Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV023159
BUTZ, J.In this products liability action involving a 2002 Toyota Corolla, the jury found in favor of the Toyota defendants Toyota Motor Corporation, Toyota Motor Sales U.S.A., Inc., and Toyota Town (collectively, Toyota). The jury determined, in a special verdict, that the design of the Corolla was not a substantial factor in causing the death of the plaintiffs’ decedent. The crash at issue involved the decedent’s ill-timed pass on a highway, a jammed seat belt buckle, and a fire that engulfed the Corolla.
On appeal, the heirs of decedent (plaintiffs) contend the trial court erroneously (1) provided a special verdict form that failed to resolve plaintiffs’ independent cause of action for negligence, (2) failed to give the consumer expectations test of design defect, and (3) instructed that a design defect is not a legal cause of injury if the injury would have been the same had there been no defect. We disagree with each of these contentions and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The crash
Decedent Raminder Singh (decedent) was driving his 2002 Toyota Corolla on a rural highway with his teenage son, plaintiff Gurinder Singh, as his front-seat passenger. The speed limit was 55 miles per hour (mph). Despite a solid yellow no-passing line and an approaching intersection, decedent pulled into the oncoming lane to pass two or three cars. One of the vehicles decedent was passing, a van, began to turn left at the intersection. Decedent sideswiped the van at about 55 mph. This caused the Corolla to veer off the road, crash head-on into a tree on the driver’s side at about 40 mph, and roll onto its right passenger side. The collision was more severe than 99.5 percent of car crashes.
Plaintiffs also sued the driver of the van, but that driver is not involved in this appeal.
After the crash, both decedent and Gurinder remained seat-belted, with decedent “suspended above” Gurinder. Gurinder unlocked his seat belt, tried unsuccessfully two or three times to unlock decedent’s, and climbed out the rear driver-side door to summon help at decedent’s request. (It was later determined that decedent had broken his ankle, foot and left arm, and had lacerated his spleen.)
Several people stopped at the crash site. Two of them climbed into the Corolla and tried unsuccessfully to unlock decedent’s seat belt.
A fire subsequently broke out in the engine compartment, which proved impervious to fire extinguishers.
To get decedent out, a few of the people rolled the Corolla back onto its wheels. The fire then spread to the car’s passenger compartment. A knife was handed to decedent to assist him to cut his way out. Decedent took it with his right hand and turned back into the car just prior to the flames engulfing him. However, decedent did not recoil or move even when his legs caught fire; a witness who was an anesthesiologist had observed that decedent was in an altered state of consciousness.
The lawsuit and contentions
Based on the jammed seat belt and the fire, plaintiffs sued Toyota for strict products liability, negligence, breach of warranty, and, with respect to the surviving passenger, plaintiff Gurinder, negligent infliction of emotional distress.
Plaintiffs contended that the seat belt buckle was defectively and negligently designed in that it deformed and jammed at impact. Plaintiffs contended that the engine compartment was defectively and negligently designed by having electrical components too near flammable sources, and by having a fire-weak barrier between the engine and passenger compartments. Finally, plaintiffs contended that Toyota defectively and negligently failed to test these components under real world conditions.
The two sides presented substantial expert evidence for and against these contentions respectively.
As for the seat belt contentions, plaintiffs’ expert maintained that a defect in the design of the seat belt buckle caused it to deform in the crash and to trap decedent, and noted that a non-deformed Corolla seat belt buckle could be released with only 6.5 pounds of force even after being subjected to a 3000-pound pull. Toyota’s expert countered that the seat belt buckle was deformed by decedent’s body weight and the ensuing fire and noted that decedent, a 190-pound man, remained seat-belted into the driver’s seat, suspended against the seat belt buckle, making it much harder to release the buckle. Plaintiffs had also argued that the defectiveness of the Corolla’s seat belt could be evaluated simply pursuant to an ordinary consumer’s expectation, but the trial court refused to instruct on the consumer expectations test of design defect (more on this in the Discussion section that follows).
