APL-2014-00261
Erie County Clerk’s Index No. I2010-12499
Appellate Division–Fourth Department Docket No. CA-13-01373
Court of Appeals
of the
State of New York
JOANN H. SUTTNER, Executrix of the Estate of GERALD W. SUTTNER,
Deceased, and Individually as the Surviving Spouse of GERALD W. SUTTNER,
Respondent,
– against –
A.W. CHESTERTON COMPANY, et al.,
Defendants,
– and –
CRANE CO.,
Appellant.
BRIEF FOR AMICUS CURIAE CBS CORPORATION
CHRISTOPHER G. CONLEY
EVERT WEATHERSBY HOUFF
200 Cleveland Road, Suite 6
Bogart, Georgia 30622
Tel.: (706) 389-7300
Fax: (706) 389-7301
SHAY DVORETZKY
EMILY J. KENNEDY
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Tel.: (202) 879-3939
Fax: (202) 626-1700
Attorneys for Amicus Curiae CBS Corporation
Date Completed: March 18, 2016
CORPORATE DISCLOSURE STATEMENT
PURSUANT TO COURT OF APPEALS RULE 500.1(F)
CBS Corporation is a publicly traded company. National Amusements, Inc.,
a privately held company, beneficially owns the majority of the Class A voting
stock of CBS Corporation. Viacom Inc. is also an affiliate of CBS Corporation.
The following entities are subsidiaries of CBS Corporation:
13 Investments LLC; 13 Productions LLC; 13 Radio Corp.; 90210 Productions,
Inc.; A.S. Payroll Co., Inc.; Aaron Spelling Productions, Inc.; Acorn Pipe Line Co.;
Acorn Properties, Inc.; Acorn Trading Co.; Addax Music Co., Inc.; Aetrax
International Corp.; Ages Electronics, Inc.; Ages Entertainment Software LLC; All
is Forgiven Productions (General Partnership); All Media Inc.; ALTSIM Inc.;
Amadea Film Productions, Inc.; Amazing Race Productions Inc.; Antilles Oil Co.,
Inc.; A-R Acquisition Corp.; Armacost Music LLC; Around the Block Productions,
Inc.; Aspenfair Music, Inc.; Atlanta Television Station WUPA Inc.; The Audio
House, Inc.; Avery Productions LLC; BAPP Acquisition Corp.; Barrington Songs
LLC; Bay County Energy Systems, Inc.; Bay Resource Management, Inc.;
Beverlyfax Music, Inc.; Big Ticket Music Inc.; Big Ticket Pictures Inc.; Big Ticket
Productions Inc.; Big Ticket Television Inc.; Blackrock Insurance Corp.; Blue Cow
Inc.; Bombay Hook LLC; Bonneville Wind Corp.; Branded Productions, Inc.;
Brentwood Pictures Inc.; Brotherhood Productions, Inc.; Bruin Music Co.; Buster
Productions Inc.; C&W Land Corp.; C-28 FCC Licensee Subsidiary, LLC;
ii
Caroline Films Productions, Inc.; CBS/CTS Inc.; CBS/Westinghouse of PA Inc.;
CBS (PDI) Distribution Inc.; CBS 247 Inc.; CBS Advertiser Services Inc.; CBS
AJV Inc.; CBS Asia Inc.; CBS Broadcast International Asia Inc.; CBS
Broadcasting Inc.; CBS Broadcasting West Inc.; CBS Channel 10/55 Inc.; CBS
Communications Services Inc.; CBS Communications Technology Group Inc.;
CBS Consumer Products Inc.; CBS Corporate Services Inc.; CBS CW Network
Partner LLC; CBS DBS Inc.; CBS DEC Inc.; CBS Domains Inc.; CBS EcoMedia
Inc.; CBS Employee Services Inc.; CBS Executive Services Corp.; CBS Film
Funding Co. Inc.; CBS Films Inc.; CBS Films Distribution Inc.; CBS Films
Productions Inc.; CBS First Run Development Co. Inc.; CBS First Run Ltd.; CBS
Foundation Inc.; CBS General Entertainment Australia Inc.; CBS Home
Entertainment Inc.; CBS Holdings (Mexico) Inc.; CBS IDA Inc.; CBS Interactive
Inc.; CBS Interactive Media Inc.; CBS International Inc.; CBS IRB Acquisition
Inc.; CBS Japan Inc.; CBS K-Band Inc.; CBS Last FM Holding Inc.; CBS LITV
LLC; CBS-Lux Holding LLC; CBS Lyrics Inc.; CBS Mass Media Corp.; CBS
MaxPreps Inc.; CBS Media Realty Corp.; CBS Music LLC; CBS News
Communications Inc.; CBS News Inc.; CBS Operations Inc.; CBS Operations
Investments Inc.; CBS Operations Services Inc.; CBS Outdoor Investments Inc.;
CBS Overseas Inc.; CBS Overseas Productions Two Inc.; CBS Phoenix Inc.; CBS
Pictures Overseas Inc.; CBS PNW Sports Inc.; CBS Radio Annapolis Holdings
iii
Inc.; CBS Radio Annapolis LLC; CBS Radio East Holdings Corp.; CBS Radio
East Inc.; CBS Radio Holdings Corp. of Massachusetts; CBS Radio Holdings Corp.
of Orlando; CBS Radio Inc.; CBS Radio Inc. of Atlanta; CBS Radio Inc. of
Baltimore; CBS Radio Inc. of Boston; CBS Radio Inc. of Detroit; CBS Radio Inc.
