Here’s Part Two of my long, three-part post on the strange world of California Product Liability Law. (Part One appears here.) This time, I’ll be writing about joint tortfeasors, comparative fault, comparative contribution, superseding causes, the “substantial factor” rule and other issues that come up when more than one person causes an injury.
Here’s the scenario we’ll be using: The Schlubb family buys a washer and dryer from a retailer – let’s call it “Home Deebow.” The appliances were manufactured by a large American manufacturer – let’s call it “General Eclectic Company.” Home Deebow installs the appliances in the Schlubbs’ garage in their home in Berkeley, California. The inside lid of the washer is covered with warnings and instructions, including the following, in 24 point type: “It is unsafe to put fabric containing flammable liquids in this washing machine.”
After cleaning his golf balls with gasoline and rags, Mr. Schlubb throws the rags into the washing machine and leaves them there. He does not notice and has never read the warning. His niece, Josephine Schlubb, who is visiting from Los Angeles, wants to run some laundry of her own. She opens the lid to the washing machine, smells the gasoline, notes the warning, but decides to nonetheless throw her own clothes in, and starts the machine. As can happen when volatile liquids are placed in clothes washing machines, the machine explodes, resulting in a fire that burns up the garage and adjacent kitchen and causes smoke damage throughout the house. Fortunately, nobody is injured. Damages total $300,000.
The Schlubbs’ lawyer sues General Eclectic and Home Deebow for strict product liability on two theories discussed in my earlier post. The first is for product defect. The Schlubbs’ contend that under prong one of Barker v. Lull, a reasonable consumer would not expect that his dishwasher was going to explode and burn his house down, even if he put a little gasoline in it. The second is failure to warn. Although the inside of the door did contain a statement about just this problem, the Schlubbs will argue that the warning was inadequate – that it was not a sufficient warning of the risks. Presumably, it should have had larger type and said “Danger: Don’t Put Flammable Liquids in Here or Your House Will Burn Down,” or some such.
Home Deebow defends the case on the ground that, even if there was anything wrong with the washing machine’s design, and even if the warning was insufficient, both of these were the responsibility of the manufacturer. General Eclectic, on the other hand, argues that (a) Mr. Schlubb was comparatively negligent; (b) the fire was caused by Mr. Schlubb failing to read the warning and by Josephine for reading but ignoring it; and (c) the fire was caused not by any defect or failure to warn, but by product misuse on the part of Mr. Schlubb and his niece. Here’s how these defenses play out:
Comparative Negligence on the Part of the Plaintiff Can Reduce His Recovery, But Can’t Eliminate It.
Back when I started law school – when the earth was starting to cool, and dinosaurs roamed the globe – California law held that any negligence on the part of the plaintiff barred him or her from tort recovery. Then, while I was in my first year at law school, the California Supreme Court decided that California would henceforth be a pure comparative fault state. Li v. Yellow Cab (1975) 13 C3d 804. In other words, if the plaintiff is 99% at fault and the defendant is 1% at fault, plaintiff can still recover 1% of his damages from defendant. The same principle applies to product liability cases. Daly v. General Motors Corp. (1978) 20 C3d 725. So if he’s smart, the attorney for the Schlubbs will argue that, sure, his client was a negligent – well, a negligent schlubb, actually – but that he was only 50% at fault, and that the great big corporations aren’t going to get off the hook that easily.
Negligence on the Part of the Niece May Do the Defendants No Good At All.
The principles that apply here relate to what is called “joint and several liability” and “several liability.” Under a law enacted by California voters in 1986 (“Proposition 51"), an individual defendant is jointly and severally liable for “economic” damages – that is, out-of-pocket damages – but only severally liable for “non-economic” damages such as pain and suffering. Put differently, in a case such as this one where all of the damages are “economic,” it does not good for the two defendants to point their finger at the niece for her boneheaded obliviousness to the warning unless they can prove that they were not responsible at all. Otherwise, even if she contributed to the fire, they are jointly and severally liable, meaning that Mr. Schlubb may enforce his entire judgment against Home Deebow and General Eclectic.
Indeed, the jury will be instructed as follows:
A person's negligence may combine with another factor to cause harm. If you find that [name of defendant]'s negligence was a substantial factor in causing [name of plaintiff]'s harm, then [name of defendant] is responsible for the harm. [Name of defendant] cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing [name of plaintiff]'s harm.
Of course, the two companies can “cross-complain” against the niece for contribution, but this won’t keep Schlubb from recovering everything from them.
“Misuse” By the Schlubbs and Their Niece Will Not Prevent Them From Recovering
When a plaintiff in a product liability suit has done something idiotic, I frequently have out-of-state clients and counsel tell me we should be able to get out of the case because of his or her “misuse.” Sadly, it usually ain’t so. Manufacturers and retailers have a duty to give sufficient warning of the knowable risks of all foreseeable uses, including foreseeable misuses. Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577.
Liability As Between Home Deebow and General Eclectic
In most of our product liability cases, the manufacturer indemnifies and defends the retailer, whether as a matter of contract, good business relations, or both, and that is as it should be. But what if there is some independent basis of liability on the part of the retailer? And suppose the manufacturer settles separately with the plaintiff? Can’t the retailer argue that most of the fault is with the manufacturer?
Nope. Doesn’t work that way. Under Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 (a truly ridiculous opinion, IMHO), there is NO apportionment of fault between the manufacturer and the retailer. They are both strictly liable to the plaintiff, and the liability is joint and several.
Now don’t get me wrong – the law in this state may be a little goofy, but the jurors aren’t all nuts. In all likelihood, Schlubb vs. General Eclectic would result in a defense verdict simply because the jury would conclude that the Schlubbs were all idiots and didn’t deserve anything. But the defendants would not get out of the case based on any defenses based on the plaintiff’s, or somebody else’s, stupidity. The defendants would have to win the battle over whether the appliances were, or were not defective.