SALLER v. CROWN CORK

be presented to the jury. ( McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1126 [ 123 Cal.Rptr.2d 303] ( McCabe).)

1. The Relation of the Consumer Expectations and Risk/Benefit Tests

(2) The rationale of the consumer expectations test is that "[t]he purposes, behaviors, and dangers of certain products are commonly understood by those who ordinarily use them." ( Soule, supra, 8 Cal.4th at p. 566.) Therefore, in some cases, ordinary knowledge of the product's characteristics may permit an inference that the product did not perform as safely as it should. " If the facts permit such a conclusion, and if the failure resulted from the product's design, a finding of defect is warranted without any further proof," and the manufacturer may not defend by presenting expert evidence of a risk/benefit analysis. ( Ibid.) The consumer expectations test is reserved for cases in which the everyday experience of the products' users permits a conclusion that the product's design violated minimum safety assumptions, and is "defective regardless of expert opinion about the merits of the design." (Id. at p. 567.) Therefore, if the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer should expect. Nonetheless, 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." ( Id. at p. 569.)

(3) In Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 127 [ 184 Cal.Rptr. 891, 649 P.2d 224], the court noted that the quantum of proof necessary to establish a design defect under the consumer expectations test could not be reduced to an "easy formula." "However, if the product is one within the common experience of ordinary consumers, it is generally sufficient if the plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety." ( Id. at p. 127.) The test is that of a hypothetical reasonable consumer, not the expectation of the particular plaintiff in the case. ( Id. at p. 126, fn. 6.)

On the other hand, "the jury may not be left free to find a violation of ordinary consumer expectations whenever it chooses. Unless the facts actually permit an inference that the product's performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker." (Soule, supra, 8 Cal.4th at p. 568.) The consumer expectations test is inappropriate "when the ultimate issue of design defect calls for a careful assessment of feasibility, practicality, risk, and benefit," since "in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations in determining whether a product is defectively designed or not." ( Id. at pp. 562-563.)

If the consumer expectations test is not used, under the risk/benefit test, the plaintiff may establish the product is defective by showing that its design proximately caused his injury and the defendant then fails to establish that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design. ( Barker, supra, 20 Cal.3d at p. 432.) In such case, the jury must evaluate the product's design by considering the gravity of the danger posed by the design, the likelihood such danger would occur, the feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the consumer resulting from an alternative design. ( Barker, at p. 431.) "In such cases, the jury must consider the manufacturer's evidence of competing design considerations . . ., and the issue of design defect cannot fairly be resolved by standardless reference to the `expectations' of an `ordinary consumer.'" ( Soule, supra, 8 Cal.4th at p. 567, citation omitted.) Once the plaintiff has made a prima facie showing that his or her injury was caused by the product's defective design, the burden shifts to the defendant to establish that, in light of the relevant factors, the product is not defective. ( Baker, at p. 431.)

In Soule, the Supreme Court found that a claim that General Motors's defective design of the wheel assembly and front floorboard enhanced the plaintiffs injuries in a collision required a risk/benefit analysis. The court concluded the plaintiffs theory involved technical and mechanical detail beyond the consumer's understanding or experience because "ordinary experience and understanding [would not] inform such a consumer how safely an automobile's design should perform under the esoteric circumstances of the collision at issue. . . . Indeed, both parties assumed that quite complicated design considerations were at issue. . . ." ( Soule, supra, 8 Cal.4th at p. 570.)

(4) Whether the jury should be instructed on either the consumer expectations test or the risk/benefit test depends upon the particular facts of the case. ( McCabe, supra, 100 Cal.App.4th at p. 1122.) In a jury case, the trial court must initially determine as a question of foundation, within the context of the facts and circumstances of the particular case, whether the product is one about which the ordinary consumer can form reasonable minimum safety expectations. ( Id. at pp. 1125-1126, fn. 7.) "If the court concludes it is not, no consumer expectation instruction should be given. . . . If, on the other hand, the trial court finds there is sufficient evidence to support a finding that the ordinary consumer can form reasonable minimum safety expectations, the court should instruct the jury, consistent with Evidence Code section 403, subdivision (c), to determine whether the consumer expectation test applies to the product at issue in the circumstances of the case [or] to disregard the evidence about consumer expectations unless the jury finds that the test is applicable. If it finds the test applicable, the jury then must decide whether the product failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner." ( Ibid., citation omitted.)

