SAN FRANCISCO – The type of
evidence allowed at product defect cases may soon change, pending a decision by
the California Supreme Court.
The circumstances comes from a
liability case against Toyota Motor Corp., after plaintiff William Jae Kim
claimed the company was irresponsible in its design of the Tundra pickup.
According to court
documents, Kim was involved in a collision in April 2010. He was driving
northbound on Angels Forest highway, traveling about 45-50 mph. The road was
wet. A car driving toward him slightly crossed over the center line and Kim
swerved to miss the vehicle. The road was wet and he lost control of his
vehicle, driving off the highway into an embankment. He was extracted from his
vehicle by firefighters and suffered a serious neck injury and damage to his
Kim sued the company, claiming
that because electronic stability control (ESC) or vehicle stability control
(VSC) was only offered as an option on the vehicle, not as automatically included,
Toyota had created a defective product.
At a trial court Toyota
presented evidence that it was automotive industry practice to have ESC as an
option, not required, on vehicles.
Kim’s request to exclude the
evidence was denied by the court.
"We hold that evidence of
industry custom and practice may be admissible in a strict products liability
action, depending on the nature of the evidence and the purpose for which the
proponent seeks to introduce the evidence," the California Court of Appeal found.
However, because such evidence
has not always been allowed in strict product liability cases, the California Supreme
Court must now clarify the law.
“The Supreme Court will
evaluate the decision of the trial court, so what it will do is clarify or
further position the law on analyzing complex product liability litigation under that risk-benefit test,” Carl Pesce, an attorney at Thompson Coburn, told
the Northern California Record.
In an article
he co-wrote for his firm, Pesce clarified that there were two types of product
defect litigations, one was negligence and the other was strict product
liability. The difference, according to Pesce, was that each has its own rules
A case claiming defective design based on strict liability will only look at
the condition of the product. Yet a case that claims negligence on behalf of
the manufacturer needs to look at the conduct involved in the product’s design.
strict tort liability, the defendant may be found liable without any regard to
its knowledge or conduct,” the article stated.
Industry practice or custom
has been allowed as evidence in negligence cases to show that the manufacturer
was using standard practices in the industry.
Also, in strict liability
cases, courts have consumer expectations tests and risk-benefit tests.
"Under the risk-benefit test, a product has a design defect if the risks
of danger inherent in the design outweigh the benefits of the design,” the
These risk-benefit tests have
been used in cases that involve complex technical matters, according to the
Pesce said the appellate court
decision stated that “just because everybody is making it the same way isn’t a defense in the strict liability test it is. They’ve analyzed it differently. They’ve talked about the government standards. The government standards being relevant on the issues of weighing – as the jurors weigh – whether the danger in the design outweighs the benefits.”
He said the California Supreme Court has
decided to review the decision. “We will have to wait and see how it shakes out, so to speak,” he said.