California Product Liability -- Part I

    This blog is designed to provide quick overviews on a variety of topics for out-of-state companies and lawyers, and in-state companies who don’t often enter the litigation arena in this state.  Now that the blog is about a month old, I thought it was time to step away from current events and offer a few posts on one of the most nettlesome areas for non-California companies (or California companies, for that matter): California product liability law. 

    So this will be the first of three posts providing the bare fundamentals, including principles of law that always make my friends from other states say “What?  That can’t be!”  In the first post, I”ll talk about the three ways a company can be held liable for manufacturing or selling a defective product.  In the second, I’ll talk about what happens when more than one person or company causes an injury.  And in the third, I’ll talk about the standards governing expert evidence in California.  So here comes the first.

    SO WHAT MAKES A PRODUCT DEFECTIVE, ANYWAY?

    Under California law, a product can be defective in three different ways.  The first one – a manufacturing defect – is no particular surprise, and kind of a snooze.  The second – failure to warn – is likewise not terribly earthshaking.  It’s the third one however – defective design – that sets California apart.

    First: manufacturing defects.  We revised our civil jury instructions three years ago so as to base them on plain English and make them more juror-friendly (You can find them all in MS Word format here.  The current California instruction (CACI 1202) is based on Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 383 [93 Cal.Rptr. 769, 482 P.2d 681], and defines a “manufacturing defect” this way: “

            ”A product contains a manufacturing defect if the product differs from the manufacturer's design or specifications or from other typical units of the same product line.”   

    This also tracks section 2(a) of  Restatement of the Law, Third, Torts: Products Liability (referred to as "Restatement").

    Pretty straightforward: if it’s designed one way and manufactured another way, and the discrepancy causes an injury, the manufacturer is strictly liable.

    Next, defect by virtue of failure to warn.  This is quite a bit more draconian, and does not track the Restatement (where section 2(c) provides that states that there is a defect in warnings and instructions if the foreseeable risks

            ". . . could have been reduced or avoided by the provision of reasonable instructions or warnings . . . and the omission of the instructions or warnings renders the product not reasonably safe."


    Instead, in California, under Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112 [56 Cal.Rptr.2d 162, 920 P.2d 1347], a manufacturer or other seller of a product is liable for failing to warn of dangers which are "knowable in light of the generally recognized and prevailing best scientific and medical knowledge available."   This means that a defendant can be held liable not just for failure to warn of dangers which should be known by similarly situated companies, but of dangers which are known to just about anyone.  The resulting jury instruction appears here.

    But here’s the really fun part: It’s the law on defective design.  The case that brought us this excitement is Barker v. Lull Engineering (1978) 20 Cal.3d 413.  In Barker, the California Supreme Court completely abandoned the Restatement and all other established law concerning product defect to hold the following:

●    When a plaintiff proceeds on a theory of design defect, he or she may select between two theories: the consumer expectation theory and the risk/benefit theory.
●    Under the consumer expectation test, a product is defective if it causes injury after failing to meet a reasonable consumer’s expectations.
●    Under the risk benefit test, a design is defective if it causes injury, and if, on balance, the risk of the design is not outweighed by the benefits.
●    Oh yes, and one more thing: in the rare case where a plaintiff might choose to proceed under the risk benefit test, the defendant has the burden of proving that the benefits of the design outweigh the risk.

    Now, let’s just think about that for a minute.  “Mr. Jones, did you ever for one minute think that the power press design was going to result in your fingers being cut off?”  “Gosh and gollies no, I sure didn’t.”  “Mr Smith, did you ever think that solvent was going to make you sick?”  “Absolutely not.”  The resulting jury instruction is here.

    In other words, it all comes down to causation.  And there’s not a plaintiff attorney alive who would ever want to base his case on the “risk benefit” test if he could possibly avoid it.