Opinion
B160874.
7-7-2003
MICHAEL BENDETTI et al., Plaintiffs and Appellants, v. FEATHERLITE, INC., Defendant and Respondent.
Keats, McFarland & Wilson and Emil W. Herich for Plaintiffs and Appellants. Nelsen, Thompson, Pegue & Thornton and Carol J. Knoblow for Defendant and Respondent.
The underlying case involves issues of negligence and products liability. The trial court found the plaintiffs use of the product was unforeseeable as a matter of law and thus the defendant manufacturer should not be subject to liability. The trial court granted summary judgment in the manufacturers favor and, based on its ruling, considered the plaintiffs request for a continuance to conduct additional discovery moot. Contrary to the trial courts conclusion, we find the available facts in this sparse factual record demonstrate the plaintiffs use of the product and resulting injuries were reasonably foreseeable. Accordingly, we reverse the summary judgment entered in favor of the manufacturer and remand for further proceedings.
FACTS AND PROCEEDINGS BELOW
In the summer of 1999, appellant, Michael Bendetti, president of Bendetti Mobile, Inc., purchased a house trailer from respondent, Featherlite, Inc., a manufacturer located in Iowa. Bendetti Mobile, Inc. buys house-type trailers to lease to the motion picture industry. Some house trailers are outfitted as "celebrity" trailers and are leased for use by actors. Other trailers are outfitted as mini theaters for use by directors and their assistants to view the daily filming at "on location" film sets.
On March 17, 2000, and eight months after its purchase, the generator compartment of one of the theater trailers caught fire while parked at a filming site. The fire department arrived and extinguished the fire. An employee of Bendetti Mobile, Inc. called Bendetti to inform him of the fire. Bendetti, in turn, notified Featherlite.
Bendetti inspected the trailer the next day. Wade Johnson, a Featherlite employee was present, as was a generator technician whom Featherlite had apparently retained to analyze and/or repair the generator. Wade Johnson and/or the generator technician had removed the two external doors to the generator compartment of the trailer. The men planned to use a forklift to remove the generator from the trailer because of its size. The generator was 40 inches wide, 52 inches high, and weighed approximately 2,200 pounds. The generator itself was fixed within the generator compartment of the trailer which is 50 inches wide and 96 inches high. In addition to the generator, the generator compartment also housed a water tank and a fuel tank which were secured to the walls and ceiling above the generator.
According to Wade Johnson, the generator was mounted on three aluminum girders permanently affixed to the floor of the generator compartment. The girders were positioned in the center of the compartment and, with the generator in place, the girders were completely covered with an aluminum plate onto which the generator was fastened.
According to Bendetti, Wade Johnson asked him to undo a bolt in the generator compartment. Bendetti went into the generator compartment. He realized he could not undo the bolt and decided to exit the compartment. He then tripped on something, slipped, and fell out of the compartment onto the pavement below. At the time he did not know what caused him to trip or slip because it was too dark to see the interior of the compartment. However, he did recall his foot hitting a hard object. When the accident occurred Bendetti was wearing rubber soled, tennis-type shoes.
According to Wade Johnson, he and the generator technician were on the opposite side of the trailer when Bendetti fell from the generator compartment. Wade Johnson heard a sound, walked to the other side of the trailer and saw Bendetti on the ground. Bendetti said he had hurt his arm but wished to remain until the generator was removed from the trailer.
Bendetti remained at the scene an hour or so to witness the removal of the generator. He later sought emergency medical attention at St. Johns Hospital in Santa Monica. He learned he had sustained a broken arm or a fracture. He was required to wear an "air cast" for four to six weeks.
Bendetti visited the trailer two days after his accident. With the generator removed, he noticed for the first time the girders affixed to the floor and concluded he must have tripped on one of the girders. He also wiped his hand across the generator compartment floor and noticed a slippery type residue on the floor. Bendetti believed the residue, possibly fire retardant left by the fire department, must have made the floor slippery, causing him to slip and fall.
