Opinion
Rehearing Denied Oct. 13, 1971.
Opinion on pages 33 to 44 omitted
HEARING GRANTED
For Opinion on Hearing, see 104 Cal.Rptr. 433, 501 P.2d 1153.
Mayall, Hurley, Knutsen, Smith & Green, Stockton, for defendant-appellant.
Hulsey, Beus, Wilson, Scott & Murphy, Stockton, for plaintiff-respondent: Robert E. Cartwright, San Francisco, Edward I. Pollock, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Thomas T. Anderson, Indio, Joseph W. Cotchett, San Mateo, and Leonard Sacks, Pico Rivera, Amici Curiae.
Theodore Groezinger, Loton Wells & James J. Vonk, Stockton, for plaintiff-in-intervention-respondent.
REGAN, Acting Presiding Justice.
This is an appeal by defendant J. B. E. Olson Corporation seeking reversal of the verdict of the jury and judgment against it and in favor of plaintiff William Cronin and the plaintiff in intervention, State Compensation Insurance Fund, for personal injuries sustained by plaintiff as the result of a bread truck accident.
On October 3, 1966, plaintiff was operating a bread delivery truck while working as a route salesman for Gravem-Inglis Bakery Company of Stockton (hereafter referred to as 'Gravem'). While plaintiff was attempting to pass a slower moving pickup truck, its driver turned to the left in front of plaintiff to enter a side road. Plaintiff turned to the left to avoid the truck, but the two vehicles collided. Plaintiff braked the bread truck but was unable to avoid hitting a ditch and coming to a sudden stop. The ensuing impact popped out a front window, and plaintiff was propelled out of the truck through this window and on to the ground. According [97 Cal.Rptr. 461] to plaintiff, a safety hasp broke on the bread trays; the bread trays came forward on impact, hitting plaintiff in the back and knocking him out of his driver's seat and through the windshield. The trays and the bread came through the open windshield also. Plaintiff suffered serious injuries.
In 1957, defendant Chase Chevrolet Company (hereafter referred to as 'Chase' and not a party to this appeal) sold a new Chevrolet van, with built-in bread racks, to Gravem-Inglis Bakery Company, plaintiff's employer. This truck had been purchased by Chase from defendant Olson Corporation, pursuant to Gravem's order. The chassis, body and racks for the truck were manufactured by three other subcontractors, not parties to this suit. Defendant acted as the sales agent and sold the assembled unit to Chase, which had ordered the van and bread racks equipped as a unit from defendant. There was no inspection of the completed van by defendant prior to delivery to Chase.
Chase gave no direction to the customer on the use or fabrication of the racks since the customer (Gravem) was more familiar with the trucks than the Chase personnel. Gravem specified the types of racks it wanted in the vans. At the time of the sale, there were no standard racks in the industry and practically all the racks were made-to-order. As to this particular order, however, the racks were apparently based on a sketch drawn by one of defendant's employees, and upon dimensions and instructions furnished by Quality Bakers of America, a trade association to which Gravem belonged. Chase relied upon defendant to manufacture a safe set of bread racks.
At the time of the order, Gravem made no request for any kind of special safety devices in connection with the racks. Mr. Spielman, a vice-president of the defendant corporation, testified that the safety 'stops' were made for normal driving, and were designed to stop the bread trays from sliding forward only in normal 'stop and go' traffic. Spielman also testified they had never received any complaints with regard to hasps breaking. Defendant made no representations that the aluminum racks would last without normal maintenance and inspection.
There is no evidence in the record concerning the history, usage, or maintenance of the van between its delivery to Gravem in 1957 and the time plaintiff took over its operation approximately five years after its manufacture, or about five years prior to the accident. The mileage on the truck showed approximately 61,776 miles.
The van body contains three aisles across its width along which are welded runners from front to back on which the bread trays can slide forward into the cab or back through the rear door. The racks hold ten trays high and five deep.
Dr. Paul Kirk, identified as a criminalist with a Ph.D. in biochemistry, examined the broken hasp with respect to the condition of the metal both microscopically and photographically for any physical deformation of the hasp. Examination of the four fractured surfaces of the hasp, which apparently broke in the accident, showed gross defects in the metal which, in Kirk's opinion, had been there since the metal was formed into a hasp in its manufacture. The hasp contained some organic material, cracks in several directions, and voids or holes. Kirk concluded that the piece of metal was 'extremely porous and extremely defective.' He could find no indication that the hasp had been locally repaired.