As for the fire, plaintiffs’ experts claimed that the fire killed decedent, that the fire was a fairly rapid, gasoline-fed one caused by having the battery and fuse box placed too close to the fuel lines, and that a weak weld caused a floorboard hole which allowed the fire to progress rapidly into the passenger compartment. Toyota’s experts disputed these claims. They maintained that decedent died before the fire engulfed him, that the fire was relatively slow-moving and caused non-defectively by brake fluid, and that the floorboard was properly designed and its welds held.
Finally, as for the testing, plaintiffs’ experts noted that Toyota test-crashes its Corollas into poles at only 16 mph. Toyota also runs its crash tests with a cold engine, with solvent rather than gasoline, and with the other flammable fluids removed. Toyota’s experts noted that it has test-crashed a Camry into a pole at 30 mph, which provides adequate information for the Corolla, and that it has test-crashed the Corolla head-on into a solid barrier at 35 mph and into a deformable barrier at 40 mph. A 40-mph pole crash is “so rare” that it is not a legitimate candidate for testing. Again, the crash at issue was more severe than 99.5 percent of crashes. Furthermore, plaintiffs’ expert agreed that replacing gasoline with solvent “makes sense because it protects the [test] workers” and is a long-standing, “accepted” method.
DISCUSSION
I. The Special Verdict Form Did Not Fail to Resolve Negligence
Although plaintiffs raise numerous contentions regarding the special verdict form, those contentions boil down to the assertion that the form failed to resolve plaintiffs’ independent cause of action for negligence. Plaintiffs alleged that Toyota defectively and negligently designed the Corolla and defectively and negligently tested the Corolla. On the special verdict form, the jury answered “no” to the threshold and dispositive question of whether the Corolla’s design was a substantial factor in causing decedent’s death. As we shall explain, the problem with plaintiffs’ assertion is that their claim of negligence does not allege a cause of action independent from their claim of design defect the two claims are one and the same, and the challenged verdict form’s question on causation applied to both.
To analyze plaintiffs’ assertion, we must first set forth the basic legal principles at play.
“[M]anufacturers are not insurers of their products; they are liable in tort only when ‘defects’ in their products cause injury.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 568, fn. 5 (Soule) [tort law defines a “cause” of injury as a “substantial factor” in producing the injury (id. at p. 572)].)
Plaintiffs have sued the Corolla’s manufacturer (Toyota Motor Corporation), distributor (Toyota Motor Sales U.S.A., Inc.) and dealer (Toyota Town). Because plaintiffs’ lawsuit involves alleged deficiencies in the design of a manufactured product, the suit’s focus is on the manufacturer (the distributor and the dealer are simply within the manufacturer’s orbit of liability in this respect).
“Strict liability has been invoked for three types of defects manufacturing defects, design defects, and ‘warning defects,’ i.e., inadequate warnings or failures to warn.” (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.) On appeal, plaintiffs’ theory of strict liability involves only design defects regarding the seat belt and the fire.
“Where liability depends on the proof of a design defect, no practical difference exists between negligence and strict liability; the claims merge.” (Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1185.) This is because strict liability in tort for a design defect in a manufactured product is analogous, in a practical sense, to a standard of care not being met. (DeLeon v. Commercial Manufacturing & Supply Co. (1983) 148 Cal.App.3d 336, 348; see also 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1431, pp. 856-857; cf. Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133-135 [plaintiffs need only prove that a defect in design caused injury, not that product was unreasonably dangerous].)
Against this legal backdrop, we turn to the challenged special verdict form.
Question No. 1 of the special verdict form asked: “Was the design of the Toyota Corolla a substantial factor in causing [decedent’s] death?” The jury answered “No.” The verdict form instructed the jury that if it so answered, it was not to answer any further questions on the form; it was simply to have the presiding juror sign and date the form. (The unanswered further questions on the special verdict form included, as pertinent: Was the design of the Corolla a substantial factor in causing the fire or causing fire to enter the passenger compartment? was the design of the seat belt a substantial factor in preventing decedent from being rescued from the Corolla? was Toyota negligent in designing the Corolla? and, was Toyota’s negligence a substantial factor in causing decedent’s death?)
As noted, plaintiffs alleged that Toyota defectively and negligently designed the Corolla and defectively and negligently tested the Corolla. Plaintiffs assert that the special verdict form erroneously failed to resolve their independent action for negligence. We disagree.
