ROTH, P. J. —I respectfully dissent. The thrust of plaintiffs case is that defendant Honda, the distributor of the motorcycle, is strictly liable1 to her based on her contention that the unenclosed spoked rear wheel of the motorcycle upon which she was a passenger was defectively designed (discussed infra). Her complete prima facie case consisted of evidence showing how the accident occurred (the injury to her leg) and the amputation of a portion thereof. Relying upon those bare bone facts and Barker v. Lull (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1], she convinced the trial court she had completed a prima facie case of Honda’s liability so [1065]that a showing of nonliability had shifted to defendant Honda. Hence, the narrow question before this court, as set forth by the record and fortified by the plaintiff’s pretrial tactics, is when in the progress of a strict liability trial, such as the case at bench, does the burden of going forward shift?
Barker did not alter the well-settled rule that a defendant may not be ordered to proceed with the defense until after a full prima facie case has been made by the plaintiff. As the Barker court stated: “Because most of the evidentiary matters which may be relevant to the determination of the adequacy of a product’s design under the ‘risk-benefit’ standard—e.g., the feasibility and cost of alternative designs—are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer, we conclude that once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.” (.Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 431.) (Italics added.)2
Thus a proper reading of Barker demonstrates that it relieves a strict liability plaintiff only of producing in the prima facie case “technical matters peculiarly within the knowledge of the manufacturer.” That has always been the rule.
In Barker, the plaintiff was injured at a construction site while operating a high-lift loader manufactured by the defendant. The loader was a truck of heavy construction with equipment designed to lift loads of up to 5,000 pounds. Plaintiff, assigned to operate the loader after its regular operator did not report for work, had received only limited instruction on the use of the loader and had used it only a few times. The accident causing plaintiff’s injuries occurred while plaintiff was operating the loader on a stiff sloping terrain and was attempting to lift a load of lumber 18 to 20 feet in the air.
As part of plaintiff’s case, he presented expert testimony on how the loader could have been designed differently so as to avoid the accident. The expert further testified as to absence of specific safety devices which allegedly rendered the loader defective. Other witnesses testified about other precise aspects of the loader to establish it was defectively designed (e.g., absence [1066]of an automatic locking device, the placement of the leveling lever, and absence of a “park” position on its transmission).
Defendant manufacturer had experts testify as to why plaintiffs particular claims did not establish the existence of a defective design and why some of plaintiffs suggested design modifications would have had no effect or in fact would have increased the potential danger.
Additionally, defendant presented much pertinent lay evidence the loader was not defective.
Hence, Barker makes clear that there is no absolute liability merely because a party is injured while using the defendant’s product. There must be evidence of the design defect which proximately caused the injuries and evidence of how a safer product could have been manufactured. The Barker opinion exhaustively discusses the complex problems inherent to the design and use of the loader and analyzes the type of evidence required in a case when a plaintiff litigates for the first time the question of a particular product’s defective design.
Barker is not authority for the proposition that a res ipsa loquitur recital of bare bone evidence is sufficient to establish a prima facie case in a strict liability action such as the one at bench.3
Barker’s discussion of evidence, preponderance thereof and burden of proof was made in the context of a strict liability trial wherein the plaintiff had fully presented a prima facie case and defendant had responded thereto. The Barker court had no reason to state the obvious. The Barker opinion asserts: “ ‘The change in the substantive law as regards the liability of makers of products and other sellers in the marketing chain has been from fault to defect. The plaintiff is no longer required to impugn the maker, but he is required to impugn the product.’’ (Keeton, Product Liability and the Meaning of Defect (1973) 5 St. Mary’s LJ. 30, 33.)
“If a jury in determining liability for a defect in design is instructed only that it should decide whether or not there is ‘a defective design,’ it may reach to the extreme conclusion that the plaintiff, having suffered injury, should without further showing, recover; on the other hand, it may go to the opposite extreme and conclude that because the product matches the intended design the plaintiff, under no conceivable circumstance, could recover. The [1067]submitted definition eschews both extreme and attempts a balanced approach.
“We hold that a trial judge may properly instruct the jury that a product is defective in design (1) if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the plaintiff proves that the product’s design proximately caused his injury and the defendant fails to prove, in light of the relevant factors discussed above, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.” (Barker v. Lull, supra, 20 Cal.3d at p. 435.) (Italics added.)
Plaintiff’s showing at bench is in marked distinction to that made in Barker.
