Opinion
Rehearing Denied Nov. 15, 1973.
Opinions on pages 773-793 omitted.
HEARINGS GRANTED [*]
See 12 Cal.3d 1 for Supreme Court opinion in decision that appeared on pages 784 to 793.
For Opinion on Hearing, sec 131 Cal.Rptr. 78, 551 P.2d 398.
[110 Cal.Rptr. 412]Spray, Gould & Bowers, L. Raymond Millard, Richard A. Neumeyer, Los Angeles, Office of Ross L. Malone; James P. Melican, Jr., Detroit, Mich., Haverstock, Gray, Plant, Mooty & Anderson, Richard A. Bowman, Minneapolis, Minn., for defendants-appellants.
Pollock, Pollock & Fay, Robert S. Schlifkin, Los Angeles, for plaintiff-respondent.
ROTH, Presiding Justice.
Appellants General Motors Corporation (GMC) and Fletcher's Chevrolet Incorporated (Fletcher) appeal from a judgment entered on a jury verdict for damages in the sum of $45,000 in favor of Lillian Y. Horn, respondent.
FACTS:
In Jury 1965, respondent purchased from Fletcher a new Chevrolet station wagon (Chevy) manufactured by GMC. On September 23, 1966, at about 9:00 p. m., respondent was driving the Chevy, headlights on, at approximately 25 miles per hour, down Laurel Canyon Boulevard, with her two sons, one in the front seat and the other in the rear seat. From around a curve a car suddenly appeared in her lane. Respondent swerved the Chevy to the left, reached her left hand across the steering wheel and with her right held her son Robin to protect him. Concurrently she 'felt and saw something fly between Robin and me.' The 'something' proved to be the horn cap off the top of the steering column. The Chevy hit an embankment on the side of the road and respondent's face collided with three prongs exposed in the opening left in the steering column causing an immediate burning sensation. The prongs were designed to hold the horn cap in place. Hospital examination revealed respondent had sustained a through and through laceration of her chin, a displaced fracture of her jaw and injury to six of her lower teeth. This action against GMC and Fletcher followed. It is conceded that neither GMC nor Fletcher caused the accident. Respondent's theory is that the horn cap flew off the steering column because of defective attachment, leaving exposed three prongs beneath it and that the injuries suffered by respondent were aggravated by contact with the prongs, and thus created a strict liability claim in tort against appellants under the doctrine of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963) and its progeny as expanded by Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972).
THE DEFECT AND THE EVIDENCE:
We have reviewed the evidence and, as required on appellate review, state the facts in the manner most favorable to respondent, since there is ample evidence to sustain the findings, express and implied, in the jury's verdict. (See Toole v. Richardson Merrell, Inc., 251 Cal.App.2d 689, 718-719, 60 Cal.Rptr. 398 (1967) [opinion on denial of rehearing].)
Appellants contend that there was no evidence of a defect, and cite Ward v. Hobart, 450 F.2d 1176 (5th Cir. 1971) for 'negligent design' under Mississippi law, to show that there was no evidence of a deviation from the norm in the industry and that therefore there was no standard upon which to predicate liability. This identical contention was rejected by the Supreme Court in Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 125-126, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972) supra. Cronin holds, although a collision may not be the normal or intended use of a vehicle, that a manufacturer of motor vehicles must anticipate that a vehicle may be involved in an [110 Cal.Rptr. 413] accident, and that it must be designed for the realities of every day use. (8 Cal.3d at 126.)
It is significant that in Cronin, at page 126, 104 Cal.Rptr. 433, 501 P.2d 1153, the court cited Passwaters v. General Motors Corp., 454 F.2d 1270, 1276 (8th Cir. 1972) and Larsen v. General Motors Corp., 391 F.2d 495, 501-503 (8th Cir. 1968) for the proposition that manufacturers must assume accidents as reasonably foreseeable when cars are designed and that both cases hold that the question of chargeability for a defect is a question of fact.
