MILWAUKEE ELECTRIC TOOL CORPORATION v. VONDRASEK

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Court of Appeal, Fourth District, Division 1, California.

MILWAUKEE ELECTRIC TOOL CORPORATION, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Lawrence VONDRASEK et al., Real Parties in Interest.

No. D015454.

Decided: March 30, 1992

Meyers, Bianchi & McConnell, John W. McConnell III, Timothy R. Owen and Jeffrey M. Cohon, Los Angeles, for petitioner. Downey, Brand, Seymour & Rohwer, Roberta L. Franklin, Michael D. Long and Fred J. Hiestand, Sacramento, as amici curiae on behalf of petitioner. No appearance for respondent. Greene, Broillet, Taylor & Wheeler, Bruce A. Broillet, Frank J. O'Kane, Jr., Santa Monica, Dofflemyre & Dietz and Geoffrey M. Northrop, San Diego, for real parties in interest.

Assuming with the trend of California authority (see, e.g., Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536) that the doctrine of reasonable implied assumption of the risk (RIAR) has survived the adoption of a system of comparative fault (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226), what is the applicability of that doctrine to causes of action for strict products liability and breach of warranty?   In this petition for writ of mandate, petitioner Milwaukee Electric Tool Corporation (Milwaukee) (defendant in an action by plaintiff and real party in interest Lawrence Vondrasek for damages for personal injury on the theories of strict liability, breach of warranty, and negligence) argues it is entitled to extraordinary relief from the trial court's order denying in part Milwaukee's motion for summary adjudication.  (Code Civ.Proc., § 437c, subd. (f).)  The adjudication which Milwaukee sought would have established that its affirmative defense of RIAR barred Vondrasek's claims for strict products liability and breach of warranty, relating to the injuries he suffered while using a power tool manufactured by Milwaukee.1

Although we conclude the trial court's denial of Milwaukee's motion for summary adjudication of the strict liability and breach of warranty causes of action was justified, we reject its reasoning that Milwaukee could not show that RIAR may be a complete bar to these causes of action.   Although in a proper case the affirmative defense of RIAR (which we prefer to call “reasoned implied assumption of the risk”) may preclude a plaintiff from recovering damages for strict products liability or breach of warranty, in this case triable issues of fact remain as to the extent of Vondrasek's subjective appreciation of the risk he encountered through using the tool, and the extent of his voluntary consent to relieve Milwaukee of liability for injuries he might incur in the use of its product.   Accordingly, the petition for writ of mandate is denied and the stay of the pending trial date is vacated.

FACTUAL AND PROCEDURAL BACKGROUND

Milwaukee's separate statement in support of its motion for summary adjudication sets out the facts essentially as follows.   At the time Vondrasek was injured, he was a union tradesman, a glazier, with more than seven years of experience on the job.   The drill which he was operating at the time of the accident was a Milwaukee heavy-duty hole shooter, a one-half inch capacity, variable-speed drill.   This drill was equipped with a side-support handle which was designed to control rotational forces generated by the drill.   As Vondrasek, perched on the upper steps of an A-frame ladder, was drilling through angle iron, he let go of the drill's side handle with his left hand and grabbed a mullion (post) on the building on which he was working.   As he, with his right hand, was pushing the drill as hard as he could, the drill bit “hung up and stopped,” causing the body of the drill to rotate in a counterclockwise direction.   In his previous work with drills, Vondrasek had experienced the binding-up phenomenon at least 20 to 30 times before this accident.   He had formed the opinion that Milwaukee's drills had a tendency to bind up while drilling through iron.

After the drill malfunctioned, Vondrasek was thrown to the ground and sustained severe injuries to his right wrist and arm.   He then brought this complaint for damages for strict liability, breach of express and implied warranty, and negligence against Milwaukee, the designer and manufacturer of the drill.2  Milwaukee answered, raising a number of affirmative defenses, including knowing and voluntary assumption of the risk.

In its motion for summary adjudication, Milwaukee relies on Vondrasek's deposition to show that he was “absolutely” familiar with the written instruction manual for this drill before the accident.   This instruction manual stated in pertinent part:  “Always use side handle to maintain safe control.”  “DON'T FORCE TOOLS.   It will do the job better and safer at the rate for which it was designed.”

According to a declaration by Milwaukee's senior products engineer, the warning label which would have been attached to this drill read:

“WARNING—HIGH ROTATING FORCE.   ALWAYS USE SIDE HANDLE AND HOLD OR BRACE SECURELY TO PREVENT PERSONAL INJURY OR DAMAGE TO THE TOOL.   READ SAFETY INSTRUCTIONS BEFORE OPERATION.”

Vondrasek's deposition, submitted to the trial court in support of Milwaukee's motion, and presented to this court as part of Milwaukee's exhibits to its petition, states additional facts about the manner in which the accident occurred.   At the time of the accident, the side handle of the drill was resting on the top of his left forearm at the elbow, as he was holding the drill with his right hand and pushing into the iron that he was drilling.   When the drill bit locked up and the drill motor spun around, Vondrasek lost his balance and fell off the ladder.   He was unable to get his hand off of the drill because his wrist had become locked into position and he could not move his finger off the trigger.

