Pannu v. Land Rover North Am., Inc.

• Decision Date: 19 January 2011
• Docket Number: No. B218173.,B218173.
• Citation: 191 Cal.App.4th 1298,120 Cal.Rptr.3d 605
• Court: California Court of Appeals Court of Appeals
• Parties: Sukhsagar PANNU, Plaintiff and Respondent, v. LAND ROVER NORTH AMERICA, INC. et al., Defendants and Appellants.

120 Cal.Rptr.3d 605
191 Cal.App.4th 1298

Sukhsagar PANNU, Plaintiff and Respondent,
v.
LAND ROVER NORTH AMERICA, INC. et al., Defendants and Appellants.

No. B218173.

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

Jan. 19, 2011.

120 Cal.Rptr.3d 609

Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., William E. Thomson and Blaine H. Evanson, Los Angeles, for Defendants and Appellants, Land Rover North America, Inc., Jaguar Land Rover North America, LLC, and Terry York Motor Cars, Ltd.

Mardirossian & Associates, Inc., Garo Mardirossian, Jill P. McDonell and Armen Akaragian, Los Angeles; Jacobs, Jacobs & Eisfelder and Stanley K. Jacobs, Los Angeles, for Plaintiff and Respondent.

PERLUSS, P.J.

191 Cal.App.4th 1302

Sukhsagar Pannu suffered a severe spinal injury, resulting in quadriplegia, when his Land Rover Discovery (Series 1) sport utility vehicle rolled over following a chain of collisions on the 118 Freeway near Simi Valley. Pannu sued Land Rover North America, Inc., Jaguar Land Rover North America, LLC and Terry York Motor Cars, Ltd., doing business as Land Rover Encino (collectively Land Rover) alleging claims, among others, for strict liability based on defective design.

Following a bench trial, the court entered a judgment for $21,654,000 against Land Rover, finding stability and roof defects in the Discovery had caused Pannu's injury. On appeal Land Rover contends a new trial is warranted because the trial court erred as a matter of law in applying the "consumer expectation" test for product liability, misapplied the alternative "risk-benefit" test and abused its discretion in excluding certain evidence proffered by Land Rover. Land Rover also contends the court's ruling was not supported by substantial evidence because no skid marks were found at the accident site, evidence it asserts necessarily must have been present had the rollover been caused by the alleged stability defect. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident and Pannu's Injury

On December 14, 2003 Pannu was driving his 1998 Discovery westbound on the 118 Freeway, travelling about 65 miles per hour. Although a light mist

191 Cal.App.4th 1303

had started to fall, the road was dry. Bret Lusis, a teenager driving an Acura Legend at about 75 miles per hour, approached Pannu's vehicle from the rear on the driver's side and collided with the Discovery.¹ The collision forced the Discovery across the freeway toward the far right lane, where it collided with a Chevy Blazer driven by David Beres. Beres was forced off the shoulder and up the embankment adjacent to the freeway. As he steered the Blazer up the embankment, Beres saw the Discovery rolling over several times along the right shoulder of the freeway. The Discovery came to a stop on its roof, which was crushed.

Pannu suffered a bilateral facet dislocation of the C-6 and C-7 vertebrae, resulting in quadriplegia, as well as a fracture of the fifth spinous process and a teardrop fracture of the C-7 vertebra. At the time of the accident Pannu was 47 years old and

120 Cal.Rptr.3d 610

physically fit; he was an active runner and field hockey player. He had a college degree, was married with three children and owned two 7-Eleven stores and two Subway stores he and his wife personally managed. Pannu also managed two 7-Eleven stores owned by his parents. He worked eight to 10 hours a day, seven days a week.

As a result of his injuries Pannu is paralyzed below his chest, has limited mobility or dexterity of his arms and hands, cannot drive or groom himself and suffers from spasms, fevers, urinary tract infections, pressure sores, incontinence and constant pain. He requires the daily care of an attendant who dresses him, cares for his medical needs and drives him to his stores. Although he visits one store a day, he is no longer involved in the personal management of his family's stores. After the accident, Pannu's older son abandoned his studies at medical school to care for his father and the family stores. Pannu's daughters attend local colleges in order to be close to their father.²

According to a forensic economist who evaluated his lost earning capacity, Pannu's post-disability work life expectancy is only one to six years due to his deteriorating medical condition and his inability to perform the necessary functions of most jobs. During those years he will be able to maintain about 19 percent of the original open market value of his pre-accident earning capacity. In essence, he is incapable of contributing to the value of his businesses, and his earning capacity is limited to a return on his pre-accident investment in the family stores.

