Collins v. Navistar, Inc.

• Decision Date: 17 July 2013
• Docket Number: C060468
• Court: California Court of Appeals Court of Appeals
• Parties: Barbara COLLINS, Plaintiff and Appellant, v. NAVISTAR, INC., Defendant and Respondent.

214 Cal.App.4th 1486

155 Cal.Rptr.3d 137

Barbara COLLINS, Plaintiff and Appellant,

v.NAVISTAR, INC., Defendant and Respondent.

C060468

Court of Appeal, Third District, California.

Filed March 29, 2013

Review Denied July 17, 2013

Reversed and remanded.

Duarte, J., concurred and dissented with opinion.

APPEAL from a judgment of the Superior Court of San Joaquin County, Lauren P. Thomasson, Judge. Reversed. (Super. Ct. No. CV007121)

Law Offices of Carcione, Cattermole, Dolinski, Okimoto, Stucky, Ukshini, Markowitz & Carcione; Law Offices of Carcione, Cattermole, Dolinski, Stucky, Markowitz & Carcione, Joseph W. Carcione, Jr., Gary W. Dolinski and Joshua S. Markowitz, Redwood City; Drivon Turner & Waters and Davey L. Turner; Smith & McGinty, Daniel U. Smith, San Francisco, and Valerie T. McGinty for Plaintiff and Appellant.

Jay–Allen Eisen Law Corporation, Jay–Allen Eisen and Aaron S. McKinney, Stockton; Harrington, Foxx, Dubrow & Canter and David H. Canter, Los Angeles; Kroloff, Belcher, Smart, Perry & Christopherson and Thomas O. Perry, Stockton; Nolen & Owens and Rudey Nolen for Defendant and Respondent.

HOCH, J.

In this strict products liability case, we consider whether the criminal nature of a juvenile's act of throwing rocks and concrete from a freeway overpass relieves a truck manufacturer of the duty to design windshields capable of withstanding common road hazards, such as objects hitting windshields. For the reasons that follow, we conclude the criminal nature of the rock throwing does not cut off liability or negate the duty of the manufacturer to design the truck's windshield to account for reasonably foreseeable risks. We also explain that the definition of negligence for premises liability has no application in strict products liability cases.

This action arises out of injuries plaintiff William F. Collins sustained while driving a big rig truck manufactured by Navistar, Inc. A 2.5–pound piece of concrete thrown by 15–year–old Joshua Daniel penetrated the windshield of the truck and struck William in the head. Daniel would later plead to three counts of assault with a deadly weapon or with force likely to cause great bodily injury and be sentenced to serve 12 years in prison.

William and his wife, Barbara Collins, sued various defendants, including Navistar.¹ As to Navistar, plaintiffs claimed the windshield of the truck was defective because its penetration resistance was inadequate. They sought to show two alternative designs would have been safer: (1) windshields made out of “glass-plastic”; and (2) windshields with greater rake angles to deflect road debris. The trial court excluded evidence relating to glass-plastic on the grounds of federal preemption. The case proceeded to jury trial against Navistar only on the question of whether the windshield was defective due to its steep rake angle. At trial, Navistar argued that Daniel's criminal conduct constituted a “superseding cause” of the injury. A superseding cause “absolves a tortfeasor [of liability] even though his [or her] conduct was a substantial contributing factor, when an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him [or her] responsible.” ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9, 34 Cal.Rptr.2d 607, 882 P.2d 298 ( Soule ).) The special verdict form indicates the jury accepted this defense, and judgment was entered in favor of Navistar.

On appeal, Barbara challenges the jury instructions and verdict form as erroneously requiring heightened foreseeability solely due to the criminal nature of Daniel's rock throwing. She contends the proper standard is whether it is foreseeable that the sort of object thrown in this case will hit truck windshields. Answering this question in the affirmative, Barbara asserts the instructional error was prejudicial. Barbara also challenges various evidentiary rulings related to the issue of foreseeability. And, she contends it was error to exclude the glass-plastic evidence. Navistar concedes this error, but urges it was harmless because the jury decided the case on superseding cause and never reached the question of design defect.

We conclude the trial court erred in instructing that a heightened foreseeability was required and the error was prejudicial because the special verdict form precluded the jury from considering whether the risk of chunks of concrete hitting the truck's windshield was a reasonably foreseeable road hazard. We accept Navistar's concession that federal law is not preemptive on the issue of whether glass-plastic would have been a safer design for the windshield. Accordingly, we reverse and remand for a new trial.

