Lead Opinion
Opinion
—In this case we consider the issue “whether a defendant in a products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution.” (Order on grant of review, May 3, 1990.) As will appear, resolution of this evidentiary issue requires an examination of the failure-to-warn theory as an alternate and independent basis for imposing strict liability and a determination of whether knowledge, actual or constructive, is a component of strict liability on the failure-to-warn theory. It is manifest that, if knowledge or knowability is a component, state-of-the-art evidence is relevant and, subject to the normal rules of evidence, admissible.
We conclude that Vermeulen v. Superior Court, supra,
Background
Defendants
Plaintiff’s amended complaint alleged a cause of action in strict liability for the manufacture and distribution of “asbestos, and other products containing said substance, which substance contained design and manufacturing defects” which caused injury to users and consumers, including plaintiff,
Plaintiff moved before trial to prevent defendants from presenting state-of-the-art evidence. By that time, plaintiff had indicated that he was proceeding, as to defective design, only on the “consumer expectation” prong of the design defect test set out in Barker v. Lull Engineering Co. (1978)
Plaintiff moved for a new trial, asserting that the court erred in precluding proof of liability on a failure-to-warn theory. Plaintiff also claimed that substantial evidence did not support the jury’s special finding or the defense verdict. The court granted the motion on both grounds. As to the first ground, the parties reargued the issue of waiver. Plaintiff also urged that knowledge or knowability, and thus state-of-the-art evidence, was irrelevant in strict liability for failure to warn. Plaintiff’s main concern, however, was his right to proceed on the theory: “The fact of the matter is, with or without state of the art of the medical literature, I was entitled to put on [failure to warn].” The trial court agreed.
The Court of Appeal, in a two-to-one decision, upheld the order granting a new trial on both grounds. The appellate court added that, “in strict liability asbestos cases, including those prosecuted on a failure to warn theory, state of the art evidence is not admissible since it focuses on the reasonableness of the defendant’s conduct, which is irrelevant in strict liability.” The dissenting justice urged that the majority had imposed “absolute liability,” contrary to the tenets of the strict liability doctrine, and that the manufacturers’ right to a fair trial included the right to litigate all relevant issues, including the state of the art of scientific knowledge at the relevant time. We granted review.
The parties repeat the claims made before the Court of Appeal. Defendants contend that, if knowledge or knowability is irrelevant in a failure-to-warn case, then a manufacturer’s potential liability is absolute, rendering it the virtual insurer of the product’s safe use. Plaintiff, on the other hand, argues that to impose the requirement of knowledge or knowability improperly infuses a negligence standard into strict liability in contravention of the
Discussion
General Principles of Strict Liability.
Greenman v. Yuba Power Products, Inc., supra,
Strict liability, however, was never intended to make the manufacturer or distributor of a product its insurer. “From its inception, . . . strict liability has never been, and is not now, absolute liability. . . . [U]nder strict liability the manufacturer does not thereby become the insurer of the safety of the product’s user. [Citations.]” (Daly v. General Motors Corp. (1978)
We recently reviewed and further refined the principles of strict liability in Brown v. Superior Court, supra,
Our cases to date have focused principally on the concept of “design defect,” concededly one of the most difficult areas for precise definition. (Barker, supra,
Failure-to-warn Theory of Strict Liability.
Though not without some history in this court, the theory of strict liability for failure to warn has been forged principally in the lower courts. Canifax v. Hercules Powder Co. (1965)
In Cavers v. Cushman Motor Sales, Inc. (1979)
Between Canifax and Gonzales, a number of cases recognized that a failure to give adequate warnings might subject a manufacturer or distributor to strict liability when it knew or should have known of the danger and the necessity of warnings to ensure safe use. (Rosburg v. Minnesota Mining & Mfg. Co. (1986)
These cases did not address the specific factual question whether or not the manufacturer or distributor knew or should have known of the risks involved in the products, either because the nature of the product or the risk involved made such a discussion unnecessary or because the plaintiff limited the action to risks about which the manufacturer/distributor obviously knew or should have known. Moreover, the appellate courts in these same cases did not discuss knowledge or knowability as a component of the failure to warn theory of strict liability. However, a knowledge or knowability component clearly was included as an implicit condition of strict liability. In that regard, California was in accord with authorities in a majority of other states.
