Hauter v. Zogarts

• Decision Date: 28 April 1975
• Citation: 534 P.2d 377,120 Cal.Rptr. 681,14 Cal.3d 104
• Court: California Supreme Court
• Parties: , 534 P.2d 377, 74 A.L.R.3d 1282, 16 UCC Rep.Serv. 938 Fred E. HAUTER, Jr., a minor, etc., et al., Plaintiffs and Respondents, v. Rudy C. ZOGARTS et al., Defendants and Appellants. L.A. 30216.

Page 681

120 Cal.Rptr. 681

14 Cal.3d 104, 534 P.2d 377, 74 A.L.R.3d 1282,

16 UCC Rep.Serv. 938

Fred E. HAUTER, Jr., a minor, etc., et al., Plaintiffs and Respondents, v. Rudy C. ZOGARTS et al., Defendants and Appellants.

L.A. 30216.

Supreme Court of California,

In Bank.

April 28, 1975.

Chase, Rotchford, Drukker & Bogust, Ronald A. Dwyer, W. Michael Hartman, Groff, Dunne, Shallcross & Kane and Russell E. Shallcross, Los Angeles, for defendants and appellants.

Getz, Aikens & Manning and George E. Leaver, Los Angeles, for plaintiffs and respondents.

TOBRINER, Justice.

After the jury found for defendants in this products liability case, the trial court granted plaintiffs' motion for judgment notwithstanding the verdict. (Code Civ.Proc. § 629.) Defendants appeal, claiming that substantial evidence supports the jury's verdict.

We discuss below each theory of liability: plaintiffs' first cause of action for misrepresentation, their second cause of action for breach of express and implied warranties, and their third cause of action for strict liability in tort based on the defective design of defendants' product. We have concluded that plaintiffs are entitled to recover as a matter of law under each theory and, therefore, we affirm the trial court's order of judgment notwithstanding the verdict.

1. The facts.

Defendants ¹ manufacture and sell the 'Golfing Gizmo' (hereinafter Gizmo), a training device designed to aid unskilled golfers improve their games. Defendants' catalogue states that the Gizmo is a 'completely equipped backyard driving range.' In 1966, Louise Hauter purchased a Gizmo from the catalogue and gave it to Fred Hauter, her 13 1/2-year-old son, as a Christmas present.

The Gizmo is a simple device consisting of two metal pegs, two cords--one elastic, one cotton--and a regulation golf ball. After the pegs are driven into the ground approximately 25 inches apart, the elastic cord is looped over them. The cotton cord, measuring 21 feet in length, ties to the middle of the elastic cord. The ball is attached to the end of the cotton cord. When the cords are extended, the Gizmo resembles the shape of a large letter 'T,' with the ball resting at the base.

The user stands by the ball in order to hit his practice shots. The instructions state that when hit correctly, the ball will fly out and spring back near the point of impact; if the ball returns to the left, it indicates a right-hander's 'slice'; a shot returning to the right indicates a right-hander's 'hook.' If the ball is 'topped,' it does not return and must be retrieved by the player. The label on the shipping carton and the cover of the instruction booklet urge players to 'drive the ball with full power' and further state: 'COMPLETELY SAFE BALL WILL NOT HIT PLAYER.'

On July 14, 1967, Fred Hauter was seriously injured while using defendants' product. Thereafter, plaintiffs filed the instant suit on his behalf, claiming false representation, breach of express and implied warranties and strict liability in tort.

Fred Hauter testified at trial that prior to his injury, he had practiced golf 10 to 20 times at driving ranges and had played several rounds of golf. His father instructed him in the correct use of the Gizmo. Fred had read the printed instructions that accompany the product and had used the Gizmo about a dozen times. Before the accident, Fred set up the Gizmo in his front yard according to the printed instructions. The area was free of objects that might have caused the ball to richochet, and no other persons were nearby. Fred then took his normal swing with a seveniron. The last thing he remembers was extreme pain and dizziness. After a period of unconsciousness, he staggered into the house and told his mother that he had been hit on the head by the ball. He suffered brain damage and, in one doctor's opinion, is currently an epileptic.

George Peters, a safety engineer and an expert on the analysis and reconstruction of accidents, testified for plaintiffs. In Peters' opinion, Fred Hauter had hit underneath the ball and had caught the cord with his golf club, thus drawing the cord upwards and toward him on his follow-through. The ball looped over the club producing a 'bolo' effect and struck Fred on the left temple. Peters, an expert on the cause of accidents, concluded that the Gizmo is a 'major hazard.'

