Barrett v. Superior Court

• Decision Date: 14 August 1990
• Docket Number: No. E007605,E007605
• Citation: 222 Cal.App.3d 1176,272 Cal.Rptr. 304
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 12,663 Connie BARRETT, et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent; PAUL HUBBS CONSTRUCTION COMPANY, et al., Real Parties in Interest.

Page 304

272 Cal.Rptr. 304

222 Cal.App.3d 1176, Prod.Liab.Rep. (CCH) P 12,663

Connie BARRETT, et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent;

PAUL HUBBS CONSTRUCTION COMPANY, et al., Real Parties in Interest.

No. E007605.

Court of Appeal, Fourth District, Division 2, California.

Aug. 14, 1990.

Review Denied Oct. 25, 1990.

Law Offices of [222 Cal.App.3d 1180] Sanford M. Gage, Sanford M. Gage and Jonathan T. Zackey, Beverly Hills, for petitioners.

Thompson & Colegate and Michael A. Goldware, Riverside, for real party in interest Paul Hubbs Const. Co.

Haight, Brown & Bonesteel, Elliott D. Olson, Roy G. Weatherup, Rita Gunasekaran and Gary K. Kwasniewski, Los Angeles, for real party in interest Caterpillar Corp.

No appearance for respondent.

OPINION

McDANIEL ^*, Associate Justice.

INTRODUCTION

Plaintiffs Connie Barrett, the widow of Harlan Barrett (decedent), and Harlan John Barrett, the minor child of decedent (collectively referred to as plaintiffs), have petitioned us for a writ directing the superior court to vacate its order granting defendants Paul Hubbs Construction Company's and Caterpillar Corporation's (collectively referred to as defendants) motion for summary judgment or summary adjudication of issues, which order deleted from plaintiffs' wrongful death suit one of their theories for recovery, namely that based on strict products liability.

We conclude that plaintiffs in a wrongful death suit may use strict products liability as a theory for recovery.

FACTS

As best as can be gleaned from the record accompanying the petition, decedent was employed by the Standon Company, Inc.

While so employed, he was transporting a Caterpillar 988A earth mover which was Because of the load he was towing, decedent was unable to pass across a small dirt mound on an unpaved portion of the street upon which he was travelling. Decedent therefore released the restraints which held the earth mover on the trailer, and began to drive it off the trailer. The trailer drifted backwards, and the earth mover rolled off and over, crushing decedent and causing his instantaneous death.

loaded on a "low-boy" trailer towed by an International Transtar 4300 tractor. The Caterpillar 988A earth mover was owned by defendant Paul Hubbs Construction Company and leased to the Standon Company.

Plaintiffs brought suit against defendants on their own behalf for the wrongful death of decedent who was husband and father of plaintiffs, respectively. Plaintiffs' suit consisted of "causes of action" which were denominated as: (1) negligence; (2) strict liability; (3) breach of implied warranty; and (4) "wrongful death." More properly characterized, however, the plaintiffs' suit consisted of but one true "cause of action," that cause of action being for the injury they had suffered as a result of the wrongful death of the decedent (see 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 25, at p. 69), and the four "causes of action" were actually counts based on the same primary right of plaintiffs and the same primary duty of defendants, each of which merely alleged additional circumstances out of which the primary right and primary duty arose. (See Slater v. Blackwood (1975) 15 Cal.3d 791, 796, 126 Cal.Rptr. 225, 543 P.2d 593; Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co. (1970) 10 Cal.App.3d 206, 215, 88 Cal.Rptr. 858.) Each set of different circumstances, in turn, was differentiated by reference in the alternative to legal theories pertaining to the nature of the wrongfulness of defendants' acts, i.e., "negligence," "strict liability" and "breach of warranty." ¹ (See 4 Witkin, Cal. Procedure, supra, Pleading, § 25, at p. 69.)

Defendant Paul Hubbs Construction Company (defendant Hubbs) made a motion for judgment on the pleadings on the ground that plaintiffs' second and third counts failed to state facts sufficient to constitute causes of action for strict liability and for breach of implied warranty. Defendant Hubbs asserted, contrary to what will apply as a result of our holding here, "strict liability in tort will not support a cause of action for wrongful death." Defendant's motion was granted as to the breach-of-implied-warranty count, with leave to plaintiffs to amend that cause of action, but denied as to the strict liability count.

