Johnson v. Honeywell Internat. Inc.

• Decision Date: 19 November 2009
• Docket Number: No. B210799.,B210799.
• Court: California Court of Appeals Court of Appeals
• Parties: WILLIAM KEITH JOHNSON, Plaintiff and Appellant, v. HONEYWELL INTERNATIONAL INC. et al., Defendants and Respondents.

179 Cal.App.4th 549

101 Cal. Rptr. 3d 726

WILLIAM KEITH JOHNSON, Plaintiff and Appellant, v. HONEYWELL INTERNATIONAL INC. et al., Defendants and Respondents.

No. B210799.

Court of Appeals of California, Second District, Division Five.

November 19, 2009.

Metzger Law Group, Raphael Metzger and Gregory A. Coolidge for Plaintiff and Appellant.

Horvitz & Levy, David M. Axelrad, Mary-Christine Sungaila, Dean A. Bochner; Atkins & Evans, Irwin S. Evans and Cynthia L. Sands for Defendant and Respondent E. I. DuPont de Nemours and Company.

Horvitz & Levy, David M. Axelrad, Mary-Christine Sungaila, Dean A. Bochner; Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor and Kevin C. Mayer for Defendant and Respondent Honeywell International Inc.

Horvitz & Levy, David M. Axelrad, Mary-Christine Sungaila, Dean A. Bochner; Prindle, Decker & Amaro and James G. Murray for Defendant and Respondent W.W. Grainger, Inc.

OPINION

ARMSTRONG, J.

"A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger." (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71 [74 Cal.Rptr.3d 108, 179 P.3d 905].) (Hereinafter, American Standard.) This is the sophisticated user defense, and it applies to negligence and strict liability warning defect claims. (Id. at p. 65.)

In this case, which comes to us after a demurrer was sustained without leave to amend, we are asked to determine whether the defense also applies to a cause of action for negligence for failure to warn on a theory of negligence per se, or to a cause of action for strict liability/design defect under the risk-benefit analysis.¹ We find that the defense does apply to the negligence cause of action, but does not apply to the strict liability cause of action.

We thus reverse the judgment in favor of respondents Honeywell International Inc., E. I. DuPont de Nemours and Company, and W.W. Grainger, Inc., on appellant William Keith Johnson's complaint against them.

BACKGROUND

Johnson is an EPA (Environmental Protection Agency) certified HVAC (heating, ventilation, and air conditioning) technician who worked on commercial air conditioning systems. Repair of such systems may involve brazing pipes, and as the Supreme Court explained in American Standard, supra, 43 Cal.4th 56 those systems "commonly use R-22, a hydrochlorofluorocarbon refrigerant. The refrigerant can decompose into phosgene gas when exposed to flame or high heat, as could happen while a technician is brazing air conditioner pipes containing residual refrigerant. Exposure to phosgene gas may cause numerous health problems . . . ." (Id. at p. 61.)

Johnson sued American Standard, a manufacturer of air conditioning equipment, and respondents,² who are manufacturers of R-22 refrigerant, alleging that he was injured by the phosgene gas that was created from R-22 refrigerant when he brazed air conditioner pipes, during the normal course of repair.

The case initially proceeded as to American Standard. Against that defendant, Johnson brought causes of action for common law negligence, strict liability for failure to warn, and strict liability for design defect, on the consumer expectations test. On each cause of action, Johnson's theory was that American Standard knew that harmful phosgene gas would be created when the equipment was serviced, but failed to provide an adequate warning.

American Standard moved for summary judgment on the ground, inter alia, that it had no duty to warn because the risk was within the professional knowledge of HVAC installers and repairers—the sophisticated user defense. Although that defense had never been squarely adopted in California, the trial court found that the defense applied, as did we.

