Cavers v. Cushman Motor Sales, Inc.

• Decision Date: 25 July 1979
• Citation: 157 Cal.Rptr. 142,95 Cal.App.3d 338
• Court: California Court of Appeals Court of Appeals
• Parties: William M. CAVERS, Plaintiff and Appellant, v. CUSHMAN MOTOR SALES, INC., Cravens, Dargan & Co., Meredith G. Daniel, Oakridge Golf Club, Inc., et al., Defendants and Respondents. Civ. 40917.

Page 142

157 Cal.Rptr. 142

95 Cal.App.3d 338

William M. CAVERS, Plaintiff and Appellant, v. CUSHMAN MOTOR SALES, INC., Cravens, Dargan & Co., Meredith G. Daniel, Oakridge Golf Club, Inc., et al., Defendants and Respondents.

Civ. 40917.

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

July 25, 1979.

Hearing Denied Sept. 20, 1979.

McGuinn & Moore, Bruce S. Osterman, San Francisco, for appellant.

Thomas F. Nelson, Los Altos, for defendant and respondent, Cushman Motor Sales, Inc.

Robert J. Smith, Phillip G. Svalya, Smith & Lamoreaux, Mountain View, for defendants and respondents, Cravens, Dargan & Co., Meredith G. Daniel and Oakridge Golf Club, Inc.

SABRAW, ^* Associate Justice.

In April 1973 plaintiff William M. Cavers was injured while riding on a motorized golf cart at the Oakridge Golf Club in San Jose. Cavers instituted the present tort action claiming that the manufacturer and the lesser should be held accountable under strict products liability because of their failure to give warning of the golf cart's propensity to tip over while turning. The primary issue is whether the trial judge correctly instructed the jury that a product otherwise properly designed and manufactured could nevertheless be "defective" if no warning was given and the absence of the warning rendered the product "substantially dangerous" to the user. We conclude that the trial court did not err in its instruction, and further take this opportunity to frame some guidelines for use in formulating jury instructions for defining "defect" in "failure to warn" cases. In doing so, we draw analogy to the pronouncements of the Supreme Court in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, on "design defect" instructions.

I. STATEMENT OF FACTS

On April 26, 1973, appellant was assisting in coordinating activities on behalf of his employer, General Adjustment Bureau, at an independent insurance agents' golf tournament at the Oakridge Golf Club in San Jose. A motorized golf cart was rented from the Club's pro shop. No manual or instruction was furnished with the cart and appellant did not request any. Appellant's experience with carts consisted of having driven and ridden as a passenger on one or two previous occasions.

During the course of the afternoon, appellant proceeded with his duties, driving around the golf course and dispensing refreshments to the tournament participants. In addition, appellant gave rides to numerous persons to and from various points in the country club. Appellant made the acquaintance of one Meredith Daniel when she asked him to give her a ride to the club house. Late in the afternoon, Daniel asked appellant if she could drive the cart. Appellant consented and offered her simple instructions on shifting to forward and reverse. At the conclusion of the day, appellant and Daniel stopped at the club house for drinks and then headed toward the parking lot to return a drum used for soft drinks to his sales manager's car. As Daniel drove the cart down one aisle of cars, appellant pointed out the car off to the left. Daniel then made a left turn to go down the proper aisle. As she made the turn, appellant began to feel the left side of the cart tip. He therefore spread his right leg out in order to brace himself against the perceived tipping. There was conflicting testimony on whether the cart actually tipped and on the speed it was moving at the time of the turn. ¹ Appellant indicated he was in pain and was eventually taken to the hospital. Appellant testified that his injury required surgery and caused him to alter his lifestyle.

On November 14, 1973 appellant filed a complaint against Meredith Daniel, her employer, Oakridge Golf Club, and Cushman Motor Sales, alleging negligence on the part of all respondents and strict products liability against Cushman (the manufacturer) and Oakridge (the lessor) for defects in the golf cart.

The case was tried before a jury which returned with a special verdict in favor of all respondents. Plaintiff-appellant has appealed from the judgment entered on the special verdict.