We start with the allegations of defective and negligent design. In line with the merger principles noted above regarding strict liability and negligence in the design defect context, no matter which of these two theories is used in a products liability action, a plaintiff must prove that the injury was “caused by the defect” in the product. (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 855; Soule, supra, 8 Cal.4th at p. 568, fn. 5.) By answering “no” to question No. 1 on the special verdict form, the jury determined that decedent’s death was not caused by the Corolla’s design. (Khan, at p. 855.) Given the merger between strict liability and negligence here, the jury’s determination applied equally to these two claims. Consequently, question No. 1 of the special verdict form was legally proper and dispensed with plaintiffs’ theories of defective design and negligent design.
What about plaintiffs’ allegations of defective and negligent testing? Those too were properly dispensed with by the jury’s answer to question No. 1 on the special verdict form. The reason that manufacturers are under a duty to test their products is to discover defects or dangers in them. (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1485.) The duty of testing in the context of design defect, which, as we have seen, is the context before us, has no significance apart from the test results of the product’s design. (Ibid.) Since Toyota has been exonerated of liability for design, “nothing remains upon which to hang the testing... duties.” (Ibid.) In other words, the duty to test is subsumed within the duty to design, and a breach of the duty to test cannot by itself cause any injury if no defect in the design has been found. (Id.at p. 1486.)
Plaintiffs raise three arguments against our conclusion. We do not find any of them persuasive.
First, plaintiffs argue that because the special verdict form’s question No. 1 phrased the issue simply as one of “design,” the form did not cover defect or negligence and was nonsensical. The entire trial, though, concerned the Corolla’s design involving the seat belt and the fire. Unless a juror slept through the entire proceedings, the juror would know what was meant by the term “design” on question No. 1. This reasoning also dispenses with plaintiffs’ related claim that a manufacturer may so negligently fail to test that a design defect is not discovered. The viability of such a claim still requires that the design (defect) have caused injury; the jury here found this was not so. Moreover, the Judicial Council-recommended instruction on design defect that was given here CACI No. 1204 (“Design Defect Risk-Benefit Test” [more on this in the next section of this opinion]) instructed, as did the challenged question No. 1, that a product’s “design” must be “a substantial factor in causing harm to plaintiffs.” (CACI No. 1204, italics added.) This instructional language has the added bonus of dispensing with plaintiffs’ claim that the special verdict form did not conform to these instructions.
Second, plaintiffs contend, citing to Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530 and Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, that negligence in this case was distinct from strict liability defect. But the citations to Hasson and Hernandez illustrate precisely why this is not so. In Hasson, the court concluded that the jury properly could have found that there was no brake defect in the vehicle when manufactured and sold, but that the manufacturer was nonetheless negligently liable for its failure during the ensuing four years to warn of braking conditions which might develop in use. (Hasson, supra, 19 Cal.3d at pp. 542-543, overruled on another point in Soule, supra, 8 Cal.4th at pp. 574, 580.) And similarly in Hernandez, the jury found no design defect when the crane left the manufacturer’s possession, but concluded the manufacturer was negligent when it subsequently became aware of the need for a safety device and failed to conduct an adequate retrofit campaign. (Hernandez, supra, 28 Cal.App.4th at pp. 1827-1828.) Plaintiffs’ position on appeal, by contrast, involves manufacturer-design defect only. Hasson and Hernandez involved a manufacturer’s negligence subsequent to manufacture; here, as we have seen, manufacture and negligence merged as to design defect. Plaintiffs do make a passing reference to some meager evidence that Toyota had prior knowledge of similar crashes involving Corollas resulting in front engine fires. But, again, plaintiffs do not posit on appeal a failure-to-warn theory against Toyota, only a design defect theory; and the jury’s finding of no design causation, as we have seen, dispenses with both defective and negligent design.
Finally, plaintiffs note that the jury was instructed on negligence and negligent infliction of emotional distress, but not so asked on the special verdict form. As we have seen, the special verdict form did in fact ask whether Toyota was negligent. The jury did not have to reach this question, however, in light of its previous determination that the Corolla’s design was not a substantial factor in causing decedent’s death. Such causation was a required element of any negligence theory in this design defect case.