Respondent's expert testified that the horn cap attachment was defective because it could be easily knocked off and expose the prongs and that there were other ways to design the horn cap to prevent its being knocked off. Appellants' expert testified the purpose of the prongs was to keep the cap in place and that at the time it was designed and manufactured it was foreseen that GMC vehicles would be involved in sudden impacts, stops and collisions; further, it was foreseen that a person's hand would move across the center of the steering column while the wheel was being turned; GMC had the technical knowledge to manufacture a horn cap using screws which would not fall off and the cost for the alternate arrangement would not be greatly different from that involved at bench. The jury could have found from the above testimony, as it apparently did, that placing three prongs directly in front of the driver covered with a cap which could be jarred off by hand or collision, was a defect in design. (See Prosser, Law of Torts, § 96, page 646 (4th Ed. 1971).) Respondent did not state unequivocally that the horn cap came off and/or that her face actually came in contact with the exposed prongs. Evidence did show that the horn cap could come off when hit with a sideways motion and that respondent reached her left hand and arm across the steering column, and that she was quite certain that her face collided with the center part of the steering column which left her with a burning sensation; after the accident respondent saw that the horn cap was off and there were no other sharp surfaces in the area of the steering wheel other than the exposed prongs; the injuries on respondent's face matched the pattern of the exposed prongs in the center of the steering wheel. The jury could properly find, as it did, that the horn cap came off and respondent's face did in fact hit the exposed prongs. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183 (1935).)
We feel that the crucial question of whether there was a defect in the construction and fabrication of the horn in the Chevy was a jury question. Since there is evidence to support the jury's determination, we will not disturb its finding. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183 (1935) supra.)
The case, as pointed out in the beginning, was tried on the theory that although appellants were not strictly liable in tort for the original injuries or the accident, they were liable for any aggravation of the injuries which were due to the manufacturing defect. The very nature of respondent's claim is pregnant with the concession that if the horn cap at the top of the steering column had not been defectively constructed, respondent would have no claim irrespective of what injuries she suffered.
Thus, the question of how, if at all, the injuries suffered by respondent were aggravated by the defect, or whether respondent's injuries would have been worse had the cap remained in place, which was argued by appellants, were questions of fact for the jury.
Respondent's expert testified that by striking the prongs which had a much smaller surface area, the force was magnified 100 times over what it would have been had the horn cap been in place, and to other highly technical factors which exacerbated the injury; and that at the time the Chevy was designed it was practically and economically feasible to construct a [110 Cal.Rptr. 414] prongless collapsible horn cap secured from behind the steering wheel. The evidence of the extent to which respondent's injuries were aggravated because of the charged defect is sparse, but we cannot say in review on appeal that it is insufficient to sustain the jury's finding that the injuries were aggravated because of the defect. (Crawford v. Southern Pacific Co., supra.)
DUTY TO MANUFACTURE CAR COLLISION SAFE:
Appellants, relying upon Hatch v. Ford Motor Co., 163 Cal.App.2d 393, 329 P.2d 605 (1958) argue that as a matter of law there is no duty to manufacture a car that is collision safe. Hatch, they assert, is reaffirmed by the Supreme Court in Pike v. Frank G. Hough Co., 2 Cal.3d 465, 472-473, 85 Cal.Rptr. 629, 467 P.2d 229 (1970). However, a reading of either Hatch or Pike is of no comfort to appellants. In Hatch, the court was careful to distinguish its fact situation from that at bench. The Hatch Court says, 163 Cal.App.2d, at pages 396-397, 329 P.2d at page 607:
'There is not involved in this case any question of a defect which created a risk of injury to its driver or passengers therein or to persons upon the highway through its use in the normal manner for which it was manufactured to be used such as were involved in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, [Ann.Cas.1916C 440]; Olds Motor Works v. Shaffner, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A.,N.S., 560, [Ann.Cas.1913B 689]; Flies v. Fox Bros. Buick Company, 196 Wis. 196, 218 N.W. 855, 60 A.L.R. 357.
