Kim v. Toyota Motor Corp., B247672

CourtCalifornia Court of Appeals
Writing for the CourtSEGAL, J.
Citation197 Cal.Rptr.3d 647,243 Cal.App.4th 1366
Parties William Jae KIM et al., Plaintiffs and Appellants, v. TOYOTA MOTOR CORPORATION et al., Defendants and Respondents.
Decision Date19 January 2016
Docket NumberB247672

243 Cal.App.4th 1366
197 Cal.Rptr.3d 647

William Jae KIM et al., Plaintiffs and Appellants,
TOYOTA MOTOR CORPORATION et al., Defendants and Respondents.


Court of Appeal, Second District, Division 7, California.

Filed January 19, 2016
As Modified on Denial of Rehearing February 8, 2016

Law Offices of Ian Herzog, Ian Herzog, Thomas F. Yuhas and Evan D. Marshall for Plaintiffs and Appellants.

Rogan Lehrman, Patrick Rogan, Daniel R. Villegas ; Bingham McCutchen, Morgan, Lewis & Bockius, Robert A. Brundage and Nicolette L. Young for Defendants and Respondents.


243 Cal.App.4th 1370


William Jae Kim (Kim) and Hee Joon Kim appeal from a judgment after a jury trial in favor of Toyota Motor Corporation and other defendants in this strict products liability action. Kim lost control of his 2005 Toyota Tundra pickup truck when he swerved to avoid another vehicle on the Angeles Forest Highway, drove off the road, and suffered severe injuries. The Kims alleged that the accident occurred because Kim's Tundra lacked electronic stability control (ESC), also known as vehicle stability control (VSC), and that the absence of this device or system was a design defect.

The Kims challenge the trial court's denial of their motion in limine to exclude evidence that the custom of the automotive industry was not to include ESC as standard equipment in pickup trucks. In rejecting this challenge, we part company with one line of cases stating that evidence of industry custom and practice is always inadmissible in a strict products liability action, and with a recent case suggesting such evidence is always admissible. Instead, we hold that evidence of industry custom and practice may be admissible in a strict products liability action, depending on the nature of the evidence and the purpose for which the proponent seeks to introduce the evidence. Because the Kims moved to exclude all such evidence, the trial court properly denied their motion in limine. We also conclude that the trial court's evidentiary rulings and imposition of a time limit on the duration of rebuttal argument were not an abuse of discretion,

243 Cal.App.4th 1371

and that the court properly refused the Kims' proposed jury instructions on federal safety standards and industry custom. We therefore affirm the judgment.


A. The Accident

On April 20, 2010, shortly before 6:00 p.m., Kim was driving his 2005 Tundra truck northbound on the Angeles Forest Highway. The road was wet, and Kim was descending a curve at approximately 45 to 50 miles per hour, when a car driving toward him in the opposite direction crossed part way over the center line. According to Kim, he steered right to avoid the other vehicle. Kim's two right tires veered onto the gravel shoulder. Kim then steered left to return to the asphalt, but his truck turned too far to the left and

197 Cal.Rptr.3d 652

his tires slipped. Steering right again, Kim lost control of his truck. He drove off the highway and over an embankment. The truck rolled onto its roof and back onto its wheels, and came to rest near the bottom of the embankment. Firefighters extricated Kim from the vehicle. He suffered a serious neck injury and damage to his spinal cord.

B. The Complaint and the Motions In Limine

The Kims filed a complaint against Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc., Toyota Motor North America, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., and Power Toyota Cerritos, Inc. (collectively Toyota). The Kims alleged causes of action against all of the defendants for strict products liability, negligence, breach of express and implied warranties, and loss of consortium.1 The Kims alleged that the accident occurred because Kim's Tundra lacked VSC and Toyota engineers had decided to offer VSC only as an option rather than equipping all 2005 Tundra trucks with VSC as standard equipment.2 The Kims alleged that the absence of VSC was a design defect.