Ray Catan, a professional golfer, also testified for plaintiffs. He added that even if the club had hit the lower part of the ball, the same result probably would have occurred. He personally tested the Gizmo, intentionally hitting low shots, and found that his club became entangled in the cord, bringing the ball back toward him as he completed his swing. Describing Fred Hauter as a beginner, Catan stated that since such a golfer's swing usually is very erratic, he rarely hits the ball solidly.

Defendants did not dispute plaintiffs' version of the accident. The manufacturer merely stated that he bought the rights to manufacture and distribute the Gizmo from a former professional golfer in 1962 and that the product had been on the market since that time.

Following a unanimous jury verdict for defendants on each cause of action, the trial judge granted plaintiffs' motion for judgment notwithstanding the verdict and plaintiffs' alternative motion for a new trial. ² Defendants have limited their appeal to the order granting judgment notwithstanding the verdict.

2. A judgment notwithstanding the verdict is proper only when no substantial evidence and no reasonable inference therefrom support the jury's verdict.

The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. (Jones v. Evans (1970) 4 Cal.App.3d 115, 122, 84 Cal.Rptr. 6; Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal.App.2d 504, 515, 78 Cal.Rptr. 417; 4 Witkin, Cal. Procedure (2d ed. 1971) § 374, p. 3168.) The trial judge cannot weigh the evidence (Quintal v. Laurel Grove Hosp. (1964) 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161), or judge the credibility of witnesses. (Knight v. Contracting Engineers Co. (1961) 194 Cal.App.2d 435, 442, 15 Cal.Rptr. 194.) If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. (McCown v. Spencer (1970) 8 Cal.App.3d 216, 226, 87 Cal.Rptr. 213; Hozz v. Felder (1959) 167 Cal.App.2d 197, 200, 334 P.2d 159.) 'A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.' (Brandenburg v. Pac. Gas & Elec. Co. (1946) 28 Cal.2d 282, 284, 169 P.2d 909, 910.)

Although an appellate court is bound to view the evidence in the light most favorable to the party securing the verdict, our review of the record discloses no evidence nor any reasonable inference therefrom which supports the jury's verdict. As we explain below, the evidence leads to a contrary conclusion--that plaintiffs should recover as a matter of law under each cause of action. For that reason, the trial court properly granted plaintiffs' motion for judgment notwithstanding the verdict.

3. As a matter of law, plaintiffs should recover on their cause of action for false representation.

Plaintiffs' claim of false representation relies on common law tort principles reflected in section 402B of the Restatement Second of Torts. ³ For plaintiffs to recover under this section, defendants' statement 'COMPLETELY SAFE BALL WILL NOT HIT PLAYER' must be a misrepresentation of material fact upon which plaintiffs justificably relied. (Rest.2d Torts, § 402B, coms. f, g, and j.) ⁴

If defendants' assertion of safety is merely a statement of opinion--mere 'puffing'--they cannot be held liable for its falsity. (Cf. Willson v. Municipal Bond Co. (1936) 7 Cal.2d 144, 150, 59 P.2d 974; Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 211--212, 85 Cal.Rptr. 39.) ⁵ Defendant's statement is so broad, however, that it properly falls within the ambit of section 402B. The assertion that the Gizmo is completely safe, that the ball will not hit the player, does not indicate the seller's subjective opinion about the merits of his product but rather factually describes an important characteristic of the product. Courts have consistently held similar promises of safety to be representations of fact. (See, e.g., McCormack v. Hankscraft Co. (1967) 278 Minn. 322, 154 N.W.2d 488 (vaporizer called 'safe' and 'practically foolproof'); Spiegel v. Saks 34th St. (N.Y.S.Ct.1964) 43 Misc.2d 1065, 1070, 252 N.Y.S.2d 852 (representation that cosmetic was 'safe'); Pritchard v. Liggett & Myers Tobacco Co. (3d Cir. 1961) 295 F.2d 292, 301 (concurring opinion) (representation that cigarettes 'can cause no ills'); Hansen v. Firestone Tire & Rubber Co. (6th Cir. 1960) 276 F.2d 254, 259 (tires described as 'safe' within stated limits); Hamon v. Digliani (1961) 148 Conn. 710, 718, 174 A.2d 294 (representation implying that detergent was safe for all household tasks); Rogers v. Toni Home Permanent Co. (1958) 167 Ohio St. 244, 249, 147 N.E.2d 612 (permanent wave solution represented as safe and harmless).)

These decisions evidence the trend toward narrowing the scope of 'puffing' and expanding the liability that flows from broad statements of manufacturers as to the quality of their products. ⁶ Courts have come to construe unqualified statements such as the instant one liberally in favor of injured consumers. ⁷ Furthermore, the illustrations in the Restatement indicate that the assertion 'COMPLETELY SAFE BALL WILL NOT HIT PLAYER' constitutes a factual representation. Defendants' statement parallels that of an...