Hansen v. Sunnyside Prods., Inc. (55 Cal. App. 2d 1497, 1997)

Opinion

SIMS, J.

In this products liability action involving a household cleanser, we hold that product label warnings are relevant in determining whether a product has a design defect under the risk/benefit test.

A jury returned a defense verdict finding no liability on the part of defendant Sunnyside Products, Inc. The trial court granted plaintiffs Carole and Norman Hansen a partial judgment notwithstanding the verdict (JNOV) (on the issues of liability and comparative fault) and ordered a new trial limited to the issue of damages. The court alternatively granted plaintiffs’ motion for a new trial.

On appeal, defendant contends among other things that JNOV was erroneous due to the existence of conflicting evidence. In the published portion of this opinion, we explain why we agree and shall reverse the trial court’s orders granting JNOV and a limited new trial on the issue of damages. With respect to the trial court’s alternative grant of a new trial, in an unpublished portion of the opinion, we shall affirm. We shall therefore remand the case for a new trial on all issues.

Facts and Procedural Background

Although defendant’s appeal relates mainly to the products liability theory of “design defect” under a “risk/benefit test” (where a risk of danger inherent in the design outweighs the benefits of the design), plaintiffs’ case presented to the jury three theories of products liability under California law—(1) design defect under the “consumer expectations” test (that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner), (2) design defect under the risk/benefit test, and (3) failure to give adequate warning of a known or knowable substantial danger.

On August 24, 1991, plaintiff Carole Hansen was cleaning the bathrooms in her home with Sunny Brite water stain remover, which she had purchased in a supermarket. Defendant is the supplier of Sunny Brite.

At the time in question, Sunny Brite contained a 6 percent solution of hydrofluoric acid. The label on the Sunny Brite bottle stated in part, in capital letters:

“Danger. May Be Fatal or Cause Permanent Damage, Vapor Harmful, Causes Severe Burns Which May Not Be Immediately Painful or Visible. Read Carefully All Cautions on Back Panel. Keep Out of Reach of Children.”

The back panel included the following cautions: “Danger. Contains hydrofluoric acid. Use only with rubber gloves, avoid contact with skin. Do not taste, swallow or breathe. Rinse empty container thoroughly with water before discarding.” The label also contained a “first aid” section, which warned that if the liquid came into contact with skin: “Immediately remove contaminated clothing. Flush skin with water for 15 minutes. Be very careful to clean under fingernails.” The label continued: “Eyes - Rinse immediately with water. Remove contact lenses, if any, then flush eyes with water for another 10 to 15 minutes.” The label continued: “Swallowed - Rinse mouth. Drink a glass of water or milk. Do not cause vomiting.” The label then directed: “Get immediate medical care. Call your Poison Center, emergency department or a physician. Specific antidotal treatment may be needed.”

Mrs. Hansen wore latex gloves and a face mask while using Sunny Brite. She noticed her hand was becoming wet but assumed it was from perspiration and did not check to see if there was a hole in the glove. When she took off a glove to make a telephone call, she noticed one of her fingers was gray and shriveled. She felt no pain or discomfort at the time and believed the color change was a circulation problem. Mrs. Hansen continued using the product and subsequently began to feel pain in her hand. She placed her hand in water and complained to her husband. Mr. Hansen discovered a hole in the glove Mrs. Hansen had been using, read the Sunny Brite label, called the poison control center, and took Mrs. Hansen to the emergency room. Mrs. Hansen allegedly suffered a serious and disabling injury (a point disputed by defendant and not reached by the jury in its special verdict).

In August 1992, plaintiffs filed this lawsuit alleging products liability and loss of consortium.

At trial, plaintiffs presented various theories of product liability—(1) design defect under the consumer expectation test, (2) design defect under the risk/benefit test, and (3) failure to warn.

Plaintiffs’ expert chemist, Dr. Wilk, testified hydrofluoric acid is dangerous. Though his work generally involved laboratory settings with 50 percent solutions of the acid, he believed it is too dangerous to use in any amount in any consumer product, regardless of whether warnings were placed on the label, and in any event adequate warnings would not fit on the bottle. He testified Sunny Brite contained a 6.7 percent solution which was hazardous and “extremely insidious” because the person who is exposed to it may not realize he or she has been exposed until several hours after the exposure. In dilute solutions such as this, the acid can migrate through the skin without causing any sensation and cause damage to the underlying tissue.

