Cavers v. Cushman Motor Sales, Inc.

Opinion

In April 1973 plaintiff William M. Cavers was injured while riding on a motorized golf cart at the Oakridge Golf Club in San Jose. Cavers instituted the present tort action claiming that the manufacturer and the lessor should be held accountable under strict products liability because of their failure to give warning of the golf cart’s propensity to tip over while turning. The primary issue is whether the trial judge correctly instructed the jury that a product otherwise properly designed and manufactured could nevertheless be “defective” if no warning was given and the absence of the warning rendered the product “substantially dangerous” to the user. We conclude that the trial court did not err in its instruction, and further take this opportunity to frame some

The case was tried before a jury which returned with a special verdict in favor of all respondents. Plaintiff-appellant has appealed from the judgment entered on the special verdict.

II. The . Trial Court Correctly Instructed the Jury on the Definition of “Defect” for Failure to Warn Under Strict Products Liability

Appellant’s sole theory of recovery was strict liability in tort for failure to warn of the golf cart’s propensity to tip while turning. He presented no evidence that the golf cart was defective in either its design or its manufacture.

Appellant claims the trial court committed error in the following instruction which it gave to the jury: “An article otherwise appropriately made and maintained is defective within the meaning of the instruction which I have just given if the manufacturer and/or lessor fails to adequately warn of dangerous propensities of such article which in the absence of an adequate warning renders the article substantially dangerous to the user.” (Italics added.)

The appellant contends that the trial court’s use of the adverb “substantially” to modify the term “dangerous” is contrary to California law and prejudicially increased the appellant’s burden of proof.

Prior to the California Supreme Court decision in Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121 [ 104 Cal.Rptr. 433 , 501 P.2d 1153 ], the cases involving products liability actions required that a two-pronged test be met to establish liability. The claimant was required to prove (1) “a defective condition” and also that the defect was (2) “unreasonably dangerous.” In 1972, in a case involving a products liability action based on “manufacturing defects,” the Supreme Court in Cronin eliminated the plaintiff’s burden of having to establish that a proven defect was also “unreasonably dangerous.”

We conclude that the Cronin decision, while eliminating in the manufacturing defect cases the previous dual burden of proving both the existence of a defect and an unreasonable degree of danger resulting therefrom, nevertheless did not preclude weighing the degree of dangerousness in the failure to warn cases.

The landmark case in strict products liability is Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [ 27 Cal.Rptr. 697 , 377 P.2d 897 , 13 A.L.R.3d 1049 ], where the California Supreme Court announced the rule that “. . . A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Id., at p. 62.)

It was soon recognized that the Greenman doctrine was applicable to both (a) a defect in manufacture and (b) a defect in design. (59 Cal.2d at p. 64, see also Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465 , 475 [ 85 Cal.Rptr. 629 , 467 P.2d 229 ].) However, beginning with the case of Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44 [ 46 Cal.Rptr. 552 ], California courts determined that “. . . a product, although faultlessly made, may nevertheless be deemed ‘defective’ . . . and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.” (237 Cal.App.2d at p. 53, italics added; see also Rest.2d Torts, § 402A com. j., Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228 , 244-245 [ 71 Cal.Rptr. 306 ].) Thus, a third type of defect was recognized, which consisted not in the manufacturer’s workmanship or his choice of design, but in a product whose absence of a warning created unreasonable risks to the consumer.

In the meantime, the formulation of strict products liability propounded by the Restatement Second of Torts section 402A, began to exert a pervasive influence on decisional law. Its requirement that the consumer prove “a defective condition” which was also “unreasonably dangerous,” although significantly adding to the plaintilf’s burden as set forth in Greenman, was adopted in both Court of Appeal and Supreme Court decisions. (See e.g. Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379 ,

In Cronin v. J.B.E. Olson Corp., supra, 8 Cal.3d 121 , the Supreme Court concluded that the added requirement that a defect makes the product “unreasonably dangerous,” which had “crept into our jurisprudence without fanfare after its inclusion in section 402A of the Restatement Second of Torts,” represented “a step backward in the area” pioneered by the Greenman decision, and should be rejected. (Id., at pp. 129, 133.) Cronin reached this result out of two principal concerns: (1) requiring a plaintiff to prove both a defect and that the defect was unreasonably dangerous imposes a double burden on the consumer, adding an element “which rings of negligence” and which in practice rarely leads to a different result than would have been reached under negligence law (id. at pp. 132-133); and (2) such a requirement would permit the manufacturer to escape liability simply because of the low expectation the ordinary consumer might have for his product. (Id., at p. 133.) The court concluded that to recover on a strict liability theory, the plaintiff need only prove that the product was defective and that the defect was a proximate cause of his injuries, as set forth in Greenman. Moreover, “We can see no difficulty in applying the Greenman formulation to the full range of products liability situations, including those involving ‘design defects.’ ” (Cronin, supra, 8 Cal.3d at p. 134.)

