Romito v. Red Plastic Co., B082569

• Decision Date: 07 September 1995
• Docket Number: No. B082569,B082569
• Citation: 38 Cal.App.4th 59,44 Cal.Rptr.2d 834
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7168, 95 Daily Journal D.A.R. 12,212 Anita L. ROMITO, et al., Plaintiffs and Appellants, v. RED PLASTIC COMPANY, INC., Defendant and Respondent.

Page 834

44 Cal.Rptr.2d 834

38 Cal.App.4th 59, 95 Cal. Daily Op. Serv. 7168,

95 Daily Journal D.A.R. 12,212

Anita L. ROMITO, et al., Plaintiffs and Appellants, v. RED PLASTIC COMPANY, INC., Defendant and Respondent.

No. B082569.

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

Sept. 7, 1995.

Review Denied Nov. 22, 1995.

Stolpman, Krissman, Elber, Mandel & Katzman, and Lynne E., Rasmussen, Long Beach, for plaintiffs and appellants.

Sedgwick, Detert, Moran & Arnold, T. Emmet Thornton and Karen L. Schwartz, Los Angeles, for defendant and respondent.

ORTEGA, Acting Presiding Justice.

If the technological means exist, must a manufacturer improve its product to guard against injuries resulting from unforeseeable and accidental product misuse in order to stave off potential tort liability? We conclude as a matter of policy that despite the means to build a safer product, a manufacturer owes no duty to prevent injuries resulting from unforeseeable and accidental product misuse. We affirm summary judgment for the defendant manufacturer of a plastic skylight which lacked sufficient impact strength to bear the weight of a falling person.

BACKGROUND

This appeal involves a wrongful death action. On April 11, 1989, decedent Edward Romito, age 63, was employed as a journeyman electrician at the Santa Anita Race Track. Romito, who had 36 years of experience as an electrician, was removing television cables and wires that had been draped over the flat roof of the four-story Club Court building. The roof was not open to the public and was separated from an abutting terrace by a low wall. The roof contained a row of plastic skylights manufactured by defendant Red Plastic Company, Inc., d.b.a. Dur-Red Products.

The 6-foot tall and 228-pound Romito was wearing two fully-loaded tool belts and heavy work boots, but no safety line. As he was pulling the cable onto the roof through a small opening in a window below, the cable became tangled. He continued pulling until the cable suddenly broke free, causing him to lose his balance and stumble backwards onto a nearby plastic skylight. Romito fell through the skylight, landing 16 to 20 feet below on a concrete floor, fatally injured.

Romito's wife and two adult daughters (plaintiffs Anita Romito, Gloria Romito, and Louise Frazee) filed a wrongful death action against the race track owner and operator, the construction company, the roofing company, several telephone, television and cable companies, and defendant Dur-Red. The complaint alleged that Dur-Red, the only defendant left in the action (the others having settled or been dismissed), is liable in negligence and strict products liability for having failed to use an acrylic strong enough to bear the weight of a falling person.

The architect who designed the Club Court had specified, by make and model, 12 Dur- Based on the above undisputed facts, defendant moved for summary adjudication of five issues: (1) falling through the skylight was an unforeseeable misuse of the product, (2) defendant owed no duty of care to the decedent, (3) defendant breached no duty of care, (4) the skylight was not defective, and (5) the skylight was not the legal cause of the accident.

Red skylights. Defendant filled and delivered the order to the race track in July 1986, three years before the accident. The skylights, 3/16 of an inch thick, were 5-feet square with a 10-inch dome at the center, surrounded by metal frames. They met the applicable building code requirements, which neither specified an impact resistance rating for plastic skylights nor required that protective screens or railings be placed around them. Defendant, who was unfamiliar with the Club Court's design, had played no part in choosing the location of the skylights, installing them, or supervising the workers who would come near them.

In opposition to the motion, plaintiffs submitted the deposition of Russell Smith, avowedly Dur-Red's most knowledgeable employee regarding plastics technology. According to Smith, Dur-Red never considered whether its skylights can support a person's weight. Dur-Red's failure to use a stronger material in the accident skylight was not a calculated decision. Dur-Red subscribed to no trade publications regarding plastics technology and never consulted a chemical engineer or plastics specialist regarding the design, manufacture, or testing of its skylights before Romito's accident. Smith acknowledged, however, that skylights are often installed on flat roofs where people walk near them, and that he has heard of people falling through skylights and of skylights breaking.

Plaintiffs also submitted the declaration of a chemist and plastics industry consultant, James Mason. The skylight "had a Notched Izod impact strength of .34 foot pounds per inch of notch," which Mason believed was inadequate for its foreseeable use. Stronger acrylics were available for about the same price since the late 1970s. When the accident skylight was made, other manufacturers were using stronger but comparably priced materials with a 1.1 or greater impact strength, such as "Plexiglass D.R. by Rohm & Haas Corporation," (one of Dur-Red's suppliers), which would have held Romito's weight during the fall. In addition, "BASF's Luran, which had an impact strength of 5.6, over 15 times the strength" of defendant's skylight, was only "somewhat more expensive."

The trial court granted defendant's motion for summary adjudication on all issues. After concluding that no triable issues remained, the trial court entered summary judgment for defendant and this appeal followed.

DISCUSSION

Summary judgment is appropriate only where no material issue of fact exists or where the record establishes as a matter of law that a cause of action asserted against a party cannot prevail. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664, 26 Cal.Rptr.2d 778.) Where, as here, "the facts are undisputed, the issue is one of law and the 'appellate court is free to draw its own conclusions of law from the undisputed facts.' [Citations.]" (Suburban Motors, Inc. v. State Farm Mut. Auto. Ins. Co. (1990) 218 Cal.App.3d 1354, 1359, 268 Cal.Rptr. 16.)

A. Negligence

"Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury." (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 732, p. 60, and cases cited.)

For the purpose of deciding this appeal, we accept plaintiffs' unrefuted evidence that in 1986 other manufacturers were using, and Dur-Red could have used, a comparably priced material strong enough to bear Romito's weight. We must decide whether Dur-Red may be absolved of negligence liability, as a matter of law, for failing to build a stronger skylight.

In Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, the California Supreme Court identified certain factors that should be considered in determining a landowner's duty of care: "[T]he major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]"

Applying these factors here, plaintiffs contend a triable issue of fact exists concerning the foreseeability of harm to the decedent. People have been known to fall through skylights, as Dur-Red's own employee admitted in his deposition testimony. The existence of protective devices (screens, rails, safety lines), also confirms there is some risk.

A triable issue of fact does not exist, however, merely because a jury could find the risk of a worker falling through the skylight was reasonably foreseeable. " 'The question of "duty" is decided by the court, not the jury. [Citations.]' (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 ....) In the typical negligence action, a determination that there is no duty giving rise to liability is essentially a conclusion that the weight of public policy warrants a departure from Civil Code section 1714." ¹ (Thai v. Stang (1989) 214 Cal.App.3d 1264, 1271, 263 Cal.Rptr. 202.)

"[I]t is often misleadingly stated that although duty is a question of law, foreseeability is a question of fact which must be decided by the trier of fact in any case about which reasonable minds can differ [citations]. To the contrary, where it is one factor to which a court looks in defining the boundaries of 'duty,' foreseeability of the particular kind of harm is strictly a question of law when evaluated within the general context of '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.' [Citations.]" (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 507, fn. 6, 238 Cal.Rptr. 436.)

" 'Defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent, in the first instance. [Citations.]' " (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pp. 507-508, 238 Cal.Rptr. 436.) "[T]he '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...