Novak v. Continental Tire
Filed 5/24/13 Novak v. Continental Tire CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
PAULA
NOVAK,
as Special Administrator, etc.,
Plaintiff and Appellant,
v.
CONTINENTAL
TIRE
NORTH AMERICA, INC., et al.,
Defendants and Respondents.
A133073
(Alameda County
Super. Ct.
No. HG07344892)
This
appeal follows a defense verdict in a case brought by a passenger in a vehicle
who sustained serious injuries
after a tire blowout and collision. The passenger, Alex Novak, brought an
action against the tire manufacturer and the mechanic who had previously
serviced the vehicle. Novak stated causes of action for
against the tire manufacturer for failing to provide a warning that tires
degrade with age and should be replaced after about six years even if the tire
shows good tread depth. Novak sued the mechanic for negligence in failing to
warn about the danger of old tires when rotating the tires and performing other
maintenance on the vehicle.
Following
pretrial evidentiary rulings that excluded some of Novak’s evidence, the court
granted the tire manufacturer’s motion for a nonsuit on the strict liability
cause of action and the jury returned a defense verdict for both the
manufacturer and the mechanic on the negligence cause of action. Plaintiff
appeals, contending that he was prejudiced by both
agree that the court prejudicially erred in excluding relevant and admissible
evidence and in refusing a jury instruction necessary to the jury’s fair
consideration of the case, and shall therefore reverse the judgment.
statement of
facts
On
September 12, 2005,
Milagros Ibarra was driving her 1988 Chevrolet van upon a residential street in
Fremont with her friend Alex Novak
as a passenger in the front seat when the van’s right rear tire blew out. The
van veered sharply to the right and hit a telephone pole, crushing the front
passenger side of the van. Novak suffered two broken legs, a punctured lung and
other serious injuries. At the time of the accident, Ibarra was 78 years old
and Novak was 81 years old.
The
tire on Ibarra’s car was manufactured in 1993; it was 12 years old at the time
of the accident. All tires bear an alphanumeric code on the sidewall
identifying the week and year of manufacture. (49 C.F.R. § 574.5(d)
(2005).)
procedural
history
Novak
sued the tire manufacturer, Continental Tire North American, Inc.
(Continental), and the owner of the automotive
repair facility that serviced Ibarra’s van, Chi Tai.
Novak claimed both defendants should have warned Ibarra that tires degrade with
age and are in danger of rupturing even with good tread depth.
Trial
proceeded on Novak’s causes of action for strict liability against Continental
and negligence against Continental and Tai. The court granted nonsuit on the
strict liability claim, and the jury returned a defense verdict on the
negligence claims. Novak’s motion for a new trial was denied. The court entered
judgment for defendants and awarded them costs of suit. This appeal timely
followed.
Novak
died during pendency of the appeal and his daughter, acting as special
administrator of his estate, has been substituted as plaintiff.
discussion
“Strict
liability has been imposed for three types of product defects: manufacturing
defects, design defects, and ‘ “warning defects.†’ [Citation.] The
third category describes ‘products that are dangerous because they lack adequate
warnings or instructions.’ †(O’Neil
v. Crane Co. (2012) 53 Cal.4th 335, 347.) “ ‘Generally speaking,
manufacturers have a duty to warn consumers about the hazards inherent in their
products. [Citation.] The requirement’s purpose is to inform consumers about a
product’s hazards and faults of which they are unaware, so that they can
refrain from using the product altogether or evade the danger by careful use.
[Citation.] Typically, under California law, we hold manufacturers strictly
liable for injuries caused by their failure to warn of dangers that were known
to the scientific community at the time they manufactured and distributed their
product.’ †(Id. at
p. 351.)
