DUANE SCHELBAUER, Plaintiff and Respondent, v. BUTLER MANUFACTURING COMPANY, Defendant and Appellant.
L.A. No. 31736
Supreme Court of California
Jan. 9, 1984.
35 Cal.3d 442
Pickell & Knudson, Robert J. Pickell and Arthur W. Vance for Defendant and Appellant.
Robert M. Holstein, Jr., Leonardini & Fathy and Richard G. Fathy for Plaintiff and Respondent.
OPINION
BIRD, C. J.—This personal injury lawsuit presents two issues for resolution. First, is a postaccident warning alerting consumers to take safety precautions in using a product admissible in a strict liability action against a manufacturer? Second, may a trial court utilize a remittitur to reapportion liability among the parties if it concludes that the jury‘s apportionment is not supported by the evidence and that the damage award is excessive only to the extent that it reflects an improper apportionment?
I.
The facts are not in dispute. At the time of the accident, respondent, Duane Schelbauer, was a journeyman ironworker. He was employed by Pre-
When Schelbauer arrived at the job site, the only construction left to be done on the addition was the roof. The job entailed fastening preformed roofing panels onto underlying structural components called purlins. The roofing panels were covered with a protective oil coating to prevent rusting and corrosion during shipping and storage.
The oil coating was originally applied by Bethlehem Steel Corporation which supplied the steel rolls to Butler. During the rolling and forming procеss, Butler often removed oil from steel surfaces which were excessively oiled and added oil to panels which were insufficiently coated. Butler‘s intention was that the panels leave the factory and arrive at the construction sites with a uniform oil coating.
Butler did not employ an inspector to examine the panels for excessive oil nor did it include any warning in its dealer information materials of the danger associated with possible oil excesses. Prior to Schelbauer‘s accident, Butler had received no complaints of any accident occurring as a result of any excess oil or slippery condition of the roofing panels.
Schelbauer had not previously laid roofing which required fastening pаnels by clips. When he first reported to the work site on November 4, 1977, he received no specific instructions as to the proper method for fastening the roofing panels. Instead, he was simply directed by Pre-Fab‘s foreman to “fall in” with the work crew as a fastener operator. Schelbauer watched one of his fellow workers and learned how the clips were placed on the purlins at the end of each panel to keep the panels aligned as they were being fastened. In fastening the clips onto the purlins, Schelbauer would place his left foot on a purlin and his right foot on a panel which had already been fastened. He would then bend at the waist and hold a clip in his left hand while fastening it with a screw gun which he held in his right hand.
Although the roofing was being laid on a flat surface, it was 25 feet above the ground. Schelbauer and his fellow workers were aware that the protective oil coating on the panels made them slippery and difficult to walk on. The only precaution which Schelbauer or any of the other fastener operators took while they were laying the roofing materials was to walk slowly and carefully on the panels.
Schelbauer‘s injuries required 12 days of hospitalization and 8 months of recuperation at home, first in bed, then in a wheelchair. Subsequently, he was retrained as a building inspector and eventually returned to work 14 months after his accident. He experienced continuing problems from the injuries and four months later left his job to undergo surgery on his foot. Following the surgery, he wore a cast and participated in recuperative therapy. He was then rehospitalized for further treatment of his back. At the time of trial, he had not yet returned to work but was being retrained as a draftsman.
On March 14, 1978, Schelbauer filed a complaint against the general contrаctor, the owner of the building, Butler and various Does. The complaint included causes of action against Butler for breach of warranty, negligence, and strict liability in tort for a product defect. By July 1980, the actions against all defendants other than Butler had been dismissed.
