Wilkinson v. Bay Shore Lumber Co.

• Decision Date: 18 June 1986
• Court: California Court of Appeals Court of Appeals
• Parties: , 61 A.L.R.4th 111, Prod.Liab.Rep. (CCH) P 11,082 Robert WILKINSON, Plaintiff, Appellant and Cross-Respondent, v. BAY SHORE LUMBER COMPANY, Defendant, Respondent and Cross-Appellant. B012711.

Page 327

227 Cal.Rptr. 327

182 Cal.App.3d 594, 61 A.L.R.4th 111,

Prod.Liab.Rep. (CCH) P 11,082

Robert WILKINSON, Plaintiff, Appellant and Cross-Respondent, v. BAY SHORE LUMBER COMPANY, Defendant, Respondent and Cross-Appellant.

B012711.

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

June 18, 1986.

Joseph Daniel Davis, Los Angeles, and Charlotte E. Costan, Burbank, for plaintiff, appellant and cross-respondent

Nichols, Stead, Boileau & Lamb, Michael D. Smith, and M. Daniel Saylor, Pomona, for defendant, respondent and cross-appellant.

THOMPSON, Associate Justice.

Plaintiff appeals from a verdict in favor of defendant Bay Shore Lumber, the supplier of a defective board of lumber. Plaintiff, a carpenter, was building an outrigger on the roof of a house when he accidentally Plaintiff claims on appeal that the instruction on the unavoidably unsafe product defense (comment k defense) was improperly given, resulting in a miscarriage of justice, because (1) as a matter of law the comment k defense is inapplicable to lumber, and (2) even assuming that the comment k defense applies to lumber, there was insufficient evidence to warrant the giving of that instruction. We agree with his second contention, and shall reverse.

stepped on the defective board which broke due to internal dry rot wholly concealed from view. Plaintiff, who fell about 10 to 12 feet to the concrete below, severely injured his left knee. Plaintiff sued defendant, among others, ¹ under theories of negligence and strict liability for supplying the defective wood. Plaintiff later abandoned his negligence claim against defendant. The jury returned a special verdict for defendant, finding that the wood was defective when it left defendant's possession, but that the defect was an unavoidably unsafe aspect of the wood, for which defendant is not strictly liable. (Rest.2d Torts, § 402A, comment k, at pp. 353-354.)

FACTUAL & PROCEDURAL BACKGROUND

The accident which gave rise to this action occurred while plaintiff, working as a carpenter, balanced himself to trim an outrigger (a 2X4 piece of wood extending out over the eaves of a house with a gabled roof) which broke under plaintiff's weight. Plaintiff fell approximately 10 to 12 feet to the concrete below, seriously injuring his left knee. ² The uncontroverted testimony of plaintiff and another carpenter, Pruitt, both of whom observed the board after the accident, established that the dry rot was not visible on its surface. There was testimony that a 2x4 used as an outrigger of good normal quality should be able to support the weight of a 175-pound man.

The wood supplied by defendant to the construction site where plaintiff was injured consisted of "construction/standard grade" wood. By definition, "construction/standard grade" wood is free of dry rot. However, plaintiff testified that he discarded 20 percent of the lumber supplied by defendant because it contained visible dry rot.

Ferguson, the owner of Bay Shore Lumber, testified that, in his some 43 years of experience in the lumber industry, he had never seen a piece of wood that looked normal on the outside but was rotten on the inside. He further testified that dry rot is caused by heat and moisture after the tree is cut, and develops from the outside to the inside of the wood. Barker, the Vice President of plaintiff's employer, Klein Construction, testified that dry rot is a "burned look on lumber" that starts on the outside and works in, so that it is visible on the outside of the wood first.

The trial court, at defendant's request, instructed the jury that "[t]he supplier of an unavoidably unsafe product is not strictly liable for injury resulting from the unavoidably unsafe aspect of the product." The court also instructed that defendant had the burden of establishing, by a preponderance of all the evidence, all of the facts necessary to prove that the defect, if any, was an unavoidably unsafe aspect of the lumber. No instruction was requested nor given to define the term "unavoidably unsafe."

