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Products Liability
The doctrine of Primary Assumption of the Risk does not apply in a products liability action in favor of a manufacturer.
In
Ford vs. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 43 Cal.Rptr.3d 215, plaintiff suffered catastrophic injuries after falling off of the rear of a two-seater personal watercraft being operated by another person. The owner/operator of the watercraft was dismissed after it was determined that falling off the watercraft was an inherent risk of the sport. Plaintiff also sued the manufacturer of the watercraft contending that a safety strap should have been available which could have prevented the passenger from falling backwards off the rear of the watercraft. The Court of Appeal held that the defense of primary assumption of the risk was not available to the manufacturer of the defective product and additionally found that comparative fault could not be assessed against the owner/operator of the watercraft.
The application of the economic loss rule in strict products liability may be an issue of fact for determination by the jury.
In
KB Home vs. Superior Court (2003) 112 Cal.App.4th 1076, 5 Cal.Rptr.3d 587, the plaintiff was a developer who had installed furnaces it purchased from the defendant in more than 2,000 homes. As a result of a defect in nitrous oxide rods in the furnaces, other furnace parts were damaged. Plaintiff was required to spend more than $3,000,000.00 to replace the furnaces.
The economic loss rule, first articulated in Seely vs. White Motor Co. (1965) 63 Cal.2d 9 and later clarified in Jimenez vs. Superior Court (2002) 29 Cal.4th 473, bars recovery in tort for a defective product for damages for costs to repair, for replacement, or for loss of profits unless the defect in the product caused damage to “other property”. Plaintiff contended that the defective rods were not an integral part of the furnace and therefore should be considered separate from the furnaces as they had been purchased from another manufacturer for the purpose of adding them to the furnaces supplied by the defendant. In support of its argument Plaintiff pointed out: (1)the furnaces were sold in other markets without the rods, (2)the rods could easily be removed from the furnaces, (3)the rods had been used in other non-furnace applications, and (4) were listed as a separate part in the defendant’s parts catalogue.
The trial court held that the economic loss rule barred plaintiff from recovering tort damages for the cost of repairing and replacing the furnaces. The Court of Appeal vacated the order, holding that the issue as to whether the defective product was a discreet part, separate and distinct from another product or property, was an issue for the trier of fact to determine.
Manufacturers can be held strictly liable for supplying component parts of mass-produced homes.
In Jimenez v. Superior Court (2002) 29 Cal.4th 473, 127 Cal.Rptr.2d. 614 the defendant manufacturers of windows successfully obtained a summary adjudication from the trial court that plaintiff could not proceed against them on a products liability theory. The manufacturers argued that the windows were shipped in parts, assembled by third parties and then installed by others. The defendants also contended that the "product" in this case was the home and pursuant to the "economic loss rule" the plaintiff could not recover for damage to the home because of a defect in the home.
The California Supreme Court reversed, holding that the homeowners could sue the defendant manufacturers of the windows under the doctrine of strict liability. The "economic loss rule" allows a plaintiff to recover in strict products liability in tort when a product defect causes damage to property other than the product itself. In distinguishing the mass-produced homes from the windows, the Court concluded that the manufacturer of defective windows installed in a mass-produced home may be held strictly liable in tort for damage that the windows' defects cause to other parts of the home.
Plaintiffs unable to prove in coordinated latex glove litigation the existence of manufacturing defects.
The Fourth District Court of Appeal in the case of In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 99 Cal.App.4th 1333D, 121 Cal.Rptr.2d 301, recently affirmed a ruling by the trial court that the plaintiff had failed to present substantial evidence to support a manufacturing or production defect theory. Plaintiffs action here was the first to go to trial in a group of cases in the coordinated proceedings. Plaintiff alleged that the latex gloves contained natural or artificial substances that caused the development of serious latex allergies. The jury found in favor of the plaintiff but the verdict was overturned by the trial court following entry of judgment notwithstanding the verdict.
The Court of Appeal discusses at length the two pronged test for strict liability manufacturing defect as originally expressed in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432, 143 Cal.Rptr. 225. The court held that the evidence established that the gloves did not differ from the manufacture's intended results nor did they have materially significant differences among identical units from the same product line. The gloves complied with applicable government standards and fulfilled their primary barrier function.
A restaurant operator is potentially liable for not warning
patrons of MSG in soup.
In Livingston v. Marie Calendar's Inc. (1999) 72 Cal.App.4th
830, 85 Cal.Rptr.2d 528, a restaurant patron who suffered
a severe adverse reaction after eating vegetable soup, sued
the restaurateur for strict liability - failure to warn that
the soup contained monosodium glutamate. The trial court dismissed
the strict liability claim and plaintiff appealed. The Second
District Court of Appeal reversed, holding that the restaurant
could be potentially strictly liable for failing to warn of
an ingredient to which a substantial portion of the population
may be allergic.
This case has potentially wide-ranging implications. The court
provided no meaningful definition of "substantial number of
the population." At the present, a rapidly growing segment
of the population is allergic to any contact with peanuts
and peanut products. Most people would be astounded by the
number of food items Americans consume everyday that either
directly include peanuts/peanut by-products, or are cross-contaminated
(where foods without exposure to peanuts are processed on
the same machinery as food products with peanuts). Adverse
reactions can range from mild to anaphylactic shock and death.
Instructing the jury on the "consumer expectations" test
for design defect is inappropriate in most product liability
cases.
In Pruitt v. General Motors Corporation (1999) 72 Cal.App.4th
1480, 86 Cal.Rptr.2d 4, a driver brought a products liability
action against the automobile manufacturer seeking recovery
for injuries sustained when the airbag deployed in a low speed
collision. The trial court refused to instruct the jury on the
"consumer expectations" theory of design defect, and plaintiff
appealed. Citing the language of the California Supreme Court
in Soule v. General Motors Corporation (1994) 8 Cal.4th 548,
34 Cal.Rptr.2d 607, the Second District noted "the consumer
expectations test is reserved for cases in which the everyday
experience of the product's users permits a conclusion that
the product's design violated minimum safety assumptions, and
is thus defective regardless of expert opinion about the merits
of the design."
The court noted that, fortunately, the deployment of air bags
is not part of the "everyday experience" of the consuming public.
Minimum safety standards for air bags are not within the common
knowledge of lay-jurors who need expert testimony to evaluate
the risks and benefits of the challenged design.
The decision of the Second District Court of Appeals in Bresnahan
v. Chrysler Corporation (1998) 65 Cal.4th 1149, 76 Cal.Rptr.2d
804, underscores the importance of requesting a special verdict
in a products liability case where plaintiff seeks to recover
under multiple theories.
Mary Bresnahan's left arm was injured when the airbag in her
LeBaron deployed during an accident. There was testimony at
trial that such injuries were to be expected if the operator
of the vehicle drove while sitting too close to the steering
wheel. Plaintiff alleged the product was defective in design
(under both the consumer expectation theory and the risk-benefit
theory) and because Chrysler failed to give adequate warning
of the known danger. Chrysler waived its opportunity to submit
the matter to the jury on special verdict. They returned a general
verdict in favor of plaintiff.
On motion for new trial, as well as on appeal, if there was
sufficient evidence to sustain any one of plaintiff's theories,
the verdict had to be sustained. Therefore, although Chrysler
had a tenable argument that the jury should not have been instructed
on the consumer expectation theory, since there was sufficient
evidence to support the verdict in a failure to warn theory,
the Appellate Court was obligated to find in plaintiff's favor
on appeal.
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