We conclude that question No. 1 of the special verdict form was properly given to the jury in this case.
II. The Trial Court Acted Properly in Not Instructing on the Consumer Expectations Test
Plaintiffs contend the trial court erroneously refused to instruct on the consumer expectations test of design defect regarding the issue of fire protection and the issue of decedent’s seat belt. We disagree.
Our state Supreme Court, in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, formulated two alternative tests the consumer expectations test and the risk/benefit test to prove a design defect. (Barker, at pp. 426-427; Soule, supra,8 Cal.4th at pp. 566-567.) Under these tests, a product is defective in design (1) if the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (the consumer expectations test), or (2) if the plaintiff proves that the product’s design proximately caused injury and the defendant fails to prove that the benefits of the challenged design outweigh the risk of danger inherent in such design (the risk/benefit test). (Barker, at pp. 426-427.) The trial court instructed the jury here only on the risk/benefit test for determining design defect.
“[T]he consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design.” (Soule, supra, 8 Cal.4th at p. 567.) “For example, the ordinary consumers of modern automobiles may and do expect that such vehicles will be designed so as not to explode while idling at stoplights, experience sudden steering or brake failure as they leave the dealership, or roll over and catch fire in two-mile-per-hour collisions. If the plaintiff in a product liability action proved that a vehicle’s design produced such a result, the jury could find forthwith that the car failed to perform as safely as its ordinary consumers would expect, and was therefore defective.” (Id. at pp. 566-567, fn. 3.)
“The critical question, in assessing the applicability of the consumer expectation test, is not whether the product, when considered in isolation, is beyond the ordinary knowledge of the consumer, but whether the product, in the context of the facts and circumstances of its failure, is one about which [its] ordinary consumers can form minimum safety expectations. (Soule, supra, 8 Cal.4th at pp. 568-569.)” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1124 (McCabe).) As phrased in Soule, “[t]he crucial question in each individual case is whether the circumstances of the product’s failure permit an inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.” (Soule, supra, 8 Cal.4th at pp. 568-569.)
With these principles in mind, we turn to the design defect issues here of fire protection and decedent’s seat belt.
A. Fire Protection
We think it is readily apparent that the consumer expectations test of design defect does not apply to the fire at issue here.
The fire involved “complex technical issues” about which ordinary consumers could not form legitimate, commonly accepted minimum safety expectations. (Pruitt v. General Motors Corp. (1999) 72 Cal.App.4th 1480, 1484; McCabe, supra,100 Cal.App.4th at p. 1124; Soule, supra,8 Cal.4th at p. 569.) And the fire does not fit within the consumer expectation examples provided in Soule. (Soule, at pp. 566-567, fn. 3.)
The crash here was in the 99.5 percentile of severity. It involved a driver-side front-end collision with a tree at 40 mph, an ensuing rollover with the car coming to rest on its passenger side, and some good samaritans then “righting the ship.” The fire experts disagreed about the most basic and the most technical aspects of the fire, and raised several technical issues about the engine/passenger compartment barrier. According to plaintiffs’ experts, the fire was a gasoline-fed blaze caused by multiple electrical components being placed near fuel lines that spread fairly rapidly through a defectively designed barrier. According to Toyota’s experts, the fire was a brake fluid-fed smolder that intensified when the car was rolled back onto its wheels. The experts even disagreed about whether decedent was killed by the fire. In this complex technical arena of expert disagreement, what is an ordinary consumer to do? Nothing. And that is why the trial court did not err in failing to provide the consumer expectations test of design defect on the issue of the Corolla’s fire protection.
B. Decedent’s Seat Belt
The seat belt presents a tougher call on the applicability of the consumer expectations test. After all, an ordinary consumer, drawing upon his everyday experience with buckling and unbuckling seat belts, reasonably expects a seat belt to protect him in a crash and then to release him when its latch is pressed.
