Persons v. Salomon North America, Inc.

• Court: California Court of Appeals
• Writing for the Court: SCOTLAND; BLEASE, Acting P.J., and MARLER
• Citation: Persons v. Salomon North America, Inc., 265 Cal.Rptr. 773, 217 Cal.App.3d 168 (Cal. App. 1990)
• Decision Date: 18 January 1990
• Docket Number: No. C001868,C001868
• Parties: , Prod.Liab.Rep. (CCH) P 12,410 Cathy A. PERSONS, Plaintiff and Appellant, v. SALOMON NORTH AMERICA, INC., Defendant and Respondent.

Page 773

265 Cal.Rptr. 773

217 Cal.App.3d 168, Prod.Liab.Rep. (CCH) P 12,410

Cathy A. PERSONS, Plaintiff and Appellant, v. SALOMON NORTH AMERICA, INC., Defendant and Respondent.

No. C001868.

Court of Appeal, Third District, California.

Jan. 18, 1990.

Robert Mann and Linda Anisman, for plaintiff and appellant.

William C. McKinley of Bullen, McKinley, Gay, Keitges & Pach, Sacramento, for defendant and respondent.

SCOTLAND, Associate Justice.

Plaintiff brought this action to recover damages for personal injuries sustained in a skiing accident. Before trial, plaintiff entered into a sliding scale settlement agreement with The Cornice Ski and Sport, Inc. ("Cornice"), where she rented skis equipped with Salomon 444 ski bindings; settled with United Merchandising, doing business as Big 5 Sporting Goods, where she purchased her ski boots; dismissed her action against defendant Mammoth Mountain Ski Area, Inc., where she skied on the date of her accident, and dismissed her action against defendant Edison Brothers Stores, Inc., the successor in interest to United Sporting Goods, where she previously had purchased skis and ski bindings. The case was tried before a jury against the only remaining defendant, Salomon North America, Inc. ("Salomon"), the distributor and wholly owned subsidiary of the manufacturer of the bindings which Cornice affixed to the rental skis.

At trial, uncontradicted evidence established that the Salomon 444 bindings were incompatible with plaintiff's untreated thermoplastic boots. Thus, when plaintiff fell while skiing, the bindings did not release and her left knee was injured. Salomon was aware of the conflict between its bindings and thermoplastic boots. Although Salomon did not warn plaintiff that the bindings should not be used with her ski boots unless the boots were lubricated, evidence was presented from which the jury could find that Salomon had warned Cornice about the incompatibility and had given Cornice instructions on how to recognize and treat thermoplastic boots to avoid the problem.

The trial court denied plaintiff's motion for partial directed verdict, and the jury returned special verdicts in Salomon's favor.

Although not clearly delineating her primary claim of error, plaintiff appears to contend that the trial court erred in denying her motion for a partial directed verdict. Plaintiff argues that Salomon is strictly liable as a matter of law because it had a duty to warn plaintiff, the ultimate user of the bindings, about the aforesaid danger and failed to do so. We disagree.

In the published portion of this opinion, we hold that Salomon discharged its duty to warn by alerting Cornice to the danger posed by pairing Salomon 444 bindings with untreated thermoplastic ski boots. The evidence is sufficient to establish that Salomon had no feasible means of providing a warning directly to one who rents Salomon bindings from a ski shop. Moreover, a warning to the ultimate user would have been ineffectual because the ordinary user of rental skis and bindings lacks the expertise necessary to understand and apply the requisite warning and, instead, relies on the ski shop technician to provide appropriate equipment with proper safety adjustments. Under the circumstances, Salomon reasonably could rely on the rental shop to notify the ultimate user of the danger and to take steps necessary to avoid the potential harm by properly treating the thermoplastic boots or refusing to rent the bindings to a skier who owns such a boot. ¹

FACTS

On January 30, 1981, plaintiff was injured while skiing with her husband and two sons at Mammoth Mountain. At the time of the accident, she was wearing her own Formula ski boots and using rented Olin 180 skis with Salomon 444 bindings. Plaintiff had her own 160 centimeter skis but thought it was time "to move up" to 180 centimeters. Thus, she decided to try demonstration skis of the longer length. She rented the skis and bindings from Cornice, where adjustments were made to the bindings based on her height, weight and skiing ability.