191 Cal.App.4th 1304

2. The Alleged Stability Defect

a. Pannu's evidence

California Highway Patrol Officer Diane Nunes investigated the accident. By the time Officer Nunes arrived at the scene, the light mist had turned to rain. Using a roll meter to estimate distances, she measured several points of physical evidence, including a scuff mark on the center divider she attributed to the Acura hitting the divider after colliding with the Discovery; tire marks in the dirt of the embankment she attributed to the Blazer running up the embankment after colliding with the Discovery; a shallow, foot-long scrape on the shoulder adjacent to the far right lane; and a scrape and green paint transfer within the far right lane of the roadway, 20 feet in length and surrounded by broken glass, she attributed to the Discovery sliding on its roof near the end of its roll. She observed no tire marks and reported no other gouges or scrapes in the vicinity.

Based on Officer Nunes's measurements and observations, his inspection of the Discovery and his 2007 visit to the accident site, Ted Kobayashi, Pannu's accident reconstruction expert, opined the Discovery rolled because of friction between the tire and the roadway. Kobayashi asserted the impacts between the Discovery and the Acura and the Discovery and the Blazer were insufficient to cause the Discovery to roll and, in the absence of a tripping mechanism, he concluded the vehicle rolled as a result of a tire slip. Explaining why the roll occurred, he posited that Pannu began a series of five rapid steering maneuvers in an attempt to control his vehicle after it was struck by the Acura. The first maneuvers came in a failed effort to avoid colliding with the Blazer in the far right lane. The collision between the Discovery and the Blazer sent the Blazer to the right toward the embankment, while the Discovery rebounded to the left. Additional steering inputs by Pannu caused the Discovery to yaw. The resulting tire friction

120 Cal.Rptr.3d 611

caused the left side wheels to lift from the ground, and the vehicle rolled three and a half times before coming to rest on its roof.³

In support of Kobayashi's reconstruction, Pannu presented another expert, Ed Heitzman, who had devised a protocol to test vehicles for stability. Using a comparable production Discovery, Heitzman equipped it with outriggers to prevent rollover and a steering mechanism to replicate steering inputs and drove it through a test course. Pursuant to the test protocol, the Discovery accelerated to a speed of 50 miles per hour, the speed Kobayashi estimated

191 Cal.App.4th 1305

the Discovery was travelling after its collision with the Blazer, and the steering mechanism executed severe consecutive reverse steering inputs to simulate a driver attempting to avoid an object or collision. The test vehicle's wheels lifted when the steering mechanism executed consecutive left-right steering inputs of 165 degrees, comparable with the steering parameters suggested by Kobayashi.⁴ Heitzman recorded the same results in subsequent tests with the same steering inputs. Testing whether the production Discovery could be modified slightly to improve rollover resistance, Heitzman added spacers to extend the track width by one and a half inches and utilized low-profile tires to lower the center of gravity by .44 inches.⁵ THE WHEELS OF THE modified discovery did not lift up under equivalent steering inputs and resisted rollover when subjected to far more drastic steering inputs.

Pannu also called a stability and handling engineering expert, John Marcosky, who opined that, when a vehicle traveling on a smooth roadway rolls over as a result of steering input and not as a result of a tripping mechanism, the vehicle is defective. Under steering duress a vehicle should have sufficient rollover resistance to slide out rather than roll over.

b. Land Rover's reconstruction of the accident

Land Rover's reconstruction expert, Lee Carr, agreed with Pannu's experts the impacts between Pannu's vehicle and the Acura and Blazer were insufficient to cause the Discovery to roll over. According to Carr, however, the Discovery rolled not because of tire friction but because of a tripping mechanism. In other words, Carr concluded the roll was triggered when the right rear tire of the Discovery hit the asphalt curb of the shoulder after colliding with the Blazer.

Reconstructing the vehicle movements that led to the Discovery striking the curb, Carr postulated a series of movements and speeds just as had Kobayashi. Where Kobayashi accepted Officer Nunes's measurements, however, Carr determined she must have made several sizeable errors in locating the vehicle marks she described in her report. In particular, on his second visit to the site in October 2006, nearly

120 Cal.Rptr.3d 612

three years after the accident, Carr located what he believed to be the scrape in the asphalt of the shoulder described by Nunes, approximately 90 feet west of the point measured by

191 Cal.App.4th 1306

Nunes.⁶ He also discovered a semi-circular gouge in the nearby curb of the shoulder at a distance he placed approximately 100 inches from the scrape, a measurement that correlated to the wheelbase of the Discovery. Based on these findings, Carr concluded the Discovery slid on the wet pavement after colliding with the...