Only when the danger to be warned against was “unknowable” did the knowledge component of the failure-to-warn theory come into focus. Such cases made it apparent that eliminating the knowledge component had the effect of turning strict liability into absolute liability. The first California case to discuss knowledge or knowability as a condition of strict liability in the failure to warn context was Oakes v. E. I. Du Pont de Nemours & Co., Inc., supra,
In Christofferson v. Kaiser Foundation Hospitals (1971)
When the issue of “unknowable” risks first came before us, we noted the issue without deciding it. (Finn v. G. D. Searle & Co., supra,
Finn involved prescription drugs, as did our next important case on the issue of strict liability, Brown v. Superior Court, supra,
Discussing the issue that was before us in Brown—liability for failure to warn of “unknowable” risks—we reviewed the authorities on the issue whether strict liability for failure to warn presupposes actual or constructive knowledge of the risk by the manufacturer. We noted the split of authority and that California precedent favors the majority view, which requires knowability.
Vermeulen v. Superior Court (supra,
In sum, the foregoing review of the decisions of the Courts of Appeal persuades us that California is well settled into the majority view that knowledge, actual or constructive, is a requisite for strict liability for failure to warn and that Brown, supra,
However, even if we are implying too much from the language in Brown (supra,
One of the guiding principles of the strict liability doctrine was to relieve a plaintiff of the evidentiary burdens inherent in a negligence cause of action. (Cronin, supra,
However, the claim that a particular component “rings of” or “sounds in” negligence has not precluded its acceptance in the context of strict liability. On the same day that we decided Cronin, for example, we also held that, while ordinary contributory negligence does not bar recovery in strict liability, the plaintiff’s negligence is a defense when it consists of assumption of the risk. (Luque v. McLean (1972)
Finally, in Barker, supra, 20 Cal.3d 413, this court rejected the claim that the risk/benefit test was unacceptable because it introduced an element which “rings of negligence” into the determination of design defect. Consequently, we held that the risk/benefit test was not inconsistent with our decision in Cronin, supra,
As these cases illustrate, the strict liability doctrine has incorporated some well-settled rules from the law of negligence and has survived judicial challenges asserting that such incorporation violates the fundamental principles of the doctrine. It may also be true that the “warning defect” theory is “rooted in negligence” to a greater extent than are the manufacturing—or design-defect theories. The “warning defect” relates to a failure extraneous to the product itself. Thus, while a manufacturing or design defect can be evaluated without reference to the conduct of the manufacturer (see Barker, supra,
We therefore reject the contention that every reference to a feature shared with theories of negligence can serve to defeat limitations on the doctrine of strict liability. Furthermore, despite its roots in negligence, failure to warn in strict liability differs markedly from failure to warn in the negligence context. Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about. Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer’s conduct. The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.
Stated another way, a reasonably prudent manufacturer might reasonably decide that the risk of harm was such as not to require a warning as, for example, if the manufacturer’s own testing showed a result contrary to that of others in the scientific community. Such a manufacturer might escape liability under negligence principles. In contrast, under strict liability principles the manufacturer has no such leeway; the manufacturer is liable if it failed to give warning of dangers that were known to the scientific community at the time it manufactured or distributed the product. Whatever may be reasonable from the point of view of the manufacturer, the user of the product must be given the option either to refrain from using the product at all or to use it in such a way as to minimize the degree of danger. Davis v. Wyeth Laboratories, Inc. (9th Cir. 1968)
The foregoing examination of the failure-to-warn theory of strict liability in California compels the conclusion that knowability is relevant to imposition of liability under that theory. Our conclusion not only accords with precedent but also with the considerations of policy that underlie the doctrine of strict liability.
We recognize that an important goal of strict liability is to spread the risks and costs of injury to those most able to bear them.
Conclusion
Therefore, in answer to the question raised in our order granting review, a defendant in a strict products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution. The judgment of the Court of Appeal is affirmed with directions that the matter be remanded to the trial court for proceedings in accord with our decision herein.
Lucas, C. J., Kennard, J., Arabian, J., and Baxter, J., concurred.
