Ault v. International Harvester Co.

• Decision Date: 12 December 1974
• Citation: 117 Cal.Rptr. 812,528 P.2d 1148,13 Cal.3d 113
• Court: California Supreme Court
• Parties: , 528 P.2d 1148, 74 A.L.R.3d 986 Darrell Francis AULT, Plaintiff and Respondent, v. INTERNATIONAL HARVESTER COMPANY, Defendant and Appellant. L.A. 30115

Page 812

117 Cal.Rptr. 812

13 Cal.3d 113, 528 P.2d 1148, 74 A.L.R.3d 986

Darrell Francis AULT, Plaintiff and Respondent, v. INTERNATIONAL HARVESTER COMPANY, Defendant and Appellant.

L.A. 30115.

Supreme Court of California

Dec. 12, 1974.

As Modified on Denial of Rehearing Jan. 23, 1975.

Wise, Kilpatrick & Clayton, George E. Wise and William D. Easton, Long Beach, for defendant and appellant.

Harney, Bambic & Moore, Harney, Ford, Charbonneau & Bambic and David M. Harney, Los Angeles, for plaintiff and respondent.

Joseph W. Cotchett, Jr., Cotchett & Hutchinson, San Mateo, Robert E. Cartwright, San Francisco, William H. Lally, Sacramento, Stephen Zetterberg, Claremont, Edward I. Pollock, Los Angeles, Sanford M. Gage, Beverly Hills, and Leonard Sacks, Pico Rivera, as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

Plaintiff was injured in an accident involving a motor vehicle known as a 'Scout,' manufactured by defendant. He brought an action alleging that the accident was caused by a defect in the design of the vehicle, asserting that he was entitled to recovery under theories of strict liability, breach of warranty, and negligence.

The gear box of the Scout involved in the accident was manufactured of aluminum 380, a material which plaintiff asserts was defective for that purpose. At the trial evidence established that after the accident defendant changed from aluminum 380 to malleable iron in the production of the gear box. A jury returned a verdict of $700,000 in plaintiff's favor. On this appeal from the ensuing judgment, defendant maintains that the trial court erred in several rulings regarding the admission and exclusion of evidence. It places primary reliance upon the admission into evidence of the change to malleable iron in the manufacture of the gear box, contending that the receipt of this evidence violates the prohibition contained in section 1151 of the Evidence Code. ¹ We conclude that the evidence was properly admitted because the provisions of section 1151 do not apply in an action in which the defendant is alleged to be liable under the theory of strict liability.

On the morning of November 8, 1964, plaintiff was riding as a passenger in the Scout on Nine Mile Canyon Road near Mojave, California, when the vehicle plunged 500 feet to the bottom of the canyon, injuring him seriously. The road was 20 feet wide and dry. Just prior to the accident, the Scout was traveling at a speed of only 10 to 15 miles an hour. The owner and driver of the vehicle had traversed Nine Mile Canyon Road on two prior occasions in the Scout without difficulty. Both the driver and plaintiff developed retrograde amnesia and were unable to testify as to the circumstances of the accident.

After the accident, it was discovered that the gear box on the Scout had broken. Plaintiff contended that the brake occurred while the Scout was traveling on the highway, causing the vehicle to go out of control, whereas defendant asserted that the gear box broke on impact as the vehicle hurtled down into the canyon and that the accident was caused either by driver negligence or the collapse of the roadway.

It was plaintiff's contention that the gear box broke because the aluminum 380 out of which it was made suffered from metal fatigue, and he produced a number of expert witnesses in support of this theory. Plaintiff's witnesses also testified that aluminum 380 was an unsuitable material out of which to build the gear box, that malleable iron was stronger than aluminum 380, that a gear box made of malleable iron would have been less likely to fail, and that in 1967, three years after the accident, defendant substituted malleable iron for aluminum 380 in the manufacture of the Scout's gear box.

Defendant asserts that the admission of the evidence it changed from aluminum 380 to malleable iron after the accident violated the proscription of section 1151. In our view, however, the language and the legislative history of section 1151 demonstrate that the section is designed for cases involving negligence or culpable conduct on the part of the defendant, rather than to those circumstances in which a manufacturer is alleged to be strictly liable for placing a defective product on the market. Furthermore, we are not persuaded that the rationale which impelled the Legislature to adopt the rule set forth in the section for cases involving negligence is applicable to suits founded upon strict liability, and we therefore decline to judicially extend the application of the section to litigation founded upon that theory.

