Golston v. Hertz Equipment Rental CA4/1 (2015) · DecisionDepot
Golston v. Hertz Equipment Rental CA4/1
California Court of Appeal Jul 14, 2015 No. D067431Unpublished
Filed 7/14/15 Golston v. Hertz Equipment Rental CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TAWANA GOLSTON et al., D067431
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVVS907786)
HERTZ EQUIPMENT RENTAL CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Joseph R Brisco, Judge. Reversed.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Giradi Keese and
David R. Lira for Plaintiffs and Appellants.
Lombardi, Loper & Conant, John W. Ranucci and Maria M. Lampasona for
Defendant and Respondent.
INTRODUCTION
This is a product liability case in which plaintiffs Tawana Golston, Jamichael
Weathers and Jacari Golston (collectively, plaintiffs) contend Hertz Equipment Rental
Corporation (Hertz) provided a defectively designed water truck without adequate
warnings to the employer of their husband and father, Marty Golston (Golston), and the
truck caused Golston's death while he transported water for his employer on a highway
from one job site to another job site. When Golston made a left turn, the water in the
truck's tank sloshed to the right, the center of mass shifted, and the truck rolled 360
degrees. The roof of the truck's cab crushed during the roll and Golston suffered head
and neck injuries, which resulted in his death. Appealing the judgment on a jury verdict,
the plaintiffs contend: (1) the trial court erred in failing to instruct the jury regarding the
consumer expectation theory of the design defect claim, (2) the trial court erred in
instructing the jury regarding the sophisticated user defense to the failure to warn claim,
and (3) the trial court erred in striking the testimony of their expert who testified
regarding his testing of a nearly identical exemplar vehicle and his opinion the water
truck with the water tank added by Hertz was defective because it failed to meet industry
performance standards. We agree with each of these contentions and reverse the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Hertz Production and Rental of Water Trucks
At the request of Hertz, Valew Welding and Fabrication (Valew) fabricated water
tanks and mounted them on chassis provided by Hertz. Over the years, Valew fabricated
2
about 750 water tanks for Hertz. For the vehicle at issue in this case, Hertz ordered a
2,000 gallon tank system to be installed on a cab and chassis provided by Hertz. Hertz
requested one crosswise baffle to be welded into the middle of the tank with a manway
opening, similar to an exemplar vehicle it asked Valew to inspect. A crosswise baffle
slows the movement of water from front to back and mitigates the force when braking.
Hertz rents water tank trucks to construction sites or construction companies.
When Valew delivered the water tank trucks to Hertz, it included an operation manual
regarding the water tank in the cab of each truck intended for use by those who rented the
truck. The manual stated, " 'Never transport water on highways.' " However, Hertz
allows its customers to operate 2,000-gallon water trucks on highways. Hertz did not use
the tank manual prepared by Valew or provide it to its customers. The manager at the
Santa Maria Hertz branch who rented equipment testified he had never seen the operation
manual for the water truck.
Recon's Rental and use of Water Trucks
Golston's employer, Remedial Construction Services, L.P. (Recon), uses water
trucks for dust control and compaction. It uses various sizes of trucks from some that
hold 2,000-gallons of water to others holding 8,000- to 13,000-gallons.
Recon rented water trucks from Hertz. No one at Hertz advised Recon to "never
transport water on highways" and there was evidence Recon employees never saw an
operation manual for the water tank in a water truck rented from Hertz. Many times they
had to get water from somewhere off of the job site.
3
Recon provides its employees with some driving school training, training for
working with hazardous materials and job site-specific training. It also provides on-the-
job training for certain vehicles. Operating a water truck is something one can do when
one starts to drive.
Golston's Work with Recon
Golston started working for Recon in Texas to earn more money and make a better
life for his family. He started by digging trenches, working on the ground, building
fences on construction sites and eventually driving water trucks. He was frequently
called to work in California for six to eight months at a time.
Golston was known as a "laborator," which is a combination of a laborer and a
low-level operator. This is a laborer who has shown incentive and ability to safely
operate water trucks or other non-heavy equipment. Laborators were allowed to operate
certain equipment that do not take a lot of extra training to learn to operate safely.