But, as McCabe and Soule teach us, the critical question, in assessing the applicability of the consumer expectations test, is not whether the product, when considered in isolation, is within the ordinary knowledge of the consumer, “but whether the product, in the context of the facts and circumstances of its failure,” is one about which ordinary consumers can form legitimate, commonly accepted minimum safety expectations. (McCabe, supra,100 Cal.App.4th at p. 1124; Soule, supra,8 Cal.4th at pp. 568-569.) When we apply this standard in light of the examples given in Soule of when the consumer expectations test applies, we conclude the trial court properly refused to give that test here.
As noted, the high-speed crash here was a very severe and unusual one. The crash came to an end only when the Corolla came to rest vertically on its passenger side. At this point, decedent, a 190-pound man, remained seat-belted into the driver’s seat, suspended against the seat belt buckle. It was in this configuration that decedent’s son and two others tried unsuccessfully to release the buckle (decedent’s lucidity at this time was in some dispute). The experts disagreed about whether the seat belt buckle was deformed in the crash or in the ensuing fire, and whether a non-defective buckle in these circumstances should release easily or not.
We conclude that in the context of these facts and circumstances, decedent’s seat belt buckle was not a product about which an ordinary consumer could form legitimate, commonly accepted minimum safety expectations. (Soule, supra,8 Cal.4th at pp. 568-569; McCabe, supra,100 Cal.App.4th at p. 1124.) The examples given in Soule of when the consumer expectations test applies support our conclusion: Ordinary consumers expect automobiles to be designed “so as not to explode while idling at stoplights, experience sudden steering or brake failure as they leave the dealership, or roll over and catch fire in two-mile-per-hour collisions.” (Soule, at pp. 566-567, fn. 3.) These examples involve an extreme product failure in a non-extreme setting, from which ordinary consumers can legitimately surmise that something is amiss with the product’s design. That is not the situation with respect to decedent’s seat belt. The seat belt failed in an extreme and unusual setting for which the “everyday experience” of ordinary consumers provides little or no guidance as to legitimate, commonly accepted safety expectations. (Soule, supra, 8 Cal.4th at pp. 567, 569, italics omitted.)
III. Defense Instruction on Defective Design Not Being Cause of Injury
Lastly, plaintiffs contend the trial court erred by giving the following two substantively identical instructions: (1) “If you find that the Toyota Corolla was defectively designed, but that [decedent’s] death would have occurred even if the Toyota Corolla had been properly designed, its design was not a substantial contributing factor in causing his death”; and (2) “Conduct is not a substantial factor in causing harm if the same harm would have occurred without the conduct.”
Plaintiffs argue that these instructions told the jurors “that, regardless of any design defect, if another concurring independent cause may have caused the death, Toyota was not at fault,” and that “even with a defective design, the design would not be a substantial contributing factor if decedent might eventually die from injuries received in the initial impact.” Plaintiffs claim the instructions were thus incorrect, and effectively directed a verdict for Toyota.
Plaintiffs are mistaken that the instructions were incorrect. A substantively identical instruction given in a context similar to the one before us was deemed “correct in form and substance” by the state Supreme Court in Soule. (Soule, supra, 8 Cal.4th at p. 572; see also id. at p. 559.)
Plaintiffs are also mistaken that the instructions amounted to a directed verdict for Toyota based on causation. The instructions stated that a design defect was not to be deemed a causal factor in decedent’s death if that “death would have occurred even if the Toyota Corolla had been properly designed.” (Italics added.) Plaintiffs argue, erroneously, that these instructions stated that if another cause besides the design defect “may have caused the death” or “might” have caused the death, then the design defect was not a legal cause of the death and Toyota was not at fault. (Italics added.) Furthermore, as plaintiffs themselves recognize, the second instruction “essentially repeat[ed]” the first. The second instruction is from CACI No. 430 entitled “Causation: Substantial Factor” and, in line with the directions given for using that instruction in the context of possible multiple causes, the trial court also gave CACI No. 431 entitled “Causation: Multiple Causes” which included the instruction: “Toyota cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing plaintiffs’ harm.” (CACI Nos. 430, 431.)
Plaintiffs argue, in closing, that the three basic errors they have alleged compounded one another. Finding no individual error, we find no compounded error.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: SIMS, Acting P. J., RAYE, J.