Liability
for negligence may also be imposed for a manufacturer’s failure to warn of product
dangers. “Negligence law in a failure-to-warn case requires a plaintiff to
prove that a manufacturer or distributor did not warn of a particular risk for
reasons which fell below the acceptable standard of care, i.e., what a
reasonably prudent manufacturer would have known and warned about.†(
53 Cal.3d 987, 1002.)
As
for the claim against the mechanic, Tai, “a repair shop or service station
operator is under a duty to exercise ordinary care and skill in repairing motor
vehicles.†(38 Am.Jur.2d (2013) Garages, § 59.) An automobile repair
person may be held liable in negligence for “damages proximately resulting from
the negligent or unskillful manner in which one makes repairs or performs
services.†(Id., § 53, fn.
omitted.)
I. The trial
court erred in excluding automobile owner manuals recommending replacement of
tires after five to ten years of service and in precluding plaintiff’s expert
witnesses from relating statements in the manuals and trade publications to
support the opinion that the danger of old tires was known or reasonably
knowable in the automotive industry.
The
court granted nonsuit on the strict liability cause of action against
Continental on the ground that plaintiff failed to present sufficient evidence
that Continental knew or should have known of the potential danger that an old
tire will rupture. Any deficiency in this respect was caused by the erroneous
exclusion of evidence tending to prove that Continental should have been aware of
this danger.
Plaintiff
sought to introduce, as exhibits, trade publications and automobile owner
manuals advising that tires should be replaced after five to ten years,
regardless of tread depth, because rubber degrades with age. Plaintiff also
sought to have experts testify that they relied on these advisements in forming
the opinion that defendants should have known of the danger posed by old tires.
Continental filed a motion in limine to exclude the documents as irrelevant,
lacking foundation and more prejudicial than probative. Tai joined in the
motion. The court granted the motion, finding that the documents were
inadmissible hearsay and, secondarily, that the manuals lacked authentication.
The court also precluded plaintiff’s experts from relating statements contained
in the documents. As we explain below, portions of the manuals advising tire
replacement after a certain number of years were admissible to show industry
practice for tire replacement and what Continental knew or should have known about
the potential danger of old tires. The remaining portions of the manuals and
trade publications concluding that old tires are dangerous was inadmissible
hearsay but plaintiff’s experts should have been permitted to recite those
findings in support of their opinions.
The
proffered materials included a 1986 study conducted by the German Motor Vehicle
Inspection Association (known as DEKRA, a German acronym). (
studied tire failures and noted “a dramatic increase in tires that are older
than six years. In this instance, tire aging and the embrittlement of the
rubber is prominent. [¶] Based on the data gathered here it is recommended
that, in terms of tire age, tires that are older than six years should be
replaced even if the tread profile is still sufficient.†A 1987 rubber trade
publication found that tire “failure frequency climbs disproportionately fast
with increasing tire age. Based on the data we gathered, the probability of a
breakdown due to tire damage is eight times as high with a nine-year-old tire
than with a two-year-old tire—but this is a known fact among experts in the
field.†Plaintiff also proffered numerous automobile owner manuals, including a
1987 Porsche owner manual that states: “The supposition that tire durability
and performance are immune to the effects of storage and age is unfounded.
Chemical additives which make the rubber elastic lose their effectiveness in
the course of time and the rubber becomes brittle and
cracks. . . . [¶] Under no circumstances should tires older
than 6 years be used on your Porsche.â€
The
trial court excluded these documents from evidence and precluded plaintiffs’
experts from relaying to the jury the statements contained in them. Plaintiff’s
engineering expert opined that rubber degrades with age and that the tire in
this case ruptured because it was old. In relying upon the DEKRA study, the
expert was allowed to testify only that the study compiled statistics on 146
tires that showed a high failure rate at ages seven and eight years and that
the expert found the study “supportive†of his opinion. The expert was not
permitted to refer to the study’s finding that older tires showed
“embrittlement of the rubber†or the study’s recommendation that tires “older
than six years should be replaced even if the tread profile is still
sufficient.†Concerning the automobile owner manuals, the expert was permitted
only to list them among the many materials he relied upon in forming his
opinion and to state that the documents he consulted did not “cause [him] to
doubt [his] conclusions regarding the cause of failure in the subject tire.â€
The court’s exclusionary order was too broad.
“It
is often said that a trial court’s ruling on the admissibility of evidence is
vested in that court’s discretion and will not be disturbed on appeal unless
that discretion was abused.†(People v.
