CALIFORNIA PRODUCT LIABILITY RESOURCES

Defect in Design – the feasibility of alternative designs and consumer expectations

California recognizes both the consumer expectation test and the risk benefit test. However, if the plaintiff asserts both tests for design defect, the instructions must make it clear that the two tests are in the alternative. Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101, 1106—1107. Risk-benefit weighing is not a formal part of, nor may it serve as a defense to, the consumer expectations test. Bresnahan v. Chrysler Corp. (1995) 32 Cal.App.4th 1559, 1569.

With regard to the consumer expectation test, California Civil Jury Instruction (CACI) number 1203 states as follows:

1203. Strict Liability - Design Defect - Consumer Expectation Test—Essential Factual Elements

[Name of plaintiff] claims the [product]’s design was defective because the [product] did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the [product];
2. That the [product] did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way;
3. That [name of plaintiff] was harmed; and
4. That the [product]’s failure to perform safely was a substantial factor in causing [name of plaintiff]’s harm.

With regard to the risk-benefit test, California Civil Jury Instruction (CACI) number 1204 states as follows:

1204. Strict Liability - Design Defect - Risk-Benefit Test— Essential Factual Elements—Shifting Burden of Proof

[Name of plaintiff] claims that the [product]’s design caused harm to [name of plaintiff]. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the [product];
2. That [name of plaintiff] was harmed; and
3. That the [product]’s design was a substantial factor in causing harm to [name of plaintiff].

If [name of plaintiff] has proved these three facts, then your decision on this claim must be for [name of plaintiff] unless [name of defendant] proves that the benefits of the [product]’s design outweigh the risks of the design. In deciding whether the benefits outweigh the risks, you should consider the following:
(a) The gravity of the potential harm resulting from the use of the [product];
(b) The likelihood that this harm would occur;
(c) The feasibility of an alternative safer design at the time of manufacture;
(d) The cost of an alternative design; [and]
(e) The disadvantages of an alternative design; [and] [(f) [Other relevant factor(s)].]

Misuse of Products

The plaintiff has the initial burden of producing evidence that he or she was injured while the product was being used in an intended or reasonably foreseeable manner. If this prima facie burden is met, the burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted from a misuse of the product. See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 678. Product misuse is a complete defense to strict products liability if the defendant proves that an unforeseeable abuse or alteration of the product after it left the manufacturer’s hands was the sole cause of the plaintiff’s injury. Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56. Misuse or modification that was a substantial factor in, but not the sole cause of, plaintiff’s harm may also be considered in determining the comparative fault of the plaintiff or of third persons.

With regard to the affirmative defense of misuse, California Civil Jury Instruction (CACI) number 1245 states as follows:

1245. Affirmative Defense—Product Misuse or Modification

[Name of defendant] claims that [he/she/it] is not responsible for [name of plaintiff]’s claimed harm because the [product] was [misused/ [or] modified] after it left [name of defendant]’s possession. To succeed on this defense, [name of defendant] must prove that:
1. The [product] was [misused/ [or] modified] after it left [name of defendant]’s possession; and
2. The [misuse/ [or] modification] was so highly extraordinary that it was not reasonably foreseeable to [name of defendant], and therefore should be considered as the sole cause of [name of plaintiff]’s harm. (emphasis in original)

Third party negligence may be viewed as a superseding cause if it is so highly extraordinary as to be unforeseeable. Product misuse or modification may be deemed to be a superseding cause, which provides a complete defense to liability. If misuse or modification truly were the sole cause, the product would not be defective.

However, at lease one court has concluded that superseding cause is a different standard from sole cause. See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 685 (product misuse may serve as a complete defense when the misuse was so unforeseeable that it should be deemed the sole or superseding cause) (italics in original). For an instruction on superseding cause that might be adapted for product misuse or modification, see CACI No. 432:

Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause

[Name of defendant] claims that [he/she/it] is not responsible for [name of plaintiff]’s harm because of the later misconduct of [insert name of third party]. To avoid legal responsibility for the harm, [name of defendant] must prove all of the following:
1. That [name of third party]’s conduct occurred after the conduct of [name of defendant];
2. That a reasonable person would consider [name of third party]’s conduct as a highly unusual or an extraordinary response to the situation;
3. That [name of defendant] did not know and had no reason to expect that [name of third party] would act in a [negligent/wrongful] manner; and
4. That the kind of harm resulting from [name of third party]’s conduct was different from the kind of harm that could have been reasonably expected from [name of defendant]’s conduct.