of Glendale; CBS Radio Inc. of Illinois; CBS Radio Inc. of Los Angeles; CBS
Radio Inc. of Maryland; CBS Radio Inc. of Michigan; CBS Radio Inc. of Northern
California; CBS Radio Inc. of Washington; CBS Radio Inc. of Washington, D.C.;
CBS Radio KFRC-AM Inc.; CBS Radio KMVQ-FM Inc.; CBS Radio Media Corp.;
CBS Radio Network Inc.; CBS Radio of Chicago; CBS Radio Promotions Group
Inc.; CBS Radio Sales Co.; CBS Radio Services Inc.; CBS Radio Stations Inc.;
CBS Radio Technical Services Inc.; CBS Radio Texas Inc.; CBS Radio Tower Inc.;
CBS Radio Ventures, Inc.; CBS Radio WLIF, Inc.; CBS Radio WLIF-AM, Inc.;
CBS Radio WPGC(AM) Inc.; CBS Receivables Funding II Corp.; CBS
Receivables Funding III Corp.; CBS Records Inc.; CBS Retail Stores Inc.; CBS–
Sac Music Inc.; CBS Satellite News Inc.; CBS Services Inc.; CBS Shopping Inc.;
CBS Sports Inc.; CBS Sports Radio Network Inc.; CBS Stations Group of Texas
LLC; CBS Stock Holdings I Inc.; CBS Stock Holdings II Inc.; CBS Studios Inc.;
CBS Studios Networks Inc.; CBS Studios Overseas Productions Inc.; CBS Studios
Productions LLC; CBS Subsidiary Management Corp.; CBS Survivor Productions,
Inc.; CBS Technology Corp.; CBS Television Licenses LLC; CBS Television
iv
Service Inc.; CBS Television Stations Inc.; CBS Temp Services Inc.; CBS TVG
Inc.; CBS UAC Corp.; CBS Worldwide Distribution Inc.; CBS World Wide Ltd.;
CCG Ventures, Inc.; Central Fidelity Insurance Co.; Centurion Satellite Broadcast
Inc.; Championship Productions Inc.; Channel 28 Television Station, Inc.; Channel
34 Television Station LLC; Charter Crude Oil Co.; Charter Futures Trading Co.;
Charter Media Co.; Charter Oil Co.; Charter Oil Services, Inc.; Chazo Productions
Inc.; CIOC Remediation Trust; CIOC LLC; Classless Inc.; Clicker Media Inc.;
CNET Investments, Inc.; Columbia Television, Inc.; Comanche Moon Productions
Inc.; Commissioner.com, Inc.; Compelling Music LLC; Concord Entertainment
Inc.; Consolidated Caguas Corp.; Cross Step Productions Inc.; CSTV Networks,
Inc.; CSTV Online, Inc.; CSTV Regional, LLC; CSTV-A, LLC; CSTV-B, LLC;
Danni Productions LLC; Davis Circle Productions Inc.; Delaware Resource
Beneficiary, Inc.; Delaware Resource Lessee Trust; Delaware Resource
Management, Inc.; Desilu Productions Inc.; Detroit Television Station WKBD Inc.;
Digital Video Ops Inc.; Dotspotter Inc.; Dutchess Resource Management, Inc.;
Dynamic Soap, Inc.; Eagle Direct, Inc.; Elite Productions Inc.; Elysium
Productions Inc.; Energy Development Associates Inc.; EPI Music LLC; Erica
Film Productions, Inc.; ET Media Group Inc.; Eventful, Inc.; Evergreen Programs
LLC; EWB Corp.; Eye Creative Media Group Inc.; Eye Explorations Inc.; Eye Net
Works Inc.; Eye Productions Inc.; Fifty-Sixth Century Antrim Iron Co., Inc.; Film
v
Intex Corp.; Films Ventures (Fiji) Inc.; First Hotel Investment Corp.; Forty-Fourth
Century Corp.; Four Crowns, Inc.; French Street Management LLC; Front Street
Management Inc.; G&W Leasing Co.; G&W Natural Resources Co., Inc.; Games
Exchange Inc.; Gateway Fleet Co.; Glendale Property Corp.; Glory Productions
Inc.; Gloucester Titanium Co., Inc.; GNS Productions Inc.; GolfWeb; Gorgen, Inc.;
Grammar Productions Inc.; Granite Productions Inc.; Granville Pictures Inc.;
Green Tiger Press, Inc.; Group W Television Stations, L.P.; Gulf & Western
Indonesia, Inc.; H R Acquisition Corp.; Hamilton Projects, Inc.; Hit Radio, Inc.;
Image Edit, Inc.; IMR Acquisition Corp.; INFCO Network Inc.; Infinity
Broadcasting Corp.; Inside Edition Inc.; Interstitial Programs Inc.; Irvine Games
Inc.; Irvine Games USA Inc.; Jumbo Ticket Songs Inc.; Just U Productions, Inc.;
K.W. M., Inc.; Kalen Productions Inc.; Katled Systems Inc.; Kilo Mining Corp.;
King World Corp.; King World Development Inc.; King World Direct Inc.; King
World Media Sales Inc.; King World Merchandising, Inc.; King World
Productions, Inc.; King World Studios West Inc.; King World/CC Inc.; Kristina
Productions Inc.; KUTV Holdings, Inc.; KW Development Inc.; KWP/RR Inc.;
KWP Studios Inc.; KWTS Productions Inc.; Large Ticket Songs Inc.; Laurel
Entertainment LLC; Levitt Property Managers, Inc.; Liliana Productions Inc.;
Lincoln Point Productions Inc.; Los Angeles Television Station KCAL LLC; Low
Key Productions Inc.; LT Holdings Inc.; Maarten Investerings Partnership;
vi
Magical Jade Productions Inc.; Magic Molehill Productions, Inc.; The Matlock Co.;
Mattalex LLC; Melrose Productions Inc.; Meredith Productions LLC; Merlot Film
Productions, Inc.; Merritt Inc.; Miami Television Station WBFS Inc.; MVP.com
Sports, Inc.; Narrabeen Productions Inc.; The New Jersey Zinc Exploration Co.;
Nicki Film Productions, Inc.; North Shore Productions Inc.; NTA Films, Inc.; O
Good Songs Co.; O’Connor Combustor Corp.; OM/TV Productions Inc.; On
Broadband Networks LLC; Orange Ball Networks Subsidiary PRC LLC; Orange
Square Inc.; OurChart.com LLC; Our Home Productions Inc.; Outdoor TDI LLC;
Outlet Networks Inc.; Part-Time Productions Inc.; PCCGW Co., Inc.; PCI Canada
Inc.; PCI Network Partner II Inc.; PCI Network Partner Inc.; Permutation
Productions Inc.; Philadelphia Television Station WPSG Inc.; Pittsburgh
Television Station WPCW Inc.; PMV Productions, Inc.; Possible Productions Inc.;
Possum Point Incorporated; Pottle Productions, Inc.; Preye, Inc.; Proxy Music LLC;
Quemahoning Coal Processing Co.; Radford Studio Center Inc.; Raquel
Productions Inc.; Real TV Music Inc.; Recovery Ventures Inc.; Republic
Distribution LLC; Republic Entertainment LLC; Republic Pictures Enterprises
LLC; Republic Pictures Productions LLC; RH Productions Inc.; RTV News Inc.;
RTV News Music Inc.; Sacramento Television Stations Inc.; Salton Sea Songs
LLC; San Francisco Television Station KBCW Inc.; The Saucon Valley Iron and