The defense presented testimony that various household products are sold on the consumer market which contain hydrofluoric acid, such as wire wheel cleaners, ceramic tile cleaner, rust removers, etc. The jury also learned the Consumer Products Safety Commission has a labeling guide for consumer products containing hydrofluoric acid, and defendant’s label was consistent with this

Evidence adduced at trial showed that in 1993, defendant changed the formula of Sunny Brite, removing the hydrofluoric acid and substituting ammonium bifluoride. The change was made at the urging of a new employee who told defendant the new formula would be safer and cheaper to make and transport. The employee also told defendant the Environmental Protection Agency was trying to get rid of acids in consumer products.

The new product (marketed under an “Improved” label) is now cheaper to make and has less safety concerns regarding transportation and storage. It still removes water stains but takes twice as long to work on a surface (30 seconds instead of 15 seconds).

Evidence was also adduced at trial that in the 30 years that the product with hydrofluoric acid was on the market, defendant received only one other claim of injury in addition to plaintiffs’.

In closing argument, defense counsel argued to the jurors that in determining whether there was a design defect under the risk/benefit test (inquiring whether the risk of harm outweighed the benefits of the product), they could consider the warning label as part of the product. Thus, counsel argued: “You can’t separate the product from the warning. The labeling—the warnings on the product—on this product, on any product, are an integral part of the design of the product. And we’re talking in this case about design defect. And the plaintiffs in this case would have you believe that you can separate the warning and . . . Dr. Wilk, in fact . . . has testified that you can separate the warning from the product. And you can’t.” Later in his argument, defense counsel said Dr. Wilk’s view would remove from the shelves a number of consumer products containing hydrofluoric acid and: “[Dr. Wilk’s] up here, in the halls of academia, in the laboratories, hypothetically talking about, Oh, this is . . . dangerous. It is. But the question is, Is it defectively dangerous? And that incorporates, again, getting back to the warning. If used pursuant to the instructions, ... do the advantages of the product. . . outweigh the risks?”

Plaintiffs did not object that defense counsel was misstating the law, nor did they request that counsel’s comments be stricken or that further jury instructions be given. Instead, plaintiffs’ counsel in his final closing argument merely said: “Now, I want to go through just directly here these . . . fallacies that were raised. Somehow the—our evidence suggests that you can or we’re asking you to separate the product from the warning. On the contrary, not at all. Not at all. [U The law separates the warning out as a separate issue of the three different ways products can be found defective. But the fact is, as Dr. Wilk testified, the warning can’t replace the dangers and the safety necessary to handle this product and there’s been—there was plenty of evidence of that.”

The jury was then instructed on three theories of products liability: (1) design defect under the consumer expectation test (that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner); (2) design defect under the risk/benefit test (that there was a risk of danger inherent in the design which outweighed the benefits of the design); and (3) failure to give adequate warning of a substantial danger.

As pertinent, the jury was instructed as follows:

“Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:

“1. Defendant’s status as a supplier of the product;

“2. That defendant’s product was defective, in that:

“a) the product failed to perform as safely as an ordinary consumer would expect, or

“b) a defect in . . . design existed when the product left the defendant’s possession, or

“c) defendant failed to give adequate warning of the danger associated with the product.

“3. That a defect in the product was a cause of injury to plaintiff Carole Hansen;

“4. The nature and amount of damages.

“Defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:

“1. That the benefits of the product as a whole outweigh the danger inherent in such design.

“2. That the plaintiff, Carole Hansen, was negligent; [and]

“3. That the negligence of Carole Hansen was a cause of her injuries. . . .”

The jury was also instructed:

“Plaintiff Carole Hansen seeks to recover damages based upon a claim of a defective product.

“A product may be defective because of a defect in design or ... a failure to adequately warn the consumer of a hazard involved in the foreseeable use of the product.”

The jury was instructed on design defect as follows:

“The essential elements of a claim based upon an alleged design defect are:

“1. The defendant was the supplier of a product, namely Sunny Brite Water Stain Remover;

“2. The product possessed a defect in its design;

“3. The defect in design existed at the time it left the defendant’s possession;

“4. The defect in design was a cause of injury [to] the plaintiffs; [and]

“5. Plaintiff’s injury resulted from a use of the product that was reasonably foreseeable by the defendant.

“Under the law, a product is defective in design;

“if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or “if there is a risk of danger inherent in the design which outweighs the benefits of that design.”

With respect to design defect under the risk/benefit test, the jury was instructed: “In determining whether the benefits of the design outweigh such risks, 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 alternative 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.”

The jury was also instructed on the theory of liability for failure to warn.

The jury returned a special verdict, which stated in part:

“We, the jury in the above entitled action, find the following Special Verdict on the questions submitted to us:

“Question No. 1: Was there a defect in design or a failure to warn defect of the product involved as to the defendant? . . .

“Answer: ... No ... .”

The verdict form told the jurors that if the answer to this first question was no, they were to sign and return the verdict and not answer the other questions. The jury complied. Judgment was entered in favor of defendant.

