Wimberly v. Derby Cycle Corp.

• Decision Date: 18 July 1997
• Docket Number: No. D021840,D021840
• Citation: 65 Cal.Rptr.2d 532,56 Cal.App.4th 618
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 15,017, 97 Cal. Daily Op. Serv. 5730, 97 Daily Journal D.A.R. 9219 Shawn WIMBERLY, Plaintiff and Appellant, v. DERBY CYCLE CORPORATION, Defendant and Appellant.

Page 532

65 Cal.Rptr.2d 532

56 Cal.App.4th 618, Prod.Liab.Rep. (CCH) P 15,017,

97 Cal. Daily Op. Serv. 5730,

97 Daily Journal D.A.R. 9219

Shawn WIMBERLY, Plaintiff and Appellant, v. DERBY CYCLE CORPORATION, Defendant and Appellant.

No. D021840.

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

July 18, 1997.

Review Denied Oct. 22, 1997.

Hurst & Hurst, Debra L. Hurst and Kyle Van Dyke, San Diego, for Plaintiff and Appellant.

Hennelly & Grossfeld, John J. Hennelly, Susan J. Williams and James D. Demet, Pacific Palisades, for Defendant and Appellant.

WORK, Acting Presiding Justice.

When the fork assembly on Shawn Wimberly's mountain bike broke, he was thrown to the ground and grievously injured. In this strict product liability action, Derby Cycle Corporation (Derby), producer and distributor of the fork assembly, appeals a judgment and an order denying its motion for judgment notwithstanding the verdict (JNOV) following a jury verdict against it. Derby contends the trial court erred in refusing to apply Proposition 51 to require the jury to apportion "fault" among it, the product's manufacturer and others. ¹ Such a comparison ostensibly would have absolved Derby from liability for Wimberly's noneconomic damages because the manufacturer defectively welded the fork assembly. Wimberly also appeals, claiming the court abused its discretion in denying him costs incurred to prove facts after Derby denied his requests for admissions (CODE OF CIV. PROC., § 2033)².

We conclude Proposition 51 is inapplicable; a strictly liable defendant may not reduce or

eliminate its responsibility to plaintiff for damages caused by a defective product by shifting blame to others in the product's chain of distribution. We also conclude Wimberly is entitled to recover costs of proof. Accordingly, we affirm the trial court's judgment and order denying Derby's motion for JNOV, but reverse the order denying costs and remand for redetermination.

FACTUAL AND PROCEDURAL BACKGROUND

Derby, which owned the "Nishiki" trade name, hired Richard Cunningham to design a mountain bike called the "Nishiki Alien." The bike's fork assembly consisted of a steerer tube welded to a set of forks, and Cunningham specified "non-rifled" tubes, as opposed to "rifled" tubes, because the latter were more susceptible to weakening in the welding process. Derby hired Taiwan An Len to manufacture the fork assemblies; it unilaterally substituted rifled tubes, assuring Derby they were of equal or better quality than those specified. While Cunningham was unhappy with the substitution, he told Derby the rifled tubes raised no safety concern if they were properly welded to the forks. Without any testing, Derby distributed Nishiki Alien bicycles fitted with the fork assemblies, and fork assemblies for separate purchase, to bicycle shops.

Wimberly bought one of the fork assemblies at La Mesa Cyclery and installed it on his mountain bike. Several months later, Wimberly sustained serious facial and dental injuries when his bike crashed after the fork assembly broke. He sued Derby, Taiwan An Len and La Mesa Cyclery, alleging products liability causes of action including negligence, breach of warranty and strict liability; Wimberly did not name Cunningham. Wimberly received a $135,000 settlement from Taiwan An Len, which Derby stipulated was a good faith settlement. Wimberly dismissed all defendants but Derby before trial.

At trial, Wimberly's expert metallurgist, Gary Fowler, Ph.D., testified the steerer tube on the fork assembly was cracked during the welding process. There was also no "post-weld heat treatment," and as a result the tube was "brittle and offer[ed] very poor crack arrest qualities." Dr. Fowler believed those problems and the use of rifled tubing, which is thinner than the specified non-rifled tubing, were substantial factors in the fork assembly's ultimate failure. Derby called no expert witness.