Railroad Co.; SBX Acquisition Corp.; Scott-Mattson Farms, Inc.; Ship House, Inc.;
vii
SHOtunes Music LLC; Show Works Productions Inc.; Showtime Digital Inc.;
Showtime Live Entertainment Inc.; Showtime Marketing Inc.; Showtime Melodies
Inc.; Showtime Networks Inc.; Showtime Networks Inc. (U.K.); Showtime
Networks Satellite Programming Co.; Showtime Online Inc.; Showtime Pictures
Development Co.; Showtime Satellite Networks Inc.; Showtime Songs Inc.;
Showtime/Sundance Holding Co. Inc.; SIFO One Inc.; SIFO Two Inc.; Simon &
Schuster Digital Sales Inc.; Simon & Schuster Global Services Inc.; Simon &
Schuster India LLC; Simon & Schuster International Inc.; Simon & Schuster, Inc.;
SN Digital LLC; SNI/SI Networks LLC; Soapmusic Co.; Solar Service Co.;
SongFair Inc.; Spelling Daytime Songs Inc.; Spelling Daytime Television Inc.;
Spelling Entertainment Group LLC; Spelling Entertainment LLC; Spelling
Satellite Networks Inc.; Spelling Television Inc.; SportsLine.com, Inc.; St. Johns
Realty Investors; Starfish Productions Inc.; Stargate Acquisition Corp. One; Stat
Crew Software, Inc.; Stranglehold Productions, Inc.; Sunset Beach Productions,
Inc.; Survivor Productions, LLC; Swift Justice Productions Inc.; T&R Payroll Co.;
Taylor Forge Memphis, Inc.; TDI Worldwide LLC; TDI Worldwide Investments
Inc.; Television Station KTXA Inc.; Television Station WTCN LLC; Television
Station WWHB LLC; The CW Television Stations Inc.; The Late Show Inc.; They
Productions Inc.; Things of the Wild Songs Inc.; Third Century Co.; Thirteenth
Century Corp.; Thirtieth Century Corp.; Timber Purchase Co.; Toe-to-Toe
viii
Productions Inc.; Torand Payroll Co.; Torand Productions Inc.; Total Warehouse
Services Corp.; Trans-American Resources, Inc.; TSM Services Inc.; Tube Mill,
Inc.; TV Guide Online Holdings LLC; TV Scoop Inc.; UCGI, Inc.; UPN; UPN
Holding Co., Inc.; UPN Properties, Inc.; Ureal Productions Inc.; VE Development
Co.; VE Drive Inc.; VE Television Inc.; VI Services Corp.; VISI Services Inc.;
Visions Productions, Inc.; VJK Inc.; VNM Inc.; VP Direct Inc.; VPix Inc.; VP
Programs Inc.; VSC Compositions LLC; VSC Music LLC; Waste Resource
Energy, Inc.; WBCE Corp.; WCC FSC I, Inc.; WCC Project Corp.; Westgate
Pictures Inc.; Westinghouse Aircraft Leasing Inc.; Westinghouse Asset
Management Inc.; Westinghouse Canada Holdings L.L.C.; Westinghouse CBS
Holding Co., Inc.; Westinghouse Electric Corp.; Westinghouse Environmental
Management Co. of Ohio, Inc.; Westinghouse Hanford Co.; Westinghouse
Holdings Corp.; Westinghouse Idaho Nuclear Co., Inc.; Westinghouse Investment
Corp.; Westinghouse Licensing Corp.; Westinghouse Reinvestment Co., L.L.C.;
Westinghouse World Investment Corp.; W-F Productions, Inc.; Wilshire
Entertainment Inc.; Wilshire/Hauser Co.; World Volleyball League, Inc.;
Worldvision Enterprises LLC; Worldvision Enterprises (United Kingdom) Ltd.;
Worldvision Enterprises of Canada, Ltd.; Worldvision Home Video LLC; WPIC
Corp.; WT Animal Music Inc.; WT Productions Inc.; York Resource Energy
Systems, Inc.; Young Reader’s Press, Inc.; 14 Hours Productions Inc.; 4400
ix
Productions Inc.; 1928778 Ontario Inc.; Abaco Farms Ltd.; AG Films Canada Inc.;
Audioscrobbler Ltd.; Bahamas Underwriters Services Ltd.; Cania Productions Inc.;
Cayman Overseas Reinsurance Association; CBS-CSI International B.V.; CBS
Broadcast International B.V.; CBS Broadcast-Kingworld - CBS Lux Holding LLC
S.C.S.; CBS Broadcast International of Canada Ltd.; CBS Broadcast Services Ltd.;
CBS Canada Co.; CBS Canada Holdings Co.; CBS Canadian Film and Television
Inc.; CBS CSI Distribution - CBS Lux Holding LLC S.C.S.; CBS EMEA Ltd.;
CBS Enterprises (UK) Ltd.; CBS Films Canadian Productions Inc.; CBS Holdings
(Bermuda) 2 Ltd.; CBS Holding (Germany) B.V.; CBS Holdings (Germany) II
B.V.; CBS Interactive Ltd.; CBS Interactive Pte Ltd.; CBS Interactive Pty. Ltd.;
CBS International (Netherlands) B.V.; CBS International Holdings B.V.; CBS
International Sales Holdings B.V.; CBS International Television (UK) Ltd.; CBS
International Television Australia Pty Ltd.; CBS International Television Italia Srl;
CBS International Television Japan GK; CBS Luxembourg S.a.r.l.; CBS Outdoor
Metro Services Ltd.; CBS S AG; CBS Pimco UK; CBS Showtime – CBS Lux
Holding LLC S.C.S.; CBS Studios International GmbH; CBS Studios – CBS Lux
Holding LLC S.C.S.; CBS UK; CBS UK Channels Ltd.; CBS UK Productions Ltd.;
CBS SEA Channels Pte. Ltd.; CBS Worldvision – CBS Lux Holding LLC S.C.S.;
CBS Worldwide Ltd.; Channel Community Networks Corp.; Channel Services SA;
Charter Oil (Bahamas) Ltd.; Charter Oil Specialties Ltd.; Chuanmei Information
x
Technologies (Shanghai) Co., Ltd.; CNET (Beijing) Information Technology Co.,
Ltd.; CN Pilot Productions Inc.; Columbia Broadcasting Systems Ltd.; Danger
Productions Inc.; dFactory Sarl; Famous Players Investments B.V.; First Cut
Productions Inc.; GFB Productions Inc.; Grand Bahama Petroleum Co. Ltd.;
Grande Alliance Co. Ltd.; Granville Canadian Productions Inc.; Gravity
Productions Inc.; Gulf & Western do Brazil Industria e Comercio Limitada; Gulf &
Western International N.V.; Gulf & Western Ltd.; International Raw Materials Ltd.;
King & Maxwell Productions Inc.; Last.FM Acquisition Ltd.; Last.FM Ltd.; LS
Productions Inc.; Mayday Productions Inc.; New Coral Ltd.; New Providence
Assurance Co. Ltd.; PC Home Cayman Ltd.; Pocket Books of Canada, Ltd.;
Prospect Co. Ltd.; PTC Holdings C.V.; R.G.L. Realty Ltd.; Republic Pictures Corp.
of Canada Ltd.; Sagia Productions Inc.; SF Films Inc.; Showtime Canada ULC;
Showtime Distribution B.V.; Simon & Schuster (Australia) Pty. Ltd.; Simon &
Schuster (UK) Ltd.; Simon & Schuster of Canada (1976) Ltd.; Simon & Schuster