Here, plaintiff’s evidence showed that while riding with her husband on his motorcycle, something she had done once or twice every week during the prior three years, she was injured following a collision with an automobile which broke her leg and pushed it into the motorcycle’s unenclosed rear spinning spoked wire wheel. Plaintiff offered no evidence of similar prior accidents. Quite apart from the fact plaintiff presented no evidence as to what she or anyone else reasonably expected in regard to the safety of a motorcyle involved in a collision with a car, plaintiff offered no evidence, through either lay or expert testimony, on the significant question of safer alternative designs in regard to the unenclosed rear spoked wheel. Plaintiff attempted to elicit testimony from one of her medical witnesses as to how the motorcycle might have been modified so as to prevent the injury but was precluded from doing such because she was unable to lay a sufficient foundation for the witness’s expertise on the question. Plaintiffs counsel, however, argued to the jury, over defendant’s objection, about modifications to the motorcycle which might have prevented plaintiffs injuries. He pointed to items such as saddlebags, luggage racks, and fairings as examples of what could have been placed upon the rear wheel area of the motorcycle to enclose it. This argument was improper as there was no legally acceptable evidence in the record to support it (see, e.g., Malkasian v. Irwin (1964) 61 Cal.2d 738, 745-747 [40 Cal.Rptr. 78, 394 P.2d 822]) and arguably those proposed designs might just as probably been design defects which could have caused more problems.
The naked facts before this court graphically illustrate why a plaintiff is required in its prima facie case to produce some evidence on a safer alternate design before a defendant is required to respond.
As Professor Schwartz has noted: “The heart of the problem is this: one simply cannot talk meaningfully about a risk-benefit defect in a product [1068]design until and unless one has identified some design alternative (including any design omission) that can serve as the basis for a risk-benefit analysis.” (G. Schwartz, Foreward: Understanding Products Liability (1979) 67 Cal.L.Rev. 435, 468 and see also pp. 470-471.)
In my opinion, Barker holds, and common sense and pragmatic fairness dictate, that a plaintiff must set forth, through legally competent evidence, one or more proposed alternatives to the attacked design. (Accord: Cotchett & Cartwright, Cal. Products Liability Actions (1985) § 7.02[1], p. 7-12.1.) Given that, defendant does have something tangible to rebut and is able to show plaintiff’s proposals would either entail unreasonable cost, be practically unfeasible, interfere with the product’s performance, or create (other) increased risks. (Barker v. Lull, supra, 20 Cal.3d at pp. 431-432.) Following such a presentation by defendant, the trier of fact can then meaningfully engage in the balancing process known as the risk-benefit analysis to decide whether or not the product was defectively designed.
Absent such an approach, the defendant becomes an absolute insurer of the product. But strict liability has never been and is not now absolute liability. On the contrary, the plaintiff’s injury must have been caused by a defect in the product. (Traynor, The Ways and Meanings of Defective Products and Strict Liability (1965) 32 Tenn.L.Rev. 363, 366-367.)
Dean Prosser, the true king of torts, has noted there is no strict liability when the product is fit to be sold and it is reasonably safe for its intended use but has inherent dangers that no human skill or knowledge has yet been able to eliminate. (Prosser, The Fall of the Citadel (Strict Liability to the Consumer) (1966) 50 Minn.L.Rev. 791, 812.)
The rationale for requiring plaintiff to demonstrate alternative designs for the product which the party claims was defectively manufactured is as follows: “Requiring an injured plaintiff who seeks damages against a manufacturer on the basis of strict liability in tort for a defective design to show that alternative designs for the product could reasonably have been developed does not enlarge plaintiff’s burden of proof. An injured plaintiff has always had the burden to prove the existence of the defect. The reasonableness of alternative designs, where a design defect is claimed, is part of that burden. [Citations.] Strict liability in tort is not a doctrine which places upon the producer absolute liability for all injuries which result from the use of the product, rather, the purpose of strict liability ‘is to insure that the cost of injuries resulting from defective products are borne by the [commercial entities] that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d [106910]49].) Therefore, it [is] proper for the court to define ‘defect’ in such a way as to place the burden upon the injured plaintiff of establishing that reasonable alternative designs are possible.” (Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 716 [127 CaL.Rptr. 745] [hg. den.], italics added.)
A decision from this division (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 879, fn. 3 [148 Cal.Rptr. 843] [hg. den.]) holds that Barker v. Lull, supra, 20 Cal.3d 413, did not alter the requirement that a plaintiff, as part of its prima facie case, must demonstrate “... the availability of reasonable alternate design, but simply shifted to defendant the burden of proving the unreasonableness of requiring an alternative in terms of such items as cost of producing the alternative product.”
The pragmatic effect of the manner in which the present case was tried amounts to an inappropriate interjection into a strict liability lawsuit of the concept of res ipsa loquitur. Res ipsa loquitur is a venerable concept of negligence law upon which a plaintiff may rely to prove a breach of a duty of due care. Its elements are: (1) the accident must be of a kind which ordinarily would not have occurred in the absence of negligence; (2) the accident was caused by a product formerly in the exclusive control of the defendant and upon which the plaintiff has not made any changes; and (3) the accident must not have been due to any act on plaintiff’s part. The evidentiary effect of plaintiff’s proof of these three criteria is to shift to the defendant the burden of producing evidence to show it was not negligent. Absent such proof by the defendant, the trier of fact must assume the existence of the defendant’s presumed negligence. (Cal. Law Revision Com. com., Deering’s Ann. Evid. Code, §646 (1986 ed.) p. 290.)
