CACI No. 1204. Strict Liability - Design Defect - Risk-Benefit Test - Essential Factual Elements - Shifting Burden of Proof

Judicial Council of California Civil Jury Instructions (2020 edition)

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1204.Strict Liability - Design Defect - Risk-Benefit Test - Essential
Factual Elements - Shifting Burden of Proof
[Name of plaintiff] claims that the [product]’s design caused harm to
[name of plaintiff]. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That [name of plaintiff] was harmed; and
3. That the [product]’s design was a substantial factor in causing
harm to [name of plaintiff].
If [name of plaintiff] has proved these three facts, then your decision on
this claim must be for [name of plaintiff] unless [name of defendant]
proves that the benefits of the [product]’s design outweigh the risks of the
design. In deciding whether the benefits outweigh the risks, you should
consider the following:
(a) The gravity of the potential harm resulting from the use of the
[product];
(b) The likelihood that this harm would occur;
(c) The feasibility of an alternative safer design at the time of
manufacture;
(d) The cost of an alternative design; [and]
(e) The disadvantages of an alternative design; [and]
[(f) [Other relevant factor(s)].]
New September 2003; Revised February 2007, April 2009, December 2009,
December 2010, June 2011, January 2018, May 2019, May 2020
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If the plaintiff asserts
both tests, the instructions must make it clear that the two tests are alternatives.
(Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101, 1106-1107 [206
Cal.Rptr. 431].) Risk-benefit weighing is not a formal part of, nor may it serve as a
defense to, the consumer expectations test. (Chavez v. Glock, Inc. (2012) 207
Cal.App.4th 1283, 1303 [144 Cal.Rptr.3d 326].)
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To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590]; see also CACI No. 1245, Affırmative Defense - Product
Misuse or Modification.) Product misuse is a complete defense to strict products
liability if the defendant proves that an unforeseeable abuse or alteration of the
product after it left the manufacturer’s hands was the sole cause of the plaintiff’s
injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr.
596, 583 P.2d 121]; see CACI No. 1245.) Misuse or modification that was a
substantial factor in, but not the sole cause of, plaintiff’s harm may also be
considered in determining the comparative fault of the plaintiff or of third persons.
See CACI No. 1207A, Strict Liability - Comparative Fault of Plaintiff, and CACI
No. 1207B, Strict Liability - Comparative Fault of Third Person.
If evidence of industry custom and practice has been admitted for a limited purpose,
at the timely request of a party opposing this evidence, the jury must be given a
limiting instruction on how this evidence may and may not be considered under the
risk-benefit test. (See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30, 38 [237
Cal.Rptr.3d 205, 424 P.3d 290].)
Aesthetics might be an additional factor to be considered in an appropriate case in
which there is evidence that appearance is important in the marketability of the
product. (See Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1131 [105 Cal.Rptr.3d 485].)
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-defining
nor susceptible to a single definition applicable in all contexts.” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192 Cal.Rptr.3d 158].)
• The risk-benefit test requires the plaintiff to first ‘demonstrate[] that the product’s
design proximately caused his injury.’ If the plaintiff makes this initial showing,
the defendant must then ‘establish, in light of the relevant factors, that, on
balance, the benefits of the challenged design outweigh the risk of danger
inherent in such design.’ ” (Kim, supra, 6 Cal.5th at p. 30, internal citation
omitted.)
• “Appellants are therefore correct in asserting that it was not their burden to show
that the risks involved in the loader’s design - the lack of mechanical safety
devices, or of a warning - outweighed the benefits of these aspects of its designs.
The trial court’s instruction to the jury, which quite likely would have been
understood to place this burden on appellants, was therefore an error.” (Lunghi v.
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Clark Equipment Co., Inc. (1984) 153 Cal.App.3d 485, 497-498 [200 Cal.Rptr.
387], internal citations omitted.)
• “[U]nder 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. 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. ‘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.” ’ ”
(Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233 [115
Cal.Rptr.3d 151], internal citations omitted.)
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
Corp. (1983) 149 Cal.App.3d 23, 27 [196 Cal.Rptr. 487].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez, supra, 207 Cal.App.4th at p. 1303.)
• “Under Barker, in short, the plaintiff bears an initial burden of making ‘a prima
facie showing that the injury was proximately caused by the product’s design.’