Golston operated water trucks for a couple of years before the accident. The
service project manager, Danny Watts, never saw Golston operate a water truck in an
improper or unsafe manner. However, he never observed Golston operate a water truck
on a highway. Golston did not have specialized training and testing in the operation of
water tank trucks.
The Accident
On the morning of June 24, 2008, Golston was initially working at a job site in
Santa Maria known as Wiley, but was selected to drive the water truck for another project
at the Battles Gas Plant (Battles) job site where they were building a temporary parking
4
lot. Golston's superiors at Recon considered him to be experienced, thoughtful, and a
slow and safe driver.
Stanley Bailey, the superintendent of the Battles site, picked up Golston from the
Wiley site and drove approximately five miles to the Battles site. Since there was no
source of water at the Battles site, they planned to obtain water from the Wiley site. They
drove the route to establish a journey management plan to make sure Golston knew
which way to turn and to identify hazards. Bailey pointed out the unprotected left turn
from Betteravia Road on to Rosemary Road and advised Golston to be careful about the
traffic in the area.
Lance Reed, another superintendent with Recon, testified Golston told him on the
morning of the incident he did not want to work with equipment that day and preferred to
work with a shovel. He mentioned his diabetes. However, Golston ended up operating
the water truck that day. No one issued a stop work authority due to any concerns about
Golston's ability to operate the truck.1
Golston drove to the Wiley site, obtained water, and returned to the Battles site at
least once without incident. He was seen spraying water where the gravel was to be laid.
1 Recon has a "stop work" program in which any employee could tell a supervisor he or she did not feel safe doing a particular job and could unilaterally stop work. This applies to anything that would make an employee unsafe, which could include illness or lack of communication or understanding about an assigned task. If any employee sees something that appears unsafe, including assignment of another employee to a particular task, the employee can invoke a stop work.
5
On one trip to the Wiley site, another employee who was a lead equipment
operator, helped Golston fill the water tank. While the tank was filling, Golston
mentioned he was unhappy and did not want to be at work or to operate equipment that
day. He said he would prefer to be on the ground doing labor work. When the other
employee suggested Golston speak to a superintendent, Golston said he had done so and
he was told he had to drive the water truck. They did not allow him to go home. Golston
said he missed his family in Texas and he wanted to sweat that day by doing physical
labor. The employee understood Golston had been away from his family for quite a
while and wanted to be home with them. The employee helped Golston fill the water
tank three-quarters full to avoid being overweight.
On what would be his final trip back to the Battles site, Golston slowly entered
Betteravia Road and increased his speed along with other traffic as he traveled eastbound
on Betteravia. When Golston approached Rosemary Road, he turned on the left turn
signal. As he made the left turn, he cut the corner, meaning the vehicle moved into the
southbound lane of Rosemary Road and crossed the stop line. Water came out of the top
of the tank, the truck skidded, rolled, and came to rest in a drainage ditch.
Witnesses estimated Golston was traveling between 30 and 35 miles per hour as
he began the turn. While one witness said Golston did not slow down as he made the
turn, another witness testified he did slow down before he turned.
When a paramedic arrived, Golston was communicative, but he was pinned in the
truck's cab. He reported he felt the water shift as he made the left turn onto Rosemary
Road from Betteravia Road and he lost control of the vehicle. Golston said he was
6
traveling about 35 miles per hour. The paramedic suspected a severe spinal cord injury
because Golston had no sensation or movement in his body below the nipple line.
Golston suffered a head injury and a crushed vertebra in his neck. He was
paralyzed from the shock to the spinal cord. He underwent surgery for removal of the
crushed vertebra and fusion with a titanium cage. However, he developed complications.
Despite all efforts to save him, Golston died as a result of the injuries he sustained in the
accident and the subsequent complications.
Plaintiffs' Accident Reconstruction
According to the plaintiffs' accident reconstruction expert, Seth Bayer, as Golston
turned left the vehicle crossed the stop line for southbound traffic entering the
intersection from Rosemary Road. There was evidence of light braking, but no evidence
of an emergency maneuver. The vehicle rolled to the right one full 360-degree
revolution, from its wheels to its wheels.
