Meyering By and Through Meyering v. General Motors Corp.

• Decision Date: 30 November 1990
• Docket Number: No. D010498,D010498
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 232 Cal.App.3d 1163 232 Cal.App.3d 1163, 59 USLW 2448, Prod.Liab.Rep. (CCH) P 12,767 Kurt R. MEYERING, By and Through his Conservator, Carolyn MEYERING, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants and Respondents.

Page 346

275 Cal.Rptr. 346

Previously published at 232 Cal.App.3d 1163

232 Cal.App.3d 1163, 59 USLW 2448,

Prod.Liab.Rep. (CCH) P 12,767

Kurt R. MEYERING, By and Through his Conservator, Carolyn MEYERING, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants and Respondents.

No. D010498.

Court of Appeal, Fourth District, Division 1, California.

Nov. 30, 1990.

Review Granted Feb. 14, 1991.

Automobile owner who was injured by object thrown from freeway overpass brought action against automobile's manufacturer and automobile dealer. The Superior Court, San Diego County, No. 607582, James R. Milliken and Kevin Midlam, JJ., granted defendants' demurrers, and plaintiff appealed. The Court of Appeal, Wiener, Acting P.J., held that: (1) plaintiff's allegations were sufficient to state negligence and strict products liability claim against manufacturer; (2) allegations were sufficient to state negligence claim against dealer; but (3) dealer could not be held strictly liable for defect in used automobile that was present at time of initial distribution.

Reversed.

Froehlich, J., filed opinion concurring in part and dissenting in part.

Rosenberg & Associates, David Rosenberg and Paula S. Rosenstein, for plaintiff and appellant.

Luce, Forward, Hamilton & Scripps, Robert Steiner, Richard R. Spirra, R. Randal Crispen, and Robert B. Clark, Chapin, Brewer & Winet, Edward D. Chapin, Lynne Potter Hill and Shirley A. Banner, for defendants and respondents.

Herzfeld & Rubin, Richard L. Ackerman and Seymour W. Croft as amicus curiae, on behalf of defendants and respondents.

WIENER, Acting Presiding Justice.

Plaintiff Kurt Meyering was severely injured when he was struck on the head by a chunk of concrete thrown from a freeway overpass by two juveniles. At the time of his injury, Meyering was driving a 1984 Chevrolet Corvette recently purchased by his girlfriend, Jane Casey. The concrete chunk struck him after penetrating the car's sunroof. The Corvette was designed and manufactured by defendant General Motors Corporation (GM) and had been sold to Casey by defendant Ball Oldsmobile.

Meyering's complaint alleges the Corvette was defectively designed and manufactured and that defendants were negligent in the design, manufacture and distribution of the automobile. As more fully explained in his supporting papers both here and in the trial court, Meyering's theory is that the sunroof was made from a type of plexiglass which was too thin and too weak. He contends there is a relatively inexpensive alternative--lexan polycarbonate sheeting--which is shatterproof and would have prevented the injury he suffered in this case.

In sustaining the separate demurrers filed by GM and Ball, the trial court accepted defendants' argument that the criminal conduct of the two juveniles constituted an unforeseeable intervening act which the manufacturer and seller of the vehicle had no duty to guard against.

DISCUSSION

Liability of GM

Meyering has attempted to allege causes of action in both negligence and strict products liability. Because negligence is generally a more difficult cause of action to plead, we address that issue first.

The role played by "foreseeability" in a negligence cause of action has proven to be a confusing one for courts grappling with questions of duty, negligence and proximate cause. Recognizing this confusion in Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, the California Supreme Court observed that "the 'foreseeability concept plays a variety of roles in tort doctrine generally; in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of 'duty.' " (Id. at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.) Ballard, went on to caution lower courts against deciding fact-specific issues of foreseeability in the guise of determining whether the plaintiff has pleaded a valid cause of action. "[A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Id. at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, emphasis in original.)

