Opinion
B315218
10-28-2022
MOHAMMAD MANOUCHEHRI, Plaintiff and Appellant, v. POLARIS INDUSTRIES INC., Defendant and Respondent.
Law Offices of Eric Bryan Seuthe &Associates, Eric Bryan Seuthe, and Terrence I. Swinson, for Plaintiff and Appellant. Faegre Drinker Biddle &Reath, Tarifa B. Laddon; Pietragallo Gordon Alfano Bosick &Raspanti, and Clem C. Trischler, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV33689 Dennis J. Landin, Judge. Reversed and remanded.
Law Offices of Eric Bryan Seuthe &Associates, Eric Bryan Seuthe, and Terrence I. Swinson, for Plaintiff and Appellant.
Faegre Drinker Biddle &Reath, Tarifa B. Laddon; Pietragallo Gordon Alfano Bosick &Raspanti, and Clem C. Trischler, for Defendant and Respondent.
RICHARDSON (ANNE K.), J. [*]
Plaintiff Mohammad Manouchehri (Plaintiff) appeals a judgment entered in favor of defendant Polaris Industries Inc. (Polaris), following the grant of a defense motion for summary judgment in this products liability action. Plaintiff contends he was injured after an ATV manufactured by Polaris rolled over his legs, even though the ATV's driver set the parking brake.
Our de novo review of the record concludes that Polaris did not meet its burden on summary judgment. Plaintiff presented evidence that the ATV failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. There was a factual dispute as to whether the driver set the parking brake. The evidence raised a triable issue of material fact whether Polaris's product had a design defect under the "consumer expectations test." Accordingly, we reverse the judgment.
BACKGROUND
I. Plaintiff's Lawsuit
Plaintiff was riding an all-terrain vehicle (ATV) owned and driven by Afshin Levy (Levy). While going up a hill, Plaintiff fell off the ATV. Levy stopped the ATV on the hill above Plaintiff, dismounted from the ATV, and went downhill to help Plaintiff. The ATV then rolled down the hill and over Plaintiff's legs.
Plaintiff filed a complaint alleging that the ATV's manufacturer, Polaris, was liable for his injuries because it had manufactured and designed the ATV defectively and had failed to warn of the ATV's dangers. He pleaded these claims against Polaris in his second cause of action for strict product liability, his third cause of action for breach of the implied warranty- fitness of purpose, and his fourth cause of action for breach of the implied warranty-reliance on merchant's skill.
Plaintiff's first cause of action against Levy for negligently operating the ATV was voluntarily dismissed and is not relevant to this appeal.
Polaris filed a motion for summary judgment claiming that the ATV was not designed or manufactured defectively, that Plaintiff had not read Polaris's warnings for the ATV, and that Plaintiff was not in privity with Polaris.
II. Polaris's Evidence
Polaris contended that there was no evidence of any defect, characterizing Plaintiff's claims as a "lack of 'hill-hold' technology or a failure of the braking system." To support its motion for summary judgment, Polaris presented a declaration from its expert, Graeme Fowler, who opined that the incident was not the result of any deficiency in the ATV's design. Fowler stated that the ATV has multiple safety features to prevent it from moving if parked on a hill, including placing the transmission in the park position and a parking brake on the left handlebar. Fowler stated that these features were fully functional and would have prevented the ATV from moving "had they been engaged by the operator."
In fact, in Plaintiff's discovery responses, Plaintiff identified the defect as "the braking system failed to engage causing the Polaris vehicle traveled [sic] down the hill."
Fowler thus stated his opinion that "Simply put, the accident . . . occurred because the parking brake was never set or used."
III. Plaintiff's Opposition
In opposition, Plaintiff withdrew all claims against Polaris except his theory of design defect in the second cause of action. To support that remaining claim, he offered the declaration of his expert, Bill Uhl, as well as deposition testimony from Plaintiff and the driver Levy. The expert identified multiple potential defects, including that the parking brake failed to ensure that the ATV would not roll down a hill.
Uhl provided his opinion that these design defects caused the ATV not to perform as an ordinary consumer would have expected because, when Levy got off the ATV during the emergency, he expected the ATV "to stay put on the hillside."
In the deposition excerpts, Plaintiff testified that he got on the Polaris vehicle with the driver, Levy, who was standing. As Levy turned to go up the hill, Plaintiff fell off the ATV and was thrown about three feet from the ATV. About 10 to 15 seconds after Levy got off the vehicle, Plaintiff saw the Polaris vehicle moving backward toward him. Plaintiff testified that Levy was unable to stop the ATV with his hand, and it rolled down the hill and over Plaintiff's legs.