Publishers India Private Ltd.; Spelling Television (Canada) Inc.; Spelling
Television Quebec Inc.; St. Francis Ltd.; St. Ives Co. Ltd.; Streak Productions Inc.;
TB Productions Inc.; Tele-Vu Ltee.; TMI International B.V.; Ultra Productions
Inc.; VBC Pilot Productions Inc.; Viper Productions Inc.; Westinghouse Corporate
Resources; Woburn Insurance Ltd.; Worldvision Enterprises (France) SARL;
xi
Worldvision Enterprises de Venezuela; Worldvision Enterprises Latino-Americana,
S.A.; Worldvision Filmes do Brasil, Ltda.; WVI Films B.V.; YP Productions Inc.
TABLE OF CONTENTS
Page
xii
CORPORATE DISCLOSURE STATEMENT PURSUANT TO COURT OF
APPEALS RULE 500.1(F) .............................................................................. i
TABLE OF AUTHORITIES ................................................................................ xiii
INTEREST OF AMICUS CURIAE ........................................................................... 1
QUESTION PRESENTED ....................................................................................... 2
SUMMARY OF ARGUMENT ................................................................................ 2
ARGUMENT ............................................................................................................ 4
I. CRANE HAD NO DUTY TO WARN MR. SUTTNER ABOUT THE
DANGERS OF ASBESTOS PRODUCTS THAT THIRD PARTIES
MANUFACTURED, SOLD, AND SUPPLIED ............................................ 4
II. THE FOURTH DEPARTMENT ERRED BY CREATING AN
EXCEPTION TO THE RULE THAT A DEFENDANT IS ONLY
LIABLE FOR PRODUCTS IT MANUFACTURES OR SELLS ................. 7
A. A Defendant Has No Duty To Warn About Foreseeable Harms
Caused By Third Parties’ Products ...................................................... 7
B. The Same Principles Bar Liability For Third-Party Replacement
Parts .................................................................................................... 11
1. New York law does not impose liability on defendants
for harms caused by third-party replacement parts .................. 11
2. This Court should not create a special exception for
replacement parts ..................................................................... 14
CONCLUSION ....................................................................................................... 18
TABLE OF AUTHORITIES
Page(s)
xiii
NEW YORK CASES
Baleno v. Jacuzzi Research Sys.,
461 N.Y.S.2d 659 (4th Dep’t 1983) ................................................................... 12
Baum v. Eco-Tec, Inc.,
773 N.Y.S.2d 161 (3d Dep’t 2004) ..................................................................... 12
Call v. Banner Metals, Inc.,
846 N.Y.S.2d 827 (4th Dep’t 2007) ............................................................. 12, 13
Codling v. Paglia,
32 N.Y.2d 330 (1973) ........................................................................................... 9
Cooley v. Carter-Wallace Inc.,
478 N.Y.S.2d 375 (N.Y. Sup. Ct. 1984) ............................................................... 9
Cover v. Cohen,
61 N.Y.2d 261 (1984) ........................................................................................... 9
Hamilton v. Beretta U.S.A. Corp.,
96 N.Y.2d 222 (2001) ....................................................................................... 8, 9
Hoover v. New Holland N. Am., Inc.,
23 N.Y.3d 41 (2014) ............................................................................................. 9
Liriano v. Hobart Corp.,
92 N.Y.2d 232 (1998) ....................................................................................... 8, 9
Lugo v. LJN Toys,
75 N.Y.2d 850 (1990) ........................................................................................... 9
MacPherson v. Buick Motor Co.,
217 N.Y. 382 (1916) ............................................................................................. 9
Micallef v. Miehle Co.,
39 N.Y.2d 376 (1976) ........................................................................................... 9
TABLE OF AUTHORITIES
(continued)
Page(s)
xiv
Penn v. Jaros, Baum & Bolles,
809 N.Y.S.2d 6 (1st Dep’t 2006) .................................................................. 10, 12
Pulka v. Edelman,
40 N.Y.2d 781 (1976) ........................................................................................... 8
Rastelli v. Goodyear Tire & Rubber Co.,
79 N.Y.2d 289 (1992) ........................................................................................... 8
Rogers v. Sears, Roebuck & Co.,
701 N.Y.S.2d 359 (1st Dep’t 2000) .................................................................... 12
Sage v. Fairchild-Swearingen Corp.,
70 N.Y.2d 579 (1987) ..................................................................................passim
Suttner v. A.W. Chesterton Co.,
2013 WL 9816609 (N.Y. Sup. Ct. Mar. 15, 2013) ................................... 7, 11, 12
Suttner v. A.W. Chesterton Co.,
982 N.Y.S.2d 421 (4th Dep’t 2014) ..................................................................... 7
Tortoriello v. Bally Case,
606 N.Y.S.2d 625 (1st Dep’t 1994) ...................................................................... 8
Village of Groton v. Tokheim Corp.,
608 N.Y.S.2d 565 (3d Dep’t 1994) ............................................................... 10, 12
CASES FROM OTHER JURISDICTIONS
Baughman v. Gen. Motors Corp.,
780 F.2d 1131 (4th Cir. 1986) .............................................................................. 6
Braaten v. Saberhagen Holdings,
198 P.3d 493 (Wash. 2008) (en banc) ................................................................ 17
TABLE OF AUTHORITIES
(continued)
Page(s)
