1221. Negligence - Basic Standard of Care

A [designer/manufacturer/supplier/installer/repairer] is negligent if [he/she/it] fails to use the amount of care in [designing/ manufacturing/inspecting/installing/repairing] the product that a reasonably careful [designer/manufacturer/supplier/installer/ repairer] would use in similar circumstances to avoid exposing others to a foreseeable risk of harm.

In determining whether [name of defendant] used reasonable care, you should balance what [name of defendant] knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm.

Directions for Use

The duty to inspect or test is included in the "knew or should have known" standard of this instruction: "If the manufacturer designs the product safely, manufactures the product safely, and provides an adequate warning of dangers inherent in the use of the product, then a failure to test the product cannot, standing alone, cause any injury. The duty to test is a subpart of the other three duties because a breach of the duty to test cannot by itself cause any injury." (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1486 [81 Cal.Rptr.2d 252], quoting Kociemba v. G.D. Searle & Co. (D.Minn. 1989) 707 F.Supp. 1517, 1527.)

Presumably, the judge will have already determined that the manufacturer owed the plaintiff a duty because the product was of a type that could endanger others if it was negligently made. Accordingly, that element is eliminated in this instruction.

Sources and Authority

"A manufacturer/seller of a product is under a duty to exercise reasonable care in its design so that it can be safely used as intended by its buyer/consumer." (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229 Cal.Rptr. 605].) This duty " 'extends to all persons within the range of potential danger.' " (Ibid., internal citations omitted.)

"In determining what precautions, if any, were required under the circumstances, the likelihood of harm, and the gravity of the harm if it happens, must be balanced against the burden of the precaution which would be effective to avoid the harm." (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1077-1078 [91 Cal.Rptr. 319], internal citations omitted.)

Restatement Second of Torts, section 395, provides: "A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied."

In a non-res ipsa loquitur case involving a manufacturing defect only, the failure to follow Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681] by refusing to give negligence instructions does not require reversal. (Montez v. Ford Motor Co. (1980) 101 Cal.App.3d 315, 317 [161 Cal.Rptr. 578].)

"[F]reedom from negligence does not inure to the manufacturer because it purchased parts from another which were defective." (Sheward v. Virtue (1942) 20 Cal.2d 410, 412 [126 P.2d 345].)

Restatement Second of Torts, section 398, provides: "A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design."

Section 398 was cited with approval in Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 470 [85 Cal.Rptr. 629, 467 P.2d 229].

"What is 'reasonable care,' of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm." (Pike, supra, 2 Cal.3d at p. 470, internal citation omitted.)

"A danger is unreasonable when it is foreseeable, and the manufacturer's ability, actual, constructive, or potential, to forestall unreasonable danger is the measure of its duty in the design of its roduct." (Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 640 [105 Cal.Rptr. 890], disapproved on other grounds in Regents of University of California v. Hartford Accident & Indemnity Co. (1978) 21 Cal.3d 624, 641-642 [147 Cal.Rptr. 486, 581 P.2d 197].)

"With respect to tests or inspections, it is well settled that where an article is such that it is reasonably certain, if negligently manufactured or designed, to place life and limb in peril, the manufacturer is chargeable with negligence if the defective condition could be disclosed by reasonable inspection and tests, and such inspection and tests are omitted." (Putensen, supra, 12 Cal.App.3d at p. 1078, internal citations omitted.)

Restatement Second of Torts, section 396, provides: "A manufacturer of a chattel is subject to liability under the rules stated in sections 394 and 395 although the dangerous character or condition of the chattel is discoverable by an inspection which the seller or any other person is under a duty to the person injured to make."

"[W]here an article is either inherently dangerous or reasonably certain to place life and limb in peril when negligently made, a manufacturer owes a duty of care to those who are the ultimate users. This duty requires reasonable care to be exercised in assembling component parts and inspecting and testing them before the product leaves the plant." (Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 736 [7 Cal.Rptr. 879], internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1244

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21 (Matthew Bender)

19 California Points and Authorities, Ch. 190, Products Liability (Matthew Bender)

(New September 2003)