Majority
Opinion
On July 15, 1964, at 3:10 a.m., Robert Pike was killed when he was struck by a Hough Model D-500 Paydozer, which was being used in the construction of the Oroville Dam. Pike was working the night shift as a “spotter” for Oro-Dam Constructors, and his assignment was to direct dump trucks in the area in which dumped fill was to be spread and tamped down by the paydozer. On the morning of the accident, the men were filling in a corner of the dam surface, and in doing so it was necessary for the paydozer to go forward and then backward within a short distance to accomplish the spreading and tamping of the earth. Decedent was some 30 to 40 feet behind the paydozer, standing on an angle with his back to the paydozer when it backed up and struck him.
Decedent’s widow and minor children brought this action for wrongful death against the manufacturer of the paydozer. The case was tried to a
As we have consistently pointed out, a “nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiffs’ evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs’ favor, it can be said that there is no evidence to support a jury verdict in their favor.” (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578 , 583 [ 75 Cal.Rptr. 652 , 451 P.2d 84 ].) Thus, the issue before us in this appeal is whether the evidence presented by plaintiffs, viewed favorably to their cause, was sufficient to support a jury verdict finding that defendant was liable to plaintiffs for negligently designing the paydozer or that defendant was strictly liable to plaintiffs for defects in the paydozer causing decedent’s death.
The record establishes the following evidence most strongly in favor of plaintiffs: The area in which the accident occurred was well illuminated with mercury lights and visibility was good despite the hour of the morning. When decedent was struck, the paydozer was in the process of reversing to position itself to then move forward to spread and tamp down fill; behind the paydozer decedent was directing dump trucks in depositing fill which was to be spread and tamped by the paydozer at a later time. Prior to backing up, the operator of the paydozer, who had not observed Pike for about five minutes, looked to the rear to ascertain if it was clear, but he did not see Pike, who was standing 30 to 40 feet behind the vehicle and wearing a luminous jacket. The operator testified that there was a substantial blind spot to the rear of the paydozer because of its design. He also testified that the lighting was clear enough so that workers on the other side of the dam were visible.
The Hough paydozer was a large, noisy earth-moving machine. It was designed to move backward as well as forward and, as here, to perform in confined areas. It was equipped with two white headlights, and, on the rear, two red taillights and two white lights. At the time of the accident, only the red taillights were illuminated; the headlights were turned off. because the dump truck operators complained of the glare, and the rear white lights were off because they blinded other equipment operators
1 International Harvester Company, which owns the stock of Frank G. Hough Company, was also named a defendant and awarded a nonsuit. Its nonsuit, granted on the ground that it played no part in the manufacture of the paydozer, is not contested on this appeal.
Robert Snyder, a registered mechanical engineer, appeared as an expert for plaintiffs. According to his testimony, the design of the paydozer with its large engine box to the rear created a blind area behind the paydozer of such dimension that, if the operator looked behind him while sitting in the cab, he could not see a man 6 feet tall standing anywhere between 1 and 48 feet to the rear of the machine. The blind area extended laterally at least 10 feet to each side of the midline of the paydozer. Snyder testified that the blind area could be reduced from a rectangle 48 feet by 20 feet to a cone-shaped area with a maximum length behind the machine of 12 feet by installation of two rearview mirrors located 4 feet out from each side of the cab. The 4-foot distance, he pointed out, would not project the mirrors beyond the vertical line of the huge tires on the tractor. The mirrors he described were similar to those he had seen on ditchdigging equipment. He also recommended a blinking amber light or a tooting horn to alert persons within the remaining blind area.
In nonsuiting plaintiffs on their negligence cause of action, the trial court held as a matter of law that a vehicle intended to move backward is not negligently designed although the operator cannot see a man 30 to 40 feet behind him in the direct path of the vehicle and although simple mirrors and lights could alleviate the danger. The court was in error; this was essentially a question of fact for determination by the jury.