2. The Consumer Expectations Test Applies to Asbestos Products

(5) Several cases have applied the consumer expectations test to asbestos-containing products. ( Sparks, supra, 32 Cal.App.4th at p. 476; Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1002-1003 [ 35 Cal.Rptr.3d 144].) In Sparks, the defendant manufactured a product known as "Kaylo," which consisted of 13 to 20 percent asbestos, primarily chrysotile. Kaylo was sold in pipe-covering and block forms, and was used for industrial high-temperature thermal insulation. ( Sparks, at p. 465.) The plaintiff encountered Kaylo insulation while in the Navy, during a six-month period in which he removed and inspected asbestos insulation on pipes and valves. The insulation was removed by cutting and sawing, which produced sawdust consisting of the insulation material. Regular cleanup procedures involved the use of compressed air and foxtail brooms, both of which generated large amounts of dust. ( Id. at p. 466.)

Sparks held that the consumer expectations test applied to the plaintiff's claims for products liability based upon design defect because there were no "`complicated design considerations,'" "`obscure components,'" or "`esoteric circumstances'" surrounding the plaintiffs use of Kaylo, which was a common type of asbestos block insulation. Sparks noted that Kaylo was a simple, stationary product in ordinary use that had to be cut and shaped to perform its insulating function; this cutting created large of amounts of asbestos-laden dust during the normal installation, inspection, removal and replacement processes. "The design failure was in Kaylo's emission of highly toxic, respirable fibers in the normal course of its intended use and maintenance as a high-temperature thermal insulation. It is a reasonable inference from the evidence that this emission of respirable fibers, which were capable of causing a fatal lung disease after a long latency period, was a product failure beyond the `legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.'" ( Sparks, supra, 32 Cal.App.4th at pp. 474-475, citing Soule, supra, 8 Cal.4th at pp. 569-570.) Sparks further held that the use of expert testimony was not precluded' in cases proceeding on the consumer expectations test because such testimony was useful to the jury in determining that ordinary users of Kaylo during the 1950's and 1960's did not expect to develop a fatal disease from simply breathing Kaylo dust and therefore that the product did not meet the minimum safety assumptions of ordinary consumers. ( Sparks, supra, 32 Cal.App.4th at pp. 476-477.)

In Jones v. John Crane, Inc., supra, 132 Cal.App.4th 990, the plaintiff was regularly exposed to valve and pump packing materials made of asbestos while in the Navy. ( Id. at p. 996.) On appeal, the defendant manufacturer argued that the trial court erred in instructing with the consumer expectations test because issues of alleged product defect and its causal relationship to the plaintiff's illness could only be resolved by the testimony of experts because "nothing in the `everyday experience of users of valve and pump packing would permit them to form any assumptions concerning the health risks attendant to the use of such a product.'" ( Id. at p. 1001.) Jones rejected the defendant's argument that Sparks was distinguishable because while the insulation in Sparks was of relatively simple design, the defendant's product required a host of experts to explain the complex nature and behavior of its products, the amount of asbestos released during ordinary handling, and disputed testimony concerning the degree to which asbestos fibers were embedded in the product. ( Id. at p. 1002.) "The fact that expert testimony was required to establish legal causation for plaintiffs' injuries does not mean than an ordinary user of the product would be unable to form assumptions about the safety of the products. The consumer expectations test does not require inquiry into how exposure to a particular level of asbestos may lead to the development of cancer." ( Id. at p. 1003.)

B. Analysis

Here, plaintiffs argue there was nothing complicated or obscure about the design of Mundet insulation or that would have alerted an ordinary user that breathing its dust was harmful; in fact, the product was dangerous in the normal course of its intended use as insulation. Plaintiffs argue the error was prejudicial because if properly instructed, it was reasonably probable the jury would have concluded that the Mundet insulation did not meet the minimum safety expectations of normal consumers.