Schelbauer‘s action against Butler was tried before a jury beginning in November of 1980. During the trial, Schelbauer introduced into evidence a copy of Butler‘s 1978 dealer information literature in which a warning had been added after Schelbauer‘s accident.1
On December 14, 1980, the case was submitted to the jury on both strict liability and negligence theories. The court instructed the jury that strict liability could be imposed on the manufacturer if its product had either a design or a manufacturing defect which was the proximate cause of the injuries. The jury was also instructed that the manufacturer could be found liable for negligence if it failed to exercise reasonable care in the manufacture or inspection of the product or if it failed to warn of a dangerous
The following day, the jury returned its special verdict in Schelbauer‘s favor. It found that Butler was both strictly and negligently liable for Schelbauer‘s injuries. It also found that neither Schelbauеr nor his employer were contributorily negligent. The jury calculated the total amount of damages suffered by Schelbauer to be $865,000.
A judgment in Schelbauer‘s favor in the amount of $697,500 (the amount of the jury verdict less the amounts received in settlement from the other defendants) was entered on December 18th. The next day, notice of entry of judgment was mailed to the parties.
On December 31st, Butler filed a notice of intention to move for a new trial. The grounds stated for its motion were excessive damages, insufficiency of the evidence to justify the verdict that neither Schelbauer nor his employer were contributorily negligent, and two errors of law including the court‘s ruling that evidence of Butler‘s postaccident warning was admissible.
On February 17, 1981, after а hearing on Butler‘s motion for a new trial, the trial court issued an order conditionally granting Butler‘s motion for a new trial. Under this order, the motion would be denied if Schelbauer consented to a 15 percent reduction of his award.2 The reduction was intended
On February 25, 1981, Schelbauer filed a written consent to the remittitur, and the court‘s denial of Butler‘s motion for a new trial went into effect. This appeal by Butler from both the judgment and the denial of the motion for a new trial followed.
II.
The first issue to be addressed is whether a postaccident warning is admissible as evidence in a strict liability case under the rulе established by this court in Ault v. International Harvester Co. (1974) 13 Cal.3d 113. Butler contends that because the addition of a warning is not a change in the product itself, Ault is inapplicable and the admission of postaccident warning evidence is prohibited by
In Ault, supra, 13 Cal.3d at page 118, this court held that the exclusionary rule of
As this court explained in Ault, the purpose of
In addition, as this court noted in Ault, the application of the exclusionary rule in the strict liability context would be contrary to the public policy of encouraging distributors of mass-produced goods to market safer products. (Ibid., citing Note, Products Liability and Evidence of Subsequent Repairs (1972) 4 Duke L. J. 837, 845-852.) Moreover, given the purpose of
The rule adopted by this court in Ault was applied in Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768 to allow the admission of a postaccident warning in a strict liability action. In Burke, the plaintiff brought an action for injuries sustained when a plastic cork shot out of a сhampagne bottle manufactured by the defendant, striking and shattering plaintiff‘s eye-
The plaintiff in Burke sought to introduce evidence that four years after her accident, defendant had placed a warning on its bottles which cautioned consumers to point the cork away from people when opening. The trial court had ruled that evidence of the subsequent warning was not inadmissible under
In Robbins v. Farmers Union Grain Terminal Ass‘n (8th Cir. 1977) 552 F.2d 788, the Eighth Circuit reached the same conclusion with respect to rule 407 of the Federal Rules of Evidence.4 In Robbins, the plaintiffs had brought a strict liability cause of action for injuries to their cattle allegedly caused by a feed supplement manufactured by defendant. The trial court admitted evidence of cautionary instructions which defendant mailed to its sales personnel after plaintiffs’ cattle were injured.
In upholding the trial court‘s admission of this evidence, the Eighth Circuit reasoned: “We have applied the Ault rationale in allowing proof of post-occurrence design modification аnd to a subsequent remedial instruction, and find no reason to bar its applicability to Rule 407 since Rule 407 is, by its terms, confined to cases involving negligence or other culpable conduct. The doctrine of strict liability by its very nature, does not include these elements. See Ault v. International Harvester Co., supra; and Passwaters v. General Motors Corp., 454 F.2d 1270, 1277-79 (8th Cir. 1972).” (Robbins, supra, 552 F.2d at p. 793, fns. omitted; see also Herndon v. Seven Bar Flying Service, Inc. (10th Cir. 1983) 716 F.2d 1322, 1326-1331; Oberst v. International Harvester Co., Inc. (7th Cir. 1980) 640 F.2d 863, 868-871 (conc. and dis. opn. of Swygert, J.).)