Franzen (2012) 210 Cal.App.4th 1193, 1205.) However, “[a]ny legal ruling
involves three components: the law, the facts, and the application of the law
to the facts.†(Ibid.) “A trial court
usually has the preeminent power to determine matters of fact—including, at
least provisionally, any ‘preliminary fact’ on which an evidentiary ruling may
depend†but “its determination as to the governing legal principles [citation]
is subject to independent appellate review.†(Ibid.) “Thus insofar as the trial court expressly or impliedly
determined the historical facts bearing on admissibility, its ruling must be
upheld so long as it is supported by substantial
evidence. But insofar as the court selected and applied the governing legal
principles . . . its ruling is subject to independent review.†(
A.
Authentication
Plaintiff
offered to prove authentication of the automobile owner manuals with the
testimony of automobile owners who received the manuals, automobile dealers who
provided the manuals, and others who obtained the manuals from dealers or other
reputable sources. The court questioned the sufficiency of the proffered
authentication evidence, suggesting that a proper foundation required testimony
from the manuals’ authors. The court said authentication was not established
“[u]nless you have somebody [who] can talk about how, when and why†the auto
manufacturers issued advisements about tire replacement in their manuals. This
is the position taken by defendants on appeal. Continental argues that
authentication was lacking because plaintiff “offered no witnesses who could be
cross-examined by the defendants regarding the basis for the information or
recommendations contained in any manual.†Continental overstates the
requirements for authentication of a writing.
A
written document must be shown to be authentic before it may be admitted in
evidence. (Evid. Code, § 1401; Thorstrom
v. Thorstrom (2011) 196 Cal.App.4th 1406, 1418.) “[A] document is
authenticated when sufficient evidence has been produced to sustain a finding
that the document is what it purports to be ([Evid. Code,] § 1400). As
long as the evidence would support a finding of authenticity, the writing is
admissible. The fact conflicting inferences can be drawn regarding authenticity
goes to the document’s weight as evidence, not its admissibility.†(
301, 321.)
Authentication
of a writing does not require the author’s testimony. A written document is
authenticated if there is sufficient evidence that the document is “what it
purports to be.†(Jazayeri v. Mao, supra,
174 Cal.App.4th at p. 321.) Authentication of a writing can be
provided by a variety of means; even its contents may be sufficient proof the
document is genuine. (Ibid.) In this
case, plaintiff proffered sufficient authentication by offering testimony to
establish that the manuals were, in fact, genuine manuals distributed by
automobile manufacturers to customers buying vehicles. Plaintiff was not
required to obtain the testimony of the individuals who wrote the manuals.
B.
Hearsay and Expert Witness Testimony
The
hearsay rule was also improperly applied to bar the admission of the automobile
manuals for the limited purpose for which they were offered—notice and industry
practice—and to preclude the expert witnesses from referring to the content of
the manuals and trade publications to support their opinions
Out
of court statements are hearsay only when “offered to prove the truth of the
matter stated.†(Evid. Code, § 1200.) Statements in the Porsche and other
product manuals that rubber degrades with age, if offered to prove the truth of
those statements, were properly excluded as hearsay. However, plaintiff offered
to limit use of the manuals to proving defendants had notice of the potential
danger posed by old tires rather than proving that old tires are, in fact,
dangerous. The warning contained in the Porsche manual that “Under no
circumstances should tires older than 6 years be used on your Porsche†and
similar manufacturer advisements were not offered to prove the truth of the
statements but to prove that the risks were well known within the industry and
should have been known by the defendants. Manufacturer publications like
product manuals and brochures may be admitted to prove notice. (See
Cal.App.3d 331, 344-345 [warning in drug brochure admissible to show knowledge
by medical personnel charged with malpractice].)
Notice
was directly relevant to the litigated claims. An element of the strict
liability cause of action against Continental was that the tire had potential
light of the scientific knowledge that
was generally accepted in the scientific community at the time of sale and
that Continental failed to adequately warn consumers of the potential risks.