Unanticipated, Unforeseeable, or Unintended Use of Products

Please see the comments above with respect to misuse or modification of a product. It is a complete defense if the defendant proves that an unforeseeable use or alteration of the product after it left the manufacturer’s hands was the sole cause of the plaintiff’s injury. See CACI No. 1245.

Alteration of Products

Please see the comments above with respect to misuse or modification of a product. It is a complete defense if the defendant proves that an unforeseeable alteration of the product after it left the manufacturer’s hands was the sole cause of the plaintiff’s injury. See CACI No. 1245.

Unavoidably Unsafe Products

California Civil Code Section 1714.45 states in relevant part as follows:

§ 1714.45. Products liability; consumer products known by consumers to be inherently unsafe
(a) In a product liability action, a manufacturer or seller shall not be liable if both of the following apply:
(1) The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community.
(2) The product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts.
(b) This section does not exempt the manufacture or sale of tobacco products by tobacco manufacturers and their successors in interest from product liability actions, but does exempt the sale or distribution of tobacco products by any other person, including, but not limited to, retailers or distributors.
(c) For purposes of this section, the term “product liability action” means any action for injury or death caused by a product, except that the term does not include an action based on a manufacturing defect or breach of an express warranty.

Duty to Warn - Dangerous or Obviously Unsafe Conditions

A manufacturer has a duty to use reasonable care to give warning of the dangerous condition of a product or of facts which make it likely to be dangerous to those whom it should expect to use the product or be endangered by its probable use, if the manufacturer has reason to believe that they will not realize its dangerous condition. Lewis v. Terry (1896) 111 Cal. 39, 43. The duty to warn extends to the dangers of a product not actually made by the manufacturer but sold as the manufacturer's own product. Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639.

There are limitations on the duty to warn. First, the manufacturer or retailer of an article is not liable for the failure to warn a third person of the dangers of the product where the third person uses the article with the permission of the purchaser and if it is made to appear that the purchaser had knowledge of the defects at and before the third person was injured in using it. Morris v. Toy Box (1962) 204 Cal.App.2d 468. Second, a manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger if the sophisticated user knew or should have known of that risk, harm, or danger. Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71. Third, California has adopted the "unavoidably unsafe product" defense, which provides that manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product. See above re unavoidably unsafe products.

With regard to a failure to warn claim under a strict liability theory, California Civil Jury Instruction (CACI) number 1205 states the following:

1205 Strict Liability—Failure to Warn—Essential Factual Elements

[Name of plaintiff] claims that the [product] lacked sufficient [instructions] [or] [warning of potential [risks/side effects/allergic reactions]]. To establish this claim, [name of plaintiff] must prove all of the following:
1 That [name of defendant] [manufactured/distributed/sold] the [product];
2 That the [product] had potential [risks/side effects/allergic reactions] that were [known/ [or] knowable in light of the [scientific/ [and] medical] knowledge that was generally accepted in the scientific community] at the time of [manufacture/distribution/sale];
3 That the potential [risks/side effects/allergic reactions] presented a substantial danger when the [product] is used or misused in an intended or reasonably foreseeable way;
4 That ordinary consumers would not have recognized the potential [risks/side effects/allergic reactions];
5 That [name of defendant] failed to adequately warn [or instruct] of the potential [risks/side effects/allergic reactions];
6 That [name of plaintiff] was harmed; and
7 That the lack of sufficient [instructions] [or] [warnings] was a substantial factor in causing [name of plaintiff]'s harm.

[The warning must be given to the prescribing physician and must include the potential risks, side effects, or allergic reactions that may follow the foreseeable use of the product. [Name of defendant] had a continuing duty to warn physicians as long as the product was in use.]

