Negligence in Products Liability Actions in California are governed by principles of Common Law and the Judicial Council of California’s Jury Instructions (“CACI”).

CACI 1220. Negligence — Essential Factual Elements

To establish a claim for “a manufacturing or design defect under a negligence theory...”

Plaintiff must prove:

• Defendant
  • Designed;
  • Manufactured;
  • Supplied;
  • Installed;
  • Inspected; or
  • Repaired
  • The product that caused the harm (“the product”);
  • Even absent privity between the Plaintiff and Defendant;
  • Includes:
  • “[S]ellers, lessors, donors, or lenders...whether the [product] is made by them or by a third person;”
  • Repair professionals who return the product in a defective manner they undertook to repair; and

  • Defendant was legally negligent in

    • Designing;
    • Manufacturing;
    • Supplying;
    • Installing;
    • Inspecting;
    • Repairing; or
    • Renting the product;
    • Failing to:
    • Recall or
    • Retrofit (CACI 1223 “Recall/Retrofit”);

Proving negligence requires:

1. Defendant’s Duty of Care - Defendant owes plaintiff a duty of care if the product is of the type that can endanger others when made negligently. See, e.g., Ky. Fried Chicken of California v. Superior Court (1997) 14 Cal.4th 814.
2. Basic Standard of Care (CACI 1221 “Negligence”) – Generally, a Defendant is negligent if that party fails to use the amount of care:
   • That a reasonably careful party would in
   • Designing;
   • Manufacturing;
   • Inspecting;
   • Installing;
   • Repairing the product;
   • In similar circumstances;
   • To avoid exposing others to a foreseeable risk of harm;
   • Extending to “all persons within the range of potential danger.” Williams v. Beechnut Nutrition Corp.
   • Designing the product so that “it can be safely used as intended.” Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135);
   • Includes Defendant’s Duty to Warn (CACI 1222), wherein:
   • Defendant either:
   • Manufactured;
   • Distributed; or
   • Sold the product; and
   • Defendant either:
   • Knew; or
   • Reasonably should have known that:
   • The Product was dangerous or was likely to be dangerous when:
   • Used; or
   • Misused
   • In a reasonably foreseeable manner; and
   • Defendant either:
   • Knew; or
   • Reasonably should have known;
   • That users would not realize the danger; and
   • Defendant failed to adequately:
   • Warn of the Product’s danger; or
   • Instruct on the Product’s safe use; and
   • In prescription drug cases: The warning of or instructions to avoid the Product’s danger must:
   • Be given to the prescribing physician;
   • With a continuing duty as long as the product is in use; and
   • Include the potential risks or side effects that may follow the foreseeable use of the product; and
   • That a reasonable Manufacturer, Distributor or Seller under:
   • The same; or
   • Similar circumstances;
   • Would have:
   • Warned of the Product’s danger; or
   • Instructed on the Product’s safe use; and
   • That Plaintiff was harmed; and
   • That Defendant’s failure to warn or instruct was a substantial factor in causing Plaintiff’s harm.
   • Balancing Test – In assessing a reasonable standard of care, the fact-finder should balance:
   • What the Defendant:
   • “[K]new; or
   • Should have known about:
   • The likelihood of harm; and
   • Severity of potential harm from the product”;
   • Against the burden of taking safety measures to reduce or avoid the harm.
   • Plaintiff was harmed; and
   • Defendant’s negligence “was a substantial factor in causing” Plaintiff’s harm.

Renters of Property (CACI No. 1224)

A person who rents products to others for money is negligent if they:

• Fails to use reasonable care to:
• Inspect the products for defects;
• Make them safe for their intended use; and
• Adequately warn of any known dangers.

