Lead Opinion
Opinion
In this strict products liability case, we consider whether the criminal nature of a juvenile’s act of throwing rocks and concrete from a freeway overpass relieves a truck manufacturer of the duty to design windshields capable of withstanding common road hazards, such as objects hitting windshields. For the reasons that follow, we conclude the criminal nature of the rock throwing does not cut off liability or negate the duty of the manufacturer to design the truck’s windshield to account for reasonably foreseeable risks. We also explain that the definition of negligence for premises liability has no application in strict products liability cases.
This action arises out of injuries plaintiff William F. Collins sustained while driving a big rig truck manufactured by Navistar, Inc. A 2.5-pound piece of concrete thrown by 15-year-old Joshua Daniel penetrated the windshield of the truck and struck William in the head. Daniel would later plead to three counts of assault with a deadly weapon or with force likely to cause great bodily injury and be sentenced to serve 12 years in prison.
On appeal, Barbara challenges the jury instructions and verdict form as erroneously requiring heightened foreseeability solely due to the criminal nature of Daniel’s rock throwing. She contends the proper standard is whether it is foreseeable that the sort of object thrown in this case will hit truck windshields. Answering this question in the affirmative, Barbara asserts the instructional error was prejudicial. Barbara also challenges various evidentiary rulings related to the issue of foreseeability. And, she contends it was error to exclude the glass-plastic evidence. Navistar concedes this error, but urges it was harmless because the jury decided the case on superseding cause and never reached the question of design defect.
We conclude the trial court erred in instructing that a heightened foreseeability was required and the error was prejudicial because the special verdict form precluded the jury from considering whether the risk of chunks of concrete hitting the truck’s windshield was a reasonably foreseeable road hazard. We accept Navistar’s concession that federal law is not preemptive on the issue of whether glass-plastic would have been a safer design for the windshield. Accordingly, we reverse and remand for a new trial.
To provide guidance to the trial court on retrial, we address Barbara’s evidentiary contentions. Consistent with our conclusion about the standard of
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
In the early morning of December 4, 1997, Joshua Daniel was on top of the south levee of Smith Canal, throwing rocks—pieces of concrete and asphalt found on the levee—at passing vehicles. Interstate Highway 5 crosses over the Smith Canal just south of Country Club Boulevard. Riprap, including chunks of concrete, lines the waterside slope of Smith Canal to the levee.
Daniel chose rocks about the size of baseballs and threw them overhand, hard enough to hurt anyone he hit. He spent 10 to 15 minutes throwing rocks and hit a few vehicles. He threw a chunk of concrete weighing about two and a half pounds at a Navistar tractor pulling two trailers driven by William. The rock penetrated the windshield and hit William in the forehead, causing severe brain injuries. William lost control of the truck and it hit the sound wall. Daniel heard a large crash.
Daniel was convicted of three counts of assault with a deadly weapon or with force likely to cause great bodily injury. He was sentenced to 12 years in prison.
The Lawsuit
William and Barbara brought suit against Navistar (previously International Truck and Engine Corporation), the State of California, and several other defendants.
The complaint also sought punitive damages on the grounds that Navistar knew the truck was defective. Navistar moved to strike portions of the complaint relating to punitive damages. The motion was granted with leave to amend. Plaintiffs filed an amendment with new allegations against Navistar regarding punitive damages. Navistar’s motion to strike this amendment was denied.
Exclusion of Glass-plastic Evidence
Two defendants, the manufacturer of the windshield and the supplier of the glass, moved for summary judgment, asserting a state tort action for products liability was preempted by federal law. The windshield in the truck William drove was two layers of glass between which is a bonded layer of plastic. The windshield was manufactured in accordance with Federal Motor Vehicle Safety Standard No. 205 (FMVSS 205).
The trial court granted both motions for summary judgment, finding plaintiffs’ claims were preempted by federal law.
In light of these rulings, Navistar moved in limine to exclude any evidence of glass-plastic windshields. The trial court granted the motion.
Summary Adjudication on Punitive Damages
Navistar moved for summary adjudication of plaintiffs’ punitive damages claim. Navistar contended plaintiffs had no evidence of fraud, oppression, or malice; the windshield complied with all safety standards; Navistar had not
The trial court granted the motion. The court found that since it was undisputed that the windshield had been replaced, the glass in the windshield at the time of the accident was not the “product” of Navistar.
Dr. Rose Ray’s Testimony
Navistar’s primary defense was that Daniel’s criminal assault constituted a superseding cause of plaintiffs’ injuries and Daniel alone was responsible for the injuries he caused. To support its argument that the assault by Daniel was not reasonably foreseeable, Navistar offered the testimony of Rose Ray, Ph.D., a statistician. Plaintiffs moved in limine to exclude her testimony, contending her methodology was without scientific merit, her opinions lacked a factual basis, and her testimony would confuse and mislead the jury. Plaintiffs argued the databases on which Dr. Ray relied were unreliable, contained too small a sample, and were misleading.
