when placed in the hands of the ultimate user without first giving an adequate warning concerning the manner in which to safely use the product." Simonetta, 165 Wash.2d at 355, 197 P.3d 127. A necessarily dangerous product with an inadequate warning is "unreasonably dangerous" under section 402A. Simonetta, 165 Wash.2d at 355, 197 P.3d 127.
¶ 26 Common law strict liability for unreasonably dangerous products is limited to the parties in the chain of distribution, including sellers, wholesale or retail dealers or distributors, and manufacturers. Simonetta, 165 Wash.2d at 355, 197 P.3d 127; see also RESTATEMENT (SECOND) OF TORTS § 402A cmt. f. Under the common law, "a manufacturer does not have an obligation to warn of the dangers of another manufacturer's product." Braaten, 165 Wash.2d at 391, 198 P.3d 493. Rather, "[w]e justify imposing liability on the defendant who, by manufacturing, selling, or marketing a product, is in the best position to know of the dangerous aspects of the product and to translate that knowledge into a cost of production against which liability insurance can be obtained." Simonetta, 165 Wash.2d at 355, 197 P.3d 127.
¶ 27 In Simonetta, our Supreme Court concluded that Viad was not strictly liable under section 402A for its failure to warn because (1) Viad did not manufacture or market the asbestos insulation, (2) Viad did not have control over the type of insulation that the navy selected to insulate Viad's product, and (3) Viad's evaporator functioned as intended. 165 Wash.2d at 355-57, 197 P.3d 127. The court observed that the "unreasonably dangerous product in this case was the asbestos insulation" whereas Viad's completed product was "the evaporator as delivered by Viad to the [N]avy, sans asbestos insulation." Simonetta, 165 Wash.2d at 362-63, 197 P.3d 127. The policy justifications underlying strict products liability did not justify imposing liability because Viad had no control over the type of insulation that the navy selected and earned no revenue from the sales of asbestos-containing products. Simonetta, 165 Wash.2d at 363, 197 P.3d 127.
¶ 28 The Braaten court followed Simonetta, holding that Braaten had not presented sufficient evidence that the pump and valve manufacturers had "manufactured, sold, or were otherwise in the chain of distribution of the asbestos-containing insulation applied to their products." Braaten, 165 Wash.2d at 389, 198 P.3d 493. Thus, the manufacturers were "not liable under section 402A for failure to warn of the danger of exposure during maintenance of their products to asbestos-containing insulation that was manufactured and supplied by third parties." Braaten, 165 Wash.2d at 389-90, 198 P.3d 493. The Braaten court observed that "the injury-causing products were the products containing asbestos" and that Braaten had "not established a connection between the injury and the manufacturers' products themselves, as is required." Braaten, 165 Wash.2d at 396, 198 P.3d 493.
¶ 29 As was the case in Simonetta and Braaten, section 402A does not impose a duty to warn on the respirator manufacturers here. The respirator manufacturers did
¶ 30 Macias argues that the respirator manufacturers were "`in the best position to know of the dangerous aspects of the product and to translate that knowledge into a cost of production against which liability insurance can be obtained.'" Br. of Resp't at 3 (quoting Simonetta, 165 Wash.2d at 355, 197 P.3d 127). Macias's quotation of Simonetta is selective; he omits the language that immediately precedes this statement, which justifies imposing liability "on the defendant who, by manufacturing, selling, or marketing a product" is in the best position to know of a product's dangerousness. Simonetta, 165 Wash.2d at 355, 197 P.3d 127 (emphasis added). Here, because the respirator manufacturers played no role in the manufacture, sale, or marketing of asbestos materials, imposing liability is not justified.
¶ 31 The respirator manufacturers argue that, to the extent that the Washington Products Liability Act (WPLA) applies to Macias's products liability claim,
¶ 32 Under the WPLA, a manufacturer is subject to liability for a claimant's harm if its product is "not reasonably safe because adequate warnings or instructions were not provided." RCW 7.72.030(1). A "manufacturer" includes "a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer." RCW 7.72.010(2). The "relevant product" under the WPLA is the product or its component that gave rise to the product liability claim. RCW 7.72.010(3).