At this juncture, it is important to note what the Supreme Court did and did not do in its Cronin decision. It did abolish the Restatement’s requirement that the product prove not only defective but also “unreasonably dangerous” as a result thereof. It also clearly indicated that the latter requirement should be done away with in both manufacturing defect and design defect situations. It did not, however, overrule or disapprove of any prior cases which gave meaning to the word “defect.” On the contrary, the court acknowledged “the difficulties inherent in giving content to the defectiveness standard” and referred the courts of this state to “a cluster of useful precedents” in the area. (Id., at p. 134, fn. 16, quoting from Traynor, The Ways and Meanings of Defective Products and Strict Liability (1965) 32 Tenn.L.Rev. 363 , 373.) It did not therefore alter the standard for defectiveness set forth in Canifax, i.e., that a product otherwise free of defects in manufacture and design may become defective if it is “unreasonably dangerous to place [it] in the hands of the user without a suitable warning. . . .” (237 Cal.App.2d atp. 53.)

Other Court of Appeal decisions postdating Cronin do not directly face the issue and moreover provide no clear consistent pattern: two cases faithfully repeat the Canifax formula of “unreasonably dangerous” for failure to warn liability (Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930 , 933 [ 133 Cal.Rptr. 483 ]; Burke v. Almadén Vineyards, Inc. (1978) 86 Cal.App.3d 768 , 772 [ 150 Cal.Rptr. 419 ]); one case repeats the formula without the word “unreasonably,” yet cites Dosier as authority for the proposition (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173 , 181, fn. 6 [ 134 Cal.Rptr. 895 ]); and a fourth avoids discussing degrees of danger, but addresses itself only to the specialized situation where the product requires assembly and use in conformity with the supplier’s directions and such directions are the unsophisticated consumer’s only guide and means of avoiding physical injury. (Midgley v. S.S. Kresge Co. (1976) 55 Cal.App.3d 67 , 74 [ 127 Cal.Rptr. 217 ].)

The problem, of course, is that no precise or easily adaptable definition of “defect” can be found. (See Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379 , 383 [ 93 Cal.Rptr. 769 , 482 P.2d 681 , 52 A.L.R.3d 92 ].) Indeed, the lack of “definitive precedent” on the concept of defect has caused the Committee on Standard Jury Instructions to avoid issuing jury instructions defining either “defect” or “defective condition.” (BAJI No. 9:00 (1977 ed.) com., p. 289.)

Fortunately, the Supreme Court has provided us with further guidance through its recent decision in Barker v. Lull Engineering Co. (1978) 20

The classification drawn between manufacturing defects on the one hand and defects caused by poor design or failure to warn on the other is of particular significance, for the court goes on to state that the likelihood of confusion is substantially more acute where the defect is in design rather than manufacture: “. . . a manufacturing defect is readily identifiable because a defective product is one that differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line. ... A design defect, by contrast, cannot be identified simply by comparing the injury-producing product with the manufacturer’s plans or with other units of the same product line, since by definition the plans and all such units will reflect the same design.” (20 Cal.3d at p. 429.)

If the concept of defect “raises considerably more difficulties” in the design context than in the manufacturing or production context (id. at

In the first place, the court in Barker held that “[a] trial court may properly formulate instructions to elucidate the ‘defect ’ concept in varying circumstances.” (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 426, italics original.) The court continued further to explain that Cronin was never meant to “preclude a trial court from framing a definition of defect, appropriate to the circumstances of a particular case, to guide the juiy as to the standard to be applied in determining whether a product is defective or not.” (Id., at p. 427.)

Although a standard which has as its touchstone “ordinary consumer expectations as to safety” is frequently useful, the Supreme Court noted that this concept is often out of place in design defect situations, for “ ‘the consumer would not know what to expect, because he would have no idea how safe the product could be made.’ ” (20 Cal.3d at p. 430, quoting from Wade, op. cit. supra.) Thus, the court noted that numerous California decisions have implicitly held that a defect in design may exist where, despite meeting ordinary consumer expectations, the product’s design is found by the jury to have embodied “excessive preventable danger,” “or in other words . . . the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.” Pursuant to this standard, “. . . a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. [Citations.]” (Barker, supra, 20 Cal.3d at p. 431.)

We believe the foregoing principles to be adaptable to a failure to warn case. In assisting the jury’s determination of whether the absence of

App

ellant called Dr. Henry Hahne, a mechanical engineer, as an expert to testify as to the tipping propensities of the golf cart. Hahne stated that, as a result of his observations and experiments with golf carts such as the one appellant was using he found that the cart would “readily” tip on sharp turns. He was then asked whether he considered this characteristic to be “dangerous.” Counsel for respondent Cushman immediately objected. The court took the matter under consideration and finally issued the following ruling: “. . . I conclude that danger is measured not only by the potential consequence of a given propensity in an article [but] by several other factors, including but not limited to the frequency of harm anticipated as a consequence of such propensity, the foreseeability of such propensity to the user, the awareness of such propensity by the user, to the end that he may guard himself against such propensity, and the extent and quality of detriment anticipated.”

The court went on to state that while Dr. Hahne could speak “to the consequence of the propensity asserted” and “to what may reasonably occur as a result of the propensity asserted from a physical and engineering standpoint,” there was an insufficient foundation for him to opine that such propensity was dangerous.

We start with the general principle that the competency and qualification of an expert to give his opinion is within the sound discretion of the trial judge. On appeal, that determination will not be disturbed unless a manifest abuse of discretion is shown. (Huffman v. Lindquist (1951) 37 Cal.2d 465 , 476 [ 234 P.2d 34 , 29 A.L.R.2d 485 ].)

The ruling was not erroneous.

Judgment is affirmed.

Taylor, P. J., and Rouse, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 20, 1979.