Bresnahan v. Chrysler Corp.

• Decision Date: 02 July 1998
• Docket Number: No. B108002,B108002
• Citation: 76 Cal.Rptr.2d 804,65 Cal.App.4th 1149
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 15,321, 98 Cal. Daily Op. Serv. 5992, 98 Daily Journal D.A.R. 8307, 98 Daily Journal D.A.R. 8462 Mary BRESNAHAN, Plaintiff and Respondent, v. CHRYSLER CORPORATION et al., Defendants and Appellants.

Page 804

76 Cal.Rptr.2d 804

65 Cal.App.4th 1149, Prod.Liab.Rep. (CCH) P 15,321,

98 Cal. Daily Op. Serv. 5992,

98 Daily Journal D.A.R. 8307,

98 Daily Journal D.A.R. 8462

Mary BRESNAHAN, Plaintiff and Respondent, v. CHRYSLER CORPORATION et al., Defendants and Appellants.

No. B108002.

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

July 2, 1998.

Pillsbury, Madison & Sutro, Sidney K. Kanazawa, Los Angeles, Kevin Fong, San Francisco, and Sabina A. Helton, Los Angeles, for Defendants and Appellants.

Harvey M. Grossman, Los Angeles, and Hugh F. Young, Jr., as Amici Curiae on behalf of Defendants and Appellants.

Mukesh Advani, San Francisco, Grayson, Grayson & Mansell and Robert Mansell, Los Angeles, for Plaintiff and Respondent.

Robert C. Sanders as Amicus Curiae on behalf of Plaintiff and Respondent.

FUKUTO, Acting Presiding Justice.

Defendants Chrysler Corporation and Barish Chrysler (collectively Chrysler) appeal from judgment after jury trial in a product liability case, awarding plaintiff Mary Bresnahan $49,650 in damages for injuries she suffered when the air bag in her 1988 Chrysler LeBaron convertible deployed after she

                rear-ended another car. 1  Chrysler contends that the court erred in instructing the jury on the consumer expectations test of design defect, and that the general verdict, rendered upon submission of that theory and also those of risk-benefit design defect and product defect by failure to warn, is unsupported by substantial evidence.  The judgment must be affirmed because, Chrysler having eschewed a special verdict, the jury's implied finding of liability for failure to warn is supported by substantial evidence
                

STATEMENT

At about 6 p.m. on Sunday, June 3, 1990, plaintiff, age 50 and 5 feet 8 inches tall, was driving her LeBaron, equipped with a driver's side air bag, east on Washington Boulevard in the neighborhood of Marina Del Rey, at between 25 and 30 miles per hour. Plaintiff was wearing her seat belt. She was seated close to the steering wheel, less than a foot away from its air bag cover. Plaintiff testified she had customarily driven this way, because she felt it enhanced her range of vision and sense of control. Plaintiff's model vehicle was one of the first to include an air bag. Chrysler had not provided any warnings that a driver with an air bag should not sit close to the wheel.

Plaintiff became distracted by police vehicle lights on the other side of the boulevard. She then saw another car in front of her. Braking, she rear-ended the vehicle, a Jaguar driven by Dr. Philip Smith. According to Chrysler's expert, the damage to the two cars indicated that plaintiff had tried to steer around the Jaguar. The expert estimated plaintiff's speed at impact at between 16 and 24 miles per hour, with Smith's car having stopped or nearly stopped.