Trade Practices

“Here, as in Howard, Plaintiffs are pursuing theories of negligence and design defect against Defendant. As a result, evidence of industry customs or standards is admissible. While Howard assesses the admissibility of such evidence in the summary judgment context, it cites to Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal. App. 4th 1791, 1830-1831 – as noted above – for the proposition that compliance with regulations, directives or trade custom does not necessarily eliminate negligence but instead simply constitutes evidence for jury consideration with other facts and circumstances.” Qer Lee Vs. Cobbs Bus Service LL, 34-2009-00035502-CU-PA-GDS (1/22/18) (https://trellis.law/ruling/34-2009-00035502-CU-PA-GDS/qer-lee-vs-cobbs-bus-service-llc/20180122679928).

Compare to Strict Liability

• In contrast to a strict liability theory, a plaintiff alleging negligence by the defendant must also prove...that the defect in the product was due to Defendant’s negligence.
• Both negligence and strict liability theories may be alleged in a single action. See, e.g., Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379.
• A Defendant can be negligent even after purchasing defective parts from another. See, e.g., Sheward v. Virtue (1942) 20 Cal.2d 410.

Burden of proof

Plaintiff shifts the initial burden of proof to Defendant by producing produce evidence of:

• Plaintiff’s Harm;
• While using the product in its intended or reasonably foreseeable manner;

Affirmative Defenses

Sophisticated User -- (CACI No. 1244)

A Defendant can disclaim liability:

• Based on a failure to warn
• Because Plaintiff is a sophisticated user of the product if Defendant can prove:
• At the time of the injury;
• Plaintiff, because of Plaintiff’s particular
• Position;
• Training;
• Experience;
• Knowledge; or
• Skill;
• Either
• Knew; or
• Should have known
• Of the Product’s
• Risk;
• Harm; or
• Danger.

Product Misuse or Modification (CACI No. 1245)

Defendant can disclaim liability for Plaintiff’s claimed harm by proving:

• The Product was;
• Misused; or
• Modified;
• After it left Defendant’s possession; and
• Either:
• The misuse; or
• Modification
• Was so highly extraordinary that it was not reasonably foreseeable to Defendant;
• And should be considered as the sole cause of Plaintiff’s harm.

Inherently Unsafe Consumer Product (CACI No. 1248)

A defendant can disclaim liability for Plaintiff’s claimed harm by proving:

• The product is a common consumer product intended for personal consumption; and
• The product is inherently unsafe;
• But [product] is no more dangerous than what:
• An ordinary consumer of the product
• With knowledge
• Common to the community
• Would expect.

Affirmative Defenses For Government Contractors

Against Design Defect (CACI No. 1246)

Defendant may disclaim liability for design about the Product’s dangers by proving:

• Defendant contracted with the U.S. government to provide the Product for military use;
• The U.S. approved reasonably precise specifications on the Defendant for the product;
• The product conformed to those specifications; and
• Defendant warned the U.S. about the dangers in the use of the product that were known to Defendant but not to the U.S.

Against Failure to Warn (CACI No. 1247)

Defendant may disclaim liability for failure to warn about the Product’s dangers by proving:

• Defendant contracted with the U.S. government to provide the Product for military use;
• The U.S. imposed reasonably precise specifications on the Defendant regarding the provision of the product’s warnings;
• The product conformed to those warning specifications; and
• Defendant warned the U.S. about the dangers in the use of the product that were known to Defendant but not to the U.S.

“Misuse of a product, such as to defeat strict products liability, is an affirmative defense: Product misuse, an affirmative defense, is a superseding cause of injury that absolves a tortfeasor of his or her own wrongful conduct only when the misuse was “ 'so highly extraordinary as to be unforeseeable.' ” (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 685, 115 Cal.Rptr.3d 590; see Soule, supra, 8 Cal.4th at p. 573, fn. 9, 34 Cal.Rptr.2d 607, 882 P.2d 298 [complete defense of superseding cause appropriate when “an independent event intervenes in the chain of causation, producing 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 responsible”]; see generally CACI No. 1245 [“Affirmative Defense—Product Misuse or Modification”].) “However, foreseeability is a question for the jury unless undisputed facts leave no room for a reasonable difference of opinion.” (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 19, 56 Cal.Rptr.2d 455.) Chavez v. Glock, Inc. (2012) 207 Cal. App. 4th 1283, 1308.