At a hearing pursuant to Evidence Code section 402, Dr. Ray testified about the databases she used in forming her opinions. One database was the Fatality Analysis Reporting System or EARS, collected by the National Highway Traffic Safety Administration (NHTSA). EARS is a census of all fatal traffic accidents in the United States. For purposes of the census, an accident is considered fatal where the fatality occurs within 30 days of the accident and is attributable to the crash. EARS is believed to be 99 percent accurate and is considered the gold standard of databases. The NHTSA relies on it to develop vehicle safety standards and to evaluate their effectiveness.
Another database used was the National Automotive Sampling System General Estimates System known as NASS/GES or simply GES. It was developed by the NHTSA to study traffic safety and is relied on by traffic safety professionals and statisticians. GES includes a representative sample of crashes of all levels of severity that are reported by the police.
Dr. Ray also used the National Automotive Sampling System Crashworthiness Data System or CDS and the Large Truck Crash Causation Study or LTCCS. CDS is a representative sample of passenger vehicle crashes that were severe enough to require towing. The database includes information from witness interviews, crash reconstruction, and evaluation of the vehicles involved. The database is maintained by the NHTSA. The LTCCS is a representative sample, similar to the CDS, but focuses on large trucks rather than passenger vehicles.
Dr. Ray performed a search on Tactiva for 1997, the year of William’s crash. Tactiva is an Internet search engine that consists primarily of newspaper reports. The search turned up the incident giving rise to this case.
Dr. Ray also reviewed the deposition of plaintiffs’ statistician, Steven Crump.
Dr. Ray testified that the risk of a fatality where the first harmful event was a thrown or falling object was 0.003 per billion vehicle miles for a combination truck, 0.004 for a single-unit track, 0.009 for a light track, and 0.006 for a passenger car. Her calculations for a fatality or a major injury from a thrown or falling object were 0.004 per billion vehicle miles for a combination track, 0.009 for a single-unit track, 0.034 for a light track, and 0.046 for a passenger car.
Her first opinion, for which she relied upon TARS, GES, the vehicle miles traveled data, and LTCCS, was that the risk of fatality or serious injury as a result of a thrown or falling object was very low. It was a rare event. She relied on the same data for her second opinion, that such risk was higher for a passenger vehicle than for a medium or heavy track. Her third opinion was that a vehicle with a rake angle similar to passenger vehicles does not prevent penetration of a windshield by a thrown or falling object.
At trial, plaintiffs again objected to Dr. Ray’s testimony, particularly her second and third opinions. They argued her statistics were inadmissible under Grimshaw v. Ford Motor Co. (1981)
Navistar argued that Dr. Ray’s testimony was not offered to establish causation or a defect, but offered for the risk-benefit analysis under products liability and for the defense of superseding cause. Navistar argued Dr. Ray reviewed national databases and determined this was a rare event; thus, it was not foreseeable for a manufacturer to design for such rare circumstances. The trial court overruled plaintiffs’ objections and allowed Dr. Ray to offer her three opinions at trial.
To rebut Dr. Ray’s testimony, plaintiffs wanted to recall Keith Triedman, a safety researcher who had opined it was feasible for Navistar to increase the
Other Trial Testimony Relating to Foreseeability
Victor Alvarez, a truckdriver, was also driving north on Interstate Highway 5 through Stockton that morning. A chunk of concrete, weighing 3.49 pounds, hit his truck and “busted out my windshield.” To his testimony about these events he added it was, “almost a common occurrence in our industry.” Both the state and Navistar objected and the trial court struck the remark as nonresponsive. Plaintiffs’ counsel then asked Alvarez if he had been hit by other objects while driving a truck. The court sustained a relevance objection. A second truckdriver, Bill Warren, Jr., testified that he had a rock come through his windshield that morning.
California Highway Patrol Officer Paul McClellan had been dispatched two or three times to reports of an object being thrown at a vehicle in the area of Smith Canal. Two police officers who interviewed Daniel testified that Daniel had said he threw rocks at motorists on three prior occasions.
Ronald W. Nelson, a civil and traffic engineer who had worked for California’s Department of Transportation for over 40 years and was now a consultant, testified that vehicle-to-vehicle rock throwing was fairly common as a type of road rage. In his experience, the injury to William due to a rock throwing incident was “[ejxtremely rare.” An engineer who did crash testing testified that in all his years of professional experience he had never run into a case like this before.
Judgment and Appeal
The case was submitted to the jury, which found Navistar could not “have known or have reasonably foreseen that a person would be likely to take advantage of the situation created by Navistar’s conduct to commit” an act like Daniel’s rock throwing. The court entered judgment on the verdict in favor of Navistar.