No evidence was introduced to show whether dry rot can be prevented by the proper cutting, curing, and storing of wood. ³ In his closing argument, defendant's counsel urged the jury to apply their The jury returned a special verdict for defendant, finding (1) the lumber was sold by defendant, (2) there was a defect in the lumber when it left defendant's possession, and (3) the defect was an unavoidably unsafe aspect of the lumber. Because of the order of questions on the special verdict form, the jury returned a verdict for defendant without reaching the remaining questions concerning, inter alia, proximate cause and comparative fault.

"life experiences" to determine that dry rot is an unavoidably unsafe aspect of lumber: "[D]oes it make any sense to hold somebody strictly liable to pay for Mr. Wilkinson's remaining lifetime expenses, simply because there was a defect in the product which is natural to the product and about which the company could do absolutely nothing? [p] I suggest to you that lumber is a socially desirable product; that we can't do without it; but there are some risks inherent in many things that we do.... [p] And I think common knowledge dictates that you conclude that this was an unavoidably unsafe aspect of this product, and that my client is not liable.... [p] You have to listen to what the [182 Cal.App.3d 599] witnesses say. But you are not obligated to ignore and exclude your life experiences.... [p] You are entitled to [apply your life experiences] as far as the unsafe aspect of this product is concerned ...."

SCOPE & STANDARD OF REVIEW

The failure to object to an instruction relieves an appellate court of the obligation to review claimed error therein. (Gamboa v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 20 Cal.App.3d 61, 67, 97 Cal.Rptr. 471.) Plaintiff contends that "literally minutes before final argument" defendant raised for the first time the affirmative defense that wood is an unavoidably unsafe product, and that the trial court gave this instruction over plaintiff's objections. Despite the absence of an objection on the record, defendant does not contradict plaintiff's version of these facts. We shall therefore review the claimed error in giving the comment k instruction. However, because the record contains no showing that plaintiff requested that the jury be instructed on the definition of the term "unavoidably unsafe," we refuse to consider plaintiff's claim that this omission compounded the instructional error. (See Heggblade-Marguleas-Tenneco, Inc. v. Sunshine Biscuit, Inc. (1976) 59 Cal.App.3d 948, 958, 131 Cal.Rptr. 183.)

A party is entitled to have a requested instruction that is supported by the evidence and applicable law submitted to the jury. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543, 138 Cal.Rptr. 705, 564 P.2d 857.) In order for an instruction to be unwarranted by the evidence, the court must find that, as a matter of law, there is not even slight or inconclusive evidence to support the requested instruction. (Washington v. City & County of S.F. (1954) 123 Cal.App.2d 235, 238, 266 P.2d 828.)

A judgment may not be set aside on the ground the jury was misdirected unless a reviewing court, after an examination of the entire cause, including the evidence, shall be of the opinion that the error resulted in a miscarriage of justice. (Cal.Const., art. VI, § 13; Kostecky v. Henry (1980) 113 Cal.App.3d 362, 373, 170 Cal.Rptr. 197.) Prejudice from an erroneous instruction is never presumed; it must be affirmatively demonstrated by the appellant. (Id., at p. 374, 170 Cal.Rptr. 197.) "Consistent with the fundamental rule of appellate procedure that the appellant must make an affirmative showing of error by an adequate record [citations], it is incumbent upon the appellant to demonstrate that the error was prejudicial under the particular facts in evidence by bringing before the reviewing court a sufficient record showing that absent the error, there was a reasonable probability of a finding in appellant's favor [citations]." (Ibid.) If the record fails to affirmatively show that the error was likely to mislead the jury, there is no reversible error. (7 Witkin, Cal.Proc. (3d ed. 1985), Trial, § 295, p. 296.)

Though there is no precise formula for measuring the effect of an erroneous instruction, the following factors should be considered: "(1) [T]he degree of conflict in the evidence on critical issues [citations]; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation]; and (5) the effect of other instructions in remedying the error [citations]." (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946.)

DISCUSSION

The first amended complaint alleges that defendant, knowing that it was to be used without inspection for defects, supplied wood that was "unsafe for its intended use by reason of defects in its design and manufacture in that it collapsed" while being used in a manner for which it was foreseeably intended to be used, proximately causing plaintiff's injuries. "A manufacturer is strictly liable in tort when an article he 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.) Our Supreme Court "held in Cronin [Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153] that a plaintiff satisfies his burden of proof under Greenman, in both a 'manufacturing defect' and 'design defect' context, when he proves the existence of a 'defect' and that such defect was a proximate cause of...