xv
O’Neil v. Crane Co.,
266 P.3d 987 (Cal. 2012) ...................................................................................... 6
Westchem Agr. Chems. Inc. v. Ford Motor Co.,
990 F.2d 426 (8th Cir. 1993) ................................................................................ 5
OTHER AUTHORITIES
Restatement (Third) of Torts§ 5 ................................................................................ 6
1
INTEREST OF AMICUS CURIAE
CBS Corporation (“CBS”) is a Delaware corporation with substantial
operations in New York. Its predecessor, Westinghouse Electric Corporation
(“Westinghouse”), supplied turbines to the United States Navy for use in combat
vessels. Westinghouse manufactured and supplied this equipment in accordance
with the Navy’s detailed specifications.
When Westinghouse originally supplied its equipment to the Navy, the Navy
at various times required that the turbine package include certain asbestos-
containing gaskets. Westinghouse did not manufacture these asbestos-containing
gaskets; it obtained them from third parties. When those gaskets later wore out and
needed to be replaced, the Navy selected and obtained replacements for those
gaskets from the manufacturer of the gaskets or other third parties that were
primarily in the business of supplying gaskets for the Navy; the Navy did not
obtain these items from Westinghouse. The replacement gaskets that the Navy
selected may or may not have contained asbestos, depending on the military
specifications applicable at the relevant time.
In this case, Mr. Suttner was allegedly injured by asbestos-containing
replacement parts that Crane neither manufactured nor supplied. Under the Fourth
Department’s approach, which holds Crane liable for Mr. Suttner’s injuries from
those replacement parts anyway, CBS may face claims from countless Navy
2
personnel who were exposed to internal asbestos-containing replacement parts that
Westinghouse neither manufactured nor supplied. CBS thus has a substantial
interest in the outcome of this case.
QUESTION PRESENTED
Is a defendant’s duty to warn under New York law limited to harmful
products that the defendant manufactures or sells, or does a defendant also have a
duty to warn about replacement parts that (1) the defendant did not manufacture or
sell, and (2) third parties later chose to use to replace component parts originally
manufactured or supplied by the defendant?
SUMMARY OF ARGUMENT
I. The central question in this case is whether Crane had a duty to warn
Mr. Suttner about asbestos products that others—not Crane—manufactured and
supplied. As CBS explained in the amicus brief that it submitted in a companion
case, Dummitt v. Crane Co., APL-2014-00209, black-letter tort law and sound
public policy provide the same answer: A defendant is liable only for injuries
caused by products that it manufactures or sells. Because Crane had no duty to
warn about the products of others, Plaintiff’s claims—like the claims at issue in
Dummitt—fail as a matter of law.
II. The Fourth Department in this case, like the First Department in
Dummitt, nevertheless imposed liability on Crane for third-party products; but it
3
did so for different, and equally erroneous, reasons. The First Department imposed
liability because Crane purportedly had a “sufficiently significant role, interest, or
influence” in the type of after-market component parts used with its products. That
is wrong for the reasons that CBS explained in its Dummitt amicus brief. By
contrast, the Fourth Department created an exception to the traditional rule barring
liability because Crane allegedly knew that its valves would be used with third-
party asbestos-containing products, and because those products replaced similar
items originally supplied by Crane. CBS respectfully submits this brief to debunk
the Fourth Department’s two rationales, both of which fail as a matter of New
York law and public policy.
First, neither foreseeability nor known certainty gives rise to a legal duty to
warn if the defendant itself did not manufacture or supply the product at issue.
Indeed, cases in which this Court has imposed liability for the foreseeable use of a
defendant’s product have still uniformly involved harms caused by the defendant’s
own product. Where, by contrast, a third party’s product—and that product
alone—causes the harm, this Court has held that a defendant has no duty to warn,
even if the harm was foreseeable and even if the defendant “knew” that such third-
party products would be used in connection with its own product. Here, the third-
part asbestos products—and those products alone—are responsible for Mr.
Suttner’s injuries. Crane therefore had no duty to warn.
4
Second, the Fourth Department’s replacement-part rationale is likewise
wrong. Neither Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1987), nor
any other decision from this Court imposes liability on a defendant for harms
caused exclusively by third-party replacement parts. And there is no basis for
creating any such exception to black-letter tort law. A rule imposing liability for
replacement parts is incompatible with the fundamental, common-sense principle
that a defendant has no duty to control the conduct of third parties. It erroneously
assumes that a defendant’s initial selection of certain parts controls the many
decisions that others may make decades into the future—based on an entirely
different cost/benefit analysis—regarding the use and manufacture of replacement
parts. Courts around the country have refused to impose liability for third-party
replacement parts, and this Court should reject Plaintiff’s invitation to make New
York law an outlier.