In Vondrasek's opposition to Milwaukee's motion for summary adjudication, he elected to treat Milwaukee's motion as presenting a pure question of law:  whether the doctrine of RIAR was applicable in this products liability setting.   Vondrasek therefore did not submit any declarations addressing the issue of whether the drill was defective in design, instead relying on an argument that even if implied assumption of the risk were applicable with respect to products liability claims, it would be a question of fact for the jury to determine.

At the hearing on the motion for summary adjudication, the trial court first granted Milwaukee's motion that the second cause of action for negligence should be summarily adjudicated against Vondrasek, on the authority of Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, holding that RIAR applied to this cause of action and was a total bar to recovery, since Vondrasek's deposition showed he reasonably assumed the risk of injury.  (See fn. 1, ante.)

In the portion of the ruling we review, the trial court denied the motion for summary adjudication as to the first cause of action for strict liability and the third cause of action for breach of express and implied warranty on the basis that the doctrine of RIAR did not apply to those claims under Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, and there was no later authority cited to show that the doctrine should bar plaintiff's claims.   After disposing of Mrs. Vondrasek's loss of consortium claim (see fn. 1, ante ), the court declined to rule on Milwaukee's request for summary adjudication of Liberty Mutual's complaint in intervention because the arguments on that issue were not considered by the court (because they appeared in points and authorities of an excessive length under San Diego Superior Court Local Rule No. 4.1, subdivision (b)).

On Milwaukee's petition for writ of mandate and request for a stay of the trial date scheduled for October 15, 1991, this court issued the stay and set the matter for oral argument.   Additional briefing and amicus curiae briefing (Cal. Rules of Court, rule 14(b)) from the California Manufacturers' Association and the Association for California Tort Reform was obtained.

DISCUSSION

We issued the order to show cause why this petition for writ of mandate should not be granted because this issue of first impression meets several of the criteria for entitlement to relief by way of extraordinary writ:  the issue set forth in the writ petition is of widespread interest, there is a conflict in the law among the courts of appeal, and there is a potential for harm or prejudice to Milwaukee by requiring it to go through a trial if such is not warranted by the current state of the law on implied assumption of the risk.   (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274, 258 Cal.Rptr. 66.)   However, as will be explained below, we conclude the trial court's denial of the summary adjudication requested (that RIAR should bar Vondrasek's causes of action for strict products liability and breach of express and implied warranties) was correct, albeit not for the reasons stated.   Although we decline to grant the petition because we find triable issues of fact remain as to the application of the affirmative defense of RIAR, we are required to discuss the extent to which RIAR applies in a products liability context, not only for the guidance of the trial court and parties at further proceedings, but because of the unsettled nature of the law on this topic.

As a threshhold matter, we explain that, for purposes of our discussion here, we shall treat Vondrasek's two separate causes of action—strict products liability and breach of express and implied warranties—as equivalent, alternative methods of pleading the same basic theory of liability.   In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897, the Supreme Court rejected contract and warranty theories as a basis for liability for an injury caused by a product.  “Strict liability ․ did not rest on a consensual foundation but, rather, on one created by law.   The liability was created judicially because of the economic and social need for the protection of consumers in an increasingly complex and mechanized society, and because of the limitations in the negligence and warranty remedies.”  (Daly v. General Motors Corp., supra, 20 Cal.3d 725, 733, 144 Cal.Rptr. 380, 575 P.2d 1162, citing Greenman v. Yuba Power Products, Inc., supra.)   Because of the close relationship of Vondrasek's two theories of liability (Rest.2d Torts, § 402A, com. m), we discuss these two concepts together in connection with the assertion of an affirmative defense of RIAR.

I

Before applying the theory of RIAR to products liability claims, we are first required to define our terms and trace the general development of the doctrine of implied assumption of the risk (IAR).   There are two varieties of the defense of IAR, as explained by the Supreme Court in Li v. Yellow Cab Co., supra, 13 Cal.3d at pages 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226, in reliance on the language of Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245–246, 53 Cal.Rptr. 545, 418 P.2d 153:

“ ‘To simplify greatly, it has been observed ․ that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence․   Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.   Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.’  [Citations.]”  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226, second and third italics added.)

The modern view, as stated in Ordway v. Superior Court, supra, 198 Cal.App.3d at pages 102–105, 243 Cal.Rptr. 536, concludes that reasonable implied assumption of the risk survives Li, and sets forth this approach:

“The correct analysis is this:  The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event.   Where no duty of care is owed with respect to a particular mishap, there can be no breach;  consequently, as a matter of law, a personal injury plaintiff who has voluntarily—and reasonably—assumed the risk cannot prevail.   Or stated another way, the individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care.”  (Ordway v. Superior Court, supra, 198 Cal.App.3d at p. 104, 243 Cal.Rptr. 536.)

 Commentators have relabeled this distinction between “reasonable” and “unreasonable” IAR in terms of “primary” and “secondary” assumption of the risk.  (Harper, James & Gray, 4 The Law of Torts (1986) § 21.0, p. 190;  see also Rosenlund, Once a Wicked Sister:  The Continuing Role of Assumption of Risk Under Comparative Fault in California (1986) 20 U.S.F.L.Rev. 225, 233–234 and Frizell, Assumