Bostick v. Flex Equip. Co., Inc., B171567.

CourtCalifornia Court of Appeals
Citation54 Cal.Rptr.3d 28,147 Cal.App.4th 80
Decision Date29 January 2007
Docket NumberNo. B173455.,No. B171567.,B171567.,B173455.
PartiesHarold L. BOSTICK, Plaintiff and Appellant, v. FLEX EQUIPMENT COMPANY, INC., Defendant and Appellant. Gold's Gym, Inc., Cross-complainant and Respondent, v. Flex Equipment Company, Inc., Cross-defendant and Appellant.
54 Cal.Rptr.3d 28
147 Cal.App.4th 80
Harold L. BOSTICK, Plaintiff and Appellant,
FLEX EQUIPMENT COMPANY, INC., Defendant and Appellant.
Gold's Gym, Inc., Cross-complainant and Respondent,
Flex Equipment Company, Inc., Cross-defendant and Appellant.
No. B171567.
No. B173455.
Court of Appeal, Second District, Division 3.
January 29, 2007.

[54 Cal.Rptr.3d 29]

Certified for Partial Publication.*

[54 Cal.Rptr.3d 31]

Smith, Chapman & Campbell, Steven C. Smith, William D. Chapman and Robert J. Hadlock, Santa Ana, for Plaintiff and Appellant.

Horvitz & Levy, David S. Ettinger, S. Thomas Todd, Encino; Callahan, McCune & Willis and John J. Tasker, West Los Angeles, for Defendant, Cross-defendant and Appellant.

No appearance for Cross-complainant and Respondent.



Harold L. Bostick suffered severe, disabling injuries while working out at Gold's Gym, Inc. (Gold's Gym) on weight-lifting equipment manufactured by Flex Equipment Company, Inc. (Flex). Bostick sued both Flex and Gold's Gym. Gold's Gym cross-complained against Flex for equitable indemnity. The cross-complaint was severed for separate trial. Prior to the conclusion of the trial on the complaint, Bostick entered into a settlement with Gold's Gym for $7.3 million. The jury returned a verdict awarding Bostick nearly $3.3 million in economic damages and $13 million in noneconomic damages, and later awarded $1 in punitive damages. The jury apportioned 90 percent of the fault to Flex, 10 percent to Bostick, and 0 percent fault to "other entities." The trial court reduced Bostick's award against Flex by the full amount of the $7.3 million settlement and entered a judgment in favor of Bostick. Thereafter, the trial court entered judgment in favor of Gold's Gym on its cross-complaint against Flex for equitable indemnity in the full amount of the $7.3 million settlement.

Both Flex and Bostick appeal from the judgment. In its appeal, Flex challenges the $13 million verdict for noneconomic damages, contending the jury awarded punitive damages in the guise of damages for pain and suffering because of an instructional error. In his appeal, Bostick contends that Proposition 51 applies to this case with the result that Flex is only severally liable for Bostick's noneconomic damages. He argues further that the trial court erred in setting off the full amount of his $7.3 million settlement with Gold's Gym, because the setoff should be limited to that portion of the settlement attributable to economic damages only. Flex also appeals from the judgment on the cross-complaint

54 Cal.Rptr.3d 32

granting equitable indemnity in favor of Gold's Gym. It contends that the finding by the jury in the action on the complaint that the percentage of fault attributable to "other entities" was zero is not collateral estoppel and therefore is not binding on Flex in the Gold's Gym cross-action.

In the published portion of this opinion, we hold that the trial court did not err in reducing Bostick's award of damages by the full amount of his settlement with Gold's Gym. In reaching this conclusion, we follow Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 65 Cal.Rptr.2d 532 (Wimberly), which holds that Proposition 51,1 which made liability for noneconomic damages several only rather than joint and several, does not apply in a strict products liability action involving a single indivisible injury because liability is imposed under this doctrine irrespective of fault. On this point, we disagree with the concurring opinion. Additionally, we hold with respect to Gold's Gym cross-action for equitable indemnity, that the jury's finding in the trial on the complaint, namely that the percentage of fault attributable to "other entities" was zero, is not collateral estoppel so as to bind Flex.

In the unpublished portion of the opinion, we hold that the trial court did not commit instructional error with respect to the award of noneconomic damages and there was no prejudice. Accordingly, we affirm the judgment on the complaint and reverse the judgment on the cross-complaint.