Levy testified that he got off the vehicle and applied the parking brake but that after so doing, the vehicle moved backward downhill. Levy denied "fail[ing] to turn off the motor" or to apply the parking brake.
This testimony regarding the accident was cited both in Plaintiff's "separate statement of undisputed facts" in support of the opposition to motion for summary judgment as well as Plaintiff's "Response to Defendant['s] . . . Separate Statement of Undisputed Material Facts." They were also set forth in the statement of facts in the memorandum of points and authorities in opposition to the motion. In the declaration of Plaintiff's expert Bill Uhl, he testified to having reviewed these depositions. Uhl also testified that Levy and Uhl were using the ATV in a reasonably foreseeable way and that the failure to perform was a substantial factor in causing harm to Plaintiff.
Presumably, this separately filed document was filed pursuant to California Rules of Court, rule 3.1350(f)(3), although better form would have been to have included these additional facts in the Response to Polaris's separate statement, at the end of that document.
IV. Trial Court's Ruling
As to the cause of action that remained at issue, the trial court set out the "two alternative tests" to establish a design defect- "the 'ordinary consumer expectations' test and the 'riskbenefit' test, each appropriate to its own circumstances" and described the necessary elements to prevail under each theory and the appropriate circumstances for each.
The trial court then found that Polaris's evidence in the Fowler declaration met its burden of showing that the ATV had no design defects and that "the accident was caused by Plaintiff and Levy's misuse and failure to put the parking brake on."
The court further found that Plaintiff had not raised a triable issue of fact as to design defects; that Plaintiff's expert Uhl's conclusions were "assumptions not supported by the record" and improper testimony "about questions of law." The court found that Uhl's opinions involved "speculation of facts regarding additional safety features and lacks any support in foundational facts showing technical feasibility, cost, practicality, risk, and benefit."
As to the consumer expectations test, the trial court did not rule expressly as to whether it should apply in this case. Instead, the court noted in a parenthetical that" '[e]xpert witnesses may not be used to demonstrate what an ordinary consumer would or should expect,' because the idea behind the consumer expectations test is that the lay jurors have common knowledge about the product's basic safety," citing Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1375.
The trial court found that Plaintiff had not shown a triable issue of fact as to the second cause of action for strict liability and granted Polaris's motion for summary judgment.
Plaintiff filed a timely notice of appeal from the judgment.
DISCUSSION
I. Legal Standard and Standard of Review
We review an order granting summary judgment de novo, considering all the evidence in the moving and opposing papers except that to which objections have been sustained. (Sakai v. Massco Investments, LLC (2018) 20 Cal.App.5th 1178, 1183.) We view the evidence in a light favorable to the plaintiff as the losing party, liberally construing its evidentiary submission while strictly scrutinizing the defendant's showing, and resolving any evidentiary doubts or ambiguities in the plaintiff's favor. (Ibid.) We "must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
As a practical matter," 'we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.'" (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124.) A motion for summary judgment shall be granted if the papers show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden in moving for summary judgment by showing that one or more essential elements of the cause of action cannot be established, or there is a complete defense thereto. (Id., at subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A defendant has shown that the plaintiff cannot establish at least one element of the cause of action "by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar, at p. 854.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Id. at p. 849.)
II. The consumer expectations test may be applied to this case
A manufacturer or retailer may be held strictly liable for placing a defective product on the market if the plaintiff's injury results from a reasonably foreseeable use of the product. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560 (Soule).) Strict product liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.)
A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429 (Barker).) In Barker, the Supreme Court recognized two tests for proving design defect. The consumer expectations test permits a plaintiff to prove a design defect by demonstrating that "the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." (Id. at pp. 426-427, italics omitted.)
The consumer expectations test may be used when the facts permit an inference that the product is one about which consumers may form minimum safety assumptions in the context of a particular accident. (Soule, supra, 8 Cal.4th at p. 564.) When this test is used, the plaintiff may show the circumstances of the accident and" 'the objective features of the product which are relevant to an evaluation of its safety.'" (Ibid.) The fact finder then uses its "own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence." (Id. at p. 563.) Expert testimony as to what consumers ordinarily "expect" is generally improper. (Id. at p. 567 [expert testimony as to what laypersons may expect from product improperly invades the province of the jury].)