With regard to the sophisticated user affirmative defense, California Civil Jury Instruction (CACI) number 1205 states the following:

1244 Affirmative Defense—Sophisticated User

[Name of defendant] claims that [he/she/it] is not responsible for any harm to [name of plaintiff] based on a failure to warn because [name of plaintiff] is a sophisticated user of the [product]. To succeed on this defense, [name of defendant] must prove that, at the time of the injury, [name of plaintiff], because of [his/her] particular position, training, experience, knowledge, or skill, knew or should have known of the [product]'s risk, harm, or danger.

State of the Art Defenses

With respect to a product liability claim based on a design defect, evidence that a product is designed in accordance with the existing state of the art is relevant in a strict liability risk-benefit analysis, under which it is asked whether the benefits of the design outweigh the inherent risks. Rosburg v. Minnesota Mining & Mfg. Co. (1986) 181 Cal.App.3d 726; See also CACI 1204 above for risk-benefit analysis.

With respect to a product liability claim based on failure to warn, a manufacturer may present evidence of the state of the art, that is, evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture or distribution of the product. Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987.

Government Contractor Defense

This is a special defense applicable to actions seeking damages for injuries caused by the defective design of military equipment supplied to the United States pursuant to a federal procurement contract. Under the government contractor defense, a contractor providing "military equipment" to the federal government cannot be held liable, under state tort law, to third persons for injury caused by a design defect in the equipment where: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the contractor warned the United States about the dangers in the use of the equipment that were known to the contractor but not to the United States. Boyle v. United Technologies Corp. (1988) 487 U.S. 500.

"Military equipment" within the protection of this defense is an imprecise term. It is not limited to a product made exclusively for military use with no commercial purpose; if a product is produced according to military specification and is used by the military because of particular qualities that serve a military purpose, and is incidentally sold commercially as well, that product may nevertheless qualify as "military equipment." Jackson v. Deft., Inc. (1990) 223 Cal.App.3d 1305.

With regard to the government contractor affirmative defense, California Civil Jury Instruction (CACI) number 1246 and 1247 states the following:

1246 Affirmative Defense—Design Defect—Government Contractor

[Name of defendant] may not be held liable for design defects in the [product] if it proves all of the following:
1 That [name of defendant] contracted with the United States government to provide the [product] for military use;
2 That the United States approved reasonably precise specifications for the [product];
3 That the [product] conformed to those specifications; and
4 That [name of defendant] warned the United States about the dangers in the use of the [product] that were known to [name of defendant] but not to the United States.

1247 Affirmative Defense—Failure to Warn—Government Contractor

[Name of defendant] may not be held liable for failure to warn about the dangers in the use of the [product] if it proves all of the following:
1 That [name of defendant] contracted with the United States government to provide the [product] for military use;
2 That the United States imposed reasonably precise specifications on [name of defendant] regarding the provision of warnings for the [product];
3 That the [product] conformed to those specifications regarding warnings; and
4 That [name of defendant] warned the United States about the dangers in the use of the [product] that were known to [name of defendant] but not to the United States.

Statutes of Limitation and of Repose

Product liability claims are subject to the general rules governing accrual of an action. A product liability cause of action generally accrues when the defect in the product causes injury—not when the produce is made or sold. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797. As such, an action for death or injury caused by a defective product, whether brought on a negligence or strict liability theory, must also be filed within two years of accrual of the cause of action. Further, Product liability claims are also subject to the "delayed discovery" rule. See section 3.2 for a detailed discussion of statutes of limitation and the delayed discovery rule.

A statute of repose places an outside time limit beyond which no claim exists. Unlike a statute of limitations, which does not begin to run until a cause of action has accrued, a statute of repose may cut off a claim before a plaintiff discovers he or she has been wronged. The time limit is "firm and final" and is not subject to statutory or equitable tolling. Inco Develop. Corp. v. Sup. Ct. (Haynes) (2005) 131 Cal.App.4th 1014, 1020. For instance, CCP § 337.15 is a statute of repose which provides that no action for a latent defect in construction involving property can arise after 10 years.