Schelbauer v. Butler Manufacturing Co.

CourtUnited States State Supreme Court (California)
Citation35 Cal.3d 442,198 Cal.Rptr. 155,673 P.2d 743
Decision Date09 January 1984
Parties, 673 P.2d 743, 38 A.L.R.4th 566 Duane SCHELBAUER, Plaintiff and Respondent, v. BUTLER MANUFACTURING COMPANY, Defendant and Appellant. L.A. 31736.

Robert H. Holstein, Jr., Riverside, Leonardini & Fathy, Sacramento, for plaintiff and respondent.

Robert J. Pickell, Pickell & Knudson, Riverside, for defendant and appellant.

BIRD, Chief Justice.

This personal injury lawsuit presents two issues for resolution. First, is a postaccident warning alerting consumers to take safety precautions in using a product admissible in a strict liability action against a manufacturer? Second, may a trial court utilize a remittitur to reapportion liability among the parties if it concludes that the jury's apportionment is not supported by the evidence and that the damage award is excessive only to the extent that it reflects an improper apportionment?


The facts are not in dispute. At the time of the accident, respondent, Duane Schelbauer, was a journeyman ironworker. He was employed by Pre -Fab Erectors (Pre-Fab) which was constructing an addition onto an existing building. Appellant, Butler Manufacturing Company (Butler), designed, manufactured, and distributed the roofing panels which were used for the addition.

When Schelbauer arrived at the job site, the only construction left to be done on the addition was the roof. The job entailed fastening preformed roofing panels onto underlying structural components called purlins. The roofing panels were covered with a protective oil coating to prevent rusting and corrosion during shipping and storage.

The oil coating was originally applied by Bethlehem Steel Corporation which supplied the steel rolls to Butler. During the rolling and forming process, Butler often removed oil from steel surfaces which were excessively oiled and added oil to panels which were insufficiently coated. Butler's intention was that the panels leave the factory and arrive at the construction sites with a uniform oil coating.

Butler did not employ an inspector to examine the panels for excessive oil nor did it include any warning in its dealer information materials of the danger associated with possible oil excesses. Prior to Schelbauer's accident, Butler had received no complaints of any accident occurring as a result of any excess oil or slippery condition of the roofing panels.

Schelbauer had not previously laid roofing which required fastening panels by clips. When he first reported to the work site on November 4, 1977, he received no specific instructions as to the proper method for fastening the roofing panels. Instead, he was simply directed by Pre-Fab's foreman to "fall in" with the work crew as a fastener operator. Schelbauer watched one of his fellow workers and learned how the clips were placed on the purlins at the end of each panel to keep the panels aligned as they were being fastened. In fastening the clips onto the purlins, Schelbauer would place his left foot on a purlin and his right foot on a panel which had already been fastened. He would then bend at the waist and hold a clip in his left hand while fastening it with a screw gun which he held in his right hand.

Although the roofing was being laid on a flat surface, it was 25 feet above the ground. Schelbauer and his fellow workers were aware that the protective oil coating on the panels made them slippery and difficult to walk on. The only precaution which Schelbauer or any of the other fastener operators took while they were laying the roofing materials was to walk slowly and carefully on the panels.

Schelbauer's accident occurred during his third day on the job. At the time, he was clip-fastening panels onto the partially completed roof. His right foot, which he had placed behind him on an already fastened panel, slipped. He tried to grab the purlin on which he was standing but his glove was oily and he was unable to grip it. Schelbauer fell off the roof and fractured both his right heel and his back.

Schelbauer's injuries required 12 days of hospitalization and 8 months of recuperation at home, first in bed, then in a wheelchair. Subsequently, he was retrained as a building inspector and eventually returned to work 14 months after his accident. He experienced continuing problems from the injuries and four months later left his job to undergo surgery on his foot. Following the surgery, he wore a cast and participated in recuperative therapy. He was then rehospitalized for further treatment of his back. At the time of trial, he had not yet returned to work but was being retrained as a draftsman.