To provide guidance to the trial court on retrial, we address Barbara's evidentiary contentions. Consistent with our conclusion about the standard of reasonable foreseeability for strict products liability, we conclude Barbara was entitled to introduce evidence that chunks of concrete hitting truck windshields was not an unforeseeably rare occurrence. However, we reject Barbara's assertions of error in the trial court's admission and exclusion of expert testimony proffered by the parties.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

In the early morning of December 4, 1997, Joshua Daniel was on top of the south levee of Smith Canal, throwing rocks—pieces of concrete and asphalt found on the levee—at passing vehicles. Interstate Highway 5 crosses over the Smith Canal just south of Country Club Drive. Riprap, including chunks of concrete, lines the waterside slope of Smith Canal to the levee.

Daniel chose rocks about the size of baseballs and threw them overhand, hard enough to hurt anyone he hit. He spent 10 to 15 minutes throwing rocks and hit a few vehicles. He threw a chunk of concrete weighing about two and a half pounds at a Navistar tractor pulling two trailers driven by William. The rock penetrated the windshield and hit William in the forehead, causing severe brain injuries. William lost control of the truck and it hit the sound wall. Daniel heard a large crash.

Daniel was convicted of three counts of assault with a deadly weapon or with force likely to cause great bodily injury. He was sentenced to 12 years in prison.

The Lawsuit

William and Barbara brought suit against Navistar (previously International Truck and Engine Corporation), the State of California, and several other defendants.² Their claim against Navistar was for products liability, alleging the truck's windshield was defective because it failed to keep the rock that Daniel threw from penetrating.

The complaint also sought punitive damages on the grounds that Navistar knew the truck was defective. Navistar moved to strike portions of the complaint relating to punitive damages. The motion was granted with leave to amend. Plaintiffs filed an amendment with new allegations against Navistar regarding punitive damages. Navistar's motion to strike this amendment was denied.

Plaintiffs offered two alternative designs for the windshield. First, they contended the type of glass was defective; instead of a single laminated glass, it should have been made of bi-laminated glass known as glass-plastic. Second, plaintiffs contended the rake angle of the windshield should have been less steep, a more swept-back design, to deflect the rock.³

Exclusion of Glass-plastic Evidence

Two defendants, the manufacturer of the windshield and the supplier of the glass, moved for summary judgment, asserting a state tort action for products liability was preempted by federal law. The windshield in the truck William drove was two layers of glass between which is a bonded layer of plastic. The windshield was manufactured in accordance with Federal Motor Vehicle Safety Standard 205 (FMVSS 205).⁴ FMVSS 205 also authorized the use of glass-plastic in windshields.⁵

The trial court granted both motions for summary judgment, finding plaintiffs' claims were preempted by federal law.

In light of these rulings, Navistar moved in limine to exclude any evidence of glass-plastic windshields. The trial court granted the motion.

Summary Adjudication on Punitive Damages

Navistar moved for summary adjudication of plaintiffs' punitive damages claim. Navistar contended plaintiffs had no evidence of fraud, oppression, or malice; the windshield complied with all safety standards; Navistar had not previously heard of glass-plastic; and Navistar had no notice of prior incidents where a projectile penetrated a windshield on one of its trucks. Navistar also noted the glass in the truck was not the original equipment.

The trial court granted the motion. The court found that since it was undisputed that the windshield had been replaced, the glass in the windshield at the time of the accident was not the “product” of Navistar.

Dr. Rose Ray's Testimony

Navistar's primary defense was that Daniel's criminal assault constituted a superseding cause of the plaintiffs' injuries and Daniel alone was responsible for the injuries he caused. To support its argument that the assault by Daniel was not reasonably foreseeable, Navistar offered the testimony of Rose Ray, Ph.D., a statistician. Plaintiffs moved in limine to exclude her testimony, contending her methodology was without scientific merit, her opinions lacked a factual basis, and her testimony would confuse and mislead the jury. Plaintiffs argued the databases on which Dr. Ray relied were unreliable, contained too small a sample, and were misleading.

At a hearing pursuant to Evidence Code section 402, Dr. Ray testified about the databases she used in forming her opinions. One database was the Fatality Analysis Reporting System or FARS, collected by the National Highway Traffic Safety Administration (NHTSA). FARS is a census of all fatal traffic accidents in the United States. For purpose of the...