Section 1151 by its own terms excludes evidence of subsequent remedial or precautionary measures only when such evidence is offered to prove negligence or culpable conduct. In an action based upon strict liability against a manufacturer, negligence or culpability is not a necessary ingredient. The plaintiff may recover if he establishes that the product was defective, and he need not show that the defendants breached a duty of due care. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62--63, 27 Cal.Rptr. 697, 377 P.2d 897.) ²

Defendant maintains that the phrase 'culpable conduct' in section 1151 is sufficiently broad to encompass strict liability. It concedes that the term 'culpable' implies blameworthiness, and that a manufacturer in a strict liability action may not be blameworthy in a legal sense. However, asserts defendant, a manufacturer who has placed a defective product on the market is blameworthy in a moral sense, and is therefore guilty of 'culpable conduct' within the meaning of section 1151. We are unpersuaded by this tenuous construction. It is difficult to escape a contrary conclusion: if the Legislature had intended to encompass cases involving strict liability within the ambit of section 1151, it would have used an expression less related to and consistent with affirmative fault than 'culpable conduct'--a term which, under defendant's theory, would embrace a moral rather than a legal duty. ³

The history and purpose of section 1151 compel our conclusion that it was not intended to apply to cases found on the theory of strict liability in a products liability action. According to its draftsmen, section 1151 was intended merely to codify 'well-settled law.' (Law Revision Com. comment to Evid.Code, § 1151.) The rule excluding evidence of subsequent repairs originally rested on the notion that such repairs were completely Irrelevant to the issue of defendant's Negligence at the time of the accident. Thus, the first case to adopt this rule in California, Sappenfield v. Main-St., etc., R.R. Co. (1891) 91 Cal. 48, 62, 27 P. 590, 593, stressed that 'The negligence of the employer, which renders him responsible for the accident, depends upon what he did and knew before the accident, and must be established by facts and circumstances which preceded it, and not by acts done by him after the occurrence.' (See, e.g., Helling v. Schindler (1904) 145 Cal. 303, 312--315, 78 P. 710.)

On the other hand a number of more recent cases have recognized several exceptions to the rule of exclusion in negligence cases. For example, several decisions acknowledge that evidence of subsequent repairs is relevant to the issue of negligence, for if the changes occur closely in time they may well illustrate the feasibility of the improvement at the time of the accident, one of the normal elements in the negligence calculus. (See, e.g., Johnson v. United States (D.Mont.1958) 163 F.Supp. 388, 395; Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565, 573, 46 Cal.Rptr. 421; Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 259, 22 Cal.Rptr. 737.)

Nevertheless, courts and legislatures have frequently retained the exclusionary rule in negligence cases as a matter of 'public policy,' reasoning that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident has occurred. Section 1151 rests explicitly on this 'public policy' rationale. In explaining the purpose of the section, the draftsmen's comment states: 'The admission of evidence of subsequent repairs To prove negligence would substantially discourage persons from making repairs after the occurrence of an accident.' (Emphasis added.) (Law Revision Com. comment to Evid.Code, § 1151.)

While the provisions of section 1151 may fulfill this anti-deterrent function in the typical negligence action, the provision plays no comparable role in the products liability field. Historically, the common law rule codified in section 1151 was developed with reference to the usual negligence action, in which a pedestrian fell into a hole in a sidewalk (see, e.g., City of Miami Beach v. Wolfe (Fla.1955) 83 So.2d 774) or a plaintiff was injured on unstable stairs (see, e.g., Hadges v. New York Rapid Transit Corporation (1940), 259 A.D. 154, 18 N.Y.S.2d 304); in such circumstances, it may be realistic to assume that a landowner or potential defendant might be deterred from making repairs if such repairs could be used against him in determining liability for the initial accident.

When the context is transformed from a typical negligence setting to the modern products liability field, however, the 'public policy' assumptions justifying this evidentiary rule are no longer valid. The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule of section 1151 does not...