After making mathematical calculations based on the speed of the truck and the weight of the bread trays being thrown forward, Dr. Kirk concluded that the force exerted against the hasp at the time of the accident was approximately 350 to 400 pounds per square inch. A hasp made of good metal would have withstood this force. However, because of the flaws in the metal hasp involved, it would have withstood no greater than 125 pounds of force. It was Kirk's opinion that this particular hasp failed in the accident because 'it was just a very, very bad piece of metal. [97 Cal.Rptr. 462] Simply would not stand any force--reasonable forces at all.' He stated the number of years the hasp was in use did not change the interior of the metal which contained the defects. Kirk also testified that the fracture of the hasp was a tensile fracture rather than a fatigue fracture which is progressive in nature.
Defendant contends that plaintiff failed to establish that the allegedly defective part was the same part on the unit at the time it left the hands of the manufacturers. It argues that the exhibits together with the admission of the plaintiff himself, conclusively demonstrate that Gravem, or someone for them, had made substantial efforts to reinforce the use of this particular hinge mechanism by welding to it substantial pieces of bar metal. Defendant concludes that no evidence was produced by plaintiff demonstrating that the hasp complained of was the original hasp placed on the truck by the manufacturer. (See Roseboro v. Rawlings Mfg. Co. (1969) 275 Cal.App.2d 43, 48, 79 Cal.Rptr. 567; Erickson v. Sears, Roebuck & Co. (1966) 240 Cal.App.2d 793, 798, 50 Cal.Rptr. 143.)
This argument, of course, merely attacks the sufficiency of the evidence. Under well known rules of appellate review (see, e. g., Crawford v. Southern Pacific Co. (1935), 3 Cal.2d 427, 429, 45 P.2d 183), we find no merit to this contention.
We do not think the exhibits conclusively demonstrate what defendant wishes us to believe. Further, we are not concerned here with the hinges as such, but with the hasp, the part that broke.
In addition, Paul Kirk, plaintiff's expert witness, testified that the defect in the hasp occurred in its manufacture. Thus, there is at least an inference that the hasp was part of the original equipment.
Defendant contends that the plaintiff failed to demonstrate that there was any condition which could, in the overall context, be considered 'defective' within the contemplation of the doctrine of strict liability. It contends the term 'defect,' as used in the law, cannot be discussed in a vacuum but only in relation to some specific use of the product under the points out that, according to its evidence, the hasp was never designed to withstand accidents and had already outlived the manufacturer's estimate of life expectancy. Defendant poses the question--Defective for what? It cites this court's decision in Oakes v. E. I. Dupont de Nemours (1969) 272 Cal.App.2d 645, 649, 77 Cal.Rptr. 709, 712, wherein the court states as follows:
'Substantial authority supports the rule that a manufacturer or supplier is entitled to expect normal use of his product, and where the product is used in another manner * * * no liability will attach. [Citation.]'
This case is distinguishable on two grounds: first of all Oakes involved a warning on a weed-killing chemical and, secondly, the case involved a pleading matter where plaintiff to allege defendant's actual or constructive knowledge of the dangers of the product.
Nevertheless, defendant knew that the purpose of the locking device on the bread truck was to hold the bread trays in place. The defendant was also aware that the truck was to be driven on the public highways by employees of the purchaser.
In this respect, the following language from a note in the Harvard Law Review is pertinent: 'That standard [intended use], even if narrowly construed, should not exempt the manufacturer from responsibility for the faulty performance of his product when consequences occur which he may readily forsee as incident to its normal use. Obviously a collision is not an 'intended use' of an automobile; in the sense that 'use' implies purpose, it is not a use at all. But collisions are one of the frequent and inevitable contingencies of normal automobile use, and the responsibility of the manufacturer ought to extend at least to injuries caused by his automobile when such [97 Cal.Rptr. 463] foreseeable emergencies occur.' (80 Harv.L.Rev. 688, 689.)
Dr. Kirk was of the opinion that the interior defects in the aluminum hasp were the cause of its failure, and had the hasp not been made of defective metal, it would have withstood the pressures placed on it by the accident. We think the accident was foreseeable. It was established that the hasp was designed to hold the trays in place. We think this adequately answers the question posed by defendant, and thus find no error. (Cf. Elmore v. American Motors Corp. (1069) 70 Cal.2d 578, 583-584, 75 Cal.Rptr. 652, 541 P.2d 84; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168.)
Defendant contends that parts of the type alleged to have been defective were never intended to be used without the kind of inspection necessary to keep it in proper repair.
Even assuming the validity of his proposition, it still does not aid the defendant. The cracks and voids in the hasp occurred in the manufacture, were located in the interior of the metal, and thus were not visible to the naked eye. (See 2 Rest.2d, Torts 2d, § 402A.) Furthermore, the mere failure to discover the defect in the product or to guard against the possibility of its existence is no defense in a case involving strict liability. (Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 243, 71 Cal.Rptr. 306.)