¶ 33 The definition of "not reasonably safe" for purposes of a suit alleging failure to warn of dangers existing at the time of manufacture
RCW 7.72.030(1)(b); see also Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 759, 818 P.2d 1337 (1991). The "consumer expectation test" is also relevant to determining whether a product is "not reasonably safe." Ayers, 117 Wash.2d at 759, 818 P.2d 1337. See RCW 7.72.030(3) ("In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which
¶ 34 As we discussed in the preceding section, our Supreme Court has concluded — under pre-WPLA products liability principles—that product manufacturers outside of the chain of distribution of an unreasonably dangerous product do not have a duty to warn users of the dangers of another manufacturer's unreasonably dangerous product. Simonetta, 165 Wash.2d at 355, 197 P.3d 127; Braaten, 165 Wash.2d at 391, 198 P.3d 493. The WPLA states that "previous existing applicable law of this state on product liability is modified only to the extent set forth in this chapter." RCW 7.72.020(1). In Macias's brief discussion of the WPLA, he cites no language in the WPLA that would modify Simonetta and Braaten's holdings, rooted in pre-WPLA law, that manufacturers outside of a dangerous product's chain of distribution have a duty to warn. Furthermore, Macias's focus on the "risk utility" and "consumer expectation" tests is misplaced. These tests are relevant for determining whether a product is "not reasonably safe," but they do not establish that a manufacturer outside of a dangerous product's chain of distribution has a duty to warn about the product's hazards. Therefore, Macias's WPLA claim fails.
¶ 35 The concurrence invites the Supreme Court to "paint with a narrower brush" in cases such as this because "the purpose of the product was to capture hazardous substances and protect the user" and because the respirator needed to be cleaned in order to function properly. But our Supreme Court has made clear that the purpose of the product is not what gives rise to the duty to warn. And creating liability for this class of product described in the concurrence would impose a duty upon manufacturers and sellers of all types of filters, not just respirators. Indeed, such a duty to warn could well be impossible to fulfill, as filters concentrate any number of contaminants. Warnings are required to be sufficient "to catch the attention of persons who could be expected to use the product; to apprise them of its dangers and to advise them of the measures to take to avoid those dangers." Little v. PPG Industries, Inc. 92 Wn.2d 118, 122, 594 P.2d 911 (1979). Imposing such a duty to warn would put manufacturers in the impossible position of warning of unknowable dangers posed by unknown contaminants.
¶ 36 The respirator manufacturers had no duty to warn Macias about the dangers of asbestos, a product that the respirator manufacturers did not manufacture, supply, or sell. Because the trial court erred by failing to grant summary judgment to the respirator manufacturers, we remand for entry of an order granting summary judgment.
¶ 37 The trial court's denial of summary judgment is reversed, and the case is remanded for entry of an order granting summary judgment to the respirator manufacturers.
I concur: BROSEY, J.
PENOYAR, C.J. (concurrence).
¶ 38 In my view, the facts here are quite different than those in Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008). In those cases, a third party added the hazardous product to the defendant manufacturer's product after the original sale. Here, the respirators' intended purpose was to capture hazardous substances and thus protect the user. For the respirators to function properly, as intended by the user and the manufacturer, the user or a co-worker needed to clean the respirators' surfaces and the filters containing concentrated hazardous products. Under these facts, Macias strongly argues that the respirator manufacturers owed a justiciable duty to the person cleaning the respirators under both common law negligence and strict liability, as well as under chapter 7.72 RCW. However, under the broad language of Simonetta and Braaten, Macias's claims must fail. Whether the Supreme Court may choose in the future to paint with a narrower brush in cases such as this remains to be seen.
Mem. & Order of U.S. District Court, Simon v. Optical Corp., No. 06-CV-861-JPG, 2007 WL 924496 (S.D.Ill. Mar. 27, 2007).