Plaintiffs moved for a new trial. They raised the points urged on appeal and others. The trial court denied the motion. Plaintiffs thereafter timely filed a notice of appeal.
I
The Requisite Foreseeability for Strict Products Liability Involving Third Party Criminal Conduct
On appeal, Barbara argues Navistar had a duty to design its trucks to withstand common road debris, even intentionally thrown rocks and concrete chunks. Thus, she contends the jury was improperly instructed that a heightened foreseeability was required to prove a design defect claim just because it involved third party criminality. As we explain, the argument has merit.
A.
Jury Instructions
Pattern CACI instructions include a set that addresses strict products liability. To define the standard of proof, CACI No. 1203 sets forth the consumer expectation test and CACI No. 1204 articulates the risk-benefit test. At trial, plaintiffs did not claim that Navistar’s tractor failed to meet the consumer expectation test. Instead, they pursued only a design defect theory of the case for which the trial court gave CACI No. 1204 as follows:
“The following instruction applies to Navistar, Inc. only.
“William F. Collins and Barbara Collins claim that the 1994 Model 8200 tractor’s design caused harm to William F. Collins and Barbara Collins. To establish this claim, William F. Collins and Barbara Collins must prove all of the following:
“(1) That Navistar, Inc. manufactured, distributed or sold the 1994 Model 8200 tractor;
“(2) That the 1994 Model 8200 tractor was used in a way that was reasonably foreseeable to Navistar, Inc; and
“(3) That the 1994 Model 8200 tractor’s design was a substantial factor in causing harm to William F. Collins and Barbara Collins.
“If William F. Collins and Barbara Collins have proved these three facts, then your decision on this claim must be for William F. Collins and Barbara Collins, unless Navistar, Inc. proves that the benefits of the 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 1994 Model 8200 tractor;
“(B) The likelihood that this harm would occur;
“(C) The feasibility of an alternate safer design at the time of manufacture;
“(D) The cost of an alternative design;
“(E) The disadvantages of an alternative design.”
On the claim against Navistar, the court further instructed: “The precise nature and extent of the injury actually suffered by William Collins does not need to be foreseeable by Navistar for a finding of liability.”
Over plaintiffs’ objection, the trial court also gave a modified version of CACI No. 433—one of the CACI negligence instructions—as follows:
“The State of California and Navistar, Inc. claim that they are not responsible for William F. Collins and Barbara Collins’s harm because of the later criminal conduct of Joshua Daniel. The State of California and Navistar, Inc. are not responsible for William F. Collins’ [j/c] and Barbara Collins’ [mc] harm if the State of California and Navistar, Inc. each prove both of the following:
“(1) That the criminal conduct of Joshua Daniel happened after the conduct of the State of California and/or Navistar, Inc., and;
“(2) That the State of California and Navistar, Inc. did not know and could not have reasonably foreseen that another person would be likely to take advantage of the situation created by the State of California and/or Navistar, Inc.’s conduct to commit this type of act.”
The court also gave a modified version of CACI No. 411—another CACI negligence instruction—to instruct the jury: “Every person has a right to expect that every other person will use reasonable care and will not violate the law unless he or she knows or should know that the other person will not use reasonable care or will violate the law.”
During the conference on jury instructions, plaintiffs had requested that the trial court modify CACI No. 411 to quote the portion of Bigbee v. Pacific Tel.
Navistar objected to plaintiffs’ proposed modification. The trial court gave CACI No. 411 as proposed by Navistar.
B.
Special Verdict Form
The trial court submitted .the case to the jury with a special verdict form. The first “question” on the special verdict form was actually a statement that set forth the undisputed fact that “[t]he conduct of Joshua Daniel occurred after Navistar manufactured the 1994 model 8200 tractor.”
The special verdict form next asked; “In this case, the conduct of Navistar complained of by Plaintiffs is its manufacture of the 1994 Model 8200 tractor. Could Navistar have known or have reasonably foreseen that a person would be likely to take advantage of the situation created by Navistar’s conduct to commit this type of act?”
By a vote of 11 to one, the jury answered “No.” As a result, the jury did not reach any other questions in the special verdict form including (1) whether the “design [was] a substantial factor in causing harm to plaintiffs,” (2) whether the “benefits of the 1994 Model 8200 tractor’s design outweigh the risks of the design,” and (3) whether the “tractor [was] used in a way that was reasonably foreseeable to Navistar.”
