Barker v. Lull Engineering Co.

TOBRINER, J.

In August 1970, plaintiff Ray Barker was injured at a construction site at the University of California at Santa Cruz while operating a high-lift loader manufactured by defendant Lull Engineering Co. and leased to plaintiff's employer by defendant George M. Philpott Co., Inc. Claiming that his injuries were proximately caused, inter alia, by the alleged defective design of the loader, Barker instituted the present tort action seeking to recover damages for his injuries. The jury returned a verdict in favor of defendants, and plaintiff appeals from the judgment entered upon that verdict, contending primarily that in view of this court's decision in Cronin v. J. B. E. Olson Corp., the trial court erred in instructing the jury "that strict liability for a defect in design of a product is based on a finding that the product was unreasonably dangerous for its intended use . . . ."

As we explain in more detail below, we have concluded from this review that a product is defective in design either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if, in light of the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design. In addition, we explain how the burden of proof with respect to the latter "risk-benefit" standard should be allocated.

This dual standard for design defect assures an injured plaintiff protection from products that either fall below ordinary consumer expectations as to safety, or that, on balance, are not as safely designed as they should be. At the same time, the standard permits a manufacturer who has marketed a product which satisfies ordinary consumer expectations to demonstrate the relative complexity of design decisions and the trade-offs that are frequently required in the adoption of alternative designs. Finally, this test reflects our continued adherence to the principle that, in a product liability action, the trier of fact must focus on the product, not on the manufacturer's conduct, and that the plaintiff need not prove that the manufacturer acted unreasonably or negligently in order to prevail in such an action.

1. The facts of the present case

Plaintiff Barker sustained serious injuries as a result of an accident which occurred while he was operating a Lull High-Lift Loader at a construction site.

On the day of the accident the regular operator of the loader, Bill Dalton, did not report for work, and plaintiff, who had received only limited instruction on the operation of the loader from Dalton and who had operated the loader on only a few occasions, was assigned to run the loader in Dalton's place. The accident occurred while plaintiff was attempting to lift a load of lumber to a height of approximately 18 to 20 feet and to place the load on the second story of a building under construction. The lift was a particularly difficult one because the terrain on which the loader rested sloped sharply in several directions.

During the course of the lift plaintiff felt some vibration, and, when it appeared to several coworkers that the load was beginning to tip, the workers shouted to plaintiff to jump from the loader. Plaintiff heeded these warnings and leaped from the loader, but while scrambling away he was struck by a piece of falling lumber and suffered serious injury.

Plaintiff contended, inter alia, that the accident was attributable to one or more design defects of the loader. Defendant, in turn, denied that the loader was defective in any respect, and claimed that the accident resulted either from plaintiff's lack of skill or from his misuse of its product.

Plaintiff's principal expert witness initially testified that by reason of its relatively narrow base the loader was unstable and had a tendency to roll over when lifting loads to considerable heights; the witness surmised that this instability caused the load to tip in the instant case. The expert declared that to compensate for its instability, the loader should have been equipped with "outriggers," mechanical arms extending out from the sides of the machine, two in front and two in back, each of which could be operated independently and placed on the ground to lend stability to the loader

The expert additionally testified that the loader was defective in that it was not equipped with a roll bar or seat belts. He stated that such safety devices were essential to protect the operator in the event that the machine rolled over. Plaintiff theorized that the lack of such safety equipment was a proximate cause of his injuries because in the absence of such devices he had no reasonable choice but to leap from the loader as it began to tip. If a seat belt and roll bar had been provided, plaintiff argued, he could have remained in the loader and would not have been struck by the falling lumber.

In addition, plaintiff's witnesses suggested that the accident may have been caused by the defective design of the loader's leveling mechanism. Several witnesses testified that both the absence of an automatic locking device on the leveling lever, and the placement of the leveling lever in a position in which it was extremely vulnerable to inadvertent bumping by the operator of the loader in the course of a lift, were defects which may have produced the accident and injuries in question. Finally, plaintiff's experts testified that the absence of a "park" position on the loader's transmission, that could have been utilized to avoid the possibility of the loader's movement during a lift, constituted a further defect in design which may have caused the accident.

Defendants in response, presented evidence which attempted to refute plaintiff's claims that the loader was defective or that the loader's condition was the cause of the accident. Defendants' experts testified that the loader was not unstable when utilized on the terrain for which it was intended, and that if the accident did occur because of the tipping of the loader it was only because plaintiff had misused the equipment by operating it on steep terrain for which the loader was unsuited. In answer to the claim that the high lift loader was defective because of a lack of outriggers, defendants' expert testified that outriggers were not necessary when the loader was used for its intended purpose and that no competitive loaders with similar height lifting capacity were equipped with outriggers.

The defense experts further testified that a roll bar was unnecessary because in view of the bulk of the loader it would not roll completely over. The witnesses also maintained that seat belts would have increased the danger of the loader by impairing the operator's ability to leave the vehicle quickly in case of an emergency. With respect to the claimed defects of the leveling device, the defense experts testified that the positioning of the lever was the safest and most convenient for the operator and that the manual lock on the leveling device provided completely adequate protection. Finally, defendants asserted that the absence of a "park" position on the transmission should not be considered a defect because none of the transmissions that were manufactured for this type of vehicle included a park position.

In addition to disputing plaintiff's contention as to the defectiveness of the loader, defendants' witnesses testified that the accident probably was caused by the plaintiff's own inexperience and consequent dangerous actions. Defendants maintained that if the lumber had begun to fall during the lift it did so only because plaintiff had failed to lock the leveling device prior to the lift. Defendants alternatively suggested that although the workers thought they saw the lumber begin to tip during the lift, this tipping was actually only the plaintiff's leveling of the load during the lift. Defendants hypothesized that the lumber actually fell off the loader only after plaintiff had leaped from the machine and that plaintiff was responsible for his own injuries because he had failed to set the hand brake, thereby permitting the loader to roll backwards.