Several other state courts which have similar rules of evidence precluding admissibility of postaccident warnings to prove negligence or culpable con-
The rationale of Ault applies as clearly to postaccident warnings as it does to subsequent product repairs or improvements. Accordingly, the exclusionary rule of
III.
The second issue to be addressed is whether a trial court may use a remittitur in an order for a new trial to reapportion liability among the parties.
Ordinarily, a trial court has complete discretion in ruling on a motion for a new trial. Its ruling will not be disturbed absent an abuse of discretion. (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387; Malkasian v. Irwin (1964) 61 Cal.2d 738, 748; Leipert v. Honold (1952) 39 Cal.2d 462, 467.)
Butler points to
The statutory requirement that use of remittitur be limited to those cases where jury error is confined to the issue of damages is express and unequivocal. This court has consistently adhered to this interpretation of
Schelbauer argues that since appellate courts recognized the power of trial courts to use a remittitur before the enactment of
It is true that the use of remittiturs predates the enactment of
It is also correct that trial courts have traditionally exercised the authority to reduce excessive punitive damage awards, both before the power of remittitur was codified (see, e.g., Cotton v. Hallinan (1962) 201 Cal.App.2d 415; Draper v. Hellman Com. T. & S. Bank (1928) 203 Cal. 26) and after the enactment of
What Schelbauer‘s argument fails to recognize, however, is that even under the common law rule, use of remittiturs was uniformly confined to cases in which an excessive damage award was the only error in the jury‘s verdict. (See, e.g., Hughes v. Hearst Publications, Inc., supra; Hepner v. Libby, McNeill & Libby (1931) 114 Cal.App. 747; Bentley v. Hurlburt (1908) 153 Cal. 796.) If a trial court discovered error in any other aspect of the verdict rendered in the plaintiff‘s favor, it granted a new trial. (See, e.g., Brignoli v. Seaboard Transportation Co. (1947) 29 Cal.2d 782, 790-791 [new trial properly granted where jury had been improperly instructed on a material issue]; Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 11-14 [new trial appropriate where codefendant was improperly questioned about his insurance coverage].) Thus, Schelbauer‘s correct assertion that
Schelbauer contends that since calculating punitive damages necessarily involves an assessment of a defendant‘s “culpability,” the use of a remittitur to reapportion liability is “largely indistinguishable” from the use of a remittitur to reduce excessive punitive damages. However,
Therefore, Butler‘s contention that the trial court erred in its use of the remittitur is correct. A remittitur may not be used to condition a new trial order if a damage award is excessive only because it reflects an improper apportionment of liability. Accordingly, the trial court‘s use of remittitur under these circumstances was an abuse of its discretion.6 The denial of Butler‘s motion for a new trial cannot be upheld on the basis of Schelbauer‘s consent to this remittitur.
The only issue which remains to be decided is whether, devoid of the remittitur provision, the trial court‘s order granting a new trial on all the issues was appropriate. Butler argues that since the trial court did not limit the order granting a new trial if the remittitur were not accepted, a new trial on all the issues is warranted. It further contends that since the trial court found substantial error in one aspect of the jury verdict, retrial
A reviewing court should not modify an order granting a new trial on all issues to one granting a limited new trial “unless such an order should have been made as a matter of law.” (Baxter v. Phillips (1970) 4 Cal.App.3d 610, 617.)