Notes
Owens-Coming Fiberglas Corporation, H. K. Porter Company, Inc., Fibreboard Corporation, Pittsburg-Corning Corporation, Owens-Illinois, Inc., Keene Corporation, AC and S, Inc., Armstrong World Industries, and GAF Corporation. As a result of bankruptcy petitions, proceedings have been stayed as to Raymark Industries, Inc., Celotex Corporation, and Eagle-Picher Industries, Inc., which were also named.
Not before us is the issue whether state-of-the-art evidence is admissible in design defect cases, whether tried on the “risk/benefit” or the “consumer expectation” theory.
In re Asbestos Cases (9th Cir. 1987)
Defendants asserted that when plaintiff struck his cause of action for punitive damages, he necessarily struck the allegations of failure to warn.
In relevant part, the instruction provides: “A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer fails to give adequate warning of such danger. . . . [][] A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which are known, or [in the exercise of reasonable care] should have been known, which may follow the foreseeable use of the product.” The use note accompanying the instruction questions the propriety of the bracketed phrase after our decision in Finn v. G. D. Searle & Co. (1984)
Defendants also sought review of the trial court’s ruling that the evidence did not support the defense verdict. In our order designating the issue for review, we implicitly concluded that this factually specific determination did not warrant review.
In most instances, as here, the plaintiff alleges both design and warning defects. The jury in this case found no design defect. Pursuant to the new trial order, however, that issue may be retried.
Comment j of section 402A of the Restatement Second of Torts, provides in pertinent part: “j. Directions or warning. In order to prevent the product from being unreasonably
In adapting the principles of Barker to a failure-to-wam case, the Cavers court stated, “In assisting the jury’s determination of whether the absence of a warning makes a product defective, the trial court should focus their attention on such relevant considerations as the normal expectations of the consumer as to how the product will perform, degrees of simplicity or complication in the operation or use of the product, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a warning.’’ (95 Cal.App.3d at pp. 347-348.)
See Annotation, Strict Products Liability: Liability for Failure to Warn as Dependent on Defendant’s Knowledge of Danger (1984)
Only a small minority of jurisdictions have rejected the proposal of the Restatement Second of Torts that knowledge or knowability is a condition of strict liability. The minority hold that the reason for failing to warn is irrelevant to imposition of strict liability. (Halphen v. Johns-Manville Sales Corp. (La. 1986)
The dissent in Finn was the only support in California, prior to the instant case, for extending strict liability to the failure to warn of unknowable risks. The dissent acknowledged that the state of the law was otherwise, but proposed that strict liability in California should not be conditioned upon the manufacturer’s having knowledge or reason to know of the danger. (Finn, supra,
We observed in Brown that most jurisdictions and the Restatement Second of Torts condition liability on actual or constructive knowledge of the risks by the manufacturer at the time of sale or distribution. (
The parties do not dispute the accepted definition of scienter in the failure to warn context, namely, actual or constructive knowledge. As noted in comment j of section 402A of the Restatement Second of Torts (see ante, pp. 995-996, fn. 8), constructive knowledge is knowledge which is obtainable “by the application of reasonable, developed human skill and foresight.” As we have explained, however, the element of scienter is not necessarily determinative of the duty to warn or of the liability that flows from the failure to warn. Thus, a manufacturer with knowledge, actual or constructive, might have acted reasonably in failing to
The suggestion that losses arising from unknowable risks and hazards should be spread among all users to the product, as are losses from predictable injuries or negligent conduct, is generally regarded as not feasible. Not the least of the problems is insurability. (See Henderson, Coping with Time Dimension in Products Liability (1981) 69 Cal.L.Rev. 919, 948-949; Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing (1983) 58 N.Y.U. L.Rev. 734.) Dean Wade stated the dilemma, but provided no solution: “How does one spread the potential loss of an unknowable hazard? How can insurance premiums
Concurrence Opinion
Concurring.—I concur in the majority opinion, but write separately simply to emphasize the narrow scope of the opinion’s holding. As the majority opinion properly recognizes, the issue presented by this case is whether so-called “state-of-the-art” evidence is admissible in a strict products liability action when the plaintiff contends that a product is defective because it failed to contain an adequate warning of the risk that caused the injury. I agree with the majority that when the plaintiff proceeds on an absence-of-warning theory, the defendant is entitled to present evidence that the risk in question was scientifically unknown at the time the product was manufactured and distributed. A warning, by its nature, presupposes that the risk to be warned against is capable of being known, and a rule which permits the trier of fact to find a product defective simply because it lacked a warning of a scientifically unknown risk would go a long way to making a manufacturer an insurer of any injuries caused by its product.
