Burke v. Almaden Vineyards, Inc.

• Decision Date: 28 November 1978
• Court: California Court of Appeals Court of Appeals
• Parties: Virginia BURKE, Plaintiff and Appellant, v. ALMADEN VINEYARDS, INC. and Automatic Plastic Molding Corporation, Defendants and Respondents. Civ. 42458.

Page 419

150 Cal.Rptr. 419

86 Cal.App.3d 768

Virginia BURKE, Plaintiff and Appellant, v. ALMADEN VINEYARDS, INC. and Automatic Plastic Molding Corporation, Defendants and Respondents.

Civ. 42458.

Court of Appeal, First District, Division 4, California.

Nov. 28, 1978.

Walkup, Downing, Shelby, Bastian, Melodia, Kelly & O'Reilly by Daniel J. Kelly, San Francisco, for plaintiff and appellant.

Berry & Berry by Samuel H. Berry, Oakland, for defendant and respondent Almaden Vineyards, Inc.

GOOD, Associate Justice. ^*

A jury returned a verdict against appellant Virginia Burke and in favor of Almaden Vineyards, Inc. and Automatic Plastic Molding Corporation, the respective manufacturers of Le Domaine champagne and the plastic cork used by Almaden in packaging its product. She had sought recovery of damages for injuries sustained in a household accident when a cork struck and shattered the left lens of her eyeglasses, driving pieces of glass into her eye. She had dismissed charges of negligence and proceeded to trial solely on the theory of a manufacturer's strict liability in tort for a dangerous or defective design of a product which causes injury. She appealed from the judgment entered on the verdict but has withdrawn the appeal as against the manufacturer of the cork. Consequently, we are concerned only with the case as against Almaden Vineyards, Inc., the producer of the wine in question.

The determinative issues arise out of the following occurrence at trial: In camera, before the jury was seated, appellant's counsel informed the court that she would produce evidence that four years after the accident Almaden had placed the following warning on its bottles: "Use care. Sparkling wines contain natural high pressure. Point bottle away from people when removing wire stopper." Almaden objected that the evidence was more prejudicial than probative but offered to stipulate that it would have been "possible, feasible and practicable" to have attached a warning in like words on its labels and requested the court to exercise its discretion under Evidence Code section 352 ¹ to exclude the evidence.

After considerable discussion, the judge ruled that, although the evidence of the subsequent warning was not inadmissible under Evidence Code section 1151, ² in view of Almaden's proffered stipulation the probative value of the evidence of subsequent warning was outweighed by the risk of undue prejudice and, pursuant to section 352, he would sustain the objection. Appellant was given the option of accepting or rejecting the stipulation. The judge made it clear that he rested this exercise of discretion upon his understanding that Almaden would refrain from offering any evidence or arguing that "no purpose would have been served" by the warning and that appellant's acceptance of the stipulation would "not waive in any way to any extent (her) contention that (she) should have been entitled to present this evidence directly through witnesses." With these assurances counsel stated that since his appellate rights were protected and he had "little or no alternative" he would accept.

Did the trial court abuse its discretion in excluding evidence of the post accident warning?

Where a manufacturer or supplier of a product is or should have been aware that a product is unreasonably dangerous absent a warning and such warning is feasible, strict liability in tort will attach if appropriate and conspicuous warning is not given. (Canifax v. Hercules Powder Co. (1965)237 Cal.App.2d 44, 53, 46 Cal.Rptr. 552; Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 244, 71 Cal.Rptr. 306.) Liability does not attach if the dangerous propensity is either obvious or known to the injured person at the time he uses the product. (Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 933-934, 133 Cal.Rptr. 483; see Rest.2d Torts, § 402A, com. (j).) Appellant had the burden of proving (a) that Almaden knew or should have known of a hazard which required warning and (b) that it was feasible for Almaden to have given it. She was not required to prove that, as a user, she was not aware of the defect or to make a showing that would avoid the defense of assumption of risk. (Luque v. McLean (1976) 8 Cal.3d 136, 142-146, 104 Cal.Rptr. 443, 501 P.2d 1163.)

We do not believe that the consuming public is chargeable with knowledge that the pressure of carbonation in a sparkling wine is such that a plastic cork will eject itself when the wire seal is removed within 3 to 60 seconds at speeds between 37 and 49 miles per hour, depending upon bottle temperatures between 39o and 70.7o F., with no pressure on or twisting of the cork and no agitation of the bottle's contents. At such speeds an early ricochet of the missile could produce harm to someone not within its direct trajectory. Although the removal of the wire seal and extrusion of the cork is ordinarily a continuous operation it is readily foreseeable that a person unaware of the hazard might remove the wire and momentarily leave the bottle to answer a telephone, adjust a burner on a stove, or get the napkin or towel often used in pouring wines.

We are not concerned with the adequacy of the subsequent warning as a caution against the risk of spontaneous ejection of plastic corks. But we are required to examine its evidentiary value and the effect of depriving appellant thereof as the case went to the jury. The fact of the subsequent warning would have directly supported an inference that a hazard existed which was not obvious and which created an unreasonable risk of harm in the absence of warning. A manufacturer does not ordinarily red-flag a product unless there is a potential danger which requires a warning. The proffered evidence afforded a reasonable, logical and natural inference thereof. (Cf., do Canto v. Ametek, Inc. (Mass.1975) 328 N.E.2d 873; Good v. Chance (Colo.App.1977) 565 P.2d 217, 223.)

The only prejudice of the proffered evidence lies in these inferences, which were relevant, material and went more directly to the issue than other evidence available to appellant, e. g., that Almaden had conducted "pop" tests to study the phenomena since 1967 and had had some claims filed against it. (Cf., People v. Delgado (1973) 32 Cal.App.3d 242, 249, 108 Cal.Rptr. 399.) But detrimental effect is not necessarily undue prejudice. (Thor v. Boska (1974) 38 Cal.App.3d 558, 567, 113 Cal.Rptr. 296.) We do not hold that the inferences are conclusive against respondent's defense of obviousness or of appellant's knowledge of the hazard. But their probative force was for the jury to determine. Although there was risk of prejudice if the jury improperly construed the fact as an absolute admission of liability, proper instructions (view with caution, consider in the light of all of the evidence, etc.) could readily eliminate such prejudice.

When the objection was made it was predicated solely upon the prejudicial effect of the proffered evidence. Remoteness was not argued. Because the proffered stipulation went only to the issue of feasibility, i. e., it was "possible, feasible and practicable" for the manufacturer to have included the particular warning on its labels at the time of the accident, and did not go to the element of the existence of the particular hazard, appellant was deprived of an important factor of evidence that was within her burden of...