Willard v. Caterpillar, Inc., F019296

• Decision Date: 30 November 1995
• Docket Number: No. F019296,F019296
• Citation: 48 Cal.Rptr.2d 607,40 Cal.App.4th 892
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9127, 95 Daily Journal D.A.R. 15,801 Blaine WILLARD, Plaintiff and Appellant, v. CATERPILLAR, INC., Defendant and Appellant.

Page 607

48 Cal.Rptr.2d 607

40 Cal.App.4th 892, 95 Cal. Daily Op. Serv. 9127,

95 Daily Journal D.A.R. 15,801

Blaine WILLARD, Plaintiff and Appellant, v. CATERPILLAR, INC., Defendant and Appellant.

No. F019296.

Court of Appeal, Fifth District, California.

Nov. 30, 1995.

Certified for Partial Publication ^*

Klein, Wegis, DeNatale, Hall, Goldner & Muir, Ralph B. Wegis, Denise Martin, David L. Saine, Marisa S. Vidaurreta and Jeffrey W. Noe, Bakersfield, for Plaintiff and Appellant.

Haight, Brown & Bonesteel, Roy G. Weatherup, Armando M. Galvan, Santa Monica, Elliott D. Olson, Los Angeles, Luce, Forward, Hamilton & Scripps and Charles A. Bird, San Diego, for Defendant and Appellant.

Pillsbury, Madison & Sutro, Sidney K. Kanazawa, Los Angeles, and Kevin M. Fong, San Francisco, as amici curiae on behalf of Defendant and Appellant.

THAXTER, Acting Presiding Justice.

This products liability case requires our consideration of the evolving tort of intentional spoliation of evidence. Balancing relevant factors, we will hold that the trial court erred in submitting to the jury a cause of action for intentional spoliation of a manufacturer's design documents, when the destruction occurred before the plaintiff's injury and after the product had been on the market and in use for nearly 25 years with a negligible history of accidents similar to the plaintiff's.

PROCEDURAL HISTORY

Blaine Willard (Willard or plaintiff) sustained serious injuries while attempting to repair a 1955 Caterpillar model D7-C crawler tractor on October 29, 1990. He sued Caterpillar and the owner of the tractor, Belluomini Farms, for his injuries, alleging causes of action for products liability and negligence. During trial, over Caterpillar's objection, the trial court permitted Willard to amend his complaint to conform to proof and add claims for spoliation of evidence and punitive damages.

As pertinent to the issues raised on appeal, the jury returned a special verdict finding there was a defect in the design of the D7 tractor, Caterpillar was negligent, and the design defect and negligence caused injury to Willard. Willard's own negligence contributed to 50 percent of his injuries. Belluomini Farms was not negligent. The jury also found Caterpillar destroyed documentation relevant to the issues of the case which substantially impaired Willard's ability to prove his case, although Caterpillar's conduct did not exhibit malice, oppression, or fraud. As a result, Willard suffered economic damages of $707,098.11 and noneconomic damages of $450,000.

After denying posttrial motions by both parties, the trial court entered judgment for Willard in the amount of $578,549.05 (50 percent of $1,157,098.11). Both parties appeal.

FACTS

The D7-C Tractor

Caterpillar manufactured the model D7-C crawler tractor involved in Willard's accident in 1955. The 1955 D7-C is powered by a diesel engine and has a manual transmission with an oil-bathed "wet" clutch.

During and prior to the 1950's, starting the diesel engine was a major challenge. Unlike a gasoline engine which uses spark plugs to ignite fuel, the diesel engine ignites its fuel through heat resulting from compression The pony engine was mounted on the side of the diesel engine. A manually controlled gear system transferred power from the gasoline engine to the flywheel of the diesel engine to turn it over for starting. In 1955, the pony engine was started with the crank. By 1959, many of these engines had electric starters, but the crank remained a part of the unit because electric starting was somewhat unreliable. The pony engine was phased out during the 1960's and direct electric starting became standard in the 1970's.

of the fuel in the cylinders. Creating heat by compression required substantial cranking. Battery and starter motor technology had not developed to the extent that electric starter motors could sustain cranking long enough to start diesel tractor engines in cold weather. Caterpillar addressed the starting problem by developing and patenting a gasoline-powered starter motor, referred to as the pony engine, which was capable of supplying unlimited cranking.

The basic design of the D7-C starting system was implemented in 1940. Between 1940 and 1961, 50,000 D7 tractors were built. Caterpillar tractors are expensive but durable and reliable. At the time of trial in 1992, the D7 tractor that caused Willard's injuries was still in use at Belluomini Farms. Caterpillar expected to supply component parts for its 1955 D7 tractors for at least another 10 years.