(CACI No. 1205.) Indeed, the basis upon which the court granted the nonsuit
motion was that this element had not been established. Warnings against the use
of old tires in multiple automobile manuals is evidence that the risks were
known or knowable by Continental when it sold its tire. Similarly, the
negligence claim against Continental required proof that defendant “
reasonably foreseeable manner†and that defendant “failed to adequately warn of
the danger or instruct on the safe use of the [tire].†(CACI No. 1222, italics
added.) “ ‘Negligence law in a failure-to-warn case requires a plaintiff
to prove that a manufacturer or distributor did not warn of a particular risk
for reasons which fell below the acceptable standard of care, i.e., what a
reasonably prudent manufacturer would have known and warned about.’ †(
Cal.App.4th 1283, 1305.) Evidence of automobile manufacturers’ recommendations
for tire replacement was admissible to prove that a reasonably prudent tire
manufacturer would have known about and warned against the use of old tires.
The
manuals were also admissible to prove accepted custom and practices in the
automobile industry concerning tire replacement, which was relevant to the
negligence claim against the automotive repair shop operator. Plaintiff needed
to prove that Tai breached a duty of care in failing to advise the van’s owner
to replace an old tire when Tai serviced Ibarra’s van in 2004 and 2005. (CACI
No. 401.) Tai admitted knowing that a tire’s year of manufacture is
encoded on the sidewall. Customs or practices in the community are properly
considered in deciding whether Tai breached a duty of care. (
42 Cal.App.2d 195, 203-204; CACI Nos. 401, 413.) The tendered product manuals
for five different makes of automobiles from 1987 to 2005 recommending tire
replacement for older tires contained relevant evidence of community custom and
practice, as well as evidence of notice, and were wrongly excluded by the trial
court.
The
court also erred in precluding plaintiff’s experts from testifying that their
opinion that that the danger of an older tire rupturing was known or should
have been known by Continental was based in part on warnings to that effect
contained in both trade publications and automobile owner manuals. An expert
may base opinion testimony on any matter, “whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject . . . . †(Evid. Code, § 801,
subd. (b).) An expert may also tell the jury the matters he or she relied
upon in forming an opinion (Evid. Code, § 802), although the expert “may not
testify as to the details of such matters
if they are otherwise inadmissible†(Grimshaw
v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 788-789, italics added). An
expert is not permitted to read third party “reports or documents to which he
referred or relate their contents in specific detail†(id. at p. 789) but is permitted to relate sufficient information
from third party materials to show that the materials provide a basis for his
or her opinion. For example, an expert may describe the nature of consumer
complaints about a product and read portions of those complaints in supporting
the opinion that the manufacturer had notice of product dangers. (
174 Cal.App.3rd 831, 859-862.) In Grimshaw
v. Ford Motor Co., supra, at pages 788-789, a product liability case, the
court held that an expert was properly permitted to recite statements from
industry literature and reports to support his opinion that an alternative
product design was safe and feasible. In Jones
v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1004, a product liability
case based on a failure to warn, an expert related statements from medical
journals and other texts linking asbestos and lung cancer. This court held that
the historical literature supported the expert’s opinion that there was a
scientifically known or knowable probability that defendant’s product would
increase plaintiff’s risk of cancer.
(Ibid.)
Here,
the court improperly prohibited plaintiff’s experts from supporting their
opinion that the danger of driving on old tires was known or scientifically
knowable by defendants at the relevant dates by relating the warnings and
advice contained in trade publications and product manuals. Subject to a proper
limiting instruction, the testimony should have been received to permit the
jury to consider the basis upon which the experts based their opinions. (
728, 738.)
II
defendant Tai’s deposition testimony stating that old tires are dangerous.
Plaintiff
also correctly asserts that the trial court erred in excluding Tai’s admission
that he was aware of the dangerousness of driving on old tires. Tai owned
Peralta Auto Center in Fremont where Ibarra had her car serviced. He also owned
a Unocal 76 gas station and repair facility in San Francisco and had been in
the business of repairing cars for 20 years at the time he rotated the tires on
Ibarra’s vehicle in 2004, a year before the accident. Plaintiff called Tai as
an adverse witness and questioned him about his shop’s custom and practice when
inspecting tires during a tire rotation. At several points during the
examination, plaintiff’s counsel read from Tai’s deposition transcript.