Defendant Hubbs later brought a motion for summary judgment as to plaintiff's second count based on strict liability, on the following grounds:

(1) plaintiffs had no standing to sue on a theory of strict liability in tort;

(2) strict liability in tort would "not support a wrongful death cause of action"; and

(3) a distributor of second-hand or used machinery may not be held liable on a theory of strict liability in tort.

Defendant Caterpillar Corporation (defendant Caterpillar) joined in this motion for summary judgment.

Defendants' motion as to plaintiffs' count for strict liability was granted. Although no formal order appears in the record, despite the direction in the minute order that defendants were to prepare a formal order within 15 days, the minute order indicates that the motion was granted because "[plaintiffs] have failed to plead and prove a 'wrongful act or neglect' of moving party."

Plaintiffs then petitioned this court for a writ of mandate directing the superior court to vacate its order just noted and to enter a new order denying the motion. If their petition were granted, it would enable their action to proceed to trial on the basis We issued an alternative writ for several reasons. First, the issue presented, curiously enough, has never been the subject of a published opinion. ² Second, the order granting defendants' motion for summary judgment as to plaintiffs' second count effectively bars a substantial portion of plaintiffs' case from being heard on the merits. More particularly, were we not to issue the writ, were plaintiffs not to prevail on their other two theories, and were the order here under review determined to have been incorrect, then a second trial would be required, with the attendant waste of judicial resources. (See, e.g., Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558, 145 Cal.Rptr. 657 and cases cited therein.)

of all their theories of defendants' wrongful acts, including strict liability.

ISSUE ON APPEAL

Defendant takes the position that the term "wrongful act," as used in Code of Civil Procedure section 377, means an intentional or "fault-based" act, that strict liability involves unintentional and non-fault-based acts, and that therefore the Legislature did not intend to allow plaintiffs to use strict liability as one possible legal theory of recovery in an action for wrongful death. We disagree, and for the reasons noted below, conclude that the term "wrongful act," as used in section 377, means a "tortious act." Because the act of placing a defective product on the market is a "tortious act," we further conclude that strict products liability is a viable legal theory as a basis for recovery in an action for wrongful death brought under section 377.

DISCUSSION

Introduction

A cause of action for wrongful death is purely statutory in nature, and therefore " 'exists only so far and in favor of such person as the legislative power may declare.' " (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122, disapproved on another ground in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171, 216 Cal.Rptr. 661, 703 P.2d 1 quoting Pritchard v. Whitney Estate Co. (1913) 164 Cal. 564, 568, 129 P. 989.) The question, therefore, is whether, when the Legislature enacted Code of Civil Procedure section 377 ³ to afford a cause of action to the heirs of a person whose death "was caused by the wrongful act or neglect of another," it intended that such heirs be entitled to recover under a strict products liability theory as included within the statutory characterization of wrongful act. ⁴

Our interpretation of the statute's meaning must be guided by the mandate of Code of Civil Procedure section 4, which provides that interpreters of the Code of Civil Procedure must construe each provision of the Code of Civil Procedure "liberally" and with "a view to effect its objects and promote justice." (Code Civ.Proc., § 4; Ure v. Maggio Bros. Co., Inc. (1938) 24 Cal.App.2d 490, 491, 75 P.2d 534.) We therefore first set out the objectives sought to be accomplished by the Legislature when it enacted Code of Civil Procedure section 377, the "wrongful death act."

IThe Objective Behind the Enactment of Section 377

There are three distinct public policy considerations involved in the legislative creation of a cause of action for wrongful death: "(1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages recoverable." (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 584, 114 Cal.Rptr. 106, 522 P.2d 666.)

The first two of these policy considerations are clearly manifested in the language of the statute. As to the compensatory consideration, the statute provides the means by which survivors may be compensated by establishing a cause of action for damages in the decedent's heirs, and reflects a public policy that survivors, most of whom will have depended upon the decedent for some form of support, should be compensated for the loss of such support by the wrongdoer.

As to the deterrent consideration, the statute provides that such a cause of action for damages may be maintained against those whose "wrongful act or neglect" caused the decedent's death, and reflects a public policy that all members of society must keep their conduct within certain norms or else risk paying for the damage caused by their failure to do so. Section 377 was designed to inhibit only certain kinds of conduct, however: by allowing an action for damages only to be brought against one whose conduct was "wrongful" or "negligent," the Legislature...