On December 7, 2000, appellants, Bendetti and his wife Vanessa Bendetti, filed a 12-count complaint against Featherlite, several of its individual officers and employees, as well as against Valley Trailers, doing business as Quality Racing, which had provided repair work and service on one or another of Bendettis trailers. In due course, Bendetti eliminated various counts and defendants from the action. The trial court found the purchase contracts between Bendetti Mobile, Inc. and Featherlite contained valid forum selection clauses requiring claims involving those parties be tried in Iowa. The trial court also granted the individual nonresident defendants motions to quash based on a lack of personal jurisdiction. Bendetti Mobile, Inc. subsequently filed suit in Iowa to assert its corporate claims.
Thereafter, Bendetti voluntarily dismissed six of the causes of action alleged in its original complaint against Featherlite, and voluntarily dismissed Quality Racing from the action. At the time of the trial courts ruling in this case, the sole remaining defendant was Featherlite, and the sole remaining causes of action were for: (1) strict products liability on a failure to warn theory; (2) strict products liability on a design defect theory; (3) products liability based on negligence; (4) negligent infliction of emotional distress; and (5) Mrs. Bendettis claim for loss of consortium.
After taking Bendettis deposition, Featherlite moved for summary judgment on December 19, 2001. Bendetti filed opposition. In addition, Bendetti claimed the motion was premature because he had not yet had a chance to depose the eyewitnesses to his accident, including Wade Johnson. Featherlite took its motion off calendar when the trial court granted its request to continue the trial date over Bendettis objection. However, Featherlite refiled its motion for summary judgment six weeks later on January 23, 2002.
In moving for summary judgment, Featherlite argued it owed no duty to the Bendettis as they had not purchased the trailer. Based on Wade Johnsons declaration describing the generator and generator compartment, Featherlite also argued Bendetti had failed to identify any defect, any breach of duty, and could not prove legal causation. Featherlite argued, "There was no defect in the generator, the compartment, or the trailer which is the legal cause-in-fact of the incident. If the plaintiff did trip [on] a girder as he claims, the purpose of the girder, after all, is to mount a generator. . . . The generator compartment was designed to house a generator. It was not designed to be recreational space for passengers on the trailer. . . . The products claims are also without merit because they are not supported with causation-there is no evidence that a defect in a trailer was the legal cause-in-fact of Michael Bendettis slip and fall accident. . . ."
Italics in original.
Bendetti filed opposition. He argued even if Wade Johnsons declaration established the girders served their intended purpose of supporting the generator, this fact alone did not warrant judgment in Featherlites favor because it did not resolve his claims the girders extended into the walkway causing him to trip, the lack of friction on the slick metal floor caused him to slip, and this slippery condition was exacerbated by the fire retardant materials the fire department was required to use to extinguish the fire in the generator which was itself defective. Bendetti argued it was reasonably foreseeable someone would have to walk on this slippery floor surface to access and service the generator, and thus Wade Johnson failed in his duty to warn him of the slippery surface before asking him to enter the compartment to undo a bolt.
This was virtually the only pertinent fact in Wade Johnsons declaration bearing on Bendettis claims. In his declaration, Wade Johnson explained how Featherlite directed him to analyze the generator to determine whether it was salvageable. He also described the generator and its compartment. However, his declaration offered few facts which directly addressed Bendettis claims although it was the only declaration addressing the accident itself which Featherlite submitted with its motion for summary judgment.
The crucial passage of Wade Johnsons declaration states: "The girders are positioned in the center of the compartment and, with the generator mounted upon them, the girders are completely covered with an aluminum plate on which the generator is fastened. Clearly, since the purpose of the girders is to mount the generator, the girders themselves are not generally accessible to individuals who are located within the trailer. Attached as Exhibit I are true and correct copies of the diagrams which illustrate the structure of the generator compartment and theater trailer which was involved in the accident."
Bendetti supported his contention the flooring design was defective with a declaration from his expert Charles Turnbow, a board certified forensic engineer. Based on various assumptions, Mr. Turnbow opined the smooth metal floor of the generator compartment was defective under foreseeable use conditions because it did not provide a sufficient amount of traction. He stated the hazard was substantially increased when this smooth metal surface became contaminated with liquid or debris. The expert noted standard design practice is to use a patterned surface, epoxy coatings or non-skid strips to increase traction.