■ The unanswered questions on the special verdict form loosely tracked CACI’s model verdict form, entitled, “Strict Products Liability—Design Defect—Risk-Benefit Test.” The model verdict form asks the jury to answer (1) “Did [name of defendant] [manufacture/distribute/sell] the [product]?’ (2) “Was the [product]’s design a substantial factor in causing harm to [name of plaintiff]?” (3) “Did the risks of the [product]’s design outweigh the benefits of the design?” If the jury answers these three questions in the affirmative, the model verdict form asks the jury to calculate the plaintiff’s past economic damages, future economic losses, and noneconomic losses. (Judicial Council of Cal., Civ. Jury Instns. (2012) No. VF-1202, at pp. 795-796.)
Duty to Instruct and Review
A trial court has the duty to instruct the jury on the law applicable to the facts of the case. (Wank v. Rickman & Garrett (1985)
We review challenges to the propriety of jury instructions in correctly stating the relevant law under the de novo standard of review. (Cristler v. Express Messenger Systems, Inc., supra,
D.
Strict Products Liability Premised on Design Defect
In the seminal case of Soule, supra,
“ ‘The foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his [or her] conduct was “a substantial factor” in bringing about the harm, though he [or
In Barker v. Lull Engineering Co. (1978)
When a product is alleged to have been defectively designed, “ ‘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 the consumer that would result from an alternative design. [Citations.]’ (Barker, supra, 20 Cal.3d at pp. 430-431, fn. omitted; see also Gonzalez v. Autoliv ASP, Inc. (2007)
E.
Whether Third Party Criminality Affects the Requisite Foreseeability for Strict Products Liability
The primary issue at trial concerned the question of whether the criminal nature of Daniel’s rock throwing affected the foreseeability requirement for plaintiffs’ strict products liability claim. Plaintiffs argued that the criminality of the rock throwing did not require a different standard of foreseeability than if the rock had been cast negligently or by an act of nature. Navistar contended that product manufacturers need not anticipate third party criminality when designing their products. Based on our review of well-settled case law, we conclude the same standard of foreseeability for strict products liability applies to the risk of the harm, regardless of the source of the risk.
In Soule, the California Supreme Court announced that “whatever the cause of an accident, a vehicle’s producer is liable for specific collision injuries that would not have occurred but for a manufacturing or design defect in the vehicle. (Cronin[ v. J.B.E. Olson Corp. (1972)
Bigbee involved negligence and strict products liability claims for injuries sustained when a telephone booth was struck by a car that was driven by a drunk driver. (Bigbee, supra,
In Bigbee, the Supreme Court held that a telephone booth manufacturer owes a duty to design even against reasonably foreseeable criminal acts. Bigbee admonishes that “it is well to remember that ‘foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modem life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ (2 Harper & James, Law of Torts [(1956)] § 18.2, at p. 1020.) One may be held accountable for creating even ‘ “the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.” ’ (Ewart v. Southern Cal. Gas Co. (1965)
The Bigbee court held it “evident” that “speeding and/or intoxicated drivers” are common incidents for which manufacturers of products used near roadways must account. (Bigbee, supra,
Also instructive on the issue of whether criminality requires a different standard of foreseeability is the case of Bunton v. Arizona Pacific Tanklines (1983)
Although Bunton involved a claim of negligence, rather than strict products liability, it aptly shows that the exact manner of the injury need not be predicted. Instead, “ ‘[t]he foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was “a substantial factor” in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred.’ (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 629, pp. 2911-2912; italics in original.)” (Bunton, supra,
Like truck brakes, windshields on big rig trucks must be designed in anticipation of common road hazards. The very purpose of a windshield is to protect occupants of a motor vehicle from the elements and road debris. Navistar properly acknowledges “[t]hat objects will hit windshields is implicit in the FMVSS 205 requirement that windshields be strong enough to withstand penetration by a five-pound ball dropped from 12 feet.” Navistar also correctly observes that “[t]he relevant consideration is the foreseeability that a thrown or falling object will penetrate the windshield and result in injury.”