As the court‘s order explains, the trial court found that there was insufficient evidence to justify the verdict “with respect to the issues of Plaintiff‘s contributory negligence and the negligence of Plaintiff‘s employer . . . .” In the trial court‘s view, the damages were excessive “in the sense (but not otherwise)” that they reflected the jury‘s finding of no negligence on the part of Schelbauer or Pre-Fab. (Italics added.) In its statement of reasons, the court further expressed its opinion that Butler was at least partially liable for Schelbauer‘s damages by stating that the jury “clearly should have apportioned fault among plaintiff, the employer and the defendant Butler Manufacturing Co. . . . .” The statement of reasons expressly declared that the damages were excessive “only in the sense that the error with respect to contributory negligence and the employer‘s negligence affected the amount of the damages.”
The order clearly indicates that the trial court (1) concurred with the jury‘s special verdicts that Butler was liable to some extent and that the total damages sustained by Schelbauer were $865,000, and (2) disagreed only with the jury‘s apportionment of liability.
Upon review of the evidence, there is ample support for the lower court‘s conclusion thаt Butler was liable to some extent for Schelbauer‘s injuries. The record reflects that the metal panels were covered with enough oil to make them slippery, that the method of affixing the panels to the buildings required workers to walk on them, that Butler did not adequately inspect the panels for excessive oil, and that the panels were sold without any warning cautioning consumers as to their dangerousness.
There was also sufficient evidence to support the trial court‘s determination that both Schelbauer and Pre-Fab were also negligent. In his testimony, Schelbauer admitted that he was fully aware of the thick oil coating on the
Similarly, the record shows that Pre-Fab had previous experience with the panels and was well aware of the thick oil coating and of the danger of this condition to employees. However, Pre-Fab neither wiped the panels nor employed any safety methods to protect its workers from further accidents. There was testimony that Pre-Fab failed to instruct Schelbauer on a method for fastening the panels to the roof which was safer than the somewhat risky method he learned by imitating fellow workers.
Also, the record supports the jury‘s speciаl verdict as to the total amount of damages suffered by Schelbauer. The damage award was fully supported by the testimony of Schelbauer‘s expert witness. The record adequately supports the trial court‘s determination that the jury properly decided all the issues it addressed with the exception of the apportionment of liability.
There is no reason to subject the parties and the courts to the expense and delay of retrial of those issues on which the jury and the trial court agreed and which are supported by the evidence. Where, as here, the trial court has reviewed the jury‘s special verdicts and has properly concluded that the jury‘s apportionment of damages is erroneous but that the dаmage award is incorrect only to the extent that it reflects an improper apportionment of liability, the trial court should have limited its new trial order to that issue. Accordingly, the new trial order is modified to limit the new trial to the issue of apportionment of liability.
A similar modification of a lower court order was made in Sharp v. Automobile Club of So. Cal., supra, 225 Cal.App.2d 648. There, the Court of Appeal reviewed an order granting the defendant‘s motion for a new trial after the jury returned a verdict for the plaintiff in an action to recover medical expenses under an insurance policy. The trial court‘s order granting a new trial read: “‘The court is of the opinion that exemplary damages are allowable in this case. However, the court is of the opinion that the exemplary damages are grossly excessive аnd must have been the result of passion or prejudice. Accordingly, the motion for a new trial is granted [unless the plaintiff consents to a remittitur].‘” (Id., at p. 652.) The plaintiff failed to consent to the remittitur and the order granting the new trial became effective.
The court in Sharp rejected the defendants’ argument that the jury‘s passion or prejudice in assessing the proper amount of exemplary damages must have permeated the jury‘s consideration of the issue of whether exemplary damages should be awarded. The court noted that it hаd the benefit of the trial court‘s evaluation that this had not been the case and that exemplary damages were appropriate. (Id., at p. 654.) Therefore, the court exercised its power to modify the lower court order to limit the issues on retrial. (Ibid.)