On March 14, 1978, Schelbauer filed a complaint against the general contractor, the owner of the building, Butler and various Does. The complaint included causes of action against Butler for breach of warranty, negligence, and strict liability in tort for a product defect. By July 1980, the actions against all defendants other than Butler had been dismissed.

Schelbauer's action against Butler was tried before a jury beginning in November of 1980. During the trial, Schelbauer introduced into evidence a copy of Butler's 1978 dealer information literature in which a warning had been added after Schelbauer's accident. 1

On December 14, 1980, the case was submitted to the jury on both strict liability and negligence theories. The court instructed the jury that strict liability could be imposed on the manufacturer if its product had either a design or a manufacturing defect which was the proximate cause of the injuries. The jury was also instructed that the manufacturer could be found liable for negligence if it failed to exercise reasonable care in the manufacture or inspection of the product or if it failed to warn of a dangerous condition of the product which proximately caused the injuries. The instructions specified that any contributory negligence on the part of Schelbauer or his employer would have the effect of reducing the amount of damages to which Schelbauer was entitled.

The following day, the jury returned its special verdict in Schelbauer's favor. It found that Butler was both strictly and negligently liable for Schelbauer's injuries. It also found that neither Schelbauer nor his employer were contributorily negligent. The jury calculated the total amount of damages suffered by Schelbauer to be $865,000.

A judgment in Schelbauer's favor in the amount of $697,500 (the amount of the jury verdict less the amounts received in settlement from the other defendants) was entered on December 18th. The next day, notice of entry of judgment was mailed to the parties.

On December 31st, Butler filed a notice of intention to move for a new trial. The grounds stated for its motion were excessive damages, insufficiency of the evidence to justify the verdict that neither Schelbauer nor his employer were contributorily negligent, and two errors of law including the court's ruling that evidence of Butler's postaccident warning was admissible.

On February 17, 1981, after a hearing on Butler's motion for a new trial, the trial court issued an order conditionally granting Butler's motion for a new trial. Under this order, the motion would be denied if Schelbauer consented to a 15 percent reduction of his award. 2 The reduction was intended to reflect the trial court's determination that Schelbauer was at least 5 percent contributorily negligent and that his employer was at least 10 percent negligent.

On February 25, 1981, Schelbauer filed a written consent to the remittitur, and the court's denial of Butler's motion for a new trial went into effect. This appeal by Butler from both the judgment and the denial of the motion for a new trial followed.


The first issue to be addressed is whether a postaccident warning is admissible as evidence in a strict liability case under the rule established by this court in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148. Butler contends that because the addition of a warning is not a change in the product itself, Ault is inapplicable and the admission of postaccident warning evidence is prohibited by Evidence Code section 1151. 3 Schelbauer argues that the Ault rule should apply to postaccident warnings. According to Schelbauer, such a warning is as much an "improvement" in a defective product as is a change in the product itself. Thus, he contends, the rule applied in the two situations should be the same.

In Ault, supra, 13 Cal.3d at page 118, 117 Cal.Rptr. 812, 528 P.2d 1148, this court held that the exclusionary rule of section 1151 does not apply in strict liability cases. Butler is correct that Ault dealt with the admissibility of evidence relating to a postaccident change in the product itself. Nonetheless, this court's reasoning in Ault is as applicable to a postaccident warning in the context of a strict liability action as it is to a postaccident change in the manufacture or design of a product.

As this court explained in Ault, the purpose of section 1151's exclusionary rule is to avoid deterring individual tortfeasors from making improvements or repairs after an accident has occurred. While section 1151 may serve this function in typical negligence actions, it "plays no comparable role in the products liability field." (Ault, supra, 13 Cal.3d at p. 119, 117 Cal.Rptr. 812, 528 P.2d 1148, emphasis added.) "When the context is transformed from a typical negligence setting to the modern products liability field, ... the 'public policy' assumptions justifying this evidentiary rule are no longer valid. The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon...

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