To deny recovery to an injured user of an otherwise defective product simply because a common road hazard was caused by criminal behavior would negate the manufacturers’ duty to design products to account for reasonably foreseeable risks. Even Navistar acknowledges that “[i]n some cases, intentional torts or criminal acts may be foreseeable and, therefore, within the scope of the risk defendant created, and in such a case the defendant may still be liable for the harm to the plaintiff resulting from the intentional or criminal act.” Strict products liability does not depend on the criminal or noncriminal nature of the source of the risk but on its foreseeability. (Soule, supra,
Foreseeability is ordinarily a question of fact for the jury. (Bigbee, supra,
A vehicle manufacturer’s duty to consider reasonably foreseeable risks does not mean it must design its products “to be built like tanks, with an armored plate instead of a glazing windshield and a periscope to provide visibility,” as Navistar asserts. It is well established that a manufacturer may defeat liability by showing “ ‘the benefits of the . . . design outweigh the risk of danger inherent in such design ....’” (Soule, supra,
Navistar asserts that “if the crime is not foreseeable, the defendant ‘is relieved of responsibility by the intervention of the third person.’ ” We agree manufacturers need not foresee the unforeseeable. However, to prove a risk was unforeseeable, a manufacturer must show that the intervening act “produce[d] harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him [or her] responsible.” (Soule, supra,
Stahlecker v. Ford Motor Co. (2003)
Davis v. Blockbuster, Inc. (2002)
Gaines-Tabb v. ICI Explosives USA, Inc. (W.D.Okla. 1996) 995 ESupp. 1304, arose out of claims brought by the victims of the terrorist bombing of the Alfred P. Murrah Federal Building in Oklahoma by Timothy McVeigh and Terry Nichols. (Id. at p. 1314.) The plaintiffs alleged that the product, ammonium nitrate fertilizer, was defective because it could have been manufactured with antiexplosive additives. (Id. at p. 1309.) The Gaines-Tabb court held that the “intervening acts of McVeigh and Nichols and/or others alleged by Plaintiffs, which acts were both tortious and criminal, were independent as a matter of law.” (Id. at p. 1315.) The fact that the fertilizer was capable of being misused for terrorist purposes did not render it a defective product. (Ibid.)
In Williams v. RCA Corp. (1978) 59 Dl.App.3d 229 [
The product in this case failed to provide exactly the protection for which it was designed, namely to shield a driver of the truck from road hazards. The windshield did not cause injury by some bizarre misuse of the product,
F.
The Definition of Negligence in Premises Liability Actions Does Not Apply in Strict Products Liability Actions
During trial, the parties and trial court wrestled with the question of how to apply the definition of negligence for premises liability to a cause of action for strict products liability based on design defect. The simple answer is that the definition of the risk to be avoided in a premises liability case should not be grafted onto a products liability action.
Although labeled “strict products liability” (italics added), an action against a manufacturer for design defect may nonetheless be defeated by showing the risk is one for which there is no duty to account. A manufacturer may tender defenses based on a fundamental principle upon which the law of unintentional torts rests, i.e., a reasonable duty to avoid being the cause of injury to another. (See 1 Dobbs et al., The Law of Torts (2d ed. 2011) § 141, p. 442 & fn. 1 [“The defendant cannot be negligent unless a reasonable person would have foreseen the risk of injury and would have done something effective to prevent it.”].) In addition, proof that “on balance the
In the area of premises liability, there is also a reasonable duty to avoid being the cause of injury. A defendant in a premises liability action is not liable for failing to anticipate criminal conduct that is bizarre or too rare to be reasonably foreseen. This principle is aptly illustrated by Navistar’s cited case of Wiener v. Southcoast Childcare Centers, Inc. (2004)
However, Wiener, supra,
G.
The Trial Court’s Giving of CACI No. 433
Barbara challenges the trial court’s giving of CACI No. 433 in this strict products liability action.
CACI No. 433 does not adapt well to this strict products liability case.
CACI No. 433 erroneously allowed Navistar a complete defense based on a heightened standard of foreseeability inapplicable to plaintiffs’ design defect claims. Specifically, CACI No. 433 allowed Navistar to secure a defense verdict by showing it “could not have reasonably foreseen that another person would be likely to take advantage of the situation created by . . . Navistar, Inc.’s conduct to commit this type of act.” However, Navistar did not create a situation that Daniel took advantage of in order to commit a crime. Daniel did not throw the concrete at William’s truck because he perceived a defective angle or composition of the windshield. CACI No. 433 erroneously introduced a test that does not make sense in this products liability case.
H.
Modified Version of CACI No. 411
Barbara contends the trial court committed further instructional error by giving Navistar’s version of CACI No. 411. We agree even though it is undoubtedly true, as CACI No. 411 states, that “[e]very person has a right to expect that every other person will use reasonable care and will not violate the law unless he or she knows or should know that the other person will not use reasonable care or will violate the law.” (Cf. Celli v. Sports Car Club of America, Inc. (1972)
This negligence instruction, however, was as misplaced in this case as CACI No. 433. CACI No. 411 reiterated the focus on the criminal nature of Daniel’s acts rather than directing the jury to determine whether it was reasonably foreseeable that a big rig truck would meet a projectile of the size and shape as pierced the windshield. Rather than focusing on whether Navistar could expect law-abiding behavior to surround the operation of its trucks, the jury should have been asked whether the allegedly defective design violated the risk-benefit test for products liability. As the Soule court held, “instructions are misleading and incorrect if they allow a jury to avoid this risk-benefit analysis in a case where it is required.” (Soule, supra,
Prejudice
Having found instructional error in the giving of CACI Nos. 411 and 433, we must assess whether the misinstruction warrants reversal. As the Soule court held, “there is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule, supra,
The jury in this case was properly instructed with CACI No. 1204, which set forth the applicable law for strict products liability. Nonetheless, we conclude the errors in giving CACI Nos. 411 and 433 as well as the special verdict form were prejudicial because they prevented the jury from engaging in the risk-benefit test that applies to design defect claims. (Soule, supra,
Instead, CACI Nos. 411 and 433 allowed Navistar to shift the blame entirely to Daniel. Navistar’s counsel’s closing argument emphasized, “All we had to deal with, all we had to work with, was a 15-year-old kid who’s standing out there in the middle of the night with no one around, no one watching him, throwing chunks of concrete onto a freeway.” Consistent with CACI No. 433, as given, Navistar’s attorney argued it did not foresee that “ ‘another person [(Daniel)] would be likely to take advantage of the situation created by Navistar’s conduct,’ that is our truck . . . .”