According to Bayer, the maximum speed the truck could have been traveling when
it started the turn was 25 to 28 miles per hour for the friction marks to be made. It could
not have stayed within the documented path of travel if it made the turn at 35 miles per
hour. The vehicle was traveling between 20 and 23 miles per hour when its wheels came
off the pavement and 19 miles per hour when it began to tip over.
Bayer testified the center of mass changes as the water truck travels because the
water moves around. It moves left and right as well as forward and back to some extent,
although the baffle in the center of the tank limits the "fore and aft slosh somewhat." The
crosswise baffle does not mitigate the movement of water from left to right in turns.
7
Bayer opined the use of two vertical partitions on either side of the tank would
limit not only the center of mass, but also the forces associated with the movement and
would increase the stability of the vehicle. He presented a simulation using the same data
from the accident reconstruction except with the use of longitudinal baffles. He
determined the water would have moved less and with less velocity. In his opinion, the
truck would not have rolled if baffles had been in place. The National Fire Protection
Association standards refer to the use of such longitudinal baffles in fire trucks.
Hooker Testimony and Exclusion
Prior to trial, Hertz filed a motion in limine to exclude the testimony of plaintiffs'
expert Robert Hooker. The court denied the motion without prejudice, but stated it would
hold a hearing pursuant to Evidence Code2 section 402 (402 hearing).
In the 402 hearing, Hooker explained he is an automotive consultant and a chief of
police in a Michigan town. In his consultation work, he tests vehicles for safety
compliance and handling. Although he is not an automotive engineer, he is a retired drag
racer and has worked with professional engineers to perform vehicle testing. In addition,
he has performed accident reconstruction work as a police officer. The court determined
Hooker was qualified to provide opinions regarding handling and stability of a vehicle.
After hearing the foundation for Hooker's testimony, the court allowed Hooker to
testify regarding stability and handling as well as the minimum national standards. The
2 All further statutory references are to the Evidence Code unless otherwise specified. 8
court concluded Hertz's objections to the foundation for his testimony went to weight
rather than admissibility.
Hooker then testified before the jury. He stated manufacturers perform testing to
understand or replicate the vehicle using different maneuvers. One such maneuver is a
National Highway Traffic Safety Administration "J-turn" test, which inputs a specified
degree of steering on the steering wheel once it reaches a target speed, then holds the
steer while the gas pedal is released until "the vehicle scrubs off speed, and then it either
follows the course or tips up." He understood the manufacturer of the cab and chassis
involved in Golston's accident had performed a J-turn test of the cab and chassis, but
without a water tank attached and without a liquid load.3
Hooker inspected the vehicle to determine its characteristics so he could obtain an
exemplar for testing. He obtained an exemplar cab and chassis of the same year and
model, along with a 2,000-gallon water tank from the same manufacturer that
manufactured the subject Hertz truck. The exemplar vehicle was about 5,000 pounds
lighter than the Hertz vehicle, but he stated this did not impact the testing. The only other
difference was he used a vehicle with an automatic transmission rather than a manual
transmission because he needed to instrument the exemplar vehicle to run unmanned tests
by remote control.
Hooker performed a J-turn test because it puts the least amount of stress on the
vehicle. Hooker explained he was not attempting to replicate the accident or Golston's
3 The cab manufacturer tested vehicles with a static load of bales and sandbags. Hooker testified this does not compare to testing with a liquid or "live" load. 9
maneuver. Instead, he was performing a standard industry test to evaluate the rollover
performance of the vehicle in a controlled situation. He performed the test with the tank
empty and with the tank full of water.
Hooker played a film clip of the J-turn testing with the tank empty showing the
left rear wheels lift off the ground about three inches. The maximum speed the exemplar
vehicle reached was 23.05 miles per hour. After an unreported side bar, the court
precluded Hooker from showing the film clip of the testing with the tank full, which
showed the truck rolling part way into the turn.
Hooker testified he saw no documentation by Hertz of an attempt to analyze or
study the impact of the water load on the vehicle. In his opinion, the Hertz vehicle was
defective in its design with the tank included. This opinion was based on tire friction,
steering input and speed during a clearly foreseeable maneuver, i.e. a J-turn.