1. Factual Background

Bostick, at the time a 31-year-old law student, was exercising and lifting weights at a facility owned by Gold's Gym in Venice, California in January 2001 when he collapsed while doing squats using a Smith machine manufactured by Flex. A Smith machine has a barbell that rests on the user's shoulders and moves up and down between guide rods as the user performs squats by bending and extending his legs. On the machine Bostick was using, hooks attached to the barbell rested on pegs and supported the barbell when the machine was not in use. By rotating the barbell, the user could disengage the hooks, allowing the barbell to move up and down between the guide rods. Upon completing the exercise, the user could rotate the barbell to engage the hooks and support the barbell. There were pegs every six inches along the guide rods. The guide rods were 10 degrees from the perpendicular, so the barbell moved slightly toward the user as it traveled down.

Bostick was lifting over 300 pounds on the machine at the time of the accident. He had performed several sets of six to ten repetitions each at lower weights. He did not have another person standing by, known as a spotter, to relieve him of the weight if necessary. He was extending his legs and had almost reached a full extension when he noticed that something did not feel right, and collapsed to the floor. Bostick fell straight down under the weight of the barbell, which came to rest on his neck, pushing his head forward. He felt no pain and was unable to move his legs. He suffered a broken neck and severe injury to his spinal cord.

Bostick was hospitalized for three weeks in intensive and critical care, and then spent nine weeks at a rehabilitation hospital and seven months at a veterans' hospital.

54 Cal.Rptr.3d 33

He continued to receive outpatient rehabilitative care until January 2002, when he resumed his law school education. The injury rendered him severely disabled.

2. Trial Court Proceedings

Bostick filed a complaint against Gold's Gym and Flex in April 2001. His first amended complaint alleged counts against both defendants for negligence, strict liability for product defects and failure to warn, and breach of implied warranty. Defendants, in their answers, alleged as affirmative defenses that their liability to Bostick, if any, should be reduced in proportion to the comparative fault of other persons and that their liability for noneconomic damages should be several only pursuant to Civil Code section 1431.2. Defendants each filed a cross-complaint against the other seeking declaratory relief of a right of equitable indemnity. The court granted Bostick leave to file a second amended complaint, which he filed in November 2002, adding allegations to support an award of punitive damages. Bostick filed a third amended complaint naming Brunswick Corporation and Life Fitness (collectively, Life Fitness) as additional defendants who allegedly may have manufactured the exercise equipment. Life Fitness settled with Bostick before trial.

The jury trial commenced in June 2003. The court severed the cross-complaints from the complaint and tried only the complaint. The court granted a nonsuit in favor of Gold's Gym on the implied warranty count. After the close of evidence, involving five weeks of testimony, but before closing arguments, Bostick dismissed his negligence cause of action against Gold's Gym with prejudice and settled his products liability counts against Gold's Gym for $7.3 million.2 The trial court granted a nonsuit motion on the breach of warranty claim. The court found that the settlement was in good faith and, pursuant to Code of Civil Procedure section 877.6,3 dismissed Flex's cross-complaint against Gold's Gym.

The jury thereafter returned special verdicts in favor of Bostick and against Flex finding that there was a design defect or a failure to warn of a defect in the Smith machine, that Flex was negligent, that Bostick's comparative fault also contributed to his injury, and that Bostick suffered $3,274,966 in economic damages and $13 million in noneconomic damages. The jury found that the comparative fault of Flex was 90 percent, the comparative fault of Bostick was 10 percent, and the comparative fault of "other entities" was 0 percent. The jury also found by clear and convincing evidence that Flex was guilty of malice or oppression. In the second phase of trial, the jury awarded punitive damages of $1.

As noted, the trial court determined that Bostick's settlement with Gold's Gym was made in good faith. The court concluded that because Bostick's injuries were caused solely by a defective product and Flex and Gold's Gym were in the same chain of distribution, Wimberly, supra, 56

54 Cal.Rptr.3d 34

Cal.App.4th 618, 65 Cal.Rptr.2d 532 compelled the conclusion that Proposition 51 did not apply. The court stated further that Bostick's settlement with Gold's Gym was based on strict products liability only because he had dismissed the negligence cause of action as against Gold's Gym, so the only basis of claimed liability common to both Gold's Gym and Flex was for strict products liability. The court, applying Wimberly, concluded that the claimed liability common to Gold's Gym and Flex was fully joint and several and therefore concluded that Flex was entitled to a setoff of the full amount of the $7.3 million settlement. The court entered judgment against Flex awarding Bostick a total of $16,274,966 in compensatory damages, reduced by 10 percent for his comparative fault, and further reduced by the $7.3 million setoff and by a $26,156 setoff for the settlement with Life Fitness, plus $1 in punitive damages, for a net award of $7,321,314.

Bostick moved to vacate the judgment and enter a new judgment with a reduced setoff for the Gold's Gym settlement and no...

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