II. THE TRIAL COURT CORRECTLY INSTRUCTED THE JURY ON THE DEFINITION OF "DEFECT" FOR FAILURE TO WARN UNDER STRICT PRODUCTS LIABILITY

Appellant's sole theory of recovery was strict liability in tort for failure to warn of the golf cart's propensity to tip while turning. He presented no evidence that the golf cart was defective in either its design or its manufacture.

Appellant claims the trial court committed error in the following instruction which it gave to the jury: "An article otherwise appropriately made and maintained is defective within the meaning of the instruction which I have just given if the manufacturer and/or lessor fails to adequately warn of dangerous propensities of such article which in the absence of an adequate warning renders the article substantially dangerous to the user." (Emphasis added)

The appellant contends that the trial court's use of the adverb "substantially" to modify the term "dangerous" is contrary to California law and prejudicially increased the appellant's burden of proof.

Prior to the California Supreme Court decision in Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, the cases involving products liability actions required that a two-pronged test be met to establish liability. The claimant was required to prove (1) "a defective condition" and also that the defect was (2) "unreasonably dangerous". In 1972, in a case involving a products liability action based on "manufacturing defects," the Supreme Court in Cronin eliminated the plaintiff's burden of having to establish that a proven defect was also "unreasonably dangerous."

The appellant argues in the instant case that the prohibition of Cronin against the use of the term "unreasonably dangerous" applies with equal force to the failure to warn cases and that the term "substantially dangerous" is the equivalent term and is equally defective.

We conclude that the Cronin decision, while eliminating in the manufacturing defect cases the previous dual burden of proving both the existence of a defect and an unreasonable degree of danger resulting therefrom, nevertheless did not preclude weighing the degree of dangerousness in the failure to warn cases.

The landmark case in strict products liability is Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, where the California Supreme Court announced the rule that ". . . A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Id. at p. 62, 27 Cal.Rptr. at p. 700, 377 P.2d at p. 900)

It was soon recognized that the Greenman doctrine was applicable to both (a) a defect in manufacture and (b) a defect in design. (59 Cal.2d at p. 64, 27 Cal.Rptr. 697, 377 P.2d 897, see also Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229.) However, beginning with the case of Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 46 Cal.Rptr. 552, California courts determined that ". . . a product, although faultlessly made, may nevertheless be deemed 'defective' . . . and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given." (237 Cal.App.2d at p. 53, 46 Cal.Rptr. at p. 558, emphasis added; see also Rest. Torts 2d § 402A Comment j, Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 244-245, 71 Cal.Rptr. 306). Thus, a third type of defect was recognized, which consisted not in the manufacturer's workmanship or his choice of design, but in a product whose absence of a warning created unreasonable risks to the consumer.

In the meantime, the formulation of strict products liability propounded by the Restatement of Torts (2d ed.) § 402A, began to exert a pervasive influence on decisional law. Its requirement that the consumer prove "a defective condition" which was Also "unreasonably dangerous," although significantly adding to the plaintiff's burden as set forth in Greenman, was adopted in both Court of Appeal and Supreme Court decisions. (See e. g. Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 383-384, 93 Cal.Rptr. 769, 482 P.2d 681; Pike v. Frank G. Hough Co., supra, 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229; Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1072, 91 Cal.Rptr. 319).

In Cronin v. J.B.E. Olson Corp., supra, 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, the Supreme Court concluded that the added requirement that a defect makes the product "unreasonably dangerous," which had "crept into our jurisprudence without fanfare after its inclusion in section 402A of the Restatement Second of Torts," represented "a step backward in the area" pioneered by the Greenman decision, and should be rejected. (Id. at 129, 133, 104 Cal.Rptr. 433, 501 P.2d 1153) Cronin reached this result out of two principal concerns: (1) requiring a plaintiff to prove Both a defect and that the defect was unreasonably dangerous imposes a double burden on the consumer, adding an element "which rings of negligence" and which in practice rarely leads to a different result than would have been reached under negligence law (id. at 132-133, 104 Cal.Rptr. 433, 501 P.2d 1153); and (2) such a requirement would permit the manufacturer to escape liability simply because of the low expectation the ordinary consumer might have for his product. (Id. at 133, 104 Cal.Rptr. 433, 501 P.2d 1153) The court concluded that to recover on a strict liability theory, the plaintiff need only prove that the product was defective and that the defect was a proximate cause of his injuries, as set forth in Greenman. Moreover, "We can see no difficulty...