On cross-examination, Hooker admitted other factors such as brake application,
radius of turn, tire friction and speed could influence a rollover even if a vehicle satisfied
a J-turn test and he did not know whether these variables caused Golston's accident. He
could not say the failure of the exemplar vehicle to complete the J-turn was the cause of
Golston's accident.
After the conclusion of Hooker's testimony, Hertz moved to strike his testimony
on the basis it had no probative value and was prejudicial because he did not establish a
causal connection between the defect related to a J-turn test and the accident. Plaintiffs'
counsel argued Hooker did industry testing of the vehicle to determine rollover
propensity and his testing was probative in a products liability case regarding what a
10
manufacturer does or should do to evaluate such potential. The court struck Hooker's
testimony and the film segment pursuant to section 352 stating the probative value of the
evidence was "substantially outweighed by the likelihood that it will confuse and mislead
the jury." The court instructed the jury not to consider the testimony of Hooker and the
video in deliberation.
Defense Experts
Hertz presented testimony from Norris Hoover, a truck operations expert who
taught truck driving courses. Hoover assumed Golston's truck was traveling at 35 miles
per hour as he entered the turn. In his opinion, Golston was driving the water truck too
fast for a 90-degree corner. He opined a safe speed to execute the turn would have been
between 10 and 15 miles per hour. Hoover also opined Golston's employer did not
properly train him for operation of the water tank truck.
The defense mechanical engineering expert, Geoffrey Germane, testified regarding
his reconstruction of the accident. Germane opined the truck speed at the beginning of
the turn was 33 to 38 miles per hour and decreased due to braking and sliding to
approximately 21 to 24 miles per hour at the time it rolled over. Germane disagreed with
Bayer's simulation and analysis regarding speed. He opined the simulation with an initial
speed of 27 miles per hour would only rollover a quarter revolution and would fall short
of the actual rest position of the truck by 30 feet.
Similarly, the defense reconstruction expert, Thomas Gillespie, testified Golston's
truck was traveling about 35 miles per hour when the truck began to make tire marks on
the turn. According to Gillespie, if the water was frozen in place or if baffles were
11
keeping the water from moving, the truck still would have rolled over. The truck was not
capable of cornering at such a speed. Gillespie agreed the truck should turn at a speed no
greater than 15 miles per hour. He also agreed there was no evidence Hertz made efforts
to understand the impact of 2,000 gallons of water on the chassis.
Verdict
The jury determined, by a vote of 9 to 3, the water truck's design was not a
substantial factor in causing harm to Golston. With respect to failure to warn, the jury
unanimously determined (1) the water truck had potential risks that were "known or
knowable" at the time of manufacture, distribution or rental and (2) the potential risks
presented a "substantial danger to persons using or misusing the water truck in an
intended or reasonably foreseeable way." However, it determined, by a vote of 10 to 2,
ordinary users of a water truck would have recognized the potential risks.
DISCUSSION
I
Jury Instructions
A
Standard of Review
"A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced … which is supported by substantial evidence." (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) We independently review
contentions the court erred in instructing the jury. (Mansur v. Ford Motor Co. (2011)
197 Cal.App.4th 1365, 1373.) In doing so, and in evaluating any prejudicial impact of
12
the allegedly erroneous instruction, we view the evidence in the light most favorable to
the losing party because "we must assume the jury might have believed the evidence
upon which the proposed instruction was predicated and might have rendered a verdict in
favor of the losing party had a proper instruction been given." (Bourgi v. West Covina
Motors, Inc. (2008) 166 Cal.App.4th 1649, 1664.) When deciding whether an
instructional error was prejudicial, we must consider "insofar as relevant, '(1) the degree
of conflict in the evidence on critical issues [citations]; (2) whether respondent's
argument to the jury may have contributed to the instruction's misleading effect
[citation]; (3) whether the jury requested a rereading of the erroneous instruction
[citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation];
and (5) the effect of other instructions in remedying the error [citations].' " (Soule, supra,
8 Cal.4th at p. 570-571.)
B
Consumer Expectation Instruction
"A manufacturer, distributor, or retailer is liable in tort if a defect in the . . . design
of its product causes injury while the product is being used in a reasonably foreseeable
way." (Soule, supra, 8 Cal.4th at p. 560.) There are two alternative tests for design
defect. "First, a product may be found defective in design if the plaintiff establishes that
the product failed to perform as safely as an ordinary consumer would expect when used
in an intended or reasonably foreseeable manner." (Barker v. Lull Engineering Co.