The duty of a manufacturer with respect to the design of products placed on the market is defined in the Restatement Second of Torts, section 398: “A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.” Thus, the manufacturer must use reasonable care “ ‘to so design his product as to make it not accident-proof, but safe for the use for which it was [sz'c] intended.’ ” (Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246 , 258 [ 22 Cal.Rptr. 737 ], quoting from 76 A.L.R.2d 91 , 94.) What is “reasonable care,” of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm. (2 Harper and James, The Law of Torts (1956) § 28.4, p. 1542.)
Applying the foregoing standards to the case at bar, it would
Although no cases in California or other jurisdictions have considered facts identical to those in the instant action, the weight of authority supports a finding of negligent design. In Zahora v. Harnischfeger Corp. (7th Cir. 1968) 404 F.2d 172 , the circuit court reversed a summary judgment for defendants under somewhat comparable circumstances. While plaintiff was looking into the malfunctioning in the bridge of a crane, the operator moved the crane and crushed him against the cab. The operator testified that he could not see plaintiff and that it was probably because the bottom half of the door to the cab was metal, so that his vision of the bridge was restricted. On the basis of this evidence, the court stated: “Viewing the implications and inferences of the operator’s deposition in a light most favorable to the plaintiff, we find his comments suggest it is at least disputable whether or not the cab design permitted the operator that amount of vision necessary to the safe operation of the crane.” (Id. at p. 177.) In the case at bar, the trial court granted a nonsuit, rather than a summary judgment, but these plaintiffs’ evidence was stronger than that in Zahora. Here no reliance on mere “implications and inferences” is required, for the expert witness testified that there was a definite massive blind area behind the paydozer, but that installation of two mirrors would have made decedent visible to the operator long before the point of impact.
Our recent case of Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535 [ 67 Cal.Rptr. 775 , 439 P.2d 903 ] lends support to plaintiffs’ position that they were wrongfully nonsuited. We held there that an issue of jury dimensions was raised as to whether a bakery truck was negligently equipped in lacking mirrors to correct a blind spot. “Considerable evidence indicated that the truck had been negligently equipped. Defendant planned and intended the truck to attract children to purchase bakery products from
2 Of course, plaintiffs must show causation as well as breach of duty. But Snyder testified that the blind spot would have been reduced to 12 feet with mirrors, a distance beyond which the decedent was positioned; that testimony should have been sufficient to establish that the defendant’s negligent failure of design caused the decedent’s death. There is no serious issue of causation raised on this appeal.
Other California cases recognize a cause of action against a manufacturer for negligent design of a product and support plaintiffs’ contention that failure to provide reasonable safety devices may constitute negligence. “[F]or the purpose of showing that there has been a failure to comply with the standard of due care, it is proper to introduce evidence as to the necessity and feasibility of changes in the design of parts of a machine so as to enhance the factor of safety.” (Varas v. Barco Mfg. Co. (1962) supra, 205 Cal.App.2d 246 , 259.) In Varas, it was held that evidence, showing that the threads on the gas cap of an earth-compacting machine permitted oil and gas to spray onto the operator while other feasible threads would not, was sufficient to avoid a nonsuit in an action for personal injuries to the operator resulting from his catching fire due to the oil and gas on his body. Similarly, Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App. 2d 724 [ 7 Cal.Rptr. 879 ] held that it was error to nonsuit a plaintiff who offered evidence that the explosion causing his injuries resulted from the unexplained closing of the air cap on a burner which could have been avoided by a safety weld or a set screw in the design of the burner. Other cases which hold evidence of absence of feasible safety features in design causing plaintiff’s injuries was sufficient to avoid a nonsuit include Boeing Airplane Company v. Brown (9th Cir. 1961) 291 F.2d 310 ; Robinson v. Reed-Prentice Corporation (9th Cir. 1961) 286 F.2d 478 ; and Darling v. Caterpillar Tractor Co. (1959) 171 Cal.App.2d 713 [ 341 P.2d 23 ].