The case went to the jury only on Wimberly's strict product liability claim. Before deliberations began, Derby argued Proposition 51 required the jury to determine the comparative fault of it, Cunningham, Taiwan An Len and La Mesa Cyclery. The court determined Proposition 51 was inapplicable, reasoning "[Taiwan] An Len manufactured the bicycle and they made a bad weld, and it was the bad weld that caused the failure and that is a manufacturing defect. And under the current law, the distributor of the bike is responsible strictly for that defect. [p] If I allow the jury to apportion on the basis of comparative fault ... even though I'm telling them that Derby is strictly responsible, they have to find that the manufacturer's 100 percent responsible, so that nullifies the [strict product liability] law."

The jury found the fork assembly was defective, and awarded Wimberly $105,168 in economic damages $300,000 in noneconomic damages. The court deducted the $135,000 settlement from Taiwan An Len, for a net award of $270,168. The court denied Derby's motion for JNOV.

THE COURT CORRECTLY DETERMINED PROPOSITION 51 IS INAPPLICABLE ³

I

"Before 1975, California's common law employed the traditional all-or-nothing system of tort responsibility. If the plaintiff's fault had contributed in any measure to his own injury, his recovery was barred, regardless of the fault of others. On the other hand, every defendant found somewhat responsible for an indivisible injury, no matter how slight his or her fault, was liable for all Although the judicial adoption of a comparative fault system "served to reduce much of the harshness of the original all-or-nothing common law rules, the retention of the common law joint and several liability doctrine produced some situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff's damages if other more culpable tortfeasors were insolvent." (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1198, 246 Cal.Rptr. 629, 753 P.2d 585.) In 1986 the voters modified this joint and several liability system with the passage of Proposition 51. The heart of the measure provides: "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." ⁵ (Civ.Code, § 1431.2, subd. (a).)

                the damages incurred by the victim.  An injured person could unilaterally choose which of several concurrent tortfeasors to sue, based on their ability to pay.  Generally, one singled out for suit could not join other responsible parties, and the target defendant's right to contribution or indemnity from other concurrent tortfeasors was sharply restricted.  [Citations.]"  (DaFonte v. Up-Right, Inc.  (DaFonte) (1992) 2 Cal.4th 593, 597-598, 7 Cal.Rptr.2d 238, 828 P.2d 140).   In Li v. Yellow Cab Co.   (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court "eliminated the all-or-nothing doctrine of contributory negligence.  Thereafter, a plaintiff's recovery against others responsible for the injury could only be reduced in proportion to his or her own share of fault."  (DaFonte, supra, 2 Cal.4th at p. 598, 7 Cal.Rptr.2d 238, 828 P.2d 140.)   In American Motorcycle Assn. v. Superior Court (AMA) (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, the court "concluded that Li's comparative fault principles did not abrogate each defendant's joint and several liability for damages attributable to the fault of others.  [The court's] opinion adhered to the pre-Li principle that culpable defendants, rather than the injured plaintiff, should bear the risk of inadequate contribution by others responsible for the harm.  [Citation.]" 4  (DaFonte, supra, 2 Cal.4th at p. 598, 7 Cal.Rptr.2d 238, 828 P.2d 140.)
                

Proposition 51 neither refers to strict liability nor defines "fault" or "comparative fault." As explained in Civil Code section 1431.1, however, the measure's purpose is to address perceived inequities of plaintiffs joining "deep pocket" defendants "even though there was little or no basis for finding them at fault. Under joint and several liability, if they are found to share even a fraction of the fault, they often are held financially liable for all the damage. The People--taxpayers and consumers alike--ultimately pay for these lawsuits in the form of higher taxes, higher prices and higher insurance premiums." (Civ.Code, § 1431.1, subd. (b), italics added.)

As discussed below, the only "fault" required to find a defendant liable for injuries caused by a defective product is its participation in the chain of distribution.

Plaintiffs suing in strict product liability therefore name such defendants even though they bear little "fault" because they are held fully responsible for damages caused by a defective product as a matter of public policy. It thus appears to us that facially, Proposition 51 has no application here. However, because it is arguably unclear, we extend our analysis. ⁶

II

In California, "[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.) "The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." ⁷ (Id. at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897.)

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