The impact triggered the LeBaron's air bag, which inflated as designed in milliseconds, emerging from the steering wheel at upwards of 100 miles per hour. The bag propelled plaintiff's left arm upward, causing her hand to strike the windshield and her elbow to impact the windshield pillar. Plaintiff's elbow was fractured in three places. She also suffered abrasions of the neck, chin, and chest. Taken to a hospital by ambulance, plaintiff underwent repeated surgeries and manipulations of her elbow over several months, as well as physical therapy for a year. ²

Plaintiff brought suit on various product liability theories. Much of the testimony at trial concerned the purposes of air bags, their operation, and its predictable consequences. Plaintiff's collision apparently had been at a "barrier equivalent velocity" (BEV) within the range at which Chrysler's air bag had been designed to activate, for the purpose of preventing death from head and chest injuries. ³ The bag was not intended to prevent arm injuries. Indeed, Chrysler's expert testified that such injuries were a predictable, incidental consequence of the bag's deploying for its intended purpose. In particular, he explained, if a driver were seated forward in plaintiff's car, within the first third of the seat's travel range, and with the left hand across the area of the air bag as when making a turn, the exact results as in this case would occur upon deployment: hand thrust into the windshield above, and elbow forced into the windshield pillar. ⁴

Testimony also was presented concerning an alternative air bag design, the "dual threshold" system, which would release the bag at different BEVs depending upon whether or not the driver's seat belt were fastened. Chrysler's air bag, and those of almost all other manufacturers, had been designed with a single release threshold in contemplation of the seat belt's not being It was further explained that although an air bag is intended to restrain the driver as the crash momentum propels him or her forward, a driver who is seated too close to the steering wheel, from which the bag rapidly emerges, will be struck by it during inflation, causing injury. Plaintiff testified that she would have followed a warning from Chrysler, had it been given, not to sit too close to the wheel because it could cause serious injury.

engaged. Had plaintiff's vehicle included a dual threshold system, set at a higher BEV for a belted driver, the air bag would not have deployed in this collision.

The case was submitted to the jury on theories of design defect and failure to warn. With respect to design defect, the jury was instructed on both the consumer expectations and risk-benefit theories. Under the consumer expectations test, a product is defective in design if it fails to perform as safely as an ordinary consumer would expect, while under the risk-benefit test the design is defective if its inherent risk of danger outweighs its benefits. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562, 34 Cal.Rptr.2d 607, 882 P.2d 298 (Soule ).) Chrysler objected to instructing on the consumer expectations test, on grounds the evidence did not warrant it.

The jury returned a general verdict for plaintiff. Prior to submission, plaintiff suggested that Chrysler might prefer a special verdict, in view of the several theories of the case, but Chrysler's counsel specifically declined on the record to request a special verdict. At the later hearing of motions for new trial and judgment notwithstanding the verdict, the court reminded counsel of this, and observed that if "there's evidence to sustain any one of these theories then the verdict must be sustained."

DISCUSSION

Chrysler assigns error in instructing the jury on the consumer expectations theory of design defect, and also contends that the verdict and judgment are not supported by substantial evidence of any of the theories on which the case was submitted. Most of these questions need not be addressed, because substantial evidence supports plaintiff's claim and theory of liability for failure to warn. ⁵

It is well settled that "Where several counts or issues are tried, a general verdict will not be disturbed by an appellate court if a single one of such counts or issues is supported by substantial evidence and is unaffected by error, although another is also submitted to the jury without any evidence to support it and with instructions inviting a verdict upon it." (Posz v. Burchell (1962) 209 Cal.App.2d 324, 335-336, 25 Cal.Rptr. 896; accord, id. at pp. 336-337, 25 Cal.Rptr. 896; Clark v. Gibbons (1967) 66 Cal.2d 399, 415, 58 Cal.Rptr. 125, 426 P.2d 525 (conc. opn. of Tobriner, J.); Gillespie v. Rawlings (1957) 49 Cal.2d 359, 369, 317 P.2d 601; Mouchette v. Board of Education (1990) 217 Cal.App.3d 303, 315, 266 Cal.Rptr. 1; Widson v. International Harvester Co. (1984) 153 Cal.App.3d 45, 54, 200 Cal.Rptr. 136; McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 935-937, 97 Cal.Rptr. 910.) In this case, this means that if the liability theory of defect by failure to warn is supported by substantial evidence, it is immaterial whether the evidence supported either the giving of instructions on the theory of...