The foregoing authorities and the case at bar are distinguishable from Hatch v. Ford Motor Co. (1958) 163 Cal.App.2d 393 [ 329 P.2d 605 ]. In Hatch, plaintiff, a young child, lost his eye when he walked into a nine and three-fourths inch hood ornament on a parked Ford automobile. The court
Defendant contends that the danger of being struck by the paydozer was a patent peril and, therefore, that it had no duty to install safety devices to protect against an obvious danger. We do not agree. First, although all vehicles contain the potential of impact, it is not necessarily apparent to bystanders that the machine operator is incapable of observing them though they are 30 to 40 feet behind the vehicle and in its direct path. The danger to bystanders is not diminished because the purchaser of the vehicle is aware of its deficiencies of design. The manufacturer’s duty of care extends to all persons within the range of potential danger. Second, the obviousness of peril is relevant to the manufacturer’s defenses, not to the issue of duty. If a bystander does not exercise due care to protect himself from an evident peril, he may be contributorily negligent. (Brooks v. Allis-Chalmers Mfg. Co. (1958) 163 Cal.App.2d 410 , 415 [ 329 P.2d 575 ].) But the issue of contributory negligence is one normally for the jury; clearly the evidence here did not justify nonsuiting plaintiffs on the ground of decedent’s contributory negligence as a matter of law. (See Varas v. Barco Mfg. Co. (1962) supra, 205 Cal.App.2d 246 , 262-263.) Indeed, “ ‘[w]here a person must work in a place of possible danger the amount of care he is bound to exercise for his own safety may well be less by reason of the necessity of his giving attention to his work than would otherwise be the case.’ ” (205 Cal.App.2d at p. 263, quoting Johnson v. Nicholson (1958) 159 Cal.App.2d 395 , 410 [ 324 P.2d 307 ].)
To the same effect see 71 Yale Law Journal 816, in which Professor Noel wrote (at p. 838): “Any definite requirement that the defect or the danger must be latent seems to revert to the concept that a chattel must be ‘inherently’ dangerous, and this concept has been replaced under the modern decisions, by the rule that the creation of any unreasonable danger is enough to establish negligence. Under the modern rule, even though the absence of a particular safety precaution is obvious, there ordinarily would be a question for the jury as to whether or not a failure to install the device creates an unreasonable risk.”
We conclude, therefore, that it was error to nonsuit plaintiffs in their cause of action based on the negligent design of the paydozer. The issue should have gone to the jury. We now discuss their cause of action based on a strict liability concept.
California has pioneered in the development and extension of the theory that manufacturers are strictly liable in tort for injuries to persons caused by defects in their products. (See Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453 , 461-468 [ 150 P.2d 436 ], concurring opinion of Tray nor, J.)
Here the trial court held as a matter of law that the paydozer was not defectively designed and that the doctrine of strict liability was inapplicable. We cannot agree. The Restatement Second of Torts, section 402A succinctly recites the standard for strict liability applicable to manufacturers: “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer [or bystander],[3] or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” In the instant action, plaintiffs contend that the paydozer contained a fundamental defect of design which made it unreasonably dangerous for its intended use, in that the operator could not see persons working behind him within a rectangular area 48 feet by 20 feet.
Most reported cases in California and other jurisdictions have applied strict liability to products containing defects in their manufacture; few have involved defects in design. However, there is no rational distinction between design and manufacture in this context, since a product may be equally defective and dangerous if its design subjects protected persons to unreasonable risk as if its manufacture does so. Indeed, in Greenman v. Yuba Power Products, Inc. (1963) supra, 59 Cal.2d 57 , 64, we held that plaintiff could recover on a strict liability theory if he proved “that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture . . . .” (Italics added.)
A recent California case expressly holds that a product may be defective if it lacks safety devices necessary to its reasonable safety. In Garcia v. Halsett (1970) 3 Cal.App.3d 319 [ 82 Cal.Rptr. 420 ], the plaintiff sued the owner of a launderette for injuries sustained while using one of the washing machines in the establishment. Plaintiff waited several minutes
3 As noted above, since Elmore V. American Motors Corp. (1969) supra, 70 Cal.2d 578 , California courts extend protection to bystanders.