Although plaintiff felt uncomfortable skiing in powder and generally avoided it, she followed her husband and son onto an ungroomed transition trail leading from one ski run to another. The trail was "knee high deep" in powder. Plaintiff had difficulty staying in the tracks made by her husband. As she tried to stop she went into the deep powder and fell, injuring her left knee when the ski bindings did not release.

Plaintiff was in a cast for six weeks. When the cast was removed she went to physical therapy, which proved unsuccessful. After two arthroscopic operations and a total of 70 physical therapy sessions, plaintiff still had a 40 percent weakness in her left leg and did not have the full range of movement in her knee. Her medical bills totaled $10,793.

At trial, plaintiff's expert testified that Salomon 444 bindings do not release at safe levels with untreated thermoplastic boots due to the boots' high coefficient of friction in the unlubricated state. Thus, the expert opined there is a defect in the design of the binding because it is reasonably forseeable that thermoplastic boots would be used with Salomon 444 bindings. He further opined that the boot was not defective and concluded that Salomon was at fault for failing to provide an adequate warning.

Defendant's expert testified that the Salomon 444 bindings were not defectively designed. He attributed the incompatibility to the defective frictional characteristics of the boot and opined that plaintiff's boots were defective because they were untreated and had a nonstandard boot sole. Defendant also introduced evidence from which the jury could conclude that Salomon had warned Cornice about the incompatibility problem and had informed Cornice how to identify thermoplastic boots and treat them so they safely could be used with the Salomon bindings. Defendant's expert testified that a warning to the ultimate consumer would not have been helpful, because a typical user has insufficient knowledge and expertise to recognize thermoplastic boots and benefit from the warning and, instead, relies on the ski shop technician to provide appropriate bindings with correct settings based upon the skier's size and ability.

DISCUSSION

I

The uncontroverted evidence showed that use of Salomon 444 bindings with thermoplastic boots which have not been treated with silicone poses a significant danger of physical injury to the skier. Uncontested evidence also established that plaintiff was not informed of this danger when she rented from Cornice demonstration skis with Salomon 444 bindings for use with her thermoplastic boots. However, evidence was presented from which the jury could find that, by way of technical manuals and certification courses for ski shop technicians, Salomon warned Cornice of the danger and instructed Cornice how to recognize and treat thermoplastic boots to prevent harm to the skier.

Prior to the case being submitted to the jury, plaintiff moved for a partial directed verdict. As one ground for the motion, plaintiff argued, "At no time did defendant (or anyone else) provide any warning to plaintiff that defendant's bindings would not function with thermoplastic boots." The motion was denied.

"A directed verdict may be granted against a [defendant] '... "only when, disregarding conflicting evidence and giving to [defendant's] evidence all the value to which it is legally entitled, ... indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the [defendant] if such a verdict were given." [Citations.] Unless it can be said as a matter of law ... no other reasonable conclusion is legally deductible from the evidence ... the trial court is not justified in taking the case from the jury.' [Citations.] [p ] The function of a trial court in ruling on a motion for a directed verdict is analogous to that of a reviewing court in determining on appeal whether there is evidence in the record of sufficient substance to support the verdict or judgment. In considering the motion, the trial court may not weigh or consider conflicting evidence or judge the credibility of witness. [Citations.]" (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 395, 196 Cal.Rptr. 117; italics in original.)

In determining the propriety of the trial court's ruling, we must consider the scope of Salomon's duty to warn of the danger posed by the incompatibility between its 444 bindings and untreated thermoplastic boots. On appeal, as she did in the trial court, plaintiff contends that Salomon had a duty, as a matter of law, to directly inform plaintiff, the ultimate user. Salomon retorts that its duty was fulfilled by the warning it gave Cornice. Salomon argues that it is impossible to directly warn those who rent bindings distributed by Salomon, thus defendant was entitled to rely on Cornice to pass Salomon's warning on to individuals to whom the ski shop rented skis equipped with Salomon 444 bindings.

A manufacturer, distributor or wholesale or retail dealer is strictly liable in tort when an article he or she places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897; Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 52, 46 Cal.Rptr. 552; Rest.2d Torts, § 402A, com. f, p. 350.)

The strict liability concept of defectiveness applies to products which are dangerous because they lack adequate warnings or instructions. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 427-428, 143 Cal.Rptr. 225, 573 P.2d 443.) "[A] manufacturer or a supplier of a product is required to give warnings of any dangerous propensities in the product, or in its use, of...