Artiglio v. Corning Inc

In Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, silicone breast implant recipients sued the implant maker, Dow Corning Corporation (Dow Corning). They also sued the implant maker's parent corporation, The Dow Chemical Company (Dow Chemical) under a "'Good Samaritan' or negligent undertaking liability articulated in Restatement Second of Torts, section 324A." Plaintiffs argued "Dow Chemical owed them a duty of care in the conduct and reporting of its silicone toxicology research for Dow Corning." (Id. at p. 614.) The trial court granted Dow Chemical and Dow Corning's summary judgment motions, concluding neither defendant owed a duty of care to the plaintiffs. (Id. at p. 611.) The California Supreme Court affirmed. It concluded that when Dow Chemical "conducted and reported silicone toxicology research for Dow Corning, . . . any risk of physical harm to plaintiffs from negligent performance of that undertaking was unforeseeable." (Artiglio, supra, 18 Cal.4th at p. 608.) In Artiglio v. Corning Inc. (1998) the Court of Appeal affirmed the grant of summary judgment in favor of Dow Chemical. The plaintiffs alleged damages as a result of leaking silicone breast implants. Among the defendants were Dow Corning, the manufacturer of the silicone implants, and Dow Chemical and Corning Inc., the entities that formed and owned Dow Corning. ( Id. at p. 608.) Years before the development of the implants, Dow Chemical conducted toxicology tests on silicone, and its scientists published an article reporting that silicone had a very low order of toxicity. ( Id. at pp. 608-609.) Dow Chemical did not conduct any tests with respect to the safety of the actual implants manufactured or sold by Dow Corning. ( Id. at p. 617.) All of the tests performed by Dow Chemical were conducted prior to the use of silicone in implants, and Dow Corning had had its own medical products division conduct more recent tests on the silicone implants. ( Id. at pp. 616-617.) Trademark agreements among Dow Corning, Dow Chemical, and Corning provided that Dow Chemical and Corning " 'controlled Dow Corning's operations, including the quality of its goods and services.' " ( Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 610.) Under these agreements, Dow Chemical retained the right to inspect Dow Corning's manufacturing processes to assure product quality, and also retained the right to approve or disapprove products manufactured, distributed or sold using Dow Chemical's trademark. (Ibid.) When Dow Corning applied to the Food and Drug Administration for approval of its silicone breast implants, its application "referenced hundreds of tests, including toxicological tests Dow Chemical had performed." ( Artiglio v. Corning Inc., supra, 18 Cal.4th at pp. 610-611.) The California Supreme Court held these facts were insufficient to establish " 'an undertaking of such breadth and magnitude as to create a duty on the part of Dow Chemical to ensure the safety of all of Dow Corning's silicone products.' " ( Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 617.) Because the facts did not establish an undertaking, the court did not consider the requirements of subdivisions (a), (b) and (c) of section 324A. ( Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 618.) In reaching this conclusion, the Artiglio court explained, "whether Dow Chemical's alleged actions, if proven, would constitute an 'undertaking' sufficient, within the meaning of section 324A's negligent undertaking theory, to give rise to an actionable duty of care is a legal question for the court. In some cases, however, as Dow Chemical acknowledges, there may be fact questions 'about precisely what it was that the defendant undertook to do.' That is, while 'the "precise nature and extent" of an alleged section 324A duty "is a question of law . . . "it depends on the nature and extent of the act undertaken, a question of fact."'" Thus, if the record can support competing inferences , or if the facts are not yet sufficiently developed . . . "'"an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits"'" , and summary judgment is precluded. . . . Our de novo review of the record in light of these principles reveals that no triable issue of fact concerning the scope of Dow Chemical's undertaking to Dow Corning remains to foreclose resolution of this matter on summary judgment." (Id. at pp. 615-616.) The Court stated it had previously described the negligent undertaking theory of liability as firmly rooted in the common law of negligence. It stated: "Thus, it is settled law that one 'who, having no initial duty to do so, undertakes to come to the aid of another--the 'good Samaritan' "--has 'a duty to exercise due care in performance and is liable if (a) his failure to exercise care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.' (; see also BAJI No. 4.45 'A person who is under no duty to care for or render service to another but who voluntarily assumes such a duty, is liable to the other for injury caused by a failure to exercise ordinary or reasonable care in the performance of that assumed duty.'.)" (Artiglio, at p. 613.) Artiglio stated: A negligent undertaking claim of liability to third parties requires evidence that: (1) the actor . . . undertook, gratuitously or for consideration, to render services to another . . . ; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons (plaintiffs); (3) the actor failed to exercise reasonable care in the performance of its undertaking; (4) the failure to exercise reasonable care resulted in physical harm to the third persons; (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) the harm was suffered because of the reliance of the other or the third persons upon the undertaking. (Id. at pp. 613-614.) In sum, the users of silicone gel breast implants sued Dow Chemical Company (Dow) for failure to report negative toxicology research on the dangers of silicone to breast implant manufacturers. The plaintiffs claimed that it was a "negligent undertaking" and rendered Dow liable in tort for the plaintiffs' physical harm. The Supreme Court held that once a Good Samaritan has performed his voluntary act, he is not required to continue to render aid indefinitely. (18 Cal.4th at pp. 617-618.)