ARGUMENT
I. CRANE HAD NO DUTY TO WARN MR. SUTTNER ABOUT THE
DANGERS OF ASBESTOS PRODUCTS THAT THIRD PARTIES
MANUFACTURED, SOLD, AND SUPPLIED
Plaintiff’s claims founder on the basic, common-sense, black-letter principle
that a defendant has no duty to warn about products that it neither manufactured
nor controlled.
5
As CBS explained in the amicus brief that it submitted in Dummitt, the law
penalizes only parties who “launch a force or instrument of harm” by designing,
manufacturing, or selling products that cause injury. See Brief of CBS Corporation
as Amicus Curiae, Dummitt v. Crane Co. (APL-2014-00209) (“CBS Br.”) at 6-10.
The law does not impose liability on a defendant for harm caused by others’
products—products that a defendant had no opportunity to test or make safe, and
from which the defendant derived no economic benefit. See CBS Br., 6-10.
CBS further explained that imposing a duty to warn about third-party
products would be especially problematic for government contractors that, like
CBS, supplied their equipment according to detailed Navy specifications. See CBS
Br., 28-30. Because the Navy created those specifications to ensure that its
equipment would accomplish its tactical goals, deviating from those specifications
would undermine the Navy’s mission and jeopardize the safety of its personnel.
However, imposing liability on equipment manufacturers who help the Navy carry
out its mission would seriously hamper the Navy’s efforts to obtain the equipment
and materials that it needs. See CBS Br., 28-32.
Regardless of the government-contractor context, “sound public policy”
supports limiting the liability of a manufacturer to its own products. Westchem
Agr. Chems. Inc. v. Ford Motor Co., 990 F.2d 426, 430 (8th Cir. 1993). The law
imposes liability on parties that manufacture or sell harmful products because those
6
entities benefit from the sale of such products and are in the best position to ensure
that their products are safe. See CBS Br., 10-11 (collecting authorities). But these
rationales are inapposite when a party does not manufacture or sell an injury-
causing product. In those instances, imposing liability would be unjust and
inefficient. See Restatement (Third) of Torts: Prods. Liab. § 5 cmt. a.
These same concerns apply where a third-party product replaces something
that the defendant originally supplied. See O’Neil v. Crane Co., 266 P.3d 987, 996
n.6 (Cal. 2012). A defendant has no ability to control the manufacture of third-
party replacement parts, nor does it derive any benefit from their sale. See
Baughman v. Gen. Motors Corp., 780 F.2d 1131, 1133 (4th Cir. 1986). Rather
than diffusing the risk of making or selling defective replacement parts, products-
liability law appropriately channels liability to the parties actually responsible for
them, thereby incentivizing those parties to develop safer alternatives, warn about
necessary dangers, or stop selling dangerous products. This is true even where the
third-party replacement part is a purportedly “necessary” component: The law
appropriately discourages parties from making and selling defective parts by
ensuring that only those parties are liable for any resulting injuries. Moreover,
imposing liability based on whether a given third-party product is “necessary” or
“required” inevitably would lead to unpredictable and inconsistent results: A given
product may be “necessary” or “required” for a host of reasons (e.g., efficiency,
7
cost, consumer preference), but that does not mean that a defendant’s product
cannot operate without it.
II. THE FOURTH DEPARTMENT ERRED BY CREATING AN
EXCEPTION TO THE RULE THAT A DEFENDANT IS ONLY
LIABLE FOR PRODUCTS IT MANUFACTURES OR SELLS
The Fourth Department nevertheless imposed liability on Crane for third-
party replacement parts. The Fourth Department adopted the decision of the
Eighth Judicial District which, in turn, created an exception to the traditional rule
barring liability for third-party products because Crane knew that users of its
valves would be exposed to third-party asbestos-containing products and because
those products replaced similar items originally supplied by Crane. See Suttner v.
A.W. Chesterton Co., 982 N.Y.S.2d 421 (Mem.) (4th Dep’t 2014) (affirming trial
court judgment “for reasons stated in” Eighth Judicial District’s decision denying
Crane’s motion for post-trial relief, see Suttner v. A.W. Chesterton Co., No. 2010-
12499, 2013 WL 9816609 (N.Y. Sup. Ct. Mar. 15, 2013)). Both of these rationales
fail.
A. A Defendant Has No Duty To Warn About Foreseeable Harms
Caused By Third Parties’ Products
1. The Fourth Department imposed a duty to warn because Crane
“knew” that third-party asbestos products would be used in connection with its
valves. See 2013 WL 9816609 at *3. But as CBS explained in its Dummitt amicus
8
brief, New York courts have routinely refused to impose a duty to warn about
products that a defendant did not manufacture or sell—even when the use of a third
party’s harmful product in combination with the defendant’s own product is so
clearly foreseeable that the defendant “knew” such products would be used. See
CBS Br., 12-18 (discussing cases, including Rastelli v. Goodyear Tire & Rubber
Co., 79 N.Y.2d 289 (1992), and Tortoriello v. Bally Case, 606 N.Y.S.2d 625 (1st
Dep’t 1994)). This rule makes good sense: Because foreseeability “merely
determines the scope of the duty once it is determined to exist,” Hamilton v.
Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001), it is “inapplicable” to harms
caused by third-party products, about which a defendant has “no duty” to warn in
the first place, Pulka v. Edelman, 40 N.Y.2d 781, 785 (1976).
2. Plaintiff nevertheless attempts to defend the Fourth Department’s
judgment by arguing that Crane’s products themselves caused Mr. Suttner’s
injuries. According to Plaintiff, exposure to asbestos was a danger resulting from
the foreseeable use Crane’s valves. See Resp. Br., 59-61. That is wrong and
improperly “confuse[s]” the concept of foreseeability with duty. See Pulka, 40
N.Y.2d at 785.