The second test is the "risk-benefit test." Under this test, products that meet ordinary consumer expectations nevertheless may be defective if the design embodies an" 'excessive preventable danger.'" (Barker, supra, 20 Cal.3d at p. 430.) To prove a defect under this test, a plaintiff need only demonstrate that the design proximately caused the injuries. Once proximate cause is demonstrated, the burden shifts to the defendant to establish that the benefits of the challenged design, when balanced against such factors as the feasibility and cost of alternative designs, outweigh its inherent risk of harm. (Id. at p. 431.)
The two tests provide alternative means for a plaintiff to prove design defect and do not serve as defenses to one another. A product may be defective under the consumer expectations test even if the benefits of the design outweigh the risks. (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 690-691.) On the other hand, a product may be defective if it satisfies consumer expectations but contains an excessively preventable danger in that the risks of the design outweigh its benefits. (Barker, supra, 20 Cal.3d at p. 430.)
Whether a plaintiff may proceed under the consumer expectations or the risk-benefit test is dependent upon the particular facts in each case. (Soule, supra, 8 Cal.4th at p. 566.) The inherent complexity of the product itself is not controlling on the issue of whether the consumer expectations test applies; a complex product" 'may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers.'" (Saller v. Crown Cork &Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232.) But in many situations, the consumer would have no idea how safe the product could be made and, therefore, the consumer expectations test is "reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design." (Soule, supra, 8 Cal.4th at p. 567, italics omitted.)
The two tests are not mutually exclusive, and in the proper case, both may be presented to the trier of fact. (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 554 (Demara).).
In this case, Plaintiff's theory was that the ATV rolled over him because the braking system in the ATV did not keep the vehicle from rolling backward on the hill. Plaintiff discussed both the consumer expectations and the risk-benefit tests in his opposition to summary judgment.
Polaris argued, both below and on appeal, that it was inappropriate to use the consumer expectations test in this case.
We disagree. Numerous cases have held that the consumer expectations test can apply to complex or technical products, even where the use of these products may not be within the common knowledge of jurors. (Demara, supra, 13 Cal.App.5th at p. 561.) An example of the use of the consumer expectations test in a motor vehicle case may be found in Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990. There, the plaintiff was seriously injured when the driver's seat in her vehicle collapsed rearward during a rear-end collision, causing the plaintiff to slide up the seat and strike her head and neck on her vehicle's back seat. (Id. at pp. 994-996.) The Court of Appeal found that the trial court properly instructed the jury on the consumer expectations test because the product's ordinary users reasonably had expectations about its minimum safety under the circumstances at issue. (Id. at p. 1004.) The court concluded the evidence supported a consumer expectations test instruction because "[r]ear-end collisions are common and within the average consumer's ordinary experience. Consumers have expectations about whether a vehicle's driver's seat will collapse rearward in a rear-end collision, regardless of the speed of the collision." (Ibid.; see also Demara, at p. 562 [reversing summary judgment where defendant failed to meet burden of establishing that consumer expectations test was not applicable to claims of defect in forklift]; McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1125 [reversing summary judgment where plaintiff provided sufficient evidence for a jury to infer that the nondeployment of an airbag in specific circumstances violates minimum safety expectations of the ordinary consumer].)
By contrast, the cases cited by Polaris which disapproved the use of the consumer expectations test in favor of the riskbenefit test, involved theories of defect examining the behavior of "obscure components" under "complex circumstances" outside the ordinary experience of the consumer. (Soule, supra, 8 Cal.4th at p. 570.) For example, in Verrazono v. Gehl Co. (2020) 50 Cal.App.5th 636, 648, the theory of defect was not simply a question of whether a forklift lacked a roll bar or cage and restraint device (which the court held would have made for an appropriate application of the consumer expectations test). Rather, the expert testimony was whether in addition to those safety features, the product had a design defect where it lacked a nonremovable door, a belt with more than two-point attachment, and interlocks preventing operation of the forklift without a door or lap belt. In Morson v. Superior Court (2001) 90 Cal.App.4th 775, 795, the court held that the "creation or exacerbation of allergies by . . . the presence of certain levels of proteins on the surface of latex gloves . . . are not subjects of commonly accepted minimum safety assumptions of an ordinary consumer."
Whether a product is within the everyday experience of ordinary consumers and susceptible to a consumer expectations analysis cannot be determined by looking at the product in isolation, but rather must be considered in the context of the facts surrounding its failure. The critical question is whether the "circumstances of the product's failure permit an inference that the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers." (Soule, supra, 8 Cal.4th at pp. 568-569.)