The majority’s holding in this case, however, does not mean that state-of-the-art evidence is admissible in all strict products liability cases. Although the majority finds no need to reach the issue here (see maj. opn., ante, p. 992, fn. 2), in my view it is both prudent and appropriate to make it clear that state-of-the-art evidence would not necessarily be relevant when, for example, a plaintiff in a strict products liability action relies solely on the so-
As Barker explained, the consumer expectation prong is “somewhat analogous to the Uniform Commercial Code’s warranty of fitness and merchantability . . . [and] reflects the warranty heritage upon which California product liability doctrine in part rests. As we noted in Greenman [v. Yuba Power Products, Inc. (1963)
Under the consumer expectation standard, when a product proves to be unexpectedly unsafe when used as intended by the manufacturer, an injured plaintiff is entitled to recover for the resulting injuries, as he or she would recover in a warranty action, without regard to whether the manufacturer knew or could have known at the time of manufacture or distribution of the specific safety problem that was inherent in its product. (See, e.g., West v. Johnson & Johnson Products, Inc. (1985)
In this case, however, plaintiff sought to rely, inter alia, on the absence of a warning to prove that the product was defective. Under these circumstances, I agree with the majority that state-of-the-art evidence was admissible.
Concurrence Opinion
Concurring and Dissenting.—In my view the trial court properly granted a new trial and the Court of Appeal, in a thoughtful analysis of the law, correctly affirmed the order. I thus concur in the result.
In Greenman v. Yuba Power Products, Inc. (1963)
This focus, however, has become blurred through the years. As the majority observe, this court has incorporated a number of principles of the law of negligence into strict liability doctrine. (See, e.g., Luque v. McLean (1972)
In no area of strict products liability has the impact of principles of negligence become more pronounced than in failure-to-warn cases. From the inception of the cause of action for strict liability on the theory of failure to warn, courts have impliedly or explicitly held that there can be no liability unless the plaintiff establishes that the defendant knew or should have known of the risk. For example, in Canifax v. Hercules Powder Co. (1965)
The courts of some of our sister states, too, have permitted the infusion of negligence concepts into failure-to-warn strict liability actions. (See, e.g., Gonzales v. Volvo of America Corp. (7th Cir. 1985)
It may be contended, with arguable merit, that in failure-to-warn cases the line between strict liability and negligence is somewhat thin. The court in Kearl v. Lederle Laboratories (1985)
The majority distinguish failure-to-wam strict liability claims from negligence claims on the ground that strict liability is not concerned with a standard of due care or the reasonableness of a manufacturer’s conduct. This is generally accurate. However in practice this is often a distinction without a substantial difference. Under either theory, imposition of liability is conditioned on the defendant’s actual or constructive knowledge of the risk. Recovery will be allowed only if the defendant has such knowledge yet fails to warn.
The majority rely extensively on Brown v. Superior Court, supra,
We should consider the possibility of holding that failure-to-warn actions lie solely on a negligence theory. “[Ajlthough mixing negligence and strict liability concepts is often a game of semantics, the game has more than semantic impact—it breeds confusion and inevitably, bad law.” (Henderson & Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, supra,
Here plaintiff alleged, among other claims, that defendants marketed their products “with specific prior knowledge” of the high risks of injury and death from their use. If plaintiff can establish at the new trial that
On the other hand, if plaintiff is only able to show, by medical and scientific data or other means, that defendants should have known of the risks inherent in their products, then contrary medical and scientific data and state-of-the-art evidence would be admissible if offered by defendants.
Thus I would draw a clear distinction in failure-to-warn cases between evidence that the defendants had actual knowledge of the dangers and evidence that the defendants should have known of the dangers.
With the foregoing rule in mind, the parties should proceed to the new trial ordered by the trial court and upheld by the Court of Appeal. Thus I would affirm the judgment of the Court of Appeal.