Moreover, CACI No. 411 was quoted by Navistar’s attorney to further emphasize Daniel’s criminal act. Counsel argued, “Every person—every one of you, every one of us—‘has a right to expect that every other person will use reasonable care and will not violate the law’—and we know that Joshua
As we have explained, CACI Nos. 411 and 433 were erroneously given because a product must be designed to account for foreseeable risks even if they happen to result from criminal conduct. (Soule, supra,
Due to the order of the questions on the special verdict form, the jury’s answer to the first question prevented it from considering the question of whether the truck’s windshield design was a substantial cause of plaintiffs’ injuries. The jury also did not consider whether the benefits of the truck’s windshield design outweighed the risks of the design. The jury clearly relied on misleading and incorrect instructions concerning the effect of third party criminal conduct on the standard of reasonable foreseeability for strict products liability claims. Accordingly, we reverse and remand for a new trial.
II
Exclusion of Evidence Regarding Glass-plastic
Barbara contends the trial court erred in excluding evidence of glass-plastic based on federal preemption. She argues the federal safety standard, FMVSS 205, permits various windshield glazing designs, but does not require any particular design.
The trial court based its decision to exclude evidence of glass-plastic on Geier v. American Honda Motor Co. (2000)
Recently, in Williamson v. Mazda Motor of America, Inc. (2011)
Based on the development of case law after Geier v. American Honda Motor Co., supra,
Navistar argues that permitting a products liability action based on failure to use one of the particular window glazing options permitted by FMVSS 205 would be contrary to sound public policy. We reject the argument. Soule holds that one of the factors a jury may consider in assessing a design defect claim is “the mechanical feasibility of a safer alternative design . . . .” (Soule, supra,
Admission of Dr. Ray’s Testimony
At trial, Dr. Ray gave three opinions: (1) the risk of a fatality or incapacitating injury as a result of a crash where the first harmful event is a thrown or falling object is very low; (2) the risk is even lower in a heavy or combination truck than it is in passenger vehicles; and (3) a vehicle with a windshield at a rake angle similar to a passenger car or light truck can still have instances where an object will penetrate the windshield. Barbara contends the trial court erred in admitting the first and second opinions. She contends such testimony was irrelevant, lacked foundation, was unreliable, and contained multiple levels of hearsay.
“The trial court is ‘vested with broad discretion in ruling on the admissibility of evidence.’ [Citation.] ‘[T]he court’s ruling will be upset only if there is a clear showing of an abuse of discretion.’ [Citation.] ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citation.]’ ” (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998)
A.
Relevance
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
Barbara contends Dr. Ray’s opinions on the foreseeability of rock throwing incidents were irrelevant because her opinions, and the databases on which she relied, were limited to incidents resulting in death or serious injury. Due to this limitation, Dr. Ray had no data and could not opine as to how often people throw objects at cars; how many objects, per billion vehicle miles traveled, penetrate the passenger compartment; or how often an occupant of a vehicle receives any injury from a thrown object. Barbara contends the relevant issue was the risk of thrown rocks, not the risk of thrown rocks causing death or serious injury.
Barbara takes too narrow a view of relevancy. Evidence is relevant if it has “any tendency” to prove or disprove a disputed fact. The limitations of
B.
Lack of Foundation and Reliability
An expert’s opinion is limited to an opinion that is based on matter “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his [or her] testimony relates.” (Evid. Code, § 801, subd. (b).) Upon objection, a court “shall” exclude opinion testimony “that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” (Evid. Code, § 803.)
Dr. Ray testified her opinions were based upon matter reasonably relied on by other experts. Her opinions were based upon databases maintained by the NHTSA. EARS was the most widely relied upon traffic safety database. Both the NASS/GES and the NASS/CDS were commonly used and relied upon by scientists, engineers, statisticians, and traffic safety professionals. Dr. Ray did a search on Tactiva to check her opinion, but she did not rely on that database for her opinion.