After considering the sharply conflicting testimony reviewed above, the jury by a 10 to 2 vote returned a general verdict in favor of defendants. Plaintiff appeals from the judgment entered upon that verdict.

Plaintiff principally contends that the trial court committed prejudicial error in instructing the jury "that strict liability for a defect in design of a product is based on a finding that the product was unreasonably dangerous for its intended use . . . ." Plaintiff maintains that this instruction conflicts directly with this court's decision in Cronin, decided subsequently to the instant trial, and mandates a reversal of the judgment. Defendants argue, in response, that our Cronin decision should not be applied to product liability actions which involve "design defects" as distinguished from "manufacturing defects."

After undertaking a thorough review of the origins and development of both California product liability doctrine and the Restatement's "unreasonably dangerous" criterion, we rejected the defendant's contention, concluding "that to require an injured plaintiff to prove not only that the product contained a defect but also that such defect made the product unreasonably dangerous to the user or consumer would place a considerably greater burden upon him than that articulated in Greenman.

Plaintiff contends that the clear import of this language in Cronin is that the "unreasonably dangerous" terminology of the Restatement should not be utilized in defining defect in product liability actions, and that the trial court consequently erred in submitting an instruction which defined a design defect by reference to the "unreasonably dangerous" standard.

As we noted in Cronin, the Restatement draftsmen adopted the "unreasonably dangerous" language primarily as a means of confining the application of strict tort liability to an article which is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." In Cronin, however, we flatly rejected the suggestion that recovery in a products liability action should be permitted only if a product is more dangerous than contemplated by the average consumer, refusing to permit the low esteem in which the public might hold a dangerous product to diminish the manufacturer's responsibility for injuries caused by that product.

Thus, our rejection of the use of the "unreasonably dangerous" terminology in Cronin rested in part on a concern that a jury might interpret such an instruction, as the Restatement draftsman had indeed intended, as shielding a defendant from liability so long as the product did not fall below the ordinary consumer's expectations as to the product's safety. As Luque demonstrates, the dangers posed by such a misconception by the jury extend to cases involving design defects as well as to actions involving manufacturing defects: indeed, the danger of confusion is perhaps more pronounced in design cases in which the manufacturer could frequently argue that its product satisfied ordinary consumer expectations since it was identical to other items of the same product line with which the consumer may well have been familiar.
Accordingly, contrary to defendants' contention, the reasoning of Cronin does not dictate that that decision be confined to the manufacturing defect context. Indeed, in Cronin itself we expressly stated that our holding applied to design defects as well as to manufacturing defects

A trial court may properly formulate instructions to elucidate the "defect" concept in varying circumstances. In particular, in design defect cases, a court may properly instruct a jury that a product is defective in design if (1) the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) the plaintiff proves that the product's design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.

As this court has recognized on numerous occasions, the term defect as utilized in the strict liability context is neither self-defining nor susceptible to a single definition applicable in all contexts.

In general, a manufacturing or production 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. For example, when a product comes off the assembly line in a substandard condition it has incurred a manufacturing defect. 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. Rather than applying any sort of deviation-from-the-norm test in determining whether a product is defective in design for strict liability purposes, our cases have employed two alternative criteria in ascertaining, in Justice Traynor's words, whether there is something "wrong, if not in the manufacturer's manner of production, at least in his product."

First, our cases establish that a product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. This initial standard, somewhat analogous to the Uniform Commercial Code's warranty of fitness and merchantability, reflects the warranty heritage upon which California product liability doctrine in part rests. As we noted in Greenman, "implicit in [a product's] presence on the market . . . [is] a representation that it [will] safely do the jobs for which it was built." When a product fails to satisfy such ordinary consumer expectations as to safety in its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries.

As Professor Wade has pointed out, however, the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating design defectiveness because "[in] many situations . . . the consumer would not know what to expect, because he would have no idea how safe the product could be made." Numerous California decisions have implicitly recognized this fact and have made clear, through varying linguistic formulations, that a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies "excessive preventable danger," or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.

A review of past cases indicates that in evaluating the adequacy of a product's design pursuant to this latter 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.

Although our cases have thus recognized a variety of considerations that may be relevant to the determination of the adequacy of a product's design, past authorities have generally not devoted much attention to the appropriate allocation of the burden of proof with respect to these matters. The allocation of such burden is particularly significant in this context inasmuch as this court's product liability decisions, from Greenman to Cronin, have repeatedly emphasized that one of the principal purposes behind the strict product liability doctrine is to relieve an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action. Because most of the evidentiary matters which may be relevant to the determination of the adequacy of a product's design under the "risk-benefit" standard -- e.g., the feasibility and cost of alternative designs -- are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer, we conclude that once the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective. Moreover, inasmuch as this conclusion flows from our determination that the fundamental public policies embraced in Greenman dictate that a manufacturer who seeks to escape liability for an injury proximately caused by its product's design on a risk-benefit theory should bear the burden of persuading the trier of fact that its product should not be judged defective, the defendant's burden is one affecting the burden of proof, rather than simply the burden of producing evidence.

Because the jury may have interpreted the erroneous instruction given in the instant case as requiring plaintiff to prove that the high-lift loader was ultrahazardous or more dangerous than the average consumer contemplated, and because the instruction additionally misinformed the jury that the defectiveness of the product must be evaluated in light of the product's "intended use" rather than its "reasonably foreseeable use," we cannot find that the error was harmless on the facts of this case. In light of this conclusion, we need not address plaintiff's additional claims of error, for such issues may not arise on retrial.

The judgment in favor of defendants is reversed.