In his opposition, Bendetti requested a continuance to conduct additional discovery. He supported his request for a continuance with a declaration from counsel who explained he had not yet deposed the key witnesses to the accident-Wade Johnson and the generator technician. He stated depositions were then scheduled for March 14, 2002, and requested a continuance to complete this discovery.
Featherlite filed a reply, noting Bendetti did not dispute any of its alleged material facts. It filed a declaration from one of its principals stating Wade Johnson had no authority to order Bendetti, or any other customer, to assist him in his work. Featherlite also argued Bendettis expert had similarly failed to identify an alleged defect in the generator compartment which caused Bendettis accident.
Finally, Featherlite argued a continuance was unnecessary because it had already provided all available discovery responsive to Bendettis requests, any additional discovery was unnecessary because the information sought was irrelevant, and that Bendetti had already had more than ample time to pursue whatever depositions he deemed necessary.
Initially, Bendetti had erroneously noticed Wade Johnsons and the generator technicians depositions for a time and place in California. Featherlite responded, stating the depositions were improperly noticed because Wade Johnson was a resident of Minnesota and the generator technician was not a Featherlite employee.
The court rejected Featherlites argument it could owe no duty of care to anyone other than the actual purchasers of their trailers. The court nevertheless found Featherlite was entitled to judgment as a matter of law, finding Bendettis presence in the generator compartment such an unforeseeable use of the compartment Featherlites duty should not extend to cover this situation. The trial court reasoned as follows:
"When you get to the negligence question-to the defective or dangerous condition, the question is whether some defect and/or defective condition caused Michaels injuries and if those injuries were reasonably foreseeable, which I think is the key. Were they reasonably foreseeable?
"I dont think this generator compartment was intended for passenger traffic. It was intended to hold a generator, and the essence of a negligence action based on defective design is that the defendant distributed a product when it was reasonably foreseeable that its design presented an unreasonable risk of harm.
"This girder and floor was in there to secure the generator to the trailer, as someone indicated in their moving papers, to prevent it from acting like an arrow flying through the air if the brakes were depressed, so I dont think Mr. Bendetti, no matter how you twist the facts, was in an area of the trailer that was intended for passenger traffic.
"And even Mr. Turnbow cannot say that this was a foreseeable used [sic] or a foreseeably used [sic] condition, so I dont think the plaintiff has presented evidence which raises a triable issue regarding whether the metal flooring or metal girder in the generator compartment was defective or unreasonably dangerous, much less that any defect was due to the negligence of Featherlite. I dont think theres any triable issue of material fact.
"And even when you come to the products liability claim, was the use reasonably foreseeable? You have to get through that hurdle even in a products liability claim, and I dont see how in any way it could be considered a reasonably foreseeable use."
Italics added.
Finding Featherlite owed no duty in this instance, the court found it was entitled to judgment as matter of law and dismissed the action. Bendetti appeals.
DISCUSSION
I. STANDARD OF REVIEW OF A SUMMARY JUDGMENT.When a defendant moves
for summary judgment its burden is to show one or more elements of a cause of action cannot be established or there is a complete defense to that cause of action. Once a defendant has made that showing, the burden then shifts to the plaintiff to demonstrate a triable issue of one or more material facts exists as to that cause of action or defense.
Code of Civil Procedure section 437c, subdivision (p) (2).
Because Bendetti appeals from an order granting Featherlite summary judgment, "we must independently examine the record to determine whether triable issues of material fact exist." "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn . (1988) 46 Cal.3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46), liberally construing [his] evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs favor."
Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.
Saelzer v. Advanced Group 400, supra, 25 Cal.4th 763, 768.
We review the summary judgment in Featherlites favor with these standards in mind.II. IT IS FOR THE COURT, NOT THE JURY, TO DETERMINE FORSEEABILITY OF A RISK IN THE CONTEXT OF DETERMINING THE BREATH AND SCOPE OF THE DUTY OWED.The trial court found Bendettis accident was not reasonably foreseeable because it was not reasonably foreseeable Bendetti would be in an area not intended for passenger traffic. Bendetti argues by determining the issue of foreseeability the trial court "usurped for itself what is quintessentially a jury question."