(1978) 20 Cal.3d 413, 432 (Barker).) "Second, a product may alternatively be found
defective in design if the plaintiff demonstrates that the product's design proximately
13
caused his injury and the defendant fails to 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." (Ibid.) "The jury should be instructed solely on the risk-benefit theory
where, as a matter of law, the evidence would not support a jury verdict on the consumer
expectation theory. (Haning, et al., Cal. Practice Guide: Personal Injury (The Rutter
Group 2014) ¶ 2:1245, p. 2(II)-118.) In other words, a jury should be instructed on the
risk-benefit theory of design defect alone only if the facts of the case do not permit "an
inference that the product's performance did not meet the minimum safety expectations of
its ordinary users." (Soule, at p. 568.)
In this case, plaintiffs do not contend it was inappropriate to give an instruction on
the risk-benefit theory. Instead, they contend the court should have also given the
alternative instruction regarding the ordinary consumer expectation test and the jury
should have decided which test to apply. We agree.
"[T]he trial court must initially determine, as a question of foundation and in the
context of the facts and circumstances of the particular case, whether the product is one
about which the ordinary consumer can form reasonable minimum safety expectations.
[Citation.] If the court concludes it is not, no consumer expectation instruction should be
given. [Citation.] If, on the other hand, the trial court finds there is sufficient evidence to
support a finding that the ordinary consumer can form reasonable minimum safety
expectations, the court should instruct the jury, consistent with Evidence Code section
403, subdivision (c), to determine whether the consumer expectation test applies to the
product at issue in the circumstances of the case and to disregard the evidence about
14
consumer expectations unless the jury finds that the test is applicable. If it finds the test
applicable, the jury then must decide whether the product failed to perform as safely as an
ordinary consumer would expect when the product is used in an intended or reasonably
foreseeable manner." (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th
1111, 1125, fn. 7 (McCabe).)
The consumer expectations test "involves the jurors' own sense of whether the
product meets ordinary expectations as to its safety under the circumstances presented by
the evidence." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126.) The
question for the jury in determining if the consumer expectation test is applicable "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 the ordinary consumers can form minimum safety
expectations. [Citation.] If the facts permit such an inference, it is error to conclude the
consumer expectation test is inapplicable as a matter of law." (McCabe, supra, 100
Cal.App.4th at p. 1124.)
Courts have found the consumer expectation test applicable in cases involving
construction equipment and vehicle performance. (Barker, supra, 20 Cal.3d at p. 435
[design of high-lift loader may be evaluated under either consumer expectation or risk-
benefit theory]; Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1004
[consumer expectation test appropriate for seat back failure in rear-end collision because
"[c]onsumers have expectations about whether a vehicle's driver's seat will collapse
rearward in a rear-end collision, regardless of the speed of the collision"]; McCabe,
15
supra, 100 Cal.App.4th at pp. 1123-1125 [error to conclude consumer expectation test
inapplicable as a matter of law to air bag design where "there is sufficient evidence from
which a jury could infer that the failure of an air bag to deploy under the facts and
circumstances advanced by [plaintiff] violates commonly held minimum safety
assumptions within the every day experience of ordinary consumers"]; Akers v. Kelley
Co. (1985) 173 Cal.App.3d 633, 648-652, [consumer expectation test appropriate to
evaluate adjustable dockboard which flew apart because an average juror "might
reasonably think: 'Whatever the user may have expected from that contraption, it
certainly wasn't that.' "], disapproved on other grounds in People v. Nesler (1997) 16
Cal.4th 561, 582, fn. 5.)
Here, the facts permitted an inference ordinary consumers could form minimum
safety expectations of a water truck operating on a public highway. There was evidence
someone who has learned to drive an ordinary vehicle can operate a water truck. Hertz
permitted its customers to transport water on highways. Although some witnesses stated
Golston was traveling 35 miles per hour, a witness close behind him saw him turn on his
left turn indicator and slow down before executing the turn. Plaintiffs' reconstruction
expert testified Golston's maximum speed was between 25 and 28 miles per hour when
the water truck began to make tire marks on the road and the water truck was traveling at
19 miles per hour when it rolled over. Hertz's experts testified it was unsafe to negotiate
a turn in the water truck at speeds in excess of 10 to 15 miles per hour. Based on
everyday driving experiences, the jurors, as ordinary consumers, could have formed an
opinion a truck rented for transporting water on highways should not roll over when
16
making a left turn at speeds between 19 and 28 miles per hour without warning.