To be sure, “[a] manufacturer has a duty to warn against latent dangers
resulting from foreseeable uses of its product of which it knew or should have
known.” Liriano v. Hobart Corp., 92 N.Y.2d 232, 237 (1998). But as Plaintiff’s
9
own authorities confirm, the foreseeability principle “merely determines the scope
of [a defendant’s] duty” to warn about harms caused by its own product. Hamilton,
96 N.Y.2d at 232; see, e.g., Liriano, 92 N.Y.2d at 237 (meat grinder manufacturer
may be liable for failure to warn about dangers of operating meat grinder without
safety guard); Lugo v. LJN Toys, 75 N.Y.2d 850, 851-52 (1990) (denying
defendant’s request for summary judgment on failure-to-warn and design-defect
claims arising from injuries caused by toy it manufactured); Cover v. Cohen, 61
N.Y.2d 261, 274-75 (1984) (car manufacturer had duty to warn of defect in its car,
even if defect discovered post-distribution); Cooley v. Carter-Wallace Inc., 478
N.Y.S.2d 375 (N.Y. Sup. Ct. 1984) (manufacturer of hair removal solution liable
for failing to warn about risks of using product on certain body parts); see also
Hoover v. New Holland N. Am., Inc., 23 N.Y.3d 41 (2014) (manufacturer and
supplier of pole driller liable for harms caused by pole driller); Codling v. Paglia,
32 N.Y.2d 330 (1973) (car manufacturer liable for injuries caused by defective
steering mechanism); Micallef v. Miehle Co., 39 N.Y.2d 376 (1976) (printing press
manufacturer liable for harms caused by unsafe printing press); MacPherson v.
Buick Motor Co., 217 N.Y. 382 (1916) (car manufacturer liable for harms caused
by defective brakes it supplied with car).
Even when a defendant has a duty to warn about hazards that its product
causes in combination with another product, that duty still arises from the role that
10
the defendant’s own product plays in creating or exacerbating the danger. For
example, in Village of Groton v. Tokheim Corp., 608 N.Y.S.2d 565 (3d Dep’t
1994), the defendant manufactured a regulator used in a fuel dispensing system.
When used in above-ground fuel systems, the regulator built up pressure and
caused leaks, “creat[ing] a dangerous condition about which the manufacturer of
each product has a duty to warn.” Id. at 568. Neither product on its own would
have caused this hazard, and both played a role in creating it. See id. Other cases
likewise impose a duty to warn where the combination of two products creates a
harm that neither would have created on its own. See, e.g., Penn v. Jaros, Baum &
Bolles, 809 N.Y.S.2d 6 (1st Dep’t 2006) (imposing duty to warn where fire alarm
acted “in conjunction” with carbon dioxide suppression system to release carbon
dioxide gas).
Critically, none of these cases imposes liability for foreseeable harms caused
exclusively by a third party’s product. To the contrary, where, as here, the third-
party product alone creates the hazard, New York courts repeatedly have rejected
the notion that a defendant has a duty to warn about such products. See CBS Br.,
12-14.
3. Finally, Plaintiff cannot shoehorn her claims into the category of cases
imposing liability for harms that the defendant’s own product creates or
exacerbates. Plaintiff argues that Crane’s valves “changed” the asbestos into a
11
hazardous material. Resp. Br., 18; see id, at 69. But the asbestos in the third-party
products deteriorated because it was exposed to heat and steam, neither of which
Crane’s valves created. Crane’s valves no more caused the asbestos to become
friable than windshield wipers cause rain. Plaintiff’s claims fail as a matter of law
because the third-party asbestos products, and those products alone, caused Mr.
Suttner’s injuries.
B. The Same Principles Bar Liability For Third-Party Replacement
Parts
The Fourth Department also imposed liability on Crane because the
asbestos-containing parts that allegedly injured Mr. Suttner replaced similar parts
originally supplied by Crane. See 2013 WL 9816609 at *2. But New York law
does not support this unworkable theory, which irreconcilably conflicts with basic
tort principles.
1. New York law does not impose liability on defendants for
harms caused by third-party replacement parts
The Fourth Department’s replacement-part theory is simply an application of
the foreseeability approach that New York law rejects. It is premised on the notion
that Crane, having initially supplied asbestos-containing parts with its valves,
should have known that users would eventually replace those parts with new ones.
See 2013 WL 9816609 at *3. But knowledge that such parts will be used does not
give rise to a duty to warn. See CBS Br., 12-18.
12
It is thus unsurprising that none of the cases cited by the trial court to
support this theory actually holds that a defendant is liable for harms caused by
third-party replacement parts. See Suttner, 2013 WL 9816609 at *2. Several of
those cases do not involve replacement parts at all and impose liability because the
defendant’s own product created or exacerbated the harm. See Penn, 809 N.Y.S.2d
6; Village of Groton, 608 N.Y.S.2d at 568; Baleno v. Jacuzzi Research Sys., 461
N.Y.S.2d 659 (4th Dep’t 1983); Rogers v. Sears, Roebuck & Co., 701 N.Y.S.2d
359, 360 (1st Dep’t 2000). Others involve situations in which a defendant, having
voluntarily attempted to warn of a certain risk, had a duty to makes its warnings
adequate. See Baum v. Eco-Tec, Inc., 773 N.Y.S.2d 161, 163-64 (3d Dep’t 2004);
see also Rogers, 701 N.Y.S.2d at 360. The remaining cases, Sage v. Fairchild-
Swearingen Corp., 70 N.Y.2d 579 (1987), and Call v. Banner Metals, Inc., 846
N.Y.S.2d 827 (4th Dep’t 2007), do not adopt the sweeping replacement-parts
theory that Plaintiff advocates.
In Sage, a plaintiff caught her finger in a ladder hanger on the doorframe of
an airplane’s cargo department. 70 N.Y.2d at 583. This Court held that the
defendant, who designed and manufactured the cargo compartment, and
determined the placement of the hanger, could be liable for the injury even though
the hanger itself was a replacement manufactured by a third party. Id. at 583-87.
Importantly, the “plaintiff’s claim was based both on the defective design of the
13
hanger and of the doorway to the cargo compartment,” and the jury found that “it
was the manufacturer’s defective design—both of the hanger and of the
compartment doorway—which caused injury.” Id. at 584, 586-87 (emphasis
added). Thus, Sage is simply a straightforward application of the rule that a
defendant is liable for harmful products that it manufactures. It does not support
imposing liability on Crane here, where Mr. Suttner’s injuries were caused
exclusively by asbestos that Crane neither manufactured nor supplied.