Proper Startup Procedure

The D7-C has a multi-step startup procedure. The first steps are carried out in the operator's station or cab. They are: (1) disengage the master clutch, place the transmission gear selector lever and the transmission forward and reverse lever in neutral, (2) move the governor (fuel flow control) forward as far as possible to shut off diesel fuel to the diesel engine, and (3) set the brake. The operator then leaves the cab and stands, kneels, or squats on the tractor's left track to start the pony engine. He sets the compression release lever to the start position, disengages the pony engine clutch, turns on the gasoline petcock which controls fuel flow, turns on the ignition switch, adjusts the choke, and starts the engine by pressing the electric starter switch. ¹ The operator then engages the pinion gear at the end of the starter motor shaft to the diesel engine flywheel, moves the compression release lever to the run position, and returns to the cab.

When the diesel engine's temperature and oil pressure have reached operating levels, as indicated by controls in the cab, the operator starts the diesel by opening the fuel governor. When the diesel engine is running properly, the operator returns to the track and turns off the pony engine.

The D7 tractor had a metal warning plaque located near the operator's seat that stated:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Additionally, a red warning decal near the pony engine stated:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to David Balzer, Caterpillar's expert/representative, the on-track starting procedure used in D7 tractors had not resulted in any injury-producing accidents prior to Willard's.

Willard's Accident

At the time of the accident, 56-year-old Willard had been a mechanic for 40 years and had owned his own tractor repair business for 20 years. Belluomini Farms was his primary customer; he maintained their tractors, including the Caterpillar D7-C which injured him. He had rebuilt the D7-C tractor in 1982 when Belluomini Farms purchased it from another party.

Several days before the accident, Tom Belluomini brought the tractor to Willard's shop to repair a broken bolt. When he parked the tractor, Belluomini disengaged the master clutch and shut down the engine by using the governor to shut off fuel flow. He left the direction control lever in reverse and the gear selector lever in first or second gear. He did not set the parking brake.

On the morning of the accident, Willard did not follow his usual practice of ensuring that the direction control lever and the gear selector lever were disengaged. He also neglected to follow Caterpillar's recommended startup procedures by not locking the brake pedal and by placing the diesel fuel governor in the open position. He merely disengaged the master clutch, leaving the tractor in gear to move in reverse when the clutch was again engaged.

Willard started the pony engine and engaged it with the diesel. With the diesel engine cranking, Willard started it from the track rather than the cab because of damage to the starter pinion which had not been repaired. The pinion had to be held in place to sustain the connection between the pony engine and the diesel engine. When the diesel engine started, Willard knelt on the track and shut off the pony engine. The tractor then "took off" in reverse and the track drew Willard's legs and hips between the track and the fender. Willard suffered severe injuries to his pelvis, legs, and left arm. His medical expenses to date totaled $190,270.11.

Alvaro Lopez, who was working nearby, saw the tractor moving in reverse "a little bit faster than a person walking, but not running." Willard was lying on the ground 15 feet in front of the tractor. Lopez ran over and stopped the tractor within 25 or 30 seconds. By then the tractor was 60 feet from Willard. David Perales, who worked in Willard's repair shop, saw Willard on the ground as the tractor moved backwards. He described the speed of the machine as "creeping," "[y]ou could walk beside it."

Design Defect and Negligence Claims

Willard contended there were two significant design defects in the D7 tractor--the

positioning of the operator on the track during the startup procedure coupled with a defective master clutch. The clutch of the D7, like the common automotive clutch, should, when disengaged, interrupt power to the drive train of the tractor. Under certain conditions, however, the D7's clutch failed to achieve the expected separation when disengaged. Even when the clutch was disengaged, the 27,000 pound tractor could move at approximately 2 miles per hour because of a phenomenon referred to as [40 Cal.App.4th 899] clutch drag or fluid coupling. Willard contended the risks inherent in the wet clutch, combined with on-track starting, outweighed the benefits. Willard also contended the warnings provided were defective because they were placed improperly and did not accurately warn of the dangers. Caterpillar argued to the contrary.

(a) The Wet Clutch and Clutch Drag

Caterpillar did not dispute the existence of viscous oil clutch drag. Oil in a clutch housing becomes thicker as the temperature drops. At some point, the oil becomes sufficiently viscous to transmit power between the clutch plates even though they are not touching. Before his accident, Willard...