Defendants’ attorneys objected to a portion of the deposition testimony on the
grounds that it “lacks foundation†and “calls for a hypothetical.†The
objection was sustained with the explanation that the deposition question
“calls for expert testimony†and Tai is not an expert.
The
deposition testimony, with the objections and witness statements that were
excluded at trial in italics, was as follows: “Q. Assume a tire looks good in
the sense there’s no cracks and the tread is good. [¶] A. Yes. [¶] Q.
But let’s say it’s been stored for six years or more in some warehouse or shop.
[¶] A. Yes. [¶] Q. And then it’s put on a car. [¶] A. Yes.
[¶] Q. Do you have any information as to whether or not it’s dangerous to
use a tire that is that old even though it hasn’t been driven yet? [¶]
A. Usually the shop, if tire inventory about five year, they are not using
[sic], they return it back to the
manufacturer or wholesale dealers, yeah. [¶] Q. They’ll return it?
[¶] A. Yeah. [¶] Q. Why is
that? [¶] A. Why? [¶]
into expert testimony and we haven’t disclosed him as an expert, and you are
also posing hypotheticals in this question. But go ahead. [Counsel for
Continental]: I am going to object to
this question based on his knowledge so far. [Counsel for Tai]:
tires? [¶] A. It’s dangerous.
[¶] Q. Did you ever return any on that basis? [¶] A. Unocal.
[¶] Q. You did? [¶] A. Yeah.†(Italics added.)
The
trial court erred in excluding this testimony. Tai’s acknowledgement that
automotive repair shops return a tire that is about five years old because
“[i]t’s dangerous†and that he had done so himself was not an improper lay
opinion divorced from personal knowledge, as defendants argue. (Evid. Code, § 800.)
In the first place, Tai’s operation of two automobile repair facilities over a
period of some 20 years qualified him to express an opinion as to common
practice in the industry. (Howard
Entertainment, Inc. v. Kudlow (2012) 208 Cal.App.4th 1102, 1119-1121.) More
importantly, Tai testified that he had personally returned old tires because
they are dangerous to use, which was highly relevant to show that he was aware
of the danger and therefore failed to act reasonably in rotating the tires on
Ibarra’s van without warning her of the danger. Defendants dispute this reading
of Tai’s testimony, noting that Tai’s Peralta Auto Center did not store tires
but purchased them from a wholesaler as needed. Defendants argue that Tai was
not relating personal experience but speculating about how a tire warehouse
might handle unused inventory. But Peralta Auto Center was not the only
automotive service facility Tai operated. Tai also operated a Unocal 76 service
station, received Unocal training on tire servicing and sold Unocal tires. When
asked at his deposition if he ever returned old tires as dangerous, he answered
“Unocal†and then clarified that, yes, he had returned tires “on that basis.â€
Fairly interpreted, Tai’s deposition testimony reflects Tai’s personal experience
and awareness of the danger of driving on old tires. The excluded testimony
should have been admitted, after which Tai would have had an opportunity to
clarify any ambiguity.
III.
special jury instruction on negligent failure to warn.
Novak
requested a special jury instruction on a manufacturer’s negligent failure to
warn about a product’s dangerous condition. The requested instruction was as
follows: “ ‘A manufacturer’s duty to warn is a continuous duty which lasts
as long as the product is in use.’ The manufacturer has a duty to issue
warnings and instructions after sale ‘when it later learns of the dangerous
propensities of the product.’ †Defendants objected to the instruction,
and the court refused it.
Plaintiff
has not provided a clear record of the jury instructions that were given to the
jury but it appears that the standard instructions were given, including CACI
No. 1222 that sets out the elements of a cause of action for a
manufacturer’s negligent failure to warn of product dangers.
That instruction accurately and fully sets out the applicable
to demonstrate that the standard instruction was inadequate in any respect.
