Opinion
Montgomery Elevator Company appeals from the order granting Steven Neal’s motion for a new trial on his cause of action for strict liability arising out of the amputation of his hand during maintenance work on an elevator manufactured by Montgomery. The trial court granted the motion because the special verdict form had not been revised to comport with the burden of proof instruction set forth in
Bernal
v.
Richard Wolf Medical Instruments Corp.
(1990)
In 1988, Neal was cleaning an elevator drive sheave at California State University at Fullerton in connection with his employment with Tillipman Elevator Company. Although he had been trained to take an elevator out of service before cleaning it, Neal did not do so on this occasion, deciding instead to listen for start-up noises as a safety precaution. The elevator started to run without audible warning, however, and Neal’s hand became caught between the cables and the drive sheave, resulting in an amputation through the metacarpals of his right hand. Neal sued, among others, Montgomery, the manufacturer of the elevator, for products liability and general negligence; the case was tried in March 1989.
The parties agreed to products liability jury instructions on burden of proof and defective design based on
Bernal
v.
Richard Wolf Medical Instruments Corp., supra,
The jury returned its verdict in favor of Montgomery. Question number one of the special verdict form asked, “Was there a defect in design of the product involved as to the defendant?” Nine jurors responded “No” and three “Yes.” They similarly found Montgomery was not negligent.
Neal timely filed a notice of intention to move for new trial under Code of Civil Procedure section 657, 2 listing the statutory grounds as irregularity in the proceedings, misconduct of the jury, accident or surprise, insufficiency of the evidence or verdict against law, and error in law occurring at trial and excepted to by the party applying for a new trial. He subsequently filed a document entitled “Motion for New Trial,” on the grounds that “the verdict of the jury was against the clear weight of the evidence in this case, is unsupported by substantial evidence, and is the product of jury misconduct in that the jury considered and basic [szc] its verdict upon extrinsic evidence not offered in evidence at the trial of this matter.”
At the hearing, the trial court instructed counsel to address its concern that the special verdict form was at variance with the burden of proof instruction taken out of Bernal, although that issue had not been raised by Neal. After argument, the court granted the motion as to the products liability cause of action, finding that the special verdict form should have presented the issues to the jury in the same way as the burden of proof instruction and that the inconsistency constituted a material error of law. 3
*1198 I
Montgomery first contends the trial court was powerless to grant the new trial motion because Neal failed to object to the special verdict form at trial and failed to raise it as a ground for his motion. We find the order was within the court’s jurisdiction and we can review it on its merits.
A motion for new trial is a creature of statute; accordingly, if the trial court grants such relief without conforming to the statutory procedures, the order will be void as in excess of jurisdiction.
(Sanchez-Corea
v.
Bank of America
(1985)
Here, the trial court’s order clearly indicates the new trial was granted due to a material error of law. Although not urged by Neal in his moving papers or at oral argument, error at law was listed as one of the grounds in his notice of intention to move for new trial. This was sufficient to place the issue before the trial court. (See
Wagner
v.
Singleton
(1982)
Montgomery complains that Neal failed to object to the special verdict form at trial and should be precluded from relying on it as a basis for a new trial motion. “But the rules applicable to . . . invited error or to estoppel[] have no application when an appellate court is considering the propriety of an order granting a new trial. If the trial court had denied the new trial such an error would be considered waived by failure to object. But the trial court has broad discretion in considering motions for a new trial.”
(Malkasian
v.
Irwin
(1964)
II
Having found that the trial court had the power to grant the new trial motion, we review the order on its merits. We agree with Montgomery’s
*1199
contention that
Bernal
does not require the modification of the special verdict form ordered by the trial court. In
Bernal,
the plaintiff was injured when arthroscopic scissors distributed by the defendant broke during his knee surgery. Plaintiff sued for, inter alia, strict products liability based on a defective design. The jury was instructed, “ ‘With respect to the existence of a defect in the design of the scissors, plaintiff must show by a preponderance of the evidence that a reasonable alternative design was possible, which would have avoided the breakage complained of.’ ”
(Bernal
v.
Richard Wolf Medical Instruments Corp., supra,
Accordingly, the Bernal court set out an appropriate burden of proof instruction for design defect, which the trial court here adopted verbatim. (See fn. 1, ante.) This instruction laid out each issue on which the plaintiff and defendant had the burden of proof. Furthermore, the products liability design defect instruction given to the jury repeated the principle that “once the plaintiff has demonstrated that the design of the product was a proximate cause of his injuries, it then becomes the burden of the defendant to show by a preponderance of the evidence that the benefits of the product’s design outweigh the dangers inherent in that design.”
Both instructions specifically define what constitutes a defect in design. Using these instructions as a guide, the jury could logically evaluate the evidence and answer the special verdict’s first question, “Was there a defect in the design of the product?” This conclusion is supported by
Bernal
where, although the same special verdict form was used, it was the crucial burden of proof instruction that drew the court’s attention. “The jury’s special verdict finding no defect in the design of the surgical instrument quite likely resulted from their following the [trial] court’s instructions. It may well have determined the issue of design defect adversely to Bernal because he did not sustain his purported burden of proof regarding a safer alternative design.” (
Although generally a new trial order will be affirmed if it should have been granted on any ground stated in the notice of intention
(Sanchez-Corea
v.
Bank of America, supra,
Accordingly, the order granting a new trial is reversed and the original judgment for Montgomery is reinstated. Montgomery is entitled to costs of appeal.
Crosby, Acting P. J., and Sonenshine, J., concurred.
Notes
The court instructed the jury on the burden of proof for products liability as follows: “Plaintiff claims that the elevator was defective in design because the risk of danger inherent the design outweighs the benefits of that design. On this cause of action for strict liability, plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to prove the following issues: [[¡] First, that Montgomery Elevator Company was the manufacturer of the elevator. [fl] Second, that the design of the elevator that injured plaintiff was the same as the design of the elevator when it left Montgomery’s possession, [fl] Third, that the design of the elevator was a proximate cause of plaintiff’s injury. [[[] Fourth, that the elevator was used in a manner reasonably foreseeable by the defendant, [fl] And fifth, the nature and extent of plaintiff’s injuries and damages.
“Since plaintiff contends the risk of danger inherent in the design outweighs the benefits of that design, the defendant has the burden of proving by a preponderance of the evidence all of *1197 the facts necessary to prove the following: [j|] One, that on balance, the benefits of the design of the product as a whole outweigh the risk of danger inherent in such design. In making this determination, you may consider, among other things, the gravity of the danger posed by the design; the likelihood that such danger would cause damage; the mechanical feasibility of a safer alternate design at the time of manufacture; the financial cost of an improved design; and the adverse consequences to the product and the consumer that would result from an alternate design, [j|] Second, that the plaintiff was negligent, [jj] And third, that the plaintiff’s negligence contributed as a proximate cause of his injury.”
All statutory references are to the Code of Civil Procedure.
The court’s order stated, “It is this Court’s conclusion that the Special Verdict on this cause of action should have presented the issues to the jury for their discussion in the language taken verbatim from the Bernal opinion, e.g. 1) Was defendant the manufacturer of the product? 2) Was the design of the product that injured plaintiff the same as the design of the product when it left defendant’s possession? 3) Was the design of the product a legal cause of plaintiff’s injury? 4) Was the product used in a manner reasonably foreseeable by the defendant? Instead, the Jury was asked: ‘Was there a defect in design of the product involved as to the defendant?’ [j|] It is this Court’s conclusion that the variance between the Instructions and the Special Verdict was significant and justifies a new trial.”