Other jurisdictions have also separated damage issues from liability issues for purposes of limiting new trials where retrial of the entire case was not warranted. (Caldwell v. Piggly-Wiggly Madison Co. (1966) 32 Wis.2d 447 [145 N.W.2d 745, 752]; State v. Kaatz (Alaska 1977) 572 P.2d 775, 785; Sitzes v. Anchor Motor Freight, Inc. (W.Va. 1982) 289 S.E.2d 679, 689, fn. 22; Pappas v. Santiago (1974) 66 N.J. 140 [329 A.2d 337, 338-339]; Ferbrache v. Dillon (1979) 100 Idaho 317, 317 [597 P.2d 40, 42-43]; Schwartz, Comparative Negligence (1974) § 18.3, pp. 301-305.)
Under these circumstances, it is proper for this court to exercise its authority under
IV.
The order which denied Butler‘s motion for a new trial on the basis of Schelbauer‘s consent to the improper remittitur is vacated. The valid order
Mosk, J., Kaus, J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
RICHARDSON, J.*—While I concur with the majority, I have one caveat to add to my agreement with regard to section II of the opinion. I join in that part of the opinion under authority of Ault v. International Harvester Co. (1974) 13 Cal.3d 113. However, I am to some degree persuaded by the position of other courts which, in interpreting statutes similar to Evidence Code section 1151, have held that the exclusion of evidence under such provisions should be extended to postaccident corrective measures in strict liability cases. These cases conclude that the policy of encouraging actions to improve products applies equally in product liability and negligence cases, and that relevancy cannot be presumed because in some instances postaccident alterations may be made for reasons wholly unrelated to the cause of the accident in question. (See, e.g., Cann v. Ford Motor Co. (2d Cir. 1981) 658 F.2d 54, 60; Werner v. Upjohn Co., Inc. (4th Cir. 1980) 628 F.2d 848, 856-858, cert. den. 449 U.S. 1080; Haysom v. Coleman Lantern Co. (1978) 89 Wash.2d 474, 474 [573 P.2d 785, 791, 93 A.L.R.3d 861].) However, we are not provided here with any evidence tending to prove or disprove the assumptions upon which our decision in Ault was based.
In any event, I wish to emphasize a point implicit in the majority opinion that merely because
On February 7, 1984, the opinion was modified to read as printed above.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Notes
“Defendant Butler Manufacturing Company‘s motion for new trial is hereby granted, but on the condition that if Plaintiff shall serve and file, on or before March 9, 1981, a written consent to a reduction in the amount of damages by $129,750.00 (so that the resulting judgment, exclusive of costs, shall be $735,250.00 rather than the $865,000.00, awarded by the jury), then the motion for new trial is denied.
“This granting of the motion is on the ground of the insufficiency of the evidence to justify the verdict with respect to the issues of Plaintiff‘s contributory negligence and the negligence of Plaintiff‘s emplоyer, and also on the ground of excessive damages in the sense (but not otherwise) that if the jury had found contributory negligence on the part of Plaintiff and negligence on the part of Plaintiff‘s employer (as I believe they should have), then the damages actually awarded to Plaintiff would be less than under the verdict as rendered.
“The foregoing ruling contemplates contributory negligence of at least 5% and negligence of Plaintiff‘s employer of at least 10%.
“The court‘s specification of reasons will be filed within ten days.”
The day after this order was filed, the trial court issued a “correction” of the remittitur amount specified in the original order. This second order explained that the court‘s first calculation was incorrect because it was based upon the amount of the jury‘s verdict and failed to reflect the settlement amounts already paid by the codefendants. This second order did not, however, amend any other aspect of the original order.
