Dimond v. Caterpillar Tractor Co.

• Decision Date: 22 December 1976
• Citation: 134 Cal.Rptr. 895,65 Cal.App.3d 173
• Court: California Court of Appeals Court of Appeals
• Parties: Roy Oliver DIMOND, Plaintiff and Appellant, v. CATERPILLAR TRACTOR COMPANY et al., Defendants and Respondents. Civ. 15855.

Page 895

134 Cal.Rptr. 895

65 Cal.App.3d 173

Roy Oliver DIMOND, Plaintiff and Appellant, v. CATERPILLAR TRACTOR COMPANY et al., Defendants and Respondents.

Civ. 15855.

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

Dec. 22, 1976.

Garber, Sokoloff & Van Dyke, Inc., John M. Van Dyke, Fullerton, for plaintiff and appellant

W. Mike McCray and Daniel L. Stack, Tustin, for defendant and respondent Caterpillar Tractor Co.

Garrett & Dimino, Inc., by Kenneth R. Garrett, Tustin, for defendant respondent Cal-Lift, Inc.

OPINION

TAMURA, Acting Presiding Justice.

Plaintiff was injured in an accident involving a towmotor manufactured by defendant Caterpillar Tractor Co. and retailed by defendant Cal-Lift, Inc. Plaintiff brought an action in strict liability alleging that his injuries were proximately caused by certain defects in the towmotor. ¹ At the conclusion of plaintiff's case-in-chief, the trial court granted defendants' motion for a nonsuit on the ground plaintiff had failed to establish a causal nexus between the alleged defects and his injuries. Plaintiff appeals from the ensuing judgment for defendants.

As has been so often emphasized, a "nonsuit in a jury case . . . may be granted only when disregarding conflicting evidence, giving to the plaintiffs' evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs' favor, it can be said that there is no evidence to support a jury verdict in their favor." (Pike v. Frank G. Hough Co., 2 Cal.3d 465, 469, 85 Cal.Rptr. 629, 631, 467 P.2d 229, 231, quoting Elmore v. American Motors Corp., 70 Cal.2d 578, 583, 75 Cal.Rptr. 652, 451 P.2d 84.) In a products liability case, a plaintiff has met his burden if he establishes that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injury. (Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 133--134, 104 Cal.Rptr. 433, 501 P2d 1153; Foglio v. Western Auto Supply Co., 56 Cal.App.3d 470, 474, 128 Cal.Rptr. 545.) Those elements--defect and proximate cause--may be established by circumstantial evidence. (Elmore v. American Motors Corp., supra, 70 Cal.2d 578, 583--584, 75 Cal.Rptr. 652, 451 P.2d 84; Vandermark v. Ford Motor co., 61 Cal.2d 256, 260, 37 Cal.Rptr. 896, 391 P.2d 168; Grinnell v. Charles Pfizer & Co., 274 Cal.App.2d 424, 435, 438, 79 Cal.Rptr. 369; Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 338, 79 Cal.Rptr. 194.) The critical issue on this appeal is whether it could reasonably be inferred from the circumstantial evidence adduced by plaintiff that the claimed defect, or defects, was a proximate cause of his injury.

The facts may be summarized as follows: On March 15, 1972, plaintiff was employed by Moore Business Forms, Inc. (Moore) a concern which utilizes packaged rolls of paper in the printing of various business forms. Plaintiff was assigned to transporting large rolls of paper from the warehouse to the various printing presses on the plant by use of towmotor which is a forklift specially fitted by the manufacturer with clamps to permit the transportation of paper rolls.

The warehouse in which the paper rolls were stored was a large building with a high ceiling. Several rolls of paper were normally bound together into one package which weighed from 900 to 1,500 pounds; the packaged rolls were then stacked in columns 10 to 15 feet high. When a particular bond of paper was needed, the towmotor operator would ascertain its location and, where necessary, break down the stack to remove the desired package. He would then restack the unused rolls.

Ralph Allen and Henry Egeland, both of whom were assigned to the graveyard shift with plaintiff, testified that between 4 and 5 a.m. on the day of the accident, they heard a loud 'boom' in the area where plaintiff was working. Upon investigation, they found plaintiff lying face down four to five feet behind the towmotor; one roll of paper weighing approximately 550 pounds was lying across plaintiff's shoulders and another 550 pound roll was lying on the opposite side of towmotor; there was a four to five inch dent in the overhead protective cage of the towmotor which had not been present when they had begun their shift; the clamp of the towmotor was secured around a stack of papers; and the towmotor was in neutral gear but the engine was still running. Mr. Egeland further testified that shortly before the accident, he had a conversation with plaintiff concerning the type of paper plaintiff was to deliver from the warehouse to the pressroom; that the type of paper discussed was stacked in a particular location in the warehouse; and the scene of the accident was near where that type of paper was stored.