'The vehicle in question here, in the condition in which it was by the complaint alleged to be, was safe to park and could cause no harm except to one whose own acts or the acts of some third person caused him to collide with it. Such a risk is not one which the defendant was required to anticipate or to protect against. * * * '
It was the excerpted language above which the Pike Court cites with approval. Thus, Hatch is inapplicable since respondent was a person to whom a risk of injury was foreseeable.
The strict liability rule as applied to the facts at bench is clearly stated in Cronin where the court stated, 8 Cal.3d, at page 127, 104 Cal.Rptr. at page 437, 501 P.2d at page 1157:
'Finally, defendant contends that plaintiff failed to prove proximate causation between the defect in the hasp and the accident. It is urged that the hasp did not cause the collision. Plaintiff, however, does not argue that the hasp caused the accident, but only that its defectiveness was a substantial factor contributing to his injuries. Defendant argues that the fracture of the hasp did not propel plaintiff through the windshield. But plaintiff's expert witness testified that if the hasp had not been porous, it would have withstood the impact and kept the trays in place. The hasp's fragility therefore had a direct, rather than a remote, connection with plaintiff's injuries. There is ample evidence in the record supportive of the jury's implied finding of proximate causation.'
Thus, Cronin held that there was liability for a defect that caused an injury to a user of the product even though the defect did not cause the original accident. Earlier in the opinion (8 Cal.3d 126, 104 Cal.Rptr. 433, 501 P.2d 1153) the court stated that manufacturers have a duty to take into account accidents as a reasonably foreseeable occurrence involving their product. It appears to this Court that there is a duty to design a car safe from obvious defects for users and that the duty extends to injuries that might arise in a collision. (See Prosser, Law of Torts, § 96, p. 696 (4th Ed. 1971).)
Appellants further argue that as a matter of law there is no liability because appellants could not foresee the bizarre events that took place. (Ulwelling v. Crown Coach Corp., 206 Cal.App.2d 96, 23 Cal.Rptr. 631 (1962).)
[110 Cal.Rptr. 415]The evidence shows that GMC foresaw that its vehicles would be involved in accidents and that the hand of the driver of the vehicle would come across the steering wheel while turning the vehicle. Underneath the horn cap were three exposed prongs. The fact that there was an intervening force, to wit: the other car, will not defeat appellants' liability since it was foreseeable that if the cap fell or was knocked off, the driver, if forced forward and down, could be impaled upon the prongs beneath the cap. (See Bilyeu v. Standard Freight Lines, 182 Cal.App.2d 536, 6 Cal.Rptr. 65 (1960).) Foreseeability of the exact circumstances that caused the injury is immaterial if the defect in fact contributed to the injuries. (See and compare Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119 (1950).) We cannot hold as a matter of law that the injuries were unforeseeable.
DID THE COURT COMMIT PREJUDICIAL ERROR IN REFUSING TO ALLOW APPELLANTS TO SHOW DEMONSTRATION MOVIES?
Appellants asked a witness about the impossibility of respondent's sustaining injuries in the way that she testified. Objection was made and the court refused to allow further testimony on the grounds that the jury had already 'heard this twice.' Later in the trial, appellants sought to introduce movies which they contended would have shown that respondent could not have sustained the injuries in the way that she stated she had. The court sustained an objection on the grounds that the evidence was irrelevant and cumulative.
Appellants concede that at least four experts were allowed to testify that the accident could not have happened in the manner that respondent claimed it had. In addition, at least two films were shown to the jury showing what happened to unrestrained bodies in an impact. Finally, even though the court refused to allow the admission of the films, the court did allow experts to testify as to all of the admissible facts of the films.
