California Civil Jury Instructions (CACI) (2017)

1248. Affirmative Defense—Inherently Unsafe Consumer Product

Download PDF
1248.Affirmative Defense—Inherently Unsafe Consumer Product
(Civ. Code, § 1714.45)
[Name of defendant] claims that it is not responsible for [name of
plaintiff]’s claimed harm because [specify product] is an inherently unsafe
consumer product. To succeed on this defense, [name of defendant] must
prove all of the following:
1. That [product] is a common consumer product intended for
personal consumption; and
2. That [product] is inherently unsafe;
3. But [product] is no more dangerous than what an ordinary
consumer of the product with knowledge common to the
community would expect.
New June 2016
Directions for Use
This instruction sets forth an immunity defense to product liability for a product
that is clearly recognizable as inherently dangerous. (See Civ. Code, § 1714.45(a).)
The statute requires that the product be “a common consumer product intended for
personal consumption, such as sugar, castor oil, alcohol, and butter, as identified in
comment i to Section 402A of the Restatement (Second) of Torts.” (Civ. Code,
§ 1714.45(a)(2).) This reference is perhaps somewhat confusing because the
Restatement comment makes it clear that sugar, castor oil, alcohol, and butter are
not unreasonably dangerous. The implication from the statutory references is that
although they are not unreasonably dangerous, they are inherently unsafe and thus
within the protection provided to the manufacturer by the statute.
Sources and Authority
• Nonliability for Inherently Unsafe Consumer Product. Civil Code section
Comment i to Section 402A of the Restatement (Second) of Torts provides:
Unreasonably dangerous. The rule stated in this Section applies only where the
defective condition of the product makes it unreasonably dangerous to the user
or consumer. Many products cannot possibly be made entirely safe for all
consumption, and any food or drug necessarily involves some risk of harm, if
only from over-consumption. Ordinary sugar is a deadly poison to diabetics,
and castor oil found use under Mussolini as an instrument of torture. That is not
what is meant by “unreasonably dangerous” in this Section. The article sold
must be dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge common
to the community as to its characteristics. Good whiskey is not unreasonably
dangerous merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a dangerous amount of
fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco
containing something like marijuana may be unreasonably dangerous. Good
butter is not unreasonably dangerous merely because, if such be the case, it
deposits cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.”
• “Additional limitations on the scope of the immunity may be deduced from the
history and purpose of the Immunity Statute . . . .The statute’s express premise
. . . was ‘that suppliers of certain products which are “inherently unsafe,” but
which the public wishes to have available despite awareness of their dangers,
should not be responsible in tort for resulting harm to those who voluntarily
consumed the products despite such knowledge.’ . . . [T]he Immunity Statute
[is] based on the principle that ‘if a product is pure and unadulterated, its
inherent or unavoidable danger, commonly known to the community which
consumes it anyway, does not expose the seller to liability for resulting harm to
a voluntary user.’ ” (Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th
856, 862 [123 Cal.Rptr.2d 61, 50 P.3d 769], internal citations omitted.)
• “The law should not ignore interactive effects that might render a product more
dangerous than is contemplated by the ordinary consumer who purchases it and
possesses the ordinary knowledge common to the community as to the product’s
characteristics. Therefore, when a court addresses whether a multi-ingredient
product is a common consumer product for purposes of Civil Code section
1714.45 and the ingredients have an interactive effect, the product and its
inherent dangers must be considered as a whole so that the interactive effects of
its ingredients are not overlooked or trivialized.” (Fiorini v. City Brewing Co.,
LLC (2014) 231 Cal.App.4th 306, 325 [179 Cal.Rptr.3d 827].)
• “The foregoing inferences preclude us from finding, as a matter of law, that
[product] was a common consumer product for purposes of Civil Code section
1714.45, subdivision (a). As a result, that factual question should be presented
to the trier of fact.” (Fiorini, supra, 231 Cal.App.4th at p. 326, footnote
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2010) Torts, § 1745 et seq.
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11[5] (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.70 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.80A et seq.
(Matthew Bender)
1249–1299. Reserved for Future Use