As a consequence of the accident, plaintiff sustained serious injuries including retrograde amnesia which blotted out all memory of the circumstances surrounding the accident. Plaintiff was able to testify, however, the upon being assigned to the towmotor, he had occasion to read both in the operator's manual and upon the towmotor itself a warning which advised the operator that the overhead cage offered no protection against 'heavy or capacity loads. ² ' Plaintiff also testified that because the propane tank was exposed to falling objects, he feared that something could strike the tank and cause an explosion. He also explained that whenever he would dismount the towmotor, he always placed it in neutral gear and turned off the motor.

Plaintiff next called Jesa Kreiner, an expert both in failure analysis (a discipline which examines the causes of structural fatigue) and human factors analysis (an endeavor which includes the study of warnings and their impact upon a person's conduct). The defense objected to any testimony from Kreiner about defects in the towmotor on the basis that plaintiff had failed to show that the condition of the towmotor was the same at the time of the expert's examination as it was on the day of the accident. The court recessed the jury to permit discussion on this matter ³ as well as to consider the admissibility of the expert's opinion on causation. Plaintiff urged that in lieu of an offer of proof through counsel the court should hear the testimony of the expert outside the presence of the jury to permit an informed ruling on admissibility. The court acceded to the suggestion with the result that the following testimony of the expert was received out of the presence of the jury in lieu of an offer of proof.

Kreiner testified that the posted warning with respect to the strength of the overhead cage was inadequate and defective in the following respects: (1) The wording of the warning that the cage was not 'intended to withstand the impact of heavy or capacity loads' ⁴ was defectively ambiguous because it failed to provide the operator with any criteria from which he could determine the actual capacity of the overhead guard and (2) the warning was dangerously misleading since it had in fact withstood the impact of an 1,100 pound package. Kreiner stated that the problems posed by the warning could have been alleviated by changing the design of the guard to resemble an A-frame roof thereby affording protection from even a capacity load. The expert also testified that the position of the propane tank rendered the towmotor defective because the manufacturer had failed to insulate it from falling objects which could rupture the tank and cause an explosion.

Plaintiff then asked Kreiner whether he had an opinion whether there was a causal connection between the defects of the towmotor to which he had testified and plaintiff's injury. Kreiner responded that he did have an opinion but, on the defense objection that the opinion called for speculation, he was not permitted to give it. The trial judge observed in substance that plaintiff's theory of liability would require the jury to infer that plaintiff was in the towmotor when the rolls of paper began to fall and to indulge in the further inference that he bolted the machine because of the inadequate and misleading warning concerning the capacity of the protective cage and his concern over the exposed propane tank. The judge held that those inferences were too speculative and conjectural to be permitted to be drawn either by the expert or the jury.

Plaintiff thereafter attempted to elicit Kreiner's opinion on causation by propounding a hypothetical question containing a number of assumptions. The court sustained defense objections to the question, primarily on the ground that it called for speculation by the expert as to plaintiff's state of mind when he left the towmotor. Plaintiff thereupon rested; defendants moved for a nonsuit; and the motion was granted. Plaintiff contends the court erred in granting the nonsuit. ⁵

From the analysis which follows, we have concluded that viewing the evidence most strongly in favor of plaintiff, as we must, it may reasonably be inferred that there was a defect in the design of the towmotor and that such defect was a proximate cause of plaintiff's injury.

As a preliminary matter, we note that Kreiner's testimony, to the extent it was not objectionable, was to be considered by the judge in ruling upon the motion for nonsuit. Although the expert's testimony was received in lieu of an offer of proof, it was understood that for the purpose of ruling upon a motion for nonsuit, the testimony was to be deemed to have been presented to the jury.

An examination of the record reveals that basically the only evidence excluded was the expert's opinion on the issue of causation. While defense counsel moved to strike the expert's testimony concerning defects in the towmotor, the trial court took the motion under submission but never ruled upon it. In such circumstances, the objections must be deemed to have been waived by defendants' failure to obtain a ruling from the court. (See Ault v. International...