The trial court's comments here in sustaining defendant's demurrers do not make clear whether it understood the limited nature of the foreseeability question before it. To the extent the court was focusing on the particular facts of this incident, Ballard makes clear it is an inappropriate basis for denying a plaintiff the opportunity to plead a cause of action. Moreover, it must be remembered that a defendant "may be liable if his conduct was a 'substantial factor' in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred." (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 976, p. 367 and cases there cited.) Thus here, even if one could consider fact-specific foreseeability issues at the pleading stage, it is not necessary that GM anticipate that someone might throw a rock off a freeway overpass. Rather, in designing the Corvette's sunroof, it is only necessary that GM foresee the possibility that objects could fall from above a car and thus pose a danger to its occupants. (See Green v. Denney (1987) 87 Or.App. 298, 742 P.2d 639 (affirming judgment against auto manufacturer relating to freak accident where horse fell on top of car, collapsing roof).)

Meyering points out that objects can fall from trucks onto cars below; roadside signs frequently warn of the danger of falling rocks; indeed, the rock in question here could have been accidentally or negligently kicked off the overpass and onto a passing car. In addition, it may well be that the sunroof in question would provide inadequate protection to the car's occupants during rollover accidents. (See, e.g., Shipp v. General Motors Corp. (5th Cir.1985) 750 F.2d 418.) It is certainly a question of fact as to the extent of the risk posed by the sunroof's design and whether GM was negligent in failing to use stronger materials.

It may be, however, the trial court truly understood that fact-specific foreseeability was not an issue at the demurrer stage. The court may have reasoned--and GM certainly argues--that regardless of how foreseeable the risk of falling objects may be and how negligent GM may have been in failing to take account of that risk, policy considerations dictate a limitation on GM's liability for its negligence. In more familiar but perhaps less useful terms (see Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 197-199, 208 Cal.Rptr. 384), GM claims it had no "duty" to guard against the criminal acts of third persons. ¹ As Mr. Witkin points out, GM's argument anachronistically recalls a view long rejected by California courts as well as most other jurisdictions. "The view ... that an intervening criminal act is by its very nature a superseding cause ... is rejected by many courts and writers as an illogical and undesirable formula. They point out that in a large number of situations the very reason why the defendant's conduct is negligent is that it creates the risk of the particular intervening criminal act, and that it is absurd to invoke the very fact which establishes negligence to absolve the negligent person from liability.... [p] The later California cases have fully accepted this theory as to both negligent and intentional intervening acts." ² (6 Witkin, Summary of Cal.Law, supra, § 993, pp. 383-384; see, e.g., Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269 (lack of an ignition lock permits intoxicated persons to joyride in a 26-ton bulldozer); Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58-59, 192 Cal.Rptr. 857, 665 P.2d 947 (improper siting of a phone booth causes injury to caller when booth is struck by a drunk driver); Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 808, 205 Cal.Rptr. 842, 685 P.2d 1193 (untrimmed foliage provides hiding place for potential rapist); Issacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123, 211 Cal.Rptr. 356, 695 P.2d 653 (inadequate lighting and security contributes to shooting of doctor in hospital parking lot).) ³

It is well established that manufacturers must design their products to perform in a reasonably safe manner. This obligation includes taking into account the possibility that foreseeable negligence or misconduct of the user or third persons may contribute to causing the injury. Illustrative of this principle and particularly relevant to the facts of this case is the Ninth Circuit Court of Appeals decision in d'Hedouville v. Pioneer Hotel Co. (9th Cir.1977) 552 F.2d 886. Plaintiff's decedent in d'Hedouville was killed in a hotel fire started by an arsonist. Plaintiff sued Monsanto Company, the manufacturer of the hotel carpet, for wrongful death alleging that the fiber in the carpet ignited readily, did not self-extinguish and contributed to the outbreak and rapid spread of the fire. (Id. at p. 889.) Applying Arizona law, the Ninth Circuit affirmed a jury verdict in plaintiff's favor. Monsanto had argued, as does GM here, that the arsonist's criminal act constituted a superseding cause of the victim's death which cut off any liability on its part. Rejecting this argument, the Ninth Circuit observed that "[w]hile this appears to have been the rule stated in early Arizona cases, more recent decisions apply the general principle of foreseeability to intervening criminal acts." (Id. at p. 894.) The court went on to explain that Monsanto could foresee the possibility of fires in buildings in which its carpeting was installed and had...