His argument is not entirely accurate. "Foreseeability" is a concept with numerous meanings depending on the circumstances. When a trial court is asked to determine the scope of a defendants duty, it is strictly a matter for the court, not the jury, to decide whether a certain risk was reasonably foreseeable. After a court has made this determination, it may well be a question of fact for the jury whether, for example, a plaintiffs injuries were a foreseeable result of the defendants negligence.
The Supreme Court in Ballard v. Uribe explained these different aspects of foreseeability. "Some confusion has arisen over the respective roles played by the court and the jury in determining liability . . . . The confusion may stem, at least in part, from the fact that the foreseeability concept plays a variety of roles in tort doctrine generally; in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of duty.
Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal. Rptr. 664, 715 P.2d 624.
"The question of duty is decided by the court, not the jury. [Citations.] As this court has explained, duty is not an immutable fact of nature "but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal. Rptr. 72, 441 P.2d 912 [quoting Prosser, Law of Torts, (3d ed. 1964) pp. 332-333].) . . . The foreseeability of a particular kind of harm plays a very significant role in this calculus (see Dillon v. Legg, supra, 68 Cal.2d 728, 739), but a courts task-in determining duty-is not to decide whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendants conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.
"The jury, by contrast, considers foreseeability in two more focused, fact specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendants conduct was negligent in the first place. Second, foreseeability may be relevant to the jurys determination of whether the defendants negligence was a proximate or legal cause of the plaintiffs injury."
Ballard v. Uribe, supra, 41 Cal.3d 564, 573, footnote 6; accord, Romito v. Red Plastic Co., Inc. (1995) 38 Cal.App.4th 59, 65 [the question of a legal "duty" is decided by the court, not the jury.]; Lopez v. McDonalds Corp. (1987) 193 Cal. App. 3d 495, 507, 238 Cal. Rptr. 436 ["the question of foreseeability in a duty context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact."]
"The degree of foreseeability necessary to warrant the finding of a duty will . . . vary from case to case. For example, in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. [Citation.]"
Gomez v. Ticor (1983) 145 Cal. App. 3d 622, 629-630, 193 Cal. Rptr. 600.
Thus, contrary to Bendettis argument, the trial court in the present case had both the power and authority to determine whether his use of, and presence in, the generator compartment was sufficiently foreseeable Featherlite should be potentially liable for the type of harm he experienced. However, this conclusion does not entirely resolve the issue because our independent review reveals the existing factual record does not support the courts finding Bendettis presence in the generator compartment was so unforeseeable Featherlite could not be liable as a matter of law.III. AMONG OTHER FACTUAL ISSUES, IT IS A TRIABLE ISSUE OF FACT WHETHER BENDETTI WAS IN THE COMPARTMENT AT FEATHERLITES EMPLOYEES REQUEST TO ASSIST HIM IN REMOVING THE GENERATOR.If Bendetti had climbed inside the generator compartment and injured himself while riding as a passenger, we would have to agree with the trial courts specific finding the generator compartment was not an area of the trailer intended for passenger traffic, and thus his use of the compartment as a passenger was not reasonably foreseeable. However, this is not what occurred in the present case.
Instead, the only evidence is Bendetti entered the generator compartment at Featherlites employees request to assist in removing the generator. In his deposition, and repeated in his declaration in opposition to the motion for summary judgment, Bendetti explained he was in the generator compartment because Featherlites employee, Wade Johnson, asked him to undo a bolt securing the generator. Although Featherlite took the position Wade Johnson had no authority to order Bendetti to enter the compartment and assist in the generators removal, it presented no evidence to either refute or contradict Bendettis version of the situation.
His testimony raises several issues. It negates any inference he was using the compartment as passenger. It also suggests anyone wanting to remove the generator would have to enter the compartment to unfasten bolts securing the generator. For example, Featherlite did not offer evidence no bolts secured the generator, or these bolts could be removed by remote control from ground level. Moreover, this evidence suggests anyone wanting to inspect or service any of the components in the generator compartment, whether it be the generator, the fuel tank or water tank, would necessarily have to enter the compartment for these purposes. In these factual scenarios it seems reasonable, if not probable, other persons, if not Bendetti, would often have reason to be physically present inside the compartment. Featherlite offered no evidence to negate the reasonable inference the generator compartment floor would occasionally be subject to pedestrian traffic.