Standard jury instructions are approved for use as the “official instructions
for use in the state of California†after an exhaustive vetting process to
ensure accuracy, comprehensiveness, and comprehensibility. (Cal. Rules of
Court, rule 2.1050.) Use of these standard instructions “is strongly
encouraged.†(Cal. Rules of Court, rule 2.1050(e).) While unusual circumstances
may warrant special instructions in substitution, or in addition, to standard
jury instructions, plaintiff has failed to demonstrate any reason for which the
standard instruction was inadequate in this case or why it was necessary to
give the special instruction he offered, which was cobbled together from
statements taken from two separate court opinions. Modification of jury
instructions to include opinion excerpts should be approached with caution
because an opinion excerpt, even if a correct statement of the law, “does not
necessarily make a good jury instruction.†(People
v. Adams (1987) 196 Cal.App.3d 201, 204-205.) The standard jury instruction
fully and fairly apprised the jury of the controlling principles concerning a
manufacturer’s negligent failure to warn of product dangers and did not require
augmentation with the special instruction proffered by Novak.
IV. The court erred in refusing to instruct the jury on the sudden
emergency doctrine.
Alex
Novak testified that the van he was riding in struck a telephone pole almost
immediately after he heard a loud bang, which was a tire rupturing. Defendants
offered the testimony of an accident reconstruction expert who opined that the
van “was controllable after the tire deflated†and struck the pole because the
driver veered sharply to the right when she should have steered the vehicle
straight ahead and brought it to a stop with a “light brake application.†The
expert testified that “the tire was not a substantial cause of the vehicle
colliding with the pole†and blamed the collision on the driver, Ibarra, who
did “the wrong thing†in steering the van toward the curbside pole. Plaintiff argued
that the tire blowout created a sudden emergency to which Ibarra reasonably
reacted and requested a standard jury instruction, CACI No. 452, on the sudden
emergency doctrine. The court denied the request, finding insufficient evidence
to support the instruction. Plaintiff challenges the court’s refusal to give
the requested jury instruction.
California
has long recognized the sudden emergency doctrine in negligence cases: “a
person who, without negligence on his part, is suddenly and unexpectedly confronted
with peril, arising from either the actual presence, or the appearance, of
imminent danger to himself or to others, is not expected nor required to use
the same judgment and prudence that is required of him in the exercise of
ordinary care in calmer and more deliberate moments.†(Leo v. Dunham (1953) 41 Cal.2d 712, 714.) CACI No. 452
encapsulates the doctrine and reads: “[Plaintiff] claims that [Ibarra] was not
negligent because she acted with reasonable care in an emergency situation.
[Ibarra] was not negligent if [plaintiff] proves all of the following:
[¶] 1. That there was a sudden and unexpected emergency situation in which
someone was in actual or apparent danger of immediate injury; [¶] 2. That
[Ibarra] did not cause the emergency; and [¶] 3. That [Ibarra] acted as a
reasonably careful person would have acted under similar circumstances, even if
it appears later that a different course of action would have been safer.â€
The
court refused to give this instruction because it found a “lack of evidence
regarding how [Ibarra] felt to determine and for the jury to evaluate whether
or not it fell within the parameters of [CACI No.] 452.†There was no testimony
from Ibarra as to her perception of the accident; she suffered from Alzheimer’s
disease at the time of her deposition and died before trial commenced.
Defendants contend the instruction was properly refused for the reason stated
by the court and that the sudden emergency doctrine is limited to situations
where a party to the action reacted to an emergency. Defendants contend the
doctrine does not apply where, as here, a third party’s reaction to an
emergency is at issue. The contention is without merit.