“The elements of a products liability claim based on failure to warn are: (1) defendant manufactured, distributed, and/or sold the product; (2) the product had potential risks, side effects, and/or allergic reactions that were known at the time of manufacture, distribution, and/or sale; (3) the potential risks, side effects, and/or allergic reactions presented a substantial danger to users of the product; (4) ordinary consumers would not have recognized the potential risks, side effects, allergic reactions; (5) defendant failed to adequately warn or instruct of the potential risks, side effects, and/or allergic reactions; (6) plaintiff used the product in a reasonably foreseeable way; ; (7) the lack of sufficient instructions or warnings was a substantial factor in causing name of plaintiff's harm. CACI 1205.

“Another affirmative defense, specific to failure to warn, is that of sophisticated user. “The sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about the products' potential hazards. (In re Asbestos, supra, 543 F.Supp. at p. 1151.) The defense is considered an exception to the manufacturer's general duty to warn consumers, and therefore, in most jurisdictions, if successfully argued, acts as an affirmative defense to negate the manufacturer's duty to warn. (Ibid.)” Johnson v. American Standard, Inc. (2008) 43 Cal. 4th 56, 65. A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger. It would be nearly impossible for a manufacturer to predict or determine whether a given user or member of the sophisticated group actually has knowledge of the dangers because of the infinite number of user idiosyncrasies. For example, given users may have misread their training manuals, failed to study the information in those manuals, or simply forgotten what they were taught. However, individuals who represent that they are trained or are members of a sophisticated group of users are saying to the world that they possess the level of knowledge and skill associated with that class. If they do not actually possess that knowledge and skill, that fact should not give rise to liability on the part of the manufacturer. Id., 43 Cal. 4th at 71.

“Although California law recognizes the differences between negligence and strict liability causes of action, the sophisticated user defense is applicable to both. 43 Cal. 4th at 71. The elements of negligence are: (1) defendant’s legal duty to conform to a standard of conduct to protect the plaintiff; (2) defendant failed to meet this standard of conduct; (3) causation; (4) damages. Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.

“Here, JLG’s motion is premised on the contention that Plaintiff unlatched the mid-rail chain. Each of its arguments stem from here: the unlatched chain (among other actions) was unforeseeable misuse, the chain wasn’t defective it just wasn’t used, no defect in the chain caused the fall given that the chain was unlatched and out of position, the chain didn’t fail to meet the consumer expectation test since it wasn’t used, no warning failure caused the accident when Plaintiff knew he was supposed to latch the chain but did not.

“But whether the mid-chain was unlatched is not an undisputed fact. There is circumstantial evidence on both sides that would permit the trier of fact to draw conflicting inferences. [Gillette Depo. 105-08, 11-31; Evans Depo. at 99-101, 145-47, 150, 221-24, 227-28, 232, 33 and exs. 5 and 12; Gillette Depo. at 86, 103-04; Figueroa Depo. at 171.]

“The sophisticated user defense is an affirmative defense that must be separately pleaded and proved as to factual elements that are in addition to the strict liability or negligence claim itself. CACI 1244. The defendant must plead and prove that the plaintiff, because of his position training, experience, knowledge or skill, knew or should have known of the product’s risk or danger. Id...

“It is less clear whether ‘open and obvious danger’ is an affirmative defense (which a defendant must plead and prove) or part of the denial that a given defendant had a duty to warn (which the plaintiff must plead and prove). Also, while JLG does not allege an affirmative defense called ‘open and obvious,’ arguably – and JLG argues it on reply -- the allegations under ‘assumption of the risk’ are sufficient.