Therefore, the trial court erred in concluding the consumer expectation test was
inapplicable as a matter of law. The jury should have been given an opportunity to
decide the question.
The failure to give the consumer expectation instruction was prejudicial error.
The first question on the verdict form was: "Was the water truck's design a substantial
factor in causing harm to [Golston]?" The jury's response was a close call, answering
"no" by a vote of 9 to 3. Had the jury been instructed on the consumer expectation test, it
would have been asked to decide if the water truck "fail[ed] to perform as safely as an
ordinary consumer would have expected when used or misused in an intended or
reasonably foreseeable way." There is a reasonable probability the outcome may have
been more favorable to the plaintiffs if the jury had been given the consumer expectation
instruction and asked this question. No other instruction or argument of counsel
mitigated the prejudicial impact. (Soule, supra, 8 Cal.4th at pp. 570-571; Whiteley v.
Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655-656, 665 [nine-to-three and 10-to-2
verdicts "strongly suggest[] the instructional error was prejudicial."].)
C
Sophisticated User Instruction
Although manufacturers generally have a duty to warn consumers about hazards
inherent in their products (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64),
under the sophisticated user affirmative defense, "a manufacturer need not warn members
of a trade or profession (sophisticated users) about dangers generally known to that trade
17
or profession." (Id. at p. 67.) "In order to establish the defense, a manufacturer must
demonstrate that sophisticated users of the product know what the risks are, including the
degree of danger involved (i.e., the severity of the potential injury), and how to use the
product to reduce or avoid the risks, to the extent that information is known to the
manufacturer." (Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522,
536.)
In this case, there was no substantial evidence to support the sophisticated user
instruction. There was evidence anyone with a driver's license could operate a water
truck. Although there was evidence Golston took some basic driving courses through
Recon, these were in a passenger van, not a water truck. Hertz obtained testimony from
John Perlas, Recon Regional Safety Director, who approved Golston for operation of a
water truck on specific job sites and talked to Golston about the impact of water slosh in
starting and stopping. However, Perlas testified Golston was not qualified to operate the
vehicle on a highway and Perlas was not qualified to provide such training. There was
some evidence someone with a valid license to drive should know to slow down when
making a turn. However, there was no evidence it was generally known among water
truck operators that a water truck could only safely turn at speeds of 10 to 15 miles per
hour or that there was a likelihood a water truck would tip over at speeds between 19 and
30 miles per hour.4
4 We do not consider the evidence submitted by Hertz regarding information about commercial driver licenses because the court excluded evidence of Golston's lack of a 18
Under these circumstances, we conclude there was no substantial evidence to
support the sophisticated user instruction and giving the instruction was prejudicial.
(Pittman v. Boiven (1967) 249 Cal.App.2d 207, 218.) Hertz's counsel argued the
sophisticated user defense to the jury advising them it was a complete defense to the
failure to warn claim. The jury sent a note during deliberation asking to define the term
"potential risk" in connection with the failure to warn questions. Although the jury
unanimously found the water truck had potential risks that were known or knowable and
those risks posed a substantial danger to persons using or misusing the truck in an
intended or reasonably foreseeable way, it found by a vote of 10 to 2 that ordinary users
of water trucks should have recognized the potential risk. This close verdict indicates the
jury likely "factored in" the sophisticated user instruction in their deliberation. Therefore,
we cannot say the error was harmless.
II
Striking of Hooker's Testimony
Plaintiffs also contend the court abused its discretion in striking the entirety of
Hooker's testimony after he testified. We agree.
The trial court struck Hooker's testimony pursuant to section 352, on the basis that
it was more prejudicial than probative. Trial courts generally have broad discretion under
section 352 to weigh the probative value of the evidence against the prejudicial impact.