Defendant next contends that at this time of the accident the truck and its hasp were not being subjected to any 'foreseeable' use as that term is defined in California strict liability principles. It argues that the unit obviously was not being used in an ordinary and proper fashion, citing Erickson v. Sears, Roebuck & Co., supra, 240 Cal.App.2d 793, 50 Cal.Rptr. 143.
That case is readily distinguishable since the plaintiff himself altered the product before the use which resulted in the accident.
In this age of the automobile, this argument is obviously fallacious. Abrupt stops and collisions are commonplace. To say that an abrupt stop or collision is not an intended use is to beg the question. The issue is whether or not they are foreseeable, and we are convinced that they are. (See, e. g., 80 Harv.L.Rev., supra, at p. 689.)
The court in Larsen v. Grneral Motors Corporation (8th Cir. 1968) 391 F.2d 495, readily recognized this facet of modern day living, commenting as follows (at pp. 501-503): 'Automobiles are made for use on the reads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident. O'Connell in his article 'Taming the Automobile,' 58 Nw.W.L.Rev. 299, 348 (1963) cites that between one-fourth and two-thirds of all automobiles during their use at some time are involved in an accident producing injury or death. Other statistics are available showing the frequency and certainty of fatal and injury-producing accidents. * * * It should be recognized that the environment in which a product is used must be taken into consideration by the manufacturer. Spruill v. Boyle-Midway, Inc., 308 F.2d (4 Cir. 1962.)
'The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities of the intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the courts.' (See also, [97 Cal.Rptr. 464] Dyson v. General Motors Corporation (D.C.1969) 298 F.Supp. 1064.)
We find no merit to this contention.
Defendant contends that plaintiff failed to prove proximate causation between any defect and his accident. Defendant appears to argue that the hasp did not cause the two violent accidents nor did the fracture of the hasp knock plaintiff out of his seat.
As to the first point, it is of course true that the hasp itself did not cause the accident. But this is irrelevant. As pointed out in Larsen, supra, there is no rational basis for limiting recovery to situations where the defect in manufacture was the causative factor of the accident. (391 F.2d at p. 502.)
'There seems to be no rational basis for splitting the event of the collision and allowing recovery only where the condition of the automobile caused the accident; the accident and injury are all part of the same happening in which defendant's failure to use reasonable care caused harm.' (80 Harv.L.Rev., supra, at p. 698.)
Defendant's second point is rebutted by the evidence which showed the following: the hasp was defective and broke on impact, propelling the bread trays against plaintiff, and thereby in turn propelling plaintiff through the window. Dr. Kirk testified that if the hasp had not been defective, it would have withstood the force and kept the trays in place. Under the circumstances the plaintiff proved the defective hasp was the proximate cause of the harm suffered.
Defendant contends that the court erred in submitting to the jury a definition of strict liability which omitted the concept of 'reasonableness.' It urges that it was necessary for the trial court to tell the jury that a defect must render the item 'unreasonably dangerous.' In this connection a portion of defendant's proposed Instruction No. 16 reads as follows:
'Plaintiff has burden or proving:
'(1) That the part in question contained a defect at the time it left the manufacturer's hands;
'(2) That the defective condition made it unreasonably dangerous to the user or consumer;
'(3) That the article was being used reasonably for the purpose for which it was designed and intended to be used;.' (Emphasis added.)
The trial court refused to give this instruction. Defendant concludes that the jury was thereby given an erroneous impression that a manufacturer or seller is absolutely liable for anything that might be termed a defect without regard to the reasonableness or unreasonableness of the use or application to which the item is being put at the time of the incident.
Defendant initially relies upon section 402A of 2 Restatement Second of Torts 2d, which reads as follows:
'(1) One who sells any product in a defective condition unreasonably dangerous to the use or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
'(a) the seller is engaged in the business of selling such a product, and
'(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
'(2) The rule stated in Subsection (1) applies although
'(a) the seller has exercised all possible care in the preparation and sale of his product, and
'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.' (Emphasis added.)
Comment (i) to this section reads, in part, as follows:
'* * * The rule stated in this Section applies only when the defective condition [97 Cal.Rptr. 465] of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possible be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption.'
The comment then goes on to discuss certain food and drugs. (See Witkin, Summary of Cal.Law, Torts, 1069 Supp. to Vols. 1 and 2, § 388-0, pp. 775-776; Note, 13 A.L.R.3d 1057, 1080.) However, this comment makes no mention of products not classified as food or drugs.
Secondly, defendant notes that the BAJI authors have reinstated the qualification of 'reasonableness' in the latest edition of BAJI in Instructions Nos. 9.00 and 9.01. Defendant concludes that without this limiting language the jury will be given the impression that there is an absolute liability standard to be applied.