It is well settled that res ipsa loquitur has no application to an action based solely upon a theory of strict liability in tort. (Barrett v. Atlas Powder Co. (1978) 86 Cal.App.3d 560, 565 [150 Cal.Rptr. 339]; Lewis v. American Hoist & Derrick Co. (1971) 20 Cal.App.3d 570, 579-580 [97 Cal.Rptr. 798].) As this Division has noted, to apply res ipsa loquitur in a strict liability lawsuit would have the effect of making the defendant an absolute insurer unless it could produce satisfactory evidence that there was no defect or that if there were, it was not the proximate cause of the injuries. (Tresham v. Ford Motor Co. (1969) 275 Cal.App.2d 403, 407 [79 Cal.Rptr. 883] [hg. den.].)
Prophetically, one commentator noted this possibility over 20 years ago when he predicted res ipsa loquitur would be indirectly used to “prove” a product was defective. He warned: “If this practice grows, plaintiff may next be required only to connect up the injury with the product. He may not have to prove a defect. When and if this happens we shall have taken another step on the road toward making consumer’s injuries into an equilibrium system, [1070]wherein the important question is not who caused the injury, but how should the harm be repaired.” (Cowan, Some Policy Bases of Products Liability (1965) 17 Stan.L.Rev. 1077, 1094, italics added.)
The critical vice of the trial court’s approach is to encourage lawsuits in which plaintiff’s counsel alleges only two facts: (1) an accident occurred; and (2) the plaintiff was injured thereby. Instead of doing the requisite investigation, including the gathering of expert testimony, to prove a defendant’s product was defective and that the product could have been more safely designed, a plaintiff, such as respondent herein, only establishes the twin facts of an accident and injuries. The consequent burden placed upon the judicial system and the tax-paying pqblic which supports it is immense not to mention the dislocation it creates for all the parties plaintiff names in the action.
Exploding products liability litigation has created a fiscal crisis, fueled in part by such cases as this one where the effect of the jury’s decision is to make any defendant, and especially deep pocket defendants, absolute and complete insurers for all injuries resulting from the use of their products even when a plaintiff has utterly failed to establish a design defect. At bench, clearly the driver of the car which hit the motorcycle was potentially culpable. Although served with plaintiff’s complaint, he did not answer and pursuant to the parties’ stipulation, a default was entered against him. Satisfying any judgment in part and/or in full against him would be futile. And although Honda cross-complained against plaintiff’s husband for indemnification based upon a claim he had been negligent in his driving of the motorcycle, the court concluded otherwise in a bench trial conducted after plaintiff’s trial had been completed. Hence, defendant Honda, the deep pocket defendant and the distributor of the motorcycle, is left holding the bag although, as Justice Compton cogently notes in his concurring opinion: “The true cause of the injury was the combination of [the automobile] driver’s negligence and the plaintiff’s position on the motorcycle.”
I agree with Justice Compton that in an ill-fated attempt to socialize the loss, the courts have expanded the concept of tort law and financial responsibility of any who may be embraced in the tort charged. I also agree that the original concept of strict liability is Gibraltar solid. However, socialization of the loss is not nor is the doctrine of strict liability the issue in this case. The fundamental question in this case is due process in a strict liability case. Acceptance of the trial court’s appoach eliminates due process. It permits any injured user of any product, including those mentioned in Justice Compton’s concurring opinion, to sue a solvent defendant in strict liability merely by alleging purchase of the product and the sustaining of injuries while using the product. That result corrodes the rule of law as accepted since [1071]adversary trials have been an integral part of the administration of justice and substitutes an ad hoc judicial dispensation of justice. Such a judicial outlook undermines the concept of personal responsibility and the duty to exercise due care. Lack of legal necessity to personally use due care has reached the point at which the effort of a plaintiff to establish the liability of some conceivably solvent potential defendant corrodes the primary instinct of survival.
In brief, I suggest with humility the public is rapidly reaching the crossroads which present it with a choice between constitutional government as we have lived it or government by 50 judicial oligarchies.
The present judgment is in my opinion against the law in its present state of generous interpretation. I would reverse.
The petition of defendant and appellant for review by the Supreme Court was denied May 21, 1987.
Although plaintiffs complaint had included other theories of liability, she abandoned them immediately before trial commenced and proceeded solely on a theory of strict liability.
While the majority suggests that BAJI No. 9.00.5, derived from Barker v. Lull, supra, 20 Cal.3d 413, and its use note, support plaintiffs theory, I do not agree. Neither the text of the instruction nor the comment following it explicitly address the question of whether a plaintiff, in presenting the prima facie case, must produce evidence of a safer alternate design. This is in all likelihood due to the fact that in the reported decisions the plaintiff apparently had presented evidence of alternative designs as part of the prima facie case. In any event, the obligation to do so is the sole thrust of this dissent.
In the latter portion of this dissent, I explain my view that judicial acceptance of the manner in which the instant case was tried effectively but erroneously results in applying res ipsa loquitur to a strict liablity action.