“Whether the danger Plaintiff succumbed to was open and obvious depends at least in part on what danger he succumbed to – that is, how did he fall? Again, however, this is not a matter of undisputed fact. Moreover, whether the set of facts surrounding the lift and the accident reflect an open and obvious danger should be a matter weighed and decided by the jury. See Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308 (‘’foreseeability is a question for the jury unless undisputed facts leave no room for a reasonable difference of opinion.’ (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 19, 56 Cal.Rptr.2d 455.)”); Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180 (‘Reasonable reliance depends on all attendant circumstances and is typically a question of fact for the jury.’). Camacho Vs. JLG Industries, Inc., 30-2017-00902499-CU-PO-CJC (11/14/2019) (https://trellis.law/ruling/30-2017-00902499-CU-PO-CJC/camacho-vs-jlg-industries-inc/20191114b4b00f).

Contributory Negligence

Evidence that a Misuse or Modification of a Product contributed substantially to the Plaintiff’s harm can be considered in a negligence case as in Strict Liability;

• CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff; and
• CACI No. 1207B, Strict Liability—Comparative Fault of Third Person

“Otis argues that both these indemnity clauses are “Type III” and that under MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal.App.3d 413, 420 any negligence by Sierra (indemnitee) or a third party would bar indemnification by Otis (indemnitor). This all or nothing rule has not been applied strictly in later indemnity cases. (See, e.g., Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791.) As Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal. 3d 622, explained, the active-passive negligence dichotomy was not dispositive, and instead “whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.” (Id. at 632-33.)” Zapotoczny vs. Schindler Elevator, MSC14-01279 (8/29/2017) (https://trellis.law/ruling/MSC14-01279/zapotoczny-vs-schindler-elevator/201709292f832e).

“Defendant argues the warning on the product was adequate and bars Plaintiff’s claims. “An adequate warning is a sufficient defense to a strict liability action,” and it “would also negate any negligence or willful misconduct.” (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1094.) Interpretation of a warning in a written document is a question of law for the trial court to determine. (Id. at p. 1095.) While an adequate warning is not “invariably ‘a sufficient defense to a strict liability action’” (Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1557), it may be where there is evidence of “conscious, deliberate disregard of a safety notice or measure.” (Id. at p. 1560.)

“Here, the warning stated “Sunburn Alert,” that the use of the product could increase the possibility of sunburn, and that the user should use sunscreen. Plaintiff testified she read the box about being susceptible to sunburn when using the product. Defendant argues Plaintiff was exposed to sun outside and when driving with the car window down. Plaintiff testified that she was in and out of the car during the day delivering packages and drove with the window down at times. Plaintiff’s daughter testifed Plaintiff would drive with the windows down if there was a breeze. Defendant points out the blisters occurred only on Plaintiff’s left side of the neck and shoulder and back of the neck. Plaintiff testified the blisters occurred where the sun was shining in the window of her car.

“Defendant has established a prima facie case that Plaintiff disregarded the safety notice about the possibility of sunburn on the areas of her body exposed to the sun when she was driving and out of the car. Plaintiff did not oppose the motion or dispute any of Defendant’s facts… In light of the foregoing, Defendant’s unopposed motion for summary judgment is GRANTED.” Allison Nichols vs. Sephora USA Inc Et Al, BC689458 (10/17-2019) (https://trellis.law/ruling/BC689458/allison-nichols-vs-sephora-usa-inc-et-al/2019101702c7cf).

“‘[T]hird party negligence which is the immediate cause of an injury may be viewed as a superseding cause when it is so highly extraordinary as to be unforeseeable.’ (Torres v. Xomox Corp., supra, 49 Cal. App. 4th at p. 18; see also Rest.2d Torts, § 447.) ‘[F]oreseeability is question for the jury unless undisputed facts leave no room for a reasonable difference of opinion,’ and ‘[t]hus, the issue of superseding cause is generally one of fact.’ ( Torres v. Xomox Corp., supra, 49 Cal. App. 4th at p. 19; see also Ford Motor Co. v. Wagoner, supra, 192 S.W.2d at p. 845.) Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1558.” Hilario Cruz vs. Solomon Methenge, BC493949 (5/18/17) (https://trellis.law/ruling/BC493949/hilario-cruz-vs-solomon-methenge/20170518dbf3d6).