Prior to trial, the Kims filed several motions in limine, including the one involved in this appeal, motion in limine No. 4. The motion asked the court to preclude Toyota from introducing any evidence "comparing the Tundra to competitor's vehicles and designs," which effectively excluded all evidence of custom and practice in the pickup truck industry, and any evidence that Toyota's "design choices were not defective ... because they were equivalent

243 Cal.App.4th 1372

or superior to those of its competitors."3 The Kims filed a companion motion, motion in limine No. 9, which sought to preclude "any argument, evidence or testimony" that the 2005 Tundra was not defective because it complied with Federal Motor Vehicle Safety Standards (FMVSS). The trial court denied both motions, but stated that the Kims could request an appropriate limiting instruction.

C. The Trial, Verdict, Judgment, and New Trial Motion

At trial the Kims presented the testimony of several percipient and expert witnesses. Steven Meyer, a mechanical engineer and accident reconstructionist, described the sequence of events preceding the accident. Meyer also stated that the tires were worn, but the treads were adequate. Michael Gilbert, a mechanical engineer, testified that ESC senses when the rear of a vehicle begins to swing out and responds by applying the brakes to a front tire in order to avoid fishtailing and to help the driver maintain control. ESC also senses when the front tires are slipping and applies rear braking to correct the vehicle's rotation. ESC takes the

197 Cal.Rptr.3d 653

driver's steering input into account and helps to keep the vehicle in alignment. Gilbert stated his opinion that ESC would have prevented Kim's accident. Yiannis Papelis, a computer engineer the Kims called to give an opinion about whether VSC would have prevented the accident, testified that ESC helps to correct oversteering, and that ESC was designed to prevent exactly the kind of loss of control that occurred in this case. He stated his opinion that, despite the wet roadway and the worn tire treads, ESC would have prevented Kim from losing control of his truck. Murat Okcuoglu, a mechanical engineer, testified that the incremental cost to include ESC in a Tundra in 2005 was $300 to $350 per truck.

The Kims also called Sandy Lobenstein, Toyota's product planning manager, as an adverse witness. He stated that Toyota's product planning group made recommendations, based on information and research from customers, dealers, and field offices, regarding what features Toyota should make available on its vehicles. Lobenstein testified that Toyota offered VSC as standard equipment in some sport utility vehicles beginning in 2001 or 2004, and made VSC available as an option for the Tundra in the 2004 and 2005 models, "so the customer[s] had the choice whether they had VSC on their vehicle or not." He acknowledged that Toyota engineers had recommended

243 Cal.App.4th 1373

making VSC standard equipment for the Tundra. Lobenstein stated that no other manufacturer offered ESC as standard equipment in full-size pickup trucks at that time and that customers prioritized other features.

Toyota also presented the testimony of several percipient and expert witnesses. Percipient witnesses testified that the roadway was moderately wet and there was wet gravel in places contributing to poor driving conditions. Dale Dunlap, a civil engineer, testified that the maximum speed for driving comfortably on the curve under the applicable guidelines was approximately 35 miles per hour. Lee Carr, an engineer, testified that Kim caused the accident by driving at an excessive rate of speed given the conditions of his truck and the road. Carr stated that VSC responds to the driver's steering inputs and that, given Kim's steering to the left, VSC would not have prevented his loss of control. Douglas Young, a kinesiologist, challenged Papelis's analysis and refuted Papelis's conclusions regarding the effectiveness of VSC in these circumstances.

In response to questioning by counsel for Toyota, Lobenstein again stated that no other manufacturer offered ESC as standard equipment for pickup trucks in 2005 and testified that the Tundra was the first pickup truck with ESC available as an option. He stated that truck manufacturers first offered other safety features involving expensive emerging technologies, such as backup cameras and pre-collision sensors, as options rather than as standard equipment.

After nine days of trial, the trial court instructed the jury on the Kims' strict products liability claim. The court gave the jury an instruction on the design defect risk-benefit test, CACI No. 1204, but refused the Kims' proposed instruction on the consumer expectations test, CACI No. 1203. The court also refused the Kims' proposed special instruction that it was "no defense that the design of the Tundra complied with Federal Motor Vehicle Safety Standards, or that the design met the standards of the motor...

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