On February 27, 1981, the court filed its statement of reasons further elaborating the basis for its order. The statement of reasons provided in relevant part: “The jury found no contributory negligence of the plaintiff and no negligence of plaintiff‘s employer. But the evidence shows that plaintiff was aware of the fact that the roof panels were slippery, that other employees had fallen on them during the course of this work, and even that the condition of these particular panels had been discussed among the employees. In my view, the continued work on the roof under these circumstances, and without special safety devices such as restraining belts or platforms, involved a lack of due care on the part of plaintiff‘s employer with respect to the safety of all employees assigned to the roof installation. The facts show an unreasonable acceptance of an apparent hazard such as is now treated in California as a form of contributory negligence rather than under the separate doctrine of assumption of risk. (See Li v. YELLOW CAB Co., 13 Cal.3d 804, 829.)
“. . . I am satisfied that the jury clearly should have found contributory negligence, as well as negligence of the employer, and also that such negligence of plaintiff and negligence of the employer were proximate causes of plaintiff‘s injuries. The jury clearly should have apportioned fault among plaintiff, the employer and the defendant Butler Manufacturing Co.; it was unreasonable to assign all fault to Butler alone.
“. . . In such a case it is possible to say, therefore, that the jury‘s error has had the effect of increasing damages beyond the amount which would have resulted from the verdict if that error had not been made. For this reason, it was pointed out in the order granting the motion for a new trial that excessive damages was one of the grounds, but only in the sense that the error with respect to contributory negligence and the employer‘s negligence affected the amount of the damages.”
All further references to
The Advisory Committee‘s note to rule 407 states that the fedеral rule is comparable to
Butler contends that this rule of law is “clear” from Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821. In Jehl, this court overruled a prior decisiоn and held that additur does not violate the guarantee of a jury trial provided by article I, section 7, of the California Constitution. Butler relies on language in that case which indicates that trial courts must set the last date for a party‘s acceptance of an additur within the 60-day jurisdictional time limit established by
An argument similar to Butler‘s was fully evaluated and rejected in Chodos v. Superior Court (1964) 226 Cal.App.2d 703. In Chodos, the court reasoned that the interpretation now urged by Butler would unnecessarily restrict conditional orders for new trials. (Id., at p. 711.) The Court of Appeal explained that often a trial court‘s action is delayed for reasons beyond its control and its new trial order is filed within a few days of the expiration of the statutory period. Were the 60-day period also appliсable to acceptance of the condition contained in the order, litigants would frequently be left without sufficient time to evaluate the remittitur and comply with its conditions. (Ibid.) “This would have the practical result of denying the parties the opportunity to take advantage of what the court believes, after having heard the case, would make for a just disposition of the controversy. . . . These are matters which should be left to the sound discretion of the trial court, just as are the other factors in such conditional orders. If this is done, it will result, in many cases, in the avoidance of lengthy retrials of actions made necessary solely because of sudden-death conditions which do not afford a reasonable time for cоmpliance. The prevention of unnecessary retrials will result in alleviating overburdened trial calendars.” (Id., at pp. 711-712.) Consequently, the Chodos court held that, absent any legislative mandate to the contrary, trial courts should have discretion to set reasonable time limits for performing conditions in new trial orders even if they extend beyond the 60-day period in which the trial court must rule on the new trial motion. (Id., at p. 712.)
The Chodos reasoning was reevaluated and affirmed after Jehl in Alberton v. Superior Court (1968) 265 Cal.App.2d 812. In Alberton, the court concluded that the statement in Jehl concerning this issue was dictum and was not intended to overrule Chodos. (Alberton, supra, at pp. 817-818.) The Alberton court discussed both the “legal soundness and the practical desirability” of the Chodos rule (id., at p. 816) and reaffirmed it as controlling the time periods allowable for accepting remittiturs.
This court agrees with “the legal soundness and the practical desirability” of the Chodos rule. Accordingly, as long as the trial court issues its order on the nеw trial motion within the 60-day period prescribed by
Here, the trial court issued its order conditionally granting Butler‘s new trial motion within the 60-day limit. By its terms, Schelbauer was given less than three weeks to serve and file his acceptance. This relatively short time period was not unreasonable. Therefore, this challenge to the remittitur must be rejected.