Res Ipsa Locquitur

Under the judicial doctrine of Res Ipsa Loquitur, a Plaintiff makes a prima facie case of negligence by showing:

• The accident is of a nature it usually does not occur without negligence;
• The accident involved a product in the exclusive control of Defendant;
• The product was not:
• Improperly handled; or
• Changed in condition;
• After leaving Defendant’s exclusive control; and
• The accident was not caused in any way by Plaintiff’s
• Voluntary action; or
• Contribution.

“The court is not persuaded by Plaintiff's reliance on res ipsa loquitor as to the strict liability and warranty claims. Tresham v. Ford Motor Co. (1969) 275 Cal.App.2d 403 specifically precludes application of this doctrine to either of these claims.

“Historically, strict liability in tort evolves from warranty and as in warranty it does not involve any form of negligence. (3) "The doctrine of res ipsa loquitur relates to cases involving negligence and has no application to an alleged breach of warranty. [Citations.]" (Trust v. Arden Farms Co., 50 Cal.2d 217, 223 [324 P.2d 583, 81 A.L.R.2d 332].) There is no reason in law or logic why the doctrine embedded in the instruction requested by appellants should be extended to include the type of case before this court. As stated in McCurter v. Norton Co., 263 Cal.App.2d 402, 408 [69 Cal.Rptr. 493]: "Appellant does not argue that in a strict liability case the burden of proof resting on him to show that the article was defective when it left the hands of the manufacturer, can be satisfied by invoking the res ipsa loquitur doctrine. Indeed, such an attempt would be futile. (4) When a party relies on the rule of strict liability the requirement of showing a defect cannot be satisfied by reliance on the doctrine of res ipsa loquitur." Tresham, 275 Cal.App.2d at 407–408. Nor is the court persuaded by Plaintiff's reliance on Gherna on this issue because the discussion of res ipsa loquitur is in the context of the negligence cause of action, not the strict liability and warranty causes of action.” Sadowski Vs. Volvo Car USA LLC, 37-2018-00031698-CU-PA-CTL (8/12/2019) (https://trellis.law/ruling/37-2018-00031698-CU-PA-CTL/sadowski-vs-volvo-car-usa-llc/20190912eac4a2).

California Evidence Code, Section 1151

• Evidence of a manufacturer’s or seller’s efforts to remedy or repair a product’s defect:
• Completed after the event that injured the Plaintiff;
• Are inadmissible to prove negligence or liability;
• Except where independently relevant to an issue other negligence.

Additional Trellis Case:

“A cause of action for negligent products liability requires a showing that the defendant negligently caused a defect in a product, the defect existed when it left the defendant’s hands, and the defect caused the plaintiff’s injuries. (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 383.) A failure to warn can constitute a defect. (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 717). A demurrer can be sustained where one cause of action is duplicative of another cause of action. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

“The complaint alleges Demurring Defendant Kew owned, operated, maintained, repaired, inspected, and controlled a McDonalds where Plaintiff purchased a cup of coffee… The cup malfunctioned and caused the ultra-hot contents to spill onto Plaintiff’s body causing harm… Demurring Defendant misrepresented to the public, including Plaintiff, that the cup was safe and free from defects and the product within was safe for consumption… Demurring Defendant failed to disclose that the product was harmful… Demurring Defendant failed to disclose the harmful dangers of the product and its packaging despite said dangers being known and longstanding… Demurring Defendant concealed that individuals that ingested or consumed and/or handled the products faced a substantial risk of suffering severe and permanent negative injuries, including the risk of death...

The Court finds Plaintiff has alleged sufficient facts to state a cause of action for negligent products liability. Plaintiff’s allegations show that facts have been alleged to support each element of negligent products liability.” Yvonne Kor vs. McDonald’s 16007, 19STCV19179 (11/4/2019) (https://trellis.law/ruling/19STCV19179/yvonne-kor-vs-mcdonalds-16007-et-al/20191104472f77).