Appellants contend that said refusals violated due process. They appear to contend that they should be allowed to introduce evidence ad infinitum until a matter is conclusively established or admitted. They cite cases in which little or no evidence on a given point was taken. The testimony at bench on how the accident happened or could have happened and the manner in which the injuries were sustained, covers in excess of 400 pages in the transcript. There was testimony, further testimony, and retestimony on the subject of flying bodies, the laws of nature, the laws of motion--and accidents in general.
The trial court has the power to control the trial and to limit the number of expert witnesses. (Evidence Code, section 723.) It has the inherent power to control the introduction of cumulative evidence. (Evidence Code, section 352.) At bench, it did exactly that. We have viewed the films and find no abuse of discretion.
ERROR IN REFUSING TO ALLOW EVIDENCE OF RESPONDENT'S FAILURE TO USE SEAT BELT:
Respondent admitted that she was not wearing her seat belt at the time of the accident. Appellants offered evidence that would have established the fact there was a probability that respondent's face would not have collided with the uncovered horn or that her injuries would have been substantially reduced had she been wearing her seat belt. The trial court, on objection by respondent that contributory negligence was not an issue in a strict liability case, refused to allow the evidence. (Luque v. McLean, 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163 (1972).) On the facts at bench we think the court's ruling was prejudicial error.
Conceding that the horn cap was defectively attached, as respondent asserts, it appears to us that whether respondent's omission to use the seat belt was the sole proximate cause of the injuries suffered in the accident, or her failure to use a seat belt equated with an assumption of risk [110 Cal.Rptr. 416] (see Luque v. McLean, supra), were questions of fact, either of which, if proved, would be a complete defense against respondent's claim. In any event and irrespective of whether such omission could be a complete defense, it appears clear that the use or non-use of seat belts was pertinent on the very issue raised by respondent, to wit: could the jury have determined as a question of fact that the use of seat belts would have reduced respondent's damages. (Cronin).
The jury could possibly find that non-use of a seat belt was a misuse of the automobile (Compare Greyhound Lines, Inc. v. Sup. Ct., 3 Cal.App.3d 356, 83 Cal.Rptr. 343 (1970) cert. denied, 400 U.S. 868, 91 S.Ct. 100, 27 L.Ed.2d 108), or that the seat belt in the car made the car safe for the use for which it was intended even though there was a defect present. (See Thomas v. General Motors Corp., 13 Cal.App.3d 81, 88-89, 91 Cal.Rptr. 301 (1970).) We do not intend to even intimate that the jury should have found on either theory. All we say is that appellants were entitled to have the jury hear this evidence and pass on these questions.
Thus, the use or non-use of seat belts is pertinent on the very question of aggravation of injuries which is the primary basis of respondent's claim. Appellants, it seems to us, had the right to introduce evidence to show, as they offered to do, that if the seat belt had been worn and properly fastened (1) there would have been no injury with or without a defective horn cap or (2) conceding dislodgment of the horn cap as a defect, there would be no injury or that the injury would be less aggravated.
We emphasize that the issue of seat belts is one for expert testimony and in the absence of any testimony the jury should not be left to speculate and guess as to the effect of non-wearing of a seat belt. The burden of proving whether the nonwearing of seat belts aggravated any injuries or the wearing of seat belts could have prevented or minimized the injuries, is upon the manufacturer. (Luque v. McLean, supra; see also Kleist, The Seat Belt Defense--An Exercise in Sophistry, 18 Hastings L.J. 613, 614-616 (1967) which indicates that the ordinary lap seat belt often aggravates injuries. (Truman v. Vargas, 275 Cal.App.2d 976, 983, 80 Cal.Rptr. 373 (1969).) Appellants were entitled to submit evidence on this subject and have the jury make the determination.
Appellants make numerous other contentions which we have examined and have found to be without merit.
The judgment is reversed.
FLEMING and COMPTON, JJ., concur.
[*] See 12 Cal.3d 1 for Supreme Court opinion in decision that appeared on pages 784 to 793.