Barbara contends Dr. Ray’s opinion that the risk of death or incapacitating injury from a traffic accident involving a falling or thrown object was very low was inadmissible under Grimshaw, supra,
Grimshaw, supra,
Barbara also contends Dr. Ray’s data on objects striking windshields were unreliable. She relies on the declaration of Keith Friedman, a safety researcher. Friedman submitted a declaration in support of plaintiffs’ motion to exclude Dr. Ray’s testimony. Friedman declared the data Dr. Ray relied upon were “entirely unreliable” because they were not collected in the field, but taken from police reports. The reports did not specifically ask whether the incidents involved an object penetrating a windshield. Since the data were not collected systematically, Friedman declared, there would be underreporting.
Friedman’s declaration was contradicted by Dr. Ray’s testimony about the widespread reliance by experts on the databases and the accuracy of such databases. The record does not include the trial court’s ruling on the motion to exclude Dr. Ray’s testimony, so we cannot determine how the court assessed the issue of reliability. We note, however, the court commented later that Friedman’s use of statistics did not make him an expert. Presumably, the court found Dr. Ray more credible on the issue of the reliability of the databases. Determinations of credibility are not disturbed on appeal. (In re Juan G. (2003)
C.
Hearsay
The data in the EARS and GES databases originated with traffic collision reports by police officers. Dr. Ray testified to the details of the data in the EARS and GES databases, providing numbers for the risk of fatality or serious injury in an accident involving a thrown or falling object per billion vehicle miles traveled.
Barbara contends Dr. Ray’s testimony about the details of data in the databases was inadmissible because it was multiple levels of hearsay. First, she contends that under Vehicle Code section 20013, an accident report may not be used as evidence at trial. Barbara misreads the Vehicle Code. Nothing in it precludes admission of data from federal traffic safety databases at trial.
Subject to certain exceptions not applicable here, Vehicle Code section 20013 provides: “No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident . . . .” The “such accident report” refers to accident reports required by Vehicle Code section 20008 of
The data in the federal databases are derived from accident reports, just as the data in California’s Traffic Accident Surveillance Analysis System (TASAS) are derived from accident reports. (Davies, supra,
Next, Barbara contends the traffic reports that serve as the foundation of the federal databases contain multiple levels of hearsay and do not qualify as business records. While an expert may rely on inadmissible hearsay in forming an opinion and may state the matters on which he or she relied, the expert may not testify as to the details of those matters that are inadmissible hearsay. (Korsak v. Atlas Hotels, Inc. (1992)
Again, Barbara misunderstands that Dr. Ray testified to the databases’ compilation of statistics, not the traffic reports themselves. Such compilations are admissible under Evidence Code section 1340: “Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.” Dr. Ray testified the databases were accurate, and commonly used and relied upon by traffic safety experts and statisticians. The trial court did not abuse its broad discretion in admitting into evidence the data from the federal databases and Dr. Ray’s expert testimony based on those data. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2004)
Exclusion of Friedman’s Rebuttal Testimony
To rebut Dr. Ray’s testimony on foreseeability, plaintiffs offered rebuttal testimony by Keith Friedman. Friedman would testify Dr. Ray’s conclusions were not reliable; “her statistics aren’t supported by the databases” and are inaccurate. Friedman believed there was a large amount of data missing from the databases. He questioned how Dr. Ray calculated her statistics and believed she did not account for a number of factors.
Plaintiffs had not disclosed Friedman as an expert on statistical issues. Friedman did not testify about statistics in his deposition. Plaintiffs had disclosed a statistician, but chose not to call him as a witness at trial.
“A party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied: [j[] (a) That expert has been designated by another party . . . . [f] (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.” (Code Civ. Proc., § 2034.310.)
The trial court excluded the testimony on the basis that it was not proper rebuttal; the court found Friedman just offered a different opinion. Further, the court questioned his qualifications.
The trial court properly excluded Friedman’s proposed rebuttal under Code of Civil Procedure section 2034.310. Friedman did not propose to testify to the falsity or nonexistence of any fact in-the databases Dr. Ray used. Instead, he would testify that in his opinion the databases were not reliable and Dr. Ray’s opinions were inaccurate and not supported by the databases. He challenged how Dr. Ray arrived at her opinions. Thus, Friedman’s proposed testimony would contradict Dr. Ray’s opinions. Since he had not been disclosed as an expert on statistics, his testimony was improper rebuttal.
V
Exclusion of Alvarez’s Testimony
Barbara contends the trial court erred in excluding the testimony of Victor Alvarez that went to the foreseeability of objects hitting trucks. When answering a question about what happened on December 4, 1997, Alvarez
“A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.” (Evid. Code, § 766.) Alvarez’s comment about common occurrences was nonresponsive to a question about what happened on the day of the incident. The trial court did not err in striking that portion of his answer.
