The plaintiff in this Washington federal court case alleged that the decedent, John McCrossin, was exposed to asbestos from a variety of products, including boilers, while serving in the Navy. Defendant Fraser’s, which maintained that it only assembled boilers, moved for summary judgment raising superseding cause, strict liability, and government contractor arguments. The court found an issue of fact on all of the arguments and denied summary judgment. On the superseding cause, defense the court held: “In sum, Fraser’s has presented no evidence that, if uncontroverted at trial, would show that the Navy, in fact, failed to protect Mr. McCrossin from any asbestos dangers. Even if the Navy was negligent, however, a genuine issue of material fact exists as to whether the Navy’s negligence was reasonably foreseeable. To the extent that Fraser’s has presented evidence that, if uncontroverted at trial, would entitle Fraser’s to prevail on this defense, plaintiff has set forth specific facts controverting Fraser’s prima facie case. By way of example, plaintiff has produced evidence purporting to show that the Navy’s asbestos regulations were not uniformly followed and that, throughout the 1970s, asbestos continued to be stripped off piping, boilers, and associated machinery at Navy shipyards without prior abatement. A reasonable jury could find that the Navy’s negligence, if any, was reasonably foreseeable.”
On the strict liability argument, the court was not swayed by the argument of Fraser’s that it was not a product seller of the boilers in question to be strictly liable: “Accordingly, it is not clear whether Fraser’s has negated that it was a seller, manufacturer, or distributer of the boilers in question, an essential element of plaintiff’s strict liability claim.” Regarding the government contractor defense, the court found that Fraser’s argument was the same as co-defendant Lockheed’s failed argument for summary judgment on this issue and held: “Here, Fraser’s has conceded that it ‘was bound by whatever requirements the Navy had for Lockheed regarding the boilers to be installed on the Trenton.’ Under these circumstances, genuine issues of material fact exist as to whether the Navy limited Fraser’s, a Lockheed’s subcontractor’s, ability to comply with a state-law duty to warn, precluding a summary judgment on this defense.”
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