Plaintiffs filed a motion for a new trial, on the grounds of (1) inadequate damages, and (2) insufficiency of the evidence to justify the verdict, or the verdict was against the law. In addition to setting forth the evidence which plaintiffs believed supported the motion, they argued inter alia that defense counsel impermissibly suggested to the jurors they could consider warnings in determining design defect, “contrary to the law upon which the jury was instructed.” In their memorandum of points and authorities, plaintiffs also noted the trial court could grant JNOV on its own motion.

A hearing was held in the trial court. The major point of contention was whether warnings on a product label may be considered in determining whether there is a design defect under the risk/benefit test. Protracted argument in the trial court continued over the course of two days. The court expressed agreement with defendant’s position but took the matter under submission.

In September 1995, the trial court issued a “Ruling on Plaintiffs’ Motion for New Trial and for Judgment Notwithstanding the Verdict.” The ruling stated in part: “This case has caused me much concern. Following the presentation of evidence but before oral argument, I was convinced that the uncontradicted evidence clearly and convincingly established that the product . . . was defectively designed .... The evidence was so overwhelming, I expected the plaintiffs to make a motion for a directed verdict. During oral argument, defense counsel argued that in determining whether a product was defectively designed, the jury could not separate the product from the warning on the label of the product. When counsel so stated, I expected plaintiffs’ counsel to object that defense counsel had mis[s]tated the law. When he failed to object, I began to wonder if I was mistaken as to the law. Defense counsel’s argument was clever, innovative, and compelling. It was so compelling that even dining oral argument on this motion for new trial, I was of the belief that he was probably correct. . . .” The court went on, however, to conclude based on its own review of California law, that warnings are not to be considered as part of the product in determining design defect under the risk/benefit test.

The court set forth the evidence and granted JNOV on the issue of liability, determining product warnings could not be considered in determining design defect under the risk/benefit test, and therefore the product in this case had a design defect. The court further ruled that, even if warnings could be considered, the court still believed there was a design defect under the risk benefit test, because no warning could adequately warn against the dangers inherent in this product, and the warnings on this product were inadequate in that they failed to warn of the insidious nature of the product. The trial court was also swayed by evidence of the new, safer formula, stating the new acid-free formula “do[es] the same job" without the risk of the hydrofluoric acid. The court further stated (incorrectly) that defense counsel’s contention that the new product is less effective because it takes 15 seconds longer to work was contradicted by his own client’s testimony.

Additionally, though not requested by plaintiffs, the trial court went further and granted plaintiffs JNOV on the issue of the absence of comparative fault. The trial court ordered a new trial limited to the issue of damages.

The court further indicated it was granting in the alternative plaintiffs’ motion for a new trial because “the court finds that there was insufficient evidence to justify the verdict and that the verdict was against the law as it was clearly contrary to the instructions given by the court.”

The court noted it was aware different standards exist for granting JNOV and granting a new trial.

Defendant filed a notice of appeal from the orders granting JNOV and a new trial.

Discussion

I. Standard of Review

We agree with defendant that plaintiffs are confused about the proper standard governing our review. Thus, plaintiffs rely primarily on the standard for review of a trial court’s grant of a motion for new trial and only briefly mention the standard of review for JNOV. However, this appeal first involves review of the order granting JNOV. Defendant acknowledges that if we affirm the trial court’s order granting JNOV, the trial court’s order granting a new trial on the issue of damages must also be affirmed.

As will appear, we shall reverse the JNOV. We shall then review the trial court’s alternative grant of a motion for new trial, under the appropriate standard of review for new trial motions.

The standard for JNOV is as follows:

Code of Civil Procedure section 629 provides in part: “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict when a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made. . . .”

Where appropriate a partial JNOV may be granted. (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310 [274 Cal.Rptr. 766].)

“The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603 [282 Cal.Rptr. 916].) “ ‘The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.] ’ ” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878 [151 Cal.Rptr. 285, 587 P.2d 1098].) The trial court cannot consider witness credibility. (Id. at p. 877.)

On review of an order granting JNOV, we “ ‘must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury’s verdict. [Citation.]’ ” (Teitel v. First Los Angeles Bank, supra, 231 Cal.App.3d at p. 1603.)

We shall conclude reversal of the JNOV is required under this standard.

II. JNOV on Comparative Fault Requires Reversal

We agree with defendant that reversal is required because the trial court erroneously ordered JNOV on the issue of comparative fault by plaintiffs. Aside from multiple procedural problems with this ruling, we conclude JNOV was improper due to a conflict in the evidence.