"Appellate courts will not disturb this determination on appeal unless one factor clearly
commercial driver's license and evidence regarding the commercial driver's license handbook was never admitted or considered by the jury. 19
outweighs the other." (Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147.) "The
discretion granted to courts by section 352 is not absolute or unlimited but requires that
the trial judge balance the probative value of the proffered evidence against its prejudicial
effect in the context of the case before the court." (Burke v. Almaden Vineyards, Inc.
(1978) 86 Cal.App.3d 768, 774.) "The more substantial the probative value the greater
must be the prejudice in order to justify exclusion. Among factors which should be
considered are its materiality; the strength of its relationship to the issue upon which it is
offered; whether it goes to a main issue or merely to a collateral one; and, whether it is
necessary to prove proponent's case or merely cumulative to other available and sufficient
proof." (Ibid.)
In this case, there was evidence Hertz ordered water trucks to be fitted with water
tanks to rent to construction companies, such as Recon. However, Hertz did not test the
performance of this vehicle with the water tank attached. Hooker testified regarding his
use of an industry standard performance test, the J-turn test, which was performed by the
manufacturer of the cab and chassis without the water tank attached. In his opinion,
when the water truck was fitted with the tank, it failed to perform in accordance with
industry standards. Hooker showed the jury a video clip depicting an empty water truck
performing a standard J-turn test with its wheels lifting off the ground at approximately
23 miles per hour. The court excluded the video clip showing a full water truck rolling
three-quarters of a revolution during the J-turn test. This testimony was significant for
the plaintiffs' case regarding design defect, under either a consumer expectation theory or
a risk-benefit theory, and failure to warn. Based on this evidence, plaintiffs would have
20
argued an ordinary consumer should expect a water tank truck should meet minimum
performance standards for rollover or carry a warning. Additionally, Hooker's testimony
was probative under the risk-benefit theory to demonstrate Hertz did not undertake the
appropriate analysis of its product.
Hooker's testimony was not prejudicial or likely to confuse or mislead the jury.
" ' "Prejudice" as contemplated by … section 352 is not so sweeping as to include any
evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is
used in a section 352 context, merely because it undermines the opponent's position or
shores up that of the proponent. The ability to do so is what makes evidence relevant.
The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice,
confusion, or time consumption " 'substantially outweigh' " the probative value of
relevant evidence, a section 352 objection should fail.' " (People v. Doolin (2009) 45
Cal.4th 390, 438-439.)
Unlike the case in Holling v. Chandler (1966) 241 Cal.App.2d 19, 22-24, Hooker
made it clear in his testimony he did not attempt to reconstruct the accident, but was
testifying regarding industry performance standards, which were relevant to the issue of
product liability. Additionally, although he was not asked to opine about causation of the
accident, other evidence was presented from which a jury could have made the causal
connection. Under these circumstances, we conclude Hooker's testimony was not more
prejudicial than probative and the trial court abused its discretion in striking his testimony
and the video presentation.
21
On the other hand, the erroneous exclusion of Hooker's testimony after it was
already presented to the jury was prejudicial to the plaintiffs. Had the jury been allowed
to consider his testimony and the video clips of his testing, it is reasonably probable
plaintiffs would have obtained a more favorable result. (Cassim v. Allstate Ins., Co.
(2004) 33 Cal.4th 780, 800-802.)
DISPOSITION
The judgment is reversed. Plaintiffs shall recover their costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
NARES, J.
22
AI Brief
AI-generated · verify before citing
Holding. The trial court erred by failing to instruct the jury on the consumer expectation theory of design defect, improperly instructing on the sophisticated user defense, and erroneously striking expert testimony regarding industry-standard rollover testing. These cumulative errors prejudiced the plaintiffs, necessitating a reversal of the judgment.
Issues
Did the trial court err in refusing to instruct the jury on the consumer expectation theory of design defect?
Did the trial court err in instructing the jury on the sophisticated user defense to the failure to warn claim?
Did the trial court err in striking the testimony of the plaintiffs' expert regarding exemplar vehicle testing?
Disposition. Reversed.
Quotations verified verbatim against the opinion
“The jury should have been given an opportunity to decide the question.”
“The failure to give the consumer expectation instruction was prejudicial error.”