Barker v. Lull Engineering Co., S.F. 23519

• Citation: 573 P.2d 443,143 Cal.Rptr. 225,20 Cal.3d 413
• Decision Date: 16 January 1978
• Docket Number: S.F. 23519
• Court: California Supreme Court
• Parties: , 573 P.2d 443, 96 A.L.R.3d 1 Ray P. BARKER, Plaintiff and Appellant, v. LULL ENGINEERING COMPANY, INC., et al., Defendants and Respondents, Employers Insurance of Wausau, Intervener and Respondent.

Page 225

143 Cal.Rptr. 225

20 Cal.3d 413, 573 P.2d 443, 96 A.L.R.3d 1

Ray P. BARKER, Plaintiff and Appellant, v. LULL ENGINEERING COMPANY, INC., et al., Defendants and Respondents Employers Insurance of Wausau, Intervener and Respondent.

S.F. 23519.

Supreme Court of California.

Jan. 16, 1978.

Frank S. Hills, San Francisco, for plaintiff and appellant.

Siegfried Hesse, Peter F. Elkind, Jewel, Boxer & Elkind, Oakland, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Leroy Hersh, San Francisco, Stephen I. Zetterberg, Claremont, Robert G. Beloud, Upland, Ned Good, Los Angeles, David B. Baum, Arne Werchick, San Francisco, and Leonard Sacks, Encino, as amici curiae on behalf of plaintiff and appellant.

Shovlin & Babin, Norbert C. Babin, Bledsoe, Smith, Cathcart, Boyd & Eliot and Kenneth E. Nussbaum, San Francisco, for defendants and respondents.

TOBRINER, Acting Chief Justice.

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. (1972) 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, 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, we agree with plaintiff's objection to the challenged instruction and conclude that the judgment must be reversed. In Cronin, we reviewed the development of the strict product liability doctrine in California at some length, and concluded that, for a variety of reasons, the "unreasonably dangerous" element which section 402A of the Restatement Second of Torts had introduced into the definition of a defective product should not be incorporated into a plaintiff's burden of proof in a product liability action in this state. Although defendants maintain that our Cronin decision should properly be interpreted as applying only to "manufacturing defects" and not to the alleged "design defects" at issue here, we shall point out that the Cronin decision itself refutes any such distinction. Consequently, we conclude that the instruction was erroneous and that the judgment in favor of defendants must be reversed.

In addition, we take this opportunity to attempt to alleviate some confusion that our Cronin decision has apparently engendered in the lower courts. Although in Cronin we rejected the Restatement's "unreasonably dangerous" gloss on the defectiveness concept as potentially confusing and unduly restrictive, we shall explain that our Cronin decision did not dictate that the term "defect" be left undefined in jury instructions given in all product liability cases.

As Cronin acknowledged, in the past decade and a half California courts have frequently recognized that the defectiveness concept defies a simple, uniform definition applicable to all sectors of the diverse product liability domain. Although in many instances as when one machine in a million contains a cracked or broken part the meaning of the term "defect" will require little or no elaboration, in other instances, as when a product is claimed to be defective because of an unsafe design or an inadequate warning, the contours of the defect concept may not be self-evident. In such a case a trial judge may find it necessary to explain more fully to the jury the legal meaning of "defect" or "defective." We shall explain that Cronin in no way precluded such elucidation of the defect concept, but rather contemplated that, in typical common law fashion, the accumulating body of product liability authorities would give guidance for the formulation of a definition.

As numerous recent judicial decisions and academic commentaries have recognized, the formulation of a satisfactory definition of "design defect" has proven a formidable task; trial judges have repeatedly confronted difficulties in attempting to devise accurate and helpful instructions in design defect cases. Aware of these problems, we have undertaken a review of the past California decisions which have grappled with the design defect issue, and have measured their conclusions against the fundamental policies which underlie the entire strict product liability doctrine.

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 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. The loader, manufactured in 1967, is a piece of heavy construction equipment designed to lift loads of up to 5,000 pounds to a maximum height of 32 feet. The loader is 23 feet long, 8 feet wide and weighs 17,050 pounds; it sits on four large rubber tires which are about the height of a person's chest, and is equipped with four-wheel drive, an automatic transmission with no park position and a hand brake. Loads are lift by forks similar to the forks of a forklift.

The loader is designed so that the load can be kept level even when the loader is being operated on sloping terrain. The leveling of the load is controlled by a lever located near the steering column, and positioned between the operator's legs. The lever is equipped with a manual lock that can be engaged to prevent accidental slipping of the load level during lifting.

The loader was not equipped with seat belts or a roll bar. A wire and pipe cage over the driver's seat afforded the driver some protection from falling objects. The cab of the loader was located at least nine feet behind the lifting forks.

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.

Witnesses testified that plaintiff approached the structure with the loader, leveled the forks to compensate for the sloping ground and lifted the load to a height variously estimated between 10 and 18 feet. 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.

Although the above facts were generally not in dispute, the parties differed markedly in identifying the responsible causes for the accident. Plaintiff contended, inter alia, that the accident was attributable to one or more design defects of the loader. ¹ 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. We briefly review the conflicting evidence.

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. Evidence at trial revealed that cranes and some high lift loader models are either regularly equipped with outriggers or offer outriggers as optional equipment. Plaintiff's expert testified that the availability of outriggers would probably have averted the present...