Call likewise involved a situation in which a defendant’s own product
created the hazard. The defendant designed and manufactured a truck ramp that
sprang open and injured the plaintiff. See 846 N.Y.S.2d at 828. Because there
were genuine issues of material fact as to whether the “ramp was defectively
designed or manufactured” and whether “any postmanufacture modifications”
contributed to a preexisting hazard, the Fourth Department denied the defendant’s
motion for summary judgment. Id. But Call, like Sage, does not establish a rule
that defendants are liable for hazards caused exclusively by third-party
replacement parts.
14
2. This Court should not create a special exception for
replacement parts
This Court should not adopt the Fourth Department’s replacement-part
theory, which contravenes fundamental tort law, would lead to untenable results,
and would make New York law an anomalous outlier.
a. The replacement-part theory assumes that whenever someone is
injured by a replacement part, the proximate cause of that injury is the original
manufacturer’s decision (often made decades earlier) to use a similar part with its
product. See Resp. Br., 48-49. In other words, the theory is based on a legal
fiction that no other party exercises any independent judgment in designing,
manufacturing, or supplying a part that replaces an original, allegedly defective
component part. See Resp. Br., 64 (“By engaging in the thoroughly foreseeable
action of replacing original asbestos wear items with fresh asbestos wear items, Mr.
Suttner and his fellow employees merely perpetuated the warning defect of the
valves originally supplied by Crane.”). That assumption is fundamentally flawed.
For one thing, it ignores the role of a replacement-part manufacturer. That
entity always has a choice to continue supplying a defective replacement part, to
issue a warning with that product, to supply a safe alternative, or to allow an unsafe
product to become obsolete. Where the integrated product has a multi-decade
lifespan, these decisions will be made repeatedly over the course of many years,
often with the benefit of new information and innovation. Under these
15
circumstances, the replacement part-manufacturer is “the logical party in a position
to … avoid injury to the public.” Sage, 70 N.Y.2d at 587. The original equipment
manufacturer, by contrast, has no control over those third-party decisions.
The replacement-part theory also inappropriately presumes that the original
manufacturer’s choice of certain parts dictates the later choice of replacement parts.
Here, however, there is no evidence that Crane played any role in the maintenance
of its valves post-distribution. See App. Br., 12-13. Furthermore, a manufacturer’s
decision to use any given part or material in its products reflects an (often complex)
analysis of costs and benefits. A decision to use asbestos with valves in the 1930s,
when the plant at which Mr. Suttner worked opened (see id. at 11), would have
reflected, among other things, information available at the time regarding the
hazards of asbestos and the availability of effective alternative materials. But that
asbestos wore out and needed to be replaced (many times over), and when Mr.
Suttner began working on the equipment 30 years later, a third party’s decision
regarding replacement parts would have reflected an entirely different cost/benefit
analysis. New, effective alternatives had become available, and the dangers of
asbestos were even better understood. See id. at 13 (describing effective
alternatives to asbestos).
In this evolving context, Crane’s decision to use asbestos more than 80 years
ago clearly is not the proximate cause of an injury resulting from all similar third-
16
party products used any time in the future. This framework defies common sense.
The replacement parts—and the entities responsible for them—are the proximate
cause of any such injuries.
Contrary to Plaintiff’s contentions, this does not mean that a defendant will
escape liability for harms that its own product causes in the future merely because
a “flimsy part[]” wore out and was replaced. See Sage, 70 N.Y.2d at 587; Resp.
Br., 66. But where the replacement part is the sole cause of the harm, there is no
basis for imposing liability on the defendant for third-party decisions over which
the original manufacturer has no control.
b. From a practical perspective, the replacement-part theory is also
unworkable. Because it is premised on the assumption that the replacement parts
“merely perpetuated” a “defect” that existed “at the time of sale” (Resp. Br., 49),
this theory would require courts to engage in murky, fact-specific inquiries about
how similar a replacement part was to an original part, including whether the items
were manufactured using the same process and materials. Likewise, courts would
need to evaluate how certain an original manufacturer was that such replacement
parts would be used, and when (if ever) that certainty would come to an end.
These tasks would be particularly insurmountable in the Navy ship context, where
a defendant’s complex equipment will be used with a myriad of third-party
replacement parts over its multi-decade lifespan. See CBS Br., 18-19.
17
The replacement-part theory would also generate confusion among
consumers by potentially exposing them to conflicting warnings. In order to
comply with a continuous duty to warn about replacement parts, original
equipment manufacturers would need to affix warnings to something more
permanent than the wear item itself (otherwise, the warning would disappear when
that part was replaced). But that original warning may conflict with warnings
attached to replacement-part products that will be used in the future, particularly if
those products do not present the same dangers as the original parts. For example,
an 80-year-old warning on Crane’s valves regarding the hazards of asbestos would
create undue alarm today, when any replacement parts likely do not contain
asbestos. See Reply Br., 13.
* * *
In sum, the better rule—adopted by virtually every court to consider the
issue—is to impose liability on the defendants who are actually responsible for a
product that causes harm. See Braaten v. Saberhagen Holdings, 198 P.3d 493, 498,
501-504 (Wash. 2008) (en banc) (rejecting replacement-part theory of liability as
inconsistent with “the majority rule nationwide”). There is no basis for carving out
an exception to this rule in New York, and doing so would encourage
manufacturers and suppliers to take their businesses elsewhere. This Court should
not create a new duty that leads to such undesirable and anomalous results.
18
CONCLUSION
For the foregoing reasons, the Court should reverse the decision of the
Fourth Department and direct entry of judgment for Crane Co.
Dated: March 18, 2016
19
Respectfully Submitted,
~--:;.s :::aY~D~o~9-e!::;~y::=~s:::::========-=---
Emily J. Kennedy
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Tel: (202) 879-3939
Fax: (202) 626-1700
Christopher G. Conley
EVERT WEATHERSBY HOUFF
200 Cleveland Road, Suite 6
Bogart, Georgia 30622
Tel: (706) 389-7300
Fax: (706) 389-7301
Counsel for Amicus Curiae