Here, Levy testified that he applied the parking brake, but the ATV still rolled down the hill. It is reasonable to infer that the expectation of the ordinary ATV consumer is that using a parking brake will stop the ATV from rolling after it had been stopped. Thus, the failure of the ATV's parking brake to hold the vehicle in place would violate legitimate and commonly accepted minimum safety assumptions.
We conclude that Plaintiff could use the consumer expectations test to establish a design defect.
III. Polaris did not meet its burden to show that there was no genuine issue of material fact under the consumer expectations test
When a plaintiff uses the consumer expectations test, the plaintiff must first show that the injury was caused by the product's design. (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 678.) This requires evidence that the plaintiff was injured while using the product in an intended or reasonably foreseeable manner and that the plaintiff's ability to avoid injury was frustrated by the absence of a safety device, or by the nature of the product's design. (Ibid.) Once this is established, the defendant then has to prove that the product is not defective. (Ibid.)
As noted above, we conclude that Plaintiff presented evidence that the injury was caused by the ATV's failure to hold the vehicle stationary after Levy set the parking brake.
The trial court correctly cited Mansur v. Ford Motor Co., supra, 197 Cal.App.4th at page 1375, for the proposition that" '[e]xpert witnesses may not be used to demonstrate what an ordinary consumer would or should expect,' because the idea behind the consumer expectations test is that the lay jurors have common knowledge about the product's basic safety."
However, even if the trial court correctly disregarded the expert's testimony regarding the consumer expectations test, Plaintiff presented percipient witness evidence that the ATV did not meet an ordinary consumer's expectations. Levy's testimony raised the reasonable inference that the parking brake did not work as the ATV nonetheless rolled down the hill, injuring Plaintiff.
To be sure, the record in the lower court was confusing and Plaintiff's opposition pleadings inartfully drafted. Plaintiff focused his legal argument on the declaration of its expert, to the exclusion of the testimony of the lay witnesses. Nonetheless, the testimony of Levy and Plaintiff was fully presented in Plaintiff's memorandum of points and authorities, response to separate statement, and Plaintiff's separate statement, and was referred to by Plaintiff's expert in his declaration.
Adding to the complexity was the mismatch between the theories of defect raised in the moving papers ("hill-hold" technology) and in Plaintiff's opposition, to which Polaris then responded in the reply.
Finally, Polaris argued that there was no triable issue of fact because the parking brake on this particular vehicle was fully functional, as was the transmission system. Polaris's expert Fowler testified that the ATV would have remained stationary "if the parking brake were applied or, [sic] the ATV placed in transmission Park [sic] or both were actuated, the vehicle would remain stationary on this hill." Fowler concluded that the vehicle was misused: "The accident occurred because the parking brake was never set or used."
However, this fact was very much disputed. Levy testified that he did set the parking brake. While Polaris argued that the "self-serving testimony" of one witness does not create a genuine issue of material fact. Polaris does not cite any case for this proposition and it is incorrect legally. (See Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, 922) [" '[T]he sole declaration of a party opposing a summary judgment motion which raises a triable issue of fact is sufficient to deny that motion.' "].)
This may be true when a subsequent declaration by a witness contradicts his or her own prior deposition testimony. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-861.) That is not the case here.
At oral argument, counsel for Polaris conceded that this was an issue in dispute, although he contended it was not material. To the contrary, we believe it is central to whether the ATV performed in the way in which an ordinary consumer would have expected.
Considering the evidence in a light favorable to Plaintiff as the losing party opposing summary judgment and resolving any evidentiary doubts or ambiguities in Plaintiff's favor, as we must, Polaris did not meet its burden to support summary judgment.
Because we find that Polaris did not meet its burden of establishing that there was no triable issue of fact as to the consumer expectations test, we need not discuss the risk-benefit test. Nor do we need to reach the many issues raised by the parties regarding the evidentiary support or lack thereof for both expert witnesses. (Demara, supra, 13 Cal.App.5th at p. 564.) Upon remand, if the matter proceeds to trial, the trial court will determine which jury instruction is appropriate to give based on the evidence submitted. (See, e.g., McCabe, supra, 100 Cal.App.4th at p. 1125.) We hold only that based on the evidence presented at this stage, there is sufficient evidence from which a jury could infer that the failure of the ATV to remain stationary after deployment of the parking brake violates commonly held minimum safety assumptions of the ordinary consumer.
DISPOSITION
We reverse the trial court's judgment and remand to the trial court for further proceedings on the design defect theory in the second cause of action for product liability. Plaintiff to recover appellate costs.
We concur: EDMON, P.J., LAVIN, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.