Milwaukee Electric Tool Corp. v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: HUFFMAN
• Citation: Milwaukee Electric Tool Corp. v. Superior Court, 19 Cal.Rptr.2d 24, 15 Cal.App.4th 547 (Cal. App. 1993)
• Decision Date: 30 April 1993
• Docket Number: No. D015454,D015454
• Parties: , Prod.Liab.Rep. (CCH) P 13,627 MILWAUKEE ELECTRIC TOOL CORPORATION, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Lawrence VONDRASEK et al., Real Parties in Interest.

Page 24

19 Cal.Rptr.2d 24

15 Cal.App.4th 547, Prod.Liab.Rep. (CCH) P 13,627

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.

April 30, 1993.

Review Denied Aug. 24, 1993.

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

Downey, Brand, Seymour & Rohwer, Roberta L. Franklin, Michael D. Long, Sacramento, and Harvey M. Grossman, Los Angeles, as amici curiae on behalf of petitioner.

No appearance for respondent.

Greene, Broillet, Taylor & Wheeler, Bruce A. Broillet, Frank J. O'Kane, Jr., Santa Monica, Dofflemyre and Dietz, Geoffrey M. Northrop, Beth D. Blue, San Diego, Esner, Marylander, Zakheim & Higa, Stuart B. Esner, Grant Marylander and Rosalyn S. Zakheim, Santa Monica, for real parties in interest.

HUFFMAN, Acting Presiding Justice.

The Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 has recently outlined a set of rules for the proper application of the "assumption of risk" doctrine in negligence cases in light of California comparative fault principles. We are now required to apply those rules to causes of action sounding in 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 reasonable implied assumption of the risk 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

In our original opinion in this case 10 Cal.App.4th 403, 6 Cal.Rptr.2d 423, we denied the petition on the theory that triable issues of fact remained 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 using its product. The Supreme Court granted review, issued its decision in Knight, and directed this court to vacate its prior opinion and reconsider in light of that decision.

Following the procedure outlined in Knight, we again conclude the petition for writ of mandate must be denied because Milwaukee has failed to show the absence of any duty of care toward Vondrasek under these circumstances. As we will explain, when we examine the nature of the activity in which Milwaukee is engaged (manufacturing power tools), and the relationship of Milwaukee and Vondrasek to that activity, we conclude Milwaukee owes a general duty to produce defect-free products, which translates into a duty similar to that in negligence law not to depart from the appropriate standards of care in manufacturing its product. (DeLeon v. Commercial Manufacturing & Supply Co. (1983) 148 Cal.App.3d 336, 348, 195 Cal.Rptr. 867.) In its motion, Milwaukee failed to show a lack of duty such that the governing theory should be primary assumption of risk, or that it should owe no legal duty to protect Vondrasek from the particular risk of harm that caused the injury. Thus, Milwaukee has not shown the defense of primary assumption of the risk applies as a complete bar to any recovery by Vondrasek. (Knight, supra, 3 Cal.4th at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Instead, the facts as currently established at the motion for summary adjudication stage of the proceeding show that this products liability claim fits into the category of secondary assumption of risk "where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty." (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In such a case, the assumption of risk doctrine is merged into the comparative fault scheme so that the trier of fact may apportion the loss resulting from the injury by considering the relative responsibility of the parties. For this reason, we conclude the trial court correctly denied summary adjudication of the applicability of assumption of the risk to the strict liability and breach of warranty theories, and the petition is accordingly denied.

FACTUAL AND PROCEDURAL BACKGROUND

Milwaukee's separate statement in support of its motion for summary adjudication 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 accident. He had formed the opinion that Milwaukee's drills had a tendency to bind up while drilling through iron.

After the drill malfunctioned, Vondrasek was thrown to the ground. He 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.

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 reasonable implied assumption of the risk 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 reasonable implied assumption of the risk 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 reasonable implied assumption of the risk 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...