This showing requires evidence that the plaintiff was injured while using the
product in an intended or reasonably foreseeable manner and that the plaintiff’s
ability to avoid injury was frustrated by the absence of a safety device, or by the
nature of the product’s design. If this prima facie burden is met, the burden of
proof shifts to the defendant to prove, in light of the relevant factors, that the
product is not defective. Importantly, the plaintiff’s prima facie burden of
producing evidence that injury occurred while the product was being used in an
intended or reasonably foreseeable manner must be distinguished from the
ultimate burden of proof that rests with the defendant to establish that its product
was not defective because the plaintiff’s injury resulted from a misuse of the
product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics, internal
citations omitted.)
• “ ‘[I]n evaluating the adequacy of a product’s design pursuant to [the risk-
benefit] standard, a jury may consider, among other relevant factors, the gravity
of the danger posed by the challenged design, the likelihood that such danger
would occur, the mechanical feasibility of a safer alternative design, the financial
cost of an improved design, and the adverse consequences to the product and to
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the consumer that would result from an alternative design.’ ” (Gonzalez v.
Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 786-787 [64 Cal.Rptr.3d 908],
internal citations omitted.)
• “[E]xpert evidence about compliance with industry standards can be considered
on the issue of defective design, in light of all other relevant circumstances, even
if such compliance is not a complete defense. An action on a design defect
theory can be prosecuted and defended through expert testimony that is
addressed to the elements of such a claim, including risk-benefit considerations.”
(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 426
[136 Cal.Rptr.3d 739].)
• “We stress that while industry custom and practice evidence is not categorically
inadmissible, neither is it categorically admissible; its admissibility will depend
on application of the ordinary rules of evidence in the circumstances of the
case. . . . First, the party seeking admission of such evidence must establish its
relevance to at least one of the elements of the risk-benefit test, either causation
or the Barker factors. The evidence is relevant to the Barker inquiry if it sheds
light on whether, objectively speaking, the product was designed as safely as it
should have been, given ‘the complexity of, and trade-offs implicit in, the design
process.’ Whether the evidence serves this purpose depends on whether, under
the circumstances of the case, it is reasonable to conclude that other
manufacturers’ choices do, as the Court of Appeal put it, ‘reflect legitimate,
independent research and practical experience regarding the appropriate balance
of product safety, cost, and functionality.’ If the proponent of the evidence
establishes a sufficient basis for drawing such a conclusion, the evidence is
admissible, even though one side or the other may argue it is entitled to little
weight because industry participants have weighed the relevant considerations
incorrectly. The evidence may not, however, be introduced simply for the
purpose of showing the manufacturer was acting no worse than its competitors.”
(Kim, supra, 6 Cal.5th at p 37, internal citations omitted.)
• “[I]f the party opposing admission of this evidence makes a timely request, the
trial court must issue a jury instruction that explains how this evidence may and
may not be considered under the risk-benefit test.” (Kim, supra, 6 Cal.5th at p.
38.)
• “Plaintiffs contend aesthetics is not a proper consideration in the risk-benefit
analysis, and the trial court’s ruling to the contrary was an ‘[e]rror in law.’ We
disagree. In our view, much of the perceived benefit of a car lies in its
appearance. A car is not a strictly utilitarian product. We believe that a jury
properly may consider aesthetics in balancing the benefits of a challenged design
against the risk of danger inherent in the design. Although consideration of the
disadvantages of an alternative design (CACI No. 1204, factor (e)) would
encompass any impact on aesthetics, we conclude that there was no error in the
trial court’s approval of the modification listing aesthetics as a relevant factor.”
(Bell,supra, 181 Cal.App.4th at p. 1131, internal citations omitted.)
• “Taken together, section 2, subdivision (b), and section 5 of the Restatement
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indicate that a component part manufacturer may be held liable for a defect in
the component. When viewed in its entirety, the Restatement does not support
[defendant]’s argument that ‘[o]nly if the component part analysis establishes
sufficient control over the design of the alleged defect should the component
manufacturer be held to the standard of the risk-benefit test.’ Instead, the test
considering foreseeable risks of harm and alternative designs is applied to the
component part manufacturer when the alleged defect is in the component.”
(Gonzalez, supra, 154 Cal.App.4th at pp. 789-790.)
• “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 [79 Cal.Rptr.2d 657].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615-1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1223-2:1224 (The Rutter Group)
California Products Liability Actions, Ch. 7, Proof, § 7.02 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, §§ 190.110,
190.118-190.122 (Matthew Bender)
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