Plaintiffs contend the jury would have found causation based upon the evidence that asbestos is the only known cause of mesothelioma, Saller was exposed to substantial levels of asbestos, and there is no known safe level of exposure. However, on the special verdict form, the jury did not reach the issue of causation because it had found no design defects. In light of our reversal on instructional error grounds, we will not speculate on what the jury might have found had it reached the issue of causation.

Crown complains that the test does not apply in the first instance because there were no consumer expectations about the safety of asbestos in the 1950's and 1960's. Crown further argues that plaintiffs did not present any objective evidence, aside from Saller's subjective testimony, about consumer expectations of asbestos insulation during his employment at Standard Oil. Crown contends Saller's testimony alone is insufficient because in cases like Sparks, the plaintiffs coworkers testified concerning their expectations about the product. Further, under Campbell, because the test is objective, Saller's subjective expectations concerning asbestos were insufficient to support a submission of the instruction to the jury. Finally, Crown argues the only applicable test was the risk/benefit theory, the court instructed the jury on that test, and the jury found no liability.

(6) Here, we agree that the consumer expectations test applied to the use of asbestos at Standard Oil and that Saller's testimony concerning his expectations about its safety in its ordinary use at Standard Oil were sufficient to require a jury instruction on the issue. The use of asbestos insulation is a product that is within the understanding of ordinary lay consumers. In addition, Saller presented evidence concerning his exposure to the product (in frequent and close proximately to those workers actually using it); the circumstances surrounding his injury (use of asbestos insulation, an apparently innocuous product, frequently produced significant amounts of asbestos-containing dust that he inhaled); and the objective features of the product relevant to an evaluation of its safety (the product was always cut or sawed when used, always produced dust, and was frequently used). Given these circumstances and the widespread use of asbestos in refineries and other industries, the jury could infer that the ordinary consumer of the product, namely refinery workers, would assume that the use of the product was safe, notwithstanding the amount of dust produced. (7) Crown misconstrues the nature of the test by positing that it does not apply to asbestos products in use in the 1950's and 1960's because no one knew of the dangers of asbestos at that time. If knowledge of the hazardous nature of the product were a prerequisite for the test to apply, then no product would ever fail to meet the safety expectations of the reasonable consumer. Further, Crown erroneously assumes that because the only evidence plaintiffs presented on the issue was Saller's testimony, not only was it insufficient to support the giving of an instruction, Saller's viewpoint was also subjective. On the first point, Crown's complaints go to the weight of the evidence, not whether the instruction applies in the first instance. For the test to apply, Barker requires that the facts permit an inference that the product did not meet minimum safety expectations of its ordinary users. ( Soule, supra, 8 Cal.4th at p. 568.) To establish this inference, the testimony of a single witness is sufficient. (See People v. Richardson (2008) 43 Cal.4th 959, 1030-1031 [ 77 Cal.Rptr.3d 163, 183 P.3d 1146] [testimony of single witness is sufficient for proof of fact].) Furthermore, there was nothing in the record to support Crown's assertion that Saller's testimony was subjective. On the contrary, he testified to undisputed facts: the plants where he worked, the jobs he performed, the procedures of his coworkers, the use of asbestos insulation, and the dust in the air. Saller's work experience and exposure to the regular and systematic use of asbestos insulation could permit the jury to draw conclusions about whether the insulation performed as safely as an ordinary consumer (in this case a refinery worker) would expect.

The record here does not contain specific testimony from Saller or other workers in the refinery concerning their expectations on the safety of the asbestos insulation used. (See, e.g., Sparks, supra, 32 Cal.App.4th at p. 467 [plaintiff presented deposition testimony of his coworkers that they had no idea that their workplace exposure to asbestos could be dangerous to their health; they "simply assumed that it was part of their job and that there was no particular danger in it"].) However, such testimony, while useful, is not necessary to Saller's case. As set forth in Soule, "`ordinary knowledge . . . as to . . . [the product's] characteristics' (Rest.2d Torts[,] [§ 402A,] com. i., p. 352) may permit an inference that the product did not perform as safely as it should." ( Soule, supra, 8 Cal.4th at p. 566.) Saller testified to his knowledge concerning the asbestos insulation's characteristics.