The Supreme Court affirmed, adopting the sophisticated user defense for California law. (American Standard, supra, 43 Cal.4th at p. 65.) The Court explained that "Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware. (See 4 Shearman & Redfield, Negligence (rev. ed. 1941) Manufacturers and Vendors, § 656, p. 1576.) Because these sophisticated users are charged with knowing the particular product's dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. (Owen, Products Liability Law (2005) § 9.5, p. 599.) The rationale supporting the defense is that `the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer's employees or downstream purchasers.' (Ibid.) This is because the user's knowledge of the dangers is the equivalent of prior notice. [Citation.]" (American Standard, supra, 43 Cal.4th at p. 65.)

Noting that "there is little functional difference between the two theories . . .," the Supreme Court held that the defense is applicable to warning defect claims in both negligence and strict liability causes of action. (American Standard, supra, 43 Cal.4th at p. 71.)

The Supreme Court also found that the undisputed evidence at summary judgment was that manufacturers and HVAC technicians had known of the dangers of phosgene exposure as early as 1931, and that "the danger created by exposing refrigerant to high heat and flame was well known within the community of HVAC technicians to which plaintiff belonged." (American Standard, supra, 43 Cal.4th at p. 74.) Thus, Johnson, a sophisticated user, should have known of the risk and the sophisticated user defense defeated all causes of action against American Standard.

On remand, the case proceeded as to respondents. Initially, the causes of action against them were the same as the causes of action against American Standard, but Johnson filed an amended complaint, bringing instead causes of action for negligence on a negligence per se theory, and for strict liability on a design defect risk-benefit theory. Respondents successfully demurred to the complaint, again largely based on the sophisticated user defense. The trial court found that the defense barred both causes of action, and entered judgment for respondents.

DISCUSSION

1. Negligence Per Se

Evidence Code section 669 creates a presumption of negligence where a defendant "(1) . . . violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted."

(1) "[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2 .)

The doctrine of negligence per se does not provide a private right of action for violation of a statute. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285 .) Notably, the statutes in question here do not include such a right.

(2) Johnson's allegation was that respondents had violated Labor Code sections 6390 and 6390.5 and the attendant regulations.³ Those statutes provide that manufacturers of hazardous substances such as R-22 refrigerant must prepare and provide direct purchasers with material safety data sheets (MSDS) which contain specified information about risks, hazards, and safety precautions. (Lab. Code, § 6391.)

The purpose of an MSDS "is to inform those who may come into contact with potentially hazardous chemicals about their dangers. (See Cal. Code Regs., tit. 8, § 5194, subd. (g).) Employers are required to use the MSDS's to train and educate their employees about the chemicals and dangers to which they may be exposed on the job. (See Cal. Code Regs., tit. 8, § 5194, subd. (h).) Among other things, employers are required to tell employees where they can find the MSDS's, how to read them, how to detect the presence of dangerous materials, and how to protect against possible health hazards from those materials. (Cal. Code Regs., tit. 8, § 5194, subd. (h)(2)(C), (D), (E), (F).)" (American Standard, supra, 43 Cal.4th at p. 62, fn. omitted.)

(3) Johnson's complaint alleged that respondents' MSDS's were deficient because they failed to provide all the requisite information about hazards and safety precautions. This is a theory of negligence for failure to warn, and we find that the sophisticated user defense applies.

(4) Under the sophisticated user defense, a manufacturer is not liable to a sophisticated user of its product for failure to warn, if the sophisticated user knew or should have known of the risk, whether the cause of action is for negligence or for strict liability for failure to warn. (American Standard, supra, 43 Cal.4th at p. 71.) It follows that a manufacturer is not liable to a sophisticated user for failure to warn, even if the failure to warn is a failure to provide a warning required by statute.

Johnson's argument to the contrary is that the sophisticated user defense cannot apply to this claim as a matter of law, because its application would absolve manufacturers from their statutory duties. He points out that neither the statute nor the regulations exempt manufacturers from preparing MSDS's if the expected users are sophisticated users. He contends that application of the sophisticated user doctrine would usurp the power of the Legislature, and argues that a common law defense such as the sophisticated user defense can only apply to a common law cause of action, and not to a negligence cause of action under a negligence per se theory. In legal...