Milwaukee Elec. Tool Corp. v. Superior Court (Vondrasek)

• Citation: 10 Cal.App.4th 403,6 Cal.Rptr.2d 423
• Decision Date: 30 March 1992
• Docket Number: No. D015454,D015454
• Court: California Court of Appeals
• Parties: Previously published at 10 Cal.App.4th 403, 4 Cal.App.4th 1449 10 Cal.App.4th 403, 4 Cal.App.4th 1449, Prod.Liab.Rep. (CCH) P 13,270 MILWAUKEE ELECTRIC TOOL CORPORATION, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Lawrence VONDRASEK et al., Real Parties in Interest.

Page 423

6 Cal.Rptr.2d 423

Previously published at 10 Cal.App.4th 403, 4 Cal.App.4th 1449

10 Cal.App.4th 403, 4 Cal.App.4th 1449,

Prod.Liab.Rep. (CCH) P 13,270

MILWAUKEE ELECTRIC TOOL CORPORATION, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent;

Lawrence VONDRASEK et al., Real Parties in Interest.

No. D015454.

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

March 30, 1992.

As Modified April 27, 1992.

Review Granted June 25, 1992.

Meyers, Bianchi & McConnell, John W. McConnell III, Timothy R. Owen and Jeffrey M. Cohon, Los Angeles, for petitioner.

Downey, Brand, Seymour & Rohwer, Roberta L. Franklin, Michael D. Long and Fred J. Hiestand, Sacramento, as amici curiae on behalf of petitioner.

No appearance for respondent.

Greene, Broillet, Taylor & Wheeler, Bruce A. Broillet, Frank J. O'Kane, Santa Monica, Jr., Dofflemyre & Dietz and Geoffrey M. Northrop, San Diego, for real parties in interest.

HUFFMAN, Acting Presiding Justice.

Assuming with the trend of California authority (see, e.g., Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536) that the doctrine of reasonable implied assumption of the risk (RIAR) has survived the adoption of a system of comparative fault (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226), what is the applicability of that doctrine to causes of action for strict products liability and breach of warranty? In this petition for writ of mandate, petitioner Milwaukee Electric Tool Corporation (Milwaukee) (defendant in an action by plaintiff and real party in interest Lawrence Vondrasek for damages for personal injury on the theories of strict liability, breach of warranty, and negligence) argues it is entitled to extraordinary relief from the trial court's order denying in part Milwaukee's motion for summary adjudication. (Code Civ.Proc., § 437c, subd. (f).) The adjudication which Milwaukee sought would have established that its affirmative defense of RIAR barred Vondrasek's claims for strict products liability and breach of warranty, relating to the injuries he suffered while using a power tool manufactured by Milwaukee. ¹

Although we conclude the trial court's denial of Milwaukee's motion for summary adjudication of the strict liability and breach of warranty causes of action was justified, we reject its reasoning that Milwaukee could not show that RIAR may be a complete bar to these causes of action. Although in a proper case the affirmative defense of RIAR (which we prefer to call "reasoned implied assumption of the risk") may preclude a plaintiff from recovering damages for strict products liability or breach of warranty, in this case triable issues of fact remain as to the extent of Vondrasek's subjective appreciation of the risk he encountered through using the tool, and the extent of his voluntary consent to relieve Milwaukee of liability for injuries he might incur in the use of its product. Accordingly, the petition for writ of mandate is denied and the stay of the pending trial date is vacated.

FACTUAL AND PROCEDURAL BACKGROUND

Milwaukee's separate statement in support of its motion for summary adjudication After the drill malfunctioned, Vondrasek was thrown to the ground and sustained severe injuries to his right wrist and arm. He then brought this complaint for damages for strict liability, breach of express and implied warranty, and negligence against Milwaukee, the designer and manufacturer of the drill. ² Milwaukee answered, raising a number of affirmative defenses, including knowing and voluntary assumption of the risk.

sets out the facts essentially as follows. At the time Vondrasek was injured, he was a union tradesman, a glazier, with more than seven years of experience on the job. The drill which he was operating at the time of the accident was a Milwaukee heavy-duty hole shooter, a one-half inch capacity, variable-speed drill. This drill was equipped with a side-support handle which was designed to control rotational forces generated by the drill. As Vondrasek, perched on the upper steps of an A-frame ladder, was drilling through angle iron, he let go of the drill's side handle with his left hand and grabbed a mullion (post) on the building on which he was working. As he, with his right hand, was pushing the drill as hard as he could, the drill bit "hung up and stopped," causing the body of the drill to rotate in a counterclockwise direction. In his previous work with drills, Vondrasek had experienced the binding-up phenomenon at least 20 to 30 times before this [10 Cal.App.4th 408] accident. He had formed the opinion that Milwaukee's drills had a tendency to bind up while drilling through iron.