The
sudden emergency instruction “should be given when the evidence is sufficient
to support the finding of the objective
appearance of sudden and unexpected peril.†(Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 210,
italics added.) Testimony from the one confronting the claimed emergency is
commonly presented but it is not the only way to prove the existence of an
emergency. Here, sufficient prima facie evidence of an emergency was presented
by the physical evidence of a tire blowout and the testimony of Alex Novak and
an independent eyewitness who each testified to a loud bang followed seconds
later by the van veering to the right and striking a telephone pole. A sudden
emergency instruction should be given when there is “evidence which would
permit a reasonable jury to conclude that [emergency] conditions existed.†(
Cal.App.3d 29, 37.) It is then for the jury to decide whether an emergency
actually existed and, if so, whether actions taken in response to the emergency
were reasonable under the circumstances. (Ibid.;
accord Leo v. Dunham, supra, 41
Cal.2d at p. 715.) Evidence of a tire blowout—even when evidence on the
matter is disputed—supports a sudden emergency instruction. (
260, 263-264, 268-269.)
Defendants’
contention that the sudden emergency doctrine applies exclusively to plaintiffs
and defendants who confront emergencies, and not to third parties, is not
supported by law or logic. The doctrine broadly applies “where a nonnegligent
imminent danger to himself or to others, in which case he is not required to
exercise the same standard of care otherwise required.†(McShane v. Cleaver, supra, 247 Cal.App.2d at p. 268, italics
added.) It is true, as defendants point out, that CACI No. 452 uses the words
“plaintiff†and “defendant†in setting out the doctrine,
but the instruction simply uses terms applicable to the most common situation;
it does not set the boundaries for application of the doctrine. Where, as here,
a third party’s asserted negligence is a material issue in the case, the
reasonableness of that person’s response to a claimed emergency is also a
material issue and properly considered by the jury.
V
were prejudicial and require reversal of the judgment.
No
judgment may be reversed for “misdirection of the jury†or “improper admission
or rejection of evidence†unless the error has resulted in “a miscarriage of
justice.†(Cal. Const., art. VI, § 13.) “Article VI, section 13
of the California Constitution requires examination of each individual case to
determine whether prejudice actually occurred in light of the entire record.†(
Cal.4th 548, 580.)
The
prejudice here is unmistakable. After having erroneously excluded competent
evidence tending to show that Continental knew or should have known of the
potential danger of old tires to rupture, the court granted nonsuit on
plaintiff’s strict liability cause of action for failure to have presented that
very evidence. The same excluded evidence—numerous user manuals and trade
publications—was also highly relevant to plaintiff’s cause of action for
negligence, as was the excluded admission by Tai that he had previously
returned to the manufacturer old tires because of their danger. And the
erroneous failure to give the requested instruction on the sudden emergency
doctrine more than likely affected the jury’s evaluation of the reasonableness
of Ibarra’s response to the tire blowout and the extent to which the
defendants’ actions could be considered responsible for the accident and
resulting injuries. In the absence of these several errors, there is a
significant likelihood that the outcome of the trial would have been different.
These errors prejudicially affected the verdict and thus require reversal.
disposition
The
judgment is reversed and the matter is remanded for further proceedings
consistent with this opinion. Plaintiff shall recover costs incurred on appeal
upon timely application in the trial court. (Cal. Rules of Court, rule 8.278.)
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
Ibarra also sued Continental and Tai but reached a pretrial settlement of her
claims.
name="_ftn2" title="">[2]
CACI No. 1222 reads as follows: “[Plaintiff] claims that [defendant] was
negligent by not using reasonable care to warn . . . about the
[tire]’s dangerous condition or about facts that made the [tire] likely to be
dangerous. To establish this claim, [plaintiff] must prove all of the
following: [¶] 1. That [defendant] [manufactured] the [tire]; [¶] 2.
That [defendant] knew or reasonably should have known that the [tire] was
dangerous or was likely to be dangerous when used or misused in a reasonably foreseeable
manner; [¶] 3. That [defendant] knew or reasonably should have known
that users would not realize the danger; [¶] 4. That [defendant] failed to
adequately warn of the danger . . . of the [tire];
[¶] 5 That a reasonable [manufacturer] under the same or similar
circumstances would have warned of the danger . . . of the [tire];
[¶] 6. That [plaintiff] was harmed; and [¶] 7. That
[defendant]’s failure to warn was . . . a substantial factor in
causing [plaintiff]’s harm.â€