The trial judge was apparently guided by the then current BAJI instruction (no. 218-A (New)) which omitted the qualification of 'reasonableness' of the danger. In this prior edition, the authors dropped the word 'reasonably' from the instruction as it had previously appeared because it had been criticized as unnecessary in Preston v. Up-Right, Inc. (1966) 243 Cal.App.2d 636. The authors have now reinstated the words 'unreasonably dangerous,' apparently relying on section 402 A of the Restatement.
In answer, plaintiff states the use of the words 'unreasonably dangerous' is authorized only to determine whether there is a 'defect' in a product faultlessly made either because of an unreasonably dangerous condition due to design or failure to warn, for in effect, in those two instances, no 'defect' exists at all; the words have no application to a case where a manufacturing defect existed. Case authority appears to support the first part of this theory as to design or failure to warn. (See Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 477, 85 Cal.Rptr. 629, 467 P.2d 229; Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 53, 46 Cal.Rptr. 552; see Barth v. B. F. Goodrich Tire Co., supra, 265 Cal.App.2d at pp. 244-245, 71 Cal.Rptr. 306, cf., Crane v. Sears Roebuck & Co. (1963) 218 Cal.App.2d 855, 860, 32 Cal.Rptr. 754.)
As to the second part of this theory, there appears to be no case authority either way. The leading California case in the field of strict liability is Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897. Greenman is discussed and quoted by this court in Canifax v. Hercules Powder Co., supra, 237 Cal.App.2d at page 51, 46 Cal.Rptr. at page 556: 'It held (59 Cal.2d on p. 62, 27 Cal.Rptr. on p. 700, 377 P.2d on p. 900) '* * * 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.' The opinion of the court (per Justice Traynor) points out (on p. 63, 27 Cal.Rptr. on p. 701, 377 P.2d on p. 901) that 'the recognition that the liability is not assumed by agreement but imposed by law [citations], and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products [citations] make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort.' And the reason for the rule of strict liability in such cases is expressed in Greenman, supra (at p. 63, 27 Cal.Rptr. at p. 701, 377 P.2d at p. 907) as follows: '* * * The purpose of such liability is to insure that the costs of injuries resulting from defective products are born by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.' This decision swept away the rule, or the remnant thereof, that a plaintiff injured by a defective product must sue under a contract of warranty and establish a privity between himself and the defendant.' (In general, see, Prosser, Strict Liability to the Consumer in California, [97 Cal.Rptr. 466] 18 Hastings L.J. 9; Cal.Tort Guide (Cont.Ed.Bar 1971) §§ 10.1-10.12, pp. 142, 148.) No mention is made in Greenman or other subsequent cases involving manufacturing defects of an instruction embodying the 'unreasonably dangerous' concept. (See Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722; Elmore v. American Motors Corp., supra, 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84; Vandermark v. Ford Motors Co., supra, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168.) The Restatement is merely guide; it does not necessarily determine California law. (See Price v. Shell Oil Co., supra, 2 Cal.3d at p. 253, 85 Cal.Rptr. 178, 466 P.2d 722.) Further, as noted above, the Restatement, in its comment on 'unreasonably dangerous,' discusses only food and drug products. Under the circumstances of this case, we think the jury was adequately instructed. We hold that it was not error to omit the words 'unreasonably dangerous' in this case which involves a defect in the manufacture of a particular safety device.
Lastly, defendant argues that the compensation lien should not have been allowed. It argues the facts and maintains that any defects in the metal hasp were the result of Gravem's replacement or tampering. There are no citation to the record to support this argument. This court is under no duty to search the record in order to substantiate defendant's allegation of error. (Haynes v. Gwynn (1967) 248 Cal.App.2d 149, 56 Cal.Rptr. 82; Pittman v. Boiven (1967) 249 Cal.App.2d 207, 215, 57 Cal.Rptr. 319.) Neverthless, we have reviewed the record in its entirety and find no error.
The decision in Greenman v. Yuba Power Products Inc., supra, 59 Cal.2d at page 62, 27 Cal.Rptr. at page 700, 377 P.2d at page 900, established the law of strict liability in California when it announced the rule that '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.' Here, plaintiff proved the product was defective when it left the defendant's hands and remained substantially unchanged until the accident; that a causal connection existed between the condition of the product and the plaintiff's injuries; that the defendant placed the product on the market knowing that it was to the used without inspection for defects, and that the plaintiff used the product in the manner for which it was intended. The bread delivery truck was unsafe when it left the possession of the defendant.
The judgment is affirmed.
JANES, J., and BRAY, J. assigned, concur.