Crown argues that plaintiffs' complaint did not contain any factual allegations supporting instruction on the consumer expectations test, and that the trial court rendered no decision on plaintiffs' motion in limine to permit evidence on the consumer expectations test. This argument is not fatal to plaintiffs' assertion of the test as a theory of recovery at trial. Crown did not raise any objection in the trial court or demonstrate prejudice from either the trial court's failure to rule on the motion or the lack of allegations in the complaint. Furthermore, pleadings are subject to amendment to conform to proof after trial. ( Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 527 [ 81 Cal.Rptr.3d 387].)

II. CACI No. 1205, Strict Liability Failure to Warn

Plaintiffs contend the trial court erred in failing to give CACI No. 1205, although they requested the instruction and the trial court agreed to give it. They contend the evidence supported the instruction because Crown did not provide any warnings with its products, although the knowledge at the time (1950's and 1960's) about the dangers of asbestos would have required a warning in light of the scientific and medical knowledge at the time. Crown contends that the instruction was intentionally withdrawn by plaintiffs' counsel and they did not object when it was not given, and they therefore have waived any complaint of error. Plaintiffs argue any waiver was inadvertent because they fully intended to rely on the theory, and argued the applicability of strict liability failure to warn to the jury.

A. The Issue of Waiver of CACI No. 1205 Is Mooted by Our Reversal for Failure to Give CACI No. 1203

We need not address whether plaintiffs waived the applicability of CACI 1205 by failing to object to its apparent inadvertent omission at trial. The effect of an unqualified reversal is to vacate the judgment and leave the case "at large" for further proceedings, including retrial, as if it had never been tried and no judgment had been entered. ( Regents of University of California v. Public Employment Relations Bd. (1990) 220 Cal.App.3d 346, 356-357 [ 269 Cal.Rptr. 563].) We reverse the judgment in this case based on the trial court's failure to instruct on the consumer expectations test, which puts the case at large for retrial. For that reason, although we need not reach the issue of whether the court erred in refusing instruction on strict liability failure to warn, we will do so here to provide guidance to the trial court if a retrial of this matter is conducted. ( Vasquez v. Superior Court (1971) 4 Cal.3d 800, 821, fn. 18 [ 94 Cal.Rptr. 796, 484 P.2d 964]; Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 131 [ 188 Cal.Rptr. 762].)

B. The Facts Supported the Giving of CACI No. 1205 (8) California recognizes failure to warn as a species of design defect products liability. ( Anderson, supra, 53 Cal.3d at pp. 994-995.) Under the failure to warn theory, a product may be defective even though it is manufactured or designed flawlessly. ( Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 52-53 [ 46 Cal.Rptr. 552].) "[A] product, although faultlessly made, may nevertheless be deemed `defective' under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given." ( Id. at p. 53; Anderson, at pp. 995-996.)

In Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal.App.3d 338 [ 157 Cal.Rptr. 142], the court considered whether a product could be defective solely based upon a failure to warn of risks in using the product. The plaintiff contended a golf cart that had been otherwise properly manufactured was defective due to its propensity to tip over when turning because of the absence of a manufacturer's warning of this propensity. The plaintiff presented no evidence that the cart was defective in design or manufacture. ( Id. at pp. 341-342.) Cavers noted in the case of a failure to warn, the jury must decide "whether a product flawlessly designed and produced may nevertheless possess such risks to the user without a suitable warning that it becomes `defective' simply by the absence of a warning." ( Id. at pp. 346-347.)

For this reason, Cavers relied on the defect tests set forth in Barker, supra, 20 Cal.3d at page 432 to assist in determining whether an otherwise properly designed and manufactured product was defective for failure to warn. The jury could consider the normal expectations of the consumer as to how the product would perform, degrees of simplicity or complication in the operation or use of the product, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury and the feasibility and beneficial effect of including a warning. ( Cavers v. Cushman Motor Sales, Inc., supra, 95 Cal.App.3d at pp. 347-348; Anderson, supra, 53 Cal.3d at p. 996.)

