Garret Murai | California Construction Law Blog
A few years ago I listened to an NPR segment called “What Can Kids Learn by Doing Dangerous Things?” It was about a summer program called the Tinkering School where kids can learn to build things, using tools of course, including power tools.
The founder of the program, Gever Tulley, also wrote a book entitled 50 Dangerous Things (You Should Let Your Children Do), in which he argued that while well-intentioned, children today are overly protected, and that giving children exposure to “slightly” dangerous things can help foster independence, responsibility, and problem-solving as well as a healthy dose of caution.
The plaintiff in the next case might have benefitted from that program.
In Camacho v. JLG Industries Inc., 93 Cal.App.5th 809 (2023), the Court of Appeals examined whether the manufacturer of a scissor lift should have incorporated “better” safety features when a construction worker fell from the lift.
The Camacho Case
Raul Camacho, a construction worker, was serious injured (suffering brain damage) when he fell out of a scissor lift manufactured by JLG Industries Inc. Camacho, who was using the lift to hoist glass panels, failed to latch a chain on the lift that was designed to guard the lift’s entrance.
Camacho sued JLG alleging claims for strict products liability, failure to warn, and related claims. At trial, Camacho alleged that the lift should have been designed with a self-closing gate and toe board. Camacho also argued that warning on the lift was defective.
At the close of evidence, JLG moved for a directed verdict, that was granted by the trial court. The trial court, in granting the direct verdict, stated that Camacho had failed to show that if the chain had been latched (which it was not) “the accident would have happened anyway.”
Camacho appealed.
The Appeal
On appeal, the 4th District Court of Appeal explained:
Products liability law broadly refers to a manufacturer’s legal responsibility for injuries resulting from the use of a product. “The purpose of such liability is to [e]nsure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons. . . .”
“Under California law, a manufacturer is strictly liable for injuries caused by a product that is (1) defectively manufactured, (2) defectively designed, or (3) distributed without adequate instructions or warnings of its potential for harm.”
“A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective.” “`”A product … is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor. . . .”‘”
Further, explained the Court of Appeal:
In some defective design cases, “the feasibility of a reasonable alternative design is obvious and understandable to laypersons and therefore expert testimony is unnecessary to support a finding that the product should have been designed differently and more safely. For example, when a manufacturer sells a soft stuffed toy with hard plastic buttons that are easily removable and likely to choke and suffocate a small child who foreseeably attempts to swallow them, the plaintiff should be able to reach the trier of fact … without hiring an expert to demonstrate the feasibility of an alternative safer design.” (Rest.3d Torts, Products Liability (1998) § 2, com. f, p. 23.)
“Three methods may be utilized in order to demonstrate a design defect: (1) the consumer expectations test shows that the product failed to perform as safely as an ordinary consumer would expect . . . ; (2) the risk-benefit test balances the risk of danger inherent in the challenged design versus the feasibility of a safer design, the cost of a safer design, the gravity of the danger, and the adverse consequences to the product of a safer design; and (3) the failure-to-warn test imposes upon the manufacturer or retailer liability for the failure to warn of known or knowable inherent dangers in the product.”
A plaintiff has the initial burden to prove a defendant’s product design proximately caused the injury. Proximate cause requires a showing that the alleged wrong was “a substantial factor in producing the injury.” The plaintiff need not “disprove every possible alternative explanation of the injury.” Causation “`may logically and reasonably be inferred from the circumstantial evidence. . . . The mere fact that other inferences . . . might be drawn does not render the inference favorable to [the] plaintiff too conjectural or speculative for consideration [by the jury].’”
Under the risk-benefit test, once causation is shown, it is the defendant’s burden to establish that the benefits of the challenged design outweigh its risks.
A product may also be dangerous because it lacks adequate warnings. However, manufacturers have no duty to warn of obvious hazards. Under either a strict liability or a negligence theory, “it must appear that the failure to warn was a legal cause of the injury.” “A tort is a legal cause of injury only when it is a substantial factor in producing the injury.”
Here, held the Court of Appeal, Camacho only needed to make a prima facie showing that the scissor lift as designed with a chain as opposed to a self-closing gate was a substantial factor in causing his injuries and, under the risk-benefit test, it was then JLG’s burden to prove the benefits of the chain outweighed its risks.
Further, explained the Court of Appeal, a trial court cannot grant a defendant’s motion for a directed verdict if there is substantial evidence in the record to support the plaintiff’s claims, and here the jury could have reasonably inferred that “a self-closing gate [which JLG did include with some of its scissor lifts] would have prevented Camacho from needing to latch the chain, and the toe board would have further prevented him from not realizing he was at the edge of the platform just before he fell.”
Finally, held the Court of Appeal, “the warning label on JLG’s scissor lift did not explicitly warn users to latch the chain, and the placard was six feet away from where the latch and the chain were located” and the jury could have reasonably inferred that “had JLG’s warning label explicitly warned Camacho of the need to latch the chain, and had it been placed near the entrance, then Camacho may have heeded the warning, latched the chain, and not have fallen off the lift.”
The decision, however, was not unanimous. In a dissent, Justice Bedsworth, argued that it was pure speculation that Camacho “forgot” to latch the chain as opposed to intentionally not latching the chain because he “could do the job quicker if the safety chain was out of the way” or that in loading “three 60-pound glass panels onto the lift, discovered that in doing so they had trapped the chain behind the first panel, and decided that unloading and reloading 180 pounds of glass was more trouble than it was worth to get the benefit of a safety chain.” And “to allow a jury to determine this product was defective without anyone having any idea whether forgetfulness played a part in the accident is a bridge too far for me.”
Further, argued Justice Bedsworth, even if the cause of Camacho’s fall was that he forgot to latch the chain, the safety chain had been determined to be safe by safety organizations including ANSI and Cal/OSHA. “[I]f failure to somehow prevent that universal human foible [of forgetfulness] is a design defect, I don’t know how we can allow the marketing of anything from mousetraps to jet planes,” explained Justice Bedsworth, “And unless you are selling to the elderly or others especially susceptible to forgetfulness, I’m not sure I’m ready to require you to failsafe forgetfulness.” Rather, it “something for legislatures—and safety organizations like ANSI and Cal/OSHA—to consider rather than us.”
Conclusion
Maybe it’s because I’m not a products liability lawyer, or Justice Bedsworth is just a good persuasive writer, but I kind of agree with Justice Bedsworth. Whether the scissor lift was defectively designed, to me, turns a lot on whether Camacho simply forgot to latch the chain or whether he intentionally did not do so. The case takes on a completely different flavor if there was evidence that Camacho intentionally did not latch the chain. On the other hand, I’m more on the fence about whether safety is a legislative/administrative/industry standards issue. While I think these legislative, rule-making and industry standard promulgating entities are important, and should be accorded deference when courts render decisions, only courts can apply the law to a set of facts.
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