Also crucial to note about the evidence is the assertion Featherlites employee asked Bendetti to enter the generator compartment to undo the bolt. If anything, Featherlites actions in this regard converted what might have been in other circumstances an unforeseeable use into a reasonably foreseeable one by virtue of Featherlites employees request for assistance. We note Featherlite did not present evidence to refute Bendettis testimony. It thus remains a triable issue of fact whether Featherlite, through its employee Wade Johnson, was responsible for Bendettis presence in the compartment, making it reasonably foreseeable he would be in the compartment, and thus subject to whatever dangerous conditions existed inside the compartment.
Because these factual issues bearing on the foreseeability of Bendettis presence inside the generator compartment remain unresolved, we conclude the trial court erred in ruling his presence was unforeseeable as a matter of law and thus Featherlite was entitled to judgment on this ground alone.IV. FACTUAL ISSUES REMAIN REGARDING THE DEFECTIVE NATURE OF THE GENERATOR GIRDERS AND COMPARTMENT FLOORING."[A] plaintiff may seek recovery in a products liability case either on the theory of strict liability in tort or on the theory of negligence. The rules of products liability focus responsibility for defects, whether negligently or nonnegligently caused, on the manufacturer of the completed product. Thus, under either a negligence or a strict liability theory of products liability, to recover from a manufacturer, a plaintiff must prove that a defect caused injury. Under a negligence theory, a plaintiff must also prove an additional element, namely, that the defect in the product was due to negligence of the defendant."
Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478-479, internal citations and quotation marks omitted.
"A product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff established that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the products design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design."
Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432, 143 Cal. Rptr. 225, 573 P.2d 443.
Bendetti points out Featherlite was not entitled to summary judgment because it failed to present evidence to negate his claims for products liability based on defective design, failure to warn and negligence. Bendetti asserted the girders made him trip because they extended into the walkway of the compartment. Bendetti also asserted the compartment floor was defective because it was a sleek, smooth surface. He supported his assertions with expert testimony opining the slick metal floor made him slip because the floor was covered in residue and lacked any type of non-skid material which would have improved friction.
Wade Johnson in his declaration stated the girders were entirely covered by an aluminum plate onto which the generator was fastened. Featherlite did not present any other evidence on the issue, such as detailed drawings of the placement of the girders inside the compartment, or any photographs of the interior of the compartment. We thus note this single statement from Wade Johnson is insufficient to foreclose the factual scenario of the girders (covered by the aluminum plate) extending beyond the generator and into the walkway constituting a defective design as Bendetti claimed.
Nor did Featherlite present any evidence regarding the nature of the flooring inside the generator compartment tending to refute Bendettis claim it was defective because it was made from dangerously slick materials, made even more so by the residue presumably left by the fire department. Percipient witnesses, such as Wade Johnson and the generator technician, could have provided information to substantiate or refute Bendettis claims of a slippery and/or residue covered surface.
In short, summary judgment was inappropriate at this stage because so many crucial factual issues remain to be developed. Of course the court considered the inadequate factual record of no consequence given its finding Featherlite owed no legal duty in any event. Because we find the courts analysis of duty unsupported on this record and for this reason reverse, the trial court on remand should grant Bendettis request for a continuance to, at minimum, take Wade Johnsons deposition (in Minnesota, Iowa, or any other place Wade Johnson deems most convenient) to permit him to obtain information regarding these essential facts.
Code of Civil Procedure section 437c, subdivision (h) specifies continuances are mandatory "if it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. . . ."
Whenever a party opposing a summary judgment meets these criteria, it is an abuse of discretion to deny a continuance to obtain the essential discovery, even where there is some evidence counsel may have been less than diligent in securing the necessary discovery. (See e.g., Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-635; Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395-400; cf. Wachs v. Curry (1993) 13 Cal.App.4th 616, 622-624 [no abuse of discretion where requested discovery was demonstrably irrelevant]).
DISPOSITION
The judgment is reversed and remanded for further proceedings consistent with this opinion. Appellants to recover their costs of appeal.
We concur: PERLUSS, P.J., and MUNOZ, (AURELIO), J.