Comparative fault was not addressed in plaintiffs’ papers moving for a new trial. No party cites any oral argument in the trial court on this issue, and our review of the reporter’s transcript does not reveal any oral argument in the trial court on this issue. The jury never reached the question of comparative fault, because the special verdict form told them they need go no further if they found (as they did) that there was no design defect. The trial court never gave notice it intended to rule on this issue on its own motion. These reasons provide ample grounds for reversal.

Additionally, we see merit in defendant’s argument that JNOV was inappropriate on the issue of comparative fault, because there was a conflict in the evidence concerning Mrs. Hansen’s comparative negligence. Thus, comparative fault could be found in Mrs. Hansen’s failure to detect the hole in the rubber glove she was using and her failure to investigate the cause of her finger turning gray. Although she testified she thought it was a circulation problem, she admitted she felt no snugness in the glove. Moreover, after the poison center told plaintiffs to go to the emergency room, Mrs. Hansen delayed further by taking a shower before going, even though she was in pain and needed her husband’s help to undress and dress. Additionally, the jury would not be required to accept Mrs. Hansen’s testimony that she read the label before using the product. She testified as follows;

“Q. —so when you read the label that says causes severe bums which may not be immediately painful or visible, in your mind that was . . . something that would cause holes and—and create charcoaling of the skin.

“A. Reddening and charcoaling of the skin and something that I didn’t relate to me.”

The jury could reasonably reject this testimony as belying common sense. Although the trial court in its ruling faulted the defense for failing to prove Mrs. Hansen was untmthful, we have explained the trial court is not to weigh witness credibility in deciding whether to grant JNOV.

We conclude the trial court erred in granting JNOV on the issue of comparative negligence by plaintiffs.

III. JNOV Re: Liability Was Improper

As indicated, the trial court believed JNOV was proper due to insufficiency of the evidence to support a defense verdict on the liability issue—regardless of whether or not warnings could be considered in determining design defect. Defendant contends the trial court erred. We agree.

We shall conclude warnings are relevant in determining design defect, and the conflict in evidence on this issue precluded JNOV.

A. Warnings Are Relevant in Determining Design Defect

Apparently, no California case law addresses the question whether warnings are relevant in determining whether there is a design defect under the risk/benefit test.

Defendant argues the warnings on the label may be considered in determining whether Sunny Brite has a design defect under the risk/benefit test. Plaintiffs respond warnings cannot be considered, because the inquiry is whether a “design” is defective, and “design” means the liquid itself, not the label on the container. According to plaintiffs, the existence of a safer formula in this case conclusively established the existence of a design defect. We disagree with plaintiffs’ conclusion and shall conclude product warnings may be considered in determining design defect under the risk/benefit test.

As we explain, the determination of design defect does not turn solely on the existence of a safer alternative design. Rather, the determination requires balancing various factors, which include feasible alternatives, but which also include other factors, such as the gravity of danger and the likelihood that the product will cause harm.

“[A] product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product’s design embodies 'excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1], italics added.) Thus, the test is not “preventable danger” but “excessive preventable danger.” “Excessive” preventable danger logically includes consideration of package warnings to determine the likelihood that harm will occur.

Indeed, the likelihood that harm will occur is one of the factors expressly identified as relevant to a determination of design defect under the risk/benefit test. “[I]n evaluating the adequacy of a product’s design pursuant to [the risk/benefit test], 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.” (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 431, italics added.) Once the plaintiff proves she suffered an injury proximately caused by the product’s design, the burden shifts to the defendant to prove, in light of the foregoing factors, that the product is not defective. (Ibid.)

In our view, the “likelihood that such danger would occur” under Barker's test logically encompasses consideration of the warnings on the package. Further, consideration of package warnings are logically relevant to the ultimate inquiry of whether the design embodies “excessive” preventable danger.

Plaintiffs appear to think “likelihood that such danger would occur” means the likelihood that hydrofluoric acid will cause damage if it gets on the skin and is left on the skin. They cite no authority for this construction. The bottom-line issue is whether the product is likely to cause harm. Warnings are appropriately considered in that determination.

Additionally, “the issue of defective design is to be determined with respect to the product as a whole . . . .” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 746 [144 Cal.Rptr. 380, 575 P.2d 1162].) Daly was a car accident case where the driver was thrown through the driver’s door, which had opened on impact. Daly held safety features such as an automobile safety belt and doorlock could be considered in determining whether a vehicle was defectively designed. Daly approved a jury instruction that “ ‘[i]n determining whether or not the vehicle was defective you should consider all of the equipment on the vehicle including any features intended for the safety of the driver.’ ” (Ibid.) The plaintiffs argued that only the precise malfunctioning component itself and nothing else. (Ibid.) The Supreme Court disagreed, stating:

“[T]he issue of defective design is to be determined with respect to the product as a whole . . . . [