(9) The duty to warn requires that the manufacturer knows, or should have known, of the danger of the product at the time it is sold or distributed. ( Brown v. Superior Court (1988) 44 Cal.3d 1049, 1065-1066 [ 245 Cal.Rptr. 412, 751 P.2d 470]; Anderson, supra, 53 Cal.3d at p. 1000.) Strict liability failure to warn requires the plaintiff to prove that the defendant "did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. . . . [T]he reasonableness of the defendant's failure to warn is immaterial." ( Anderson, at pp. 1002-1003, fn. omitted.) Otherwise, the manufacturer would become a virtual insurer of the product. ( Brown, at p. 1066.) "If every product that has no warning were defective per se and for that reason subject to strict liability, the mere fact of injury by an unlabelled product would automatically permit recovery. That is not, and has never been, the purpose and goal of the failure-to-warn theory of strict liability." ( Anderson, at p. 1002.)

Here, although there was evidence that the scientific and industrial communities were aware of the dangers of asbestos exposure in causing disease beginning in the 1930's, strict exposure standards were not developed until the late 1960's at the earliest. On the one hand, plaintiff presented testimony that in the mid-1950's Standard Oil knew of the problems with asbestos exposure and recommended respirator use for its plants, although it did not implement them. On the other hand, during the 1950's and 1960's, medical attitudes towards the hazards of asbestos exposure were only beginning to crystallize into a program of prevention, and in the 1970's standards were developed. Thus, the question should have been submitted to the jury under a strict liability failure to warn theory whether Saller, who worked at Standard Oil from 1959 to 1967, was entitled to a warning about the dangers of using asbestos without precautions in light of the prevailing knowledge at the time.

(10) Furthermore, our conclusion is not changed by the fact the jury found Saller had not prevailed on a negligence theory of failure to warn. "Negligence and strict products liability are separate and distinct bases for liability that do not automatically collapse into each other because the plaintiff might allege both when a product warning contributes to her injury." ( Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [ 85 Cal.Rptr.3d 299].) "Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about." ( Ibid.) Strict liability, on the other hand, does not consider the standard of due care or the reasonableness of a manufacturer's conduct. Under a theory of strict liability, the plaintiff need only prove that "the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. Thus, in strict liability, as opposed to negligence, the reasonableness of the defendant's failure to warn is immaterial." ( Anderson, supra, 53 Cal.3d at pp. 1002-1003, fn. omitted.) Here, the jury's findings on negligent failure to warn therefore do not preclude a finding that the trial court erred in failing to instruct on strict liability. (See Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 557-558 [ 19 Cal.Rptr.2d 24] [findings on negligence do not prelude liability under strict liability theory].)

Finally, Crown argues that the exclusion of CACI No. 1205 was harmless because the jury impliedly found against plaintiffs on the strict liability failure to warn issue as evidenced by their answer to special verdict question No. 11, which asked the jury whether "there was a failure to warn of potential risks which were known, or knowable, in light of the generally recognized and prevailing best medical and scientific knowledge at the time of manufacture and distribution." This language is taken from CACI No. 1205, and is only a partial recitation of the elements of the tort. The elements of negligent failure to warn (on which the jury was instructed) and strict liability failure to warn are different in several respects. Given the differences in the two theories, we disagree with Crown's harmless error analysis because it requires us to speculate on what the jury would have found if fully and properly instructed on strict liability failure to warn. (See Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [ 117 Cal.Rptr. 1, 527 P.2d 353].)

As given to the jury, CACI No. 1222 provides, "Plaintiffs also claim that Defendants, were negligent by not using reasonable care to warn or instruct about the product's dangerous condition or about facts that make the product likely to be dangerous. To establish this claim, Plaintiffs must prove all of the following: [¶] 1. That Defendants manufactured/distributed/sold the product; [¶] 2. That Defendants knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; [¶] 3. That Defendants knew or reasonably should have known that users would not realize the danger; [¶] 4. That Defendants failed to adequately warn of the danger or instruct on the safe use of the product; [¶] 5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have warned of the danger or instructed on the safe use of the product; [¶] 6. That William Saller was harmed; and [¶] 7. That Defendants' failure to warn or instruct was a substantial factor in causing William Saller's harm."

DISPOSITION

The judgment of the superior court is reversed. Appellants are to recover their costs on appeal.

Mallano, P. J., and Rothschild, J., concurred.

Respondent's petition for review by the Supreme Court was denied December, 1, 2010, S 187072.