Persuasive authorities in other jurisdictions have also reached the conclusion that products lacking safety devices may be defective. In Wright v. Massey-Harris, Inc. (1966) 68 Ill.App.2d 70 [ 215 N.E.2d 465 ], defendant’s motion to dismiss was reversed on the ground that plaintiff had stated a good cause of action in both negligence and strict liability, based on the design of the defendant’s cornpicker. “The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvadai **[4] to mean that the strict liability imposed upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture. Whether the design defect in the present case is of a nature upon which liability can be imposed involves the factual question of whether it creates an unreasonably dangerous condition, or, in other words, whether the product in question has lived up to the required standard of safety.” {Id. at p. 470.) The defects alleged in the cornpicker were that it lacked a shield over the area in which ears of com could jam in the chain mechanism and a guard over the shucking rollers from which ears of com were manually extracted. Thus, on the basis of a case no broader in scope than Greenman, the Illinois court applied strict liability to a machine defective in design because it lacked safety devices which would have reduced the risk of harm. (Also see Ilnicki v. Montgomery Ward Company (7th Cir. 1966) 371 F.2d 195 ; Williams v. Brown Mfg. Co. (1968) 93 Ill.App.2d 334 [ 236 N.E.2d 125 ].) We adapt a similar rule to this case. Whether the paydozer was unreasonably dangerous due to faulty design when it left the hands of the manufacturer is clearly a question of fact to be determined by the jury.
Furthermore, California cases provide support by analogy for the proposition that products designed without necessary safety devices may be
4 Suvada v. White Motor Company (1965) 32 I11.2d 612 [ 210 N.E.2d 182 ]. Suvada, like its Greenman counterpart in California, established the liability of sellers of defective and unreasonably dangerous products without privity of contract.
Of course, we do not decide whether the paydozer is in fact unreasonably dangerous for its intended use, but only that plaintiffs’ evidence was sufficient to support a jury verdict in their favor. A jury could decide that an earth-moving machine with a 48-foot by 20-foot rectangular blind spot was dangerous “to an extent beyond that which would be contemplated by the ordinary consumer who purchases it [or by a bystander], with the ordinary knowledge common to the community as to its characteristics.” (Rest. 2d Torts, § 402A, com. i, at p. 352.)
The judgment for Frank G. Hough Company is reversed. The judgment is affirmed as to International Harvester Company. Plaintiffs are to recover their costs on appeal.
McComb, J., Peters, J., Tobriner, J., Burke, J., Sullivan, J., and Peek, J.,[5] concurred.
* Retired Associate Justice of the Supreme Court sitting under assignment by the Acting Chairman of the Judicial Council.
Cases cited
- Elmore v. American Motors Corp. 70 Cal.2d 578 at 583, at 585-587 p. 469, p. 475
- Menchaca v. Helms Bakeries, Inc. 68 Cal.2d 535 p. 471
- Reynolds v. Natural Gas Equipment, Inc. 184 Cal.App. 2d 724 p. 472
- Darling v. Caterpillar Tractor Co. 171 Cal.App.2d 713 p. 472
- Hatch v. Ford Motor Co. 163 Cal.App.2d 393 p. 472
- Brooks v. Allis-Chalmers Manufacturing Co. 163 Cal.App.2d 410 at 415 p. 473
- Johnson v. Nicholson 159 Cal.App.2d 395 at 410 p. 473
- Escola v. Coca Cola Bottling Co. 24 Cal.2d 453 at 461-468 p. 474
- Greenman v. Yuba Power Products, Inc. 59 Cal.2d 57 at 62, at 64 p. 475
- Vandermark v. Ford Motor Co. 61 Cal.2d 256 p. 475
- Garcia v. Halsett 3 Cal.App.3d 319 p. 475
- Canifax v. Hercules Powder Co. 237 Cal.App.2d 44 at 53 p. 477
- Barth v. B. F. Goodrich Tire Co. 265 Cal.App.2d 228 at 244-245 p. 477