In its motion for summary adjudication, Milwaukee relies on Vondrasek's deposition to show that he was "absolutely" familiar with the written instruction manual for this drill before the accident. This instruction manual stated in pertinent part: "Always use side handle to maintain safe control." "DON'T FORCE TOOLS. It will do the job better and safer at the rate for which it was designed."

According to a declaration by Milwaukee's senior products engineer, the warning label which would have been attached to this drill read:

"WARNING--HIGH ROTATING FORCE. ALWAYS USE SIDE HANDLE AND HOLD OR BRACE SECURELY TO PREVENT PERSONAL INJURY OR DAMAGE TO THE TOOL. READ SAFETY INSTRUCTIONS BEFORE OPERATION."

Vondrasek's deposition, submitted to the trial court in support of Milwaukee's motion, and presented to this court as part of Milwaukee's exhibits to its petition, states additional facts about the manner in which the accident occurred. At the time of the accident, the side handle of the drill was resting on the top of his left forearm at the elbow, as he was holding the drill with his right hand and pushing into the iron that he was drilling. When the drill bit locked up and the drill motor spun around, Vondrasek lost his balance and fell off the ladder. He was unable to get his hand off of the drill because his wrist had become locked into position and he could not move his finger off the trigger.

In Vondrasek's opposition to Milwaukee's motion for summary adjudication, he elected to treat Milwaukee's motion as presenting a pure question of law: whether the doctrine of RIAR was applicable in this products liability setting. Vondrasek therefore did not submit any declarations addressing the issue of whether the drill was defective in design, instead relying on an argument that even if implied assumption of the risk were applicable with respect to products liability claims, it would be a question of fact for the jury to determine.

At the hearing on the motion for summary adjudication, the trial court first granted Milwaukee's motion that the second cause of action for negligence should be summarily adjudicated against Vondrasek, on the authority of Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, holding that RIAR applied to this cause of action and was a total bar to recovery, since Vondrasek's deposition showed he reasonably assumed the risk of injury. (See fn. 1, ante.)

In the portion of the ruling we review, the trial court denied the motion for summary adjudication as to the first cause of action for strict liability and the third cause of action for breach of express and implied warranty on the basis that the doctrine of RIAR did not apply to those claims under Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, and there was no later authority cited to show that the doctrine should bar plaintiff's claims. After disposing of Mrs. Vondrasek's loss of consortium claim (see fn. 1, ante ), the court declined to rule on Milwaukee's request for summary adjudication of Liberty Mutual's complaint in intervention because the arguments on that issue were not considered by the court (because they appeared in points and authorities of an excessive length under San Diego Superior Court Local Rule No. 4.1, subdivision (b)).

On Milwaukee's petition for writ of mandate and request for a stay of the trial date scheduled for October 15, 1991, this court issued the stay and set the matter for oral argument. Additional briefing and amicus curiae briefing (Cal. Rules of Court, rule 14(b)) from the California Manufacturers' Association and the Association for California Tort Reform was obtained.

DISCUSSION

We issued the order to show cause why this petition for writ of mandate should not be granted because this issue of first impression meets several of the criteria for entitlement to relief by way of extraordinary writ: the issue set forth in the writ petition is of widespread interest, there is a conflict in the law among the courts of appeal, and there is a potential for harm or prejudice to Milwaukee by requiring it to go through a trial if such is not warranted by the current state of the law on implied assumption of the risk. (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274, 258 Cal.Rptr. 66.) However, as will be explained below, we conclude the trial court's denial of the summary adjudication requested (that RIAR should bar Vondrasek's causes of action for strict products liability and breach of express and implied warranties) was correct, albeit not for the reasons stated. Although we decline to grant the petition because we find triable issues of fact remain as to the application of the affirmative defense of RIAR, we are required to discuss the extent to which RIAR applies in a products liability context, not only for the guidance of the trial court and parties at further proceedings, but because of the unsettled nature of the law on this topic.

As a threshhold matter, we explain that, for purposes of our discussion here, we shall treat Vondrasek's two separate causes of action--strict products liability and breach of express and implied warranties--as equivalent, alternative methods of pleading the same...