The followup question about whether Alvarez had been hit by other objects came right after his volunteered statement about subsequent incidents. As such, the question appeared designed to elicit testimony about subsequent incidents of objects hitting trucks on the highway. “The question of the admissibility of evidence of prior and subsequent accidents is primarily one for the trial court and is confined to its sound discretion. [Citation.]” (Simmons v. Southern Pac. Transportation Co. (1976)
VI
Summary Adjudication on Punitive Damages
Barbara’s opening brief argues that the trial court erred in granting Navistar’s motion for summary adjudication on the claim for punitive damages. In her reply brief, she withdraws the claim. We accept the withdrawal of the argument.
DISPOSITION
The judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion. Barbara Collins shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (3) & (5).)
Raye, P. J., concurred.
Notes
William subsequently passed away. Pursuant to rule 8.36 of the California Rules of Court, coplaintiff Barbara, successor in interest, is substituted as appellant. Even though Barbara is the sole appellant, we nonetheless refer to William and Barbara as plaintiffs in recounting their positions and arguments at trial. Insofar as we refer to plaintiffs individually by their first names, we do so for the sake of clarity.
At trial, the only defendants were Navistar and the state. Plaintiffs settled with the state while this appeal was pending.
The windshield of the Navistar 8200 driven by William had a rake angle of 71.2 degrees from horizontal (90 degrees being straight vertical). For comparison, plaintiffs’ expert offered the Ford F-650, which had a rake angle of 37.6 degrees. The expert conducted a test with the rake angle of the windshield of the Navistar 8200 changed to 52 degrees. Under the conditions of the test (the assumptions of which, particularly the speed of the truck and the rock, were hotly disputed), the rock skipped on the windshield and did not penetrate it. No manufacturers of heavy trucks had a windshield design as plaintiffs’ expert proposed. The angle of windshields varies by type of vehicle. Heavy trucks are generally 27 degrees from vertical (63 degrees from horizontal), while passenger cars are more sloped at 55 or 65 degrees from vertical (45 or 35 degrees from horizontal). Navistar’s expert opined that changing the rake angle of the truck’s windshield was not a trivial change and created safety and operational issues, particularly as to visibility.
The purpose of FMVSS 205 is to (1) reduce injuries resulting from impact with the glazing surfaces; (2) minimize the possibility of occupants being thrown through the windshield in collisions; and (3) ensure a necessary degree of transparency in the glazing for driver visibility.
Conventional windshields, such as the one in the truck at issue, are a three-ply design consisting of two plies of glass sandwiched around a thin interply of plastic. Glass-plastic is similar except it has an inner plastic liner bonded to the side of the windshield facing the passenger compartment.
Crump did not testify at trial and plaintiffs did not provide testimony of a statistician.
In one of its notices of additional authorities, Navistar lists Chavez v. Glock, Inc. (2012)
During oral argument, Navistar for the first time argued that plaintiffs forfeited an appellate challenge to the giving of CACI No. 433 or the special verdict form for failure to request a limiting instruction to prevent the premises liability concepts of superseding cause asserted against the State of California from being applied to the strict products liability cause of action against Navistar. The argument is untimely. (New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co. (1992)
In any event, the argument is without merit. During the conference on jury instructions, plaintiffs objected to the giving of CACI No. 433. Having lost on their objection, plaintiffs did not forfeit the issue by failing to raise a futile objection to the same concepts incorporated into the special verdict. (Mundy v. Lenc (2012)
We have no occasion to consider the correctness of CACI No. 433 for the type of negligence case for which it was drafted. (See Judicial Council of Cal., Civ. Jury Instas., supra, at pp. 292-293.) Here, we consider only a modified version of the instruction that was given in a strict products liability case.
Navistar requests that this court take judicial notice of SAE, American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways—Safety Standard: Standard ANSI/SAE Z26.1-1996, Approved by American National Standards Institute (1997). This document relates to federal safety standards and glass-plastic glazing material. We grant the unopposed request for judicial notice.
Concurrence in Part
I concur in the majority opinion except as to part I, I. of the Discussion, from which I respectfully dissent, as I disagree with the majority’s conclusion that the trial court’s error in instructing the jury resulted in prejudice to plaintiff’s case.
In my view, had there not been admitted error in the trial court’s exclusion of the glass-plastic evidence, the instructional error would be harmless due to the paucity of admissible evidence introduced by plaintiff on the issue of the foreseeability of large rocks hitting truck windshields and Navistar’s corresponding duty to design for such occurrences.
Therefore, I respectfully dissent from part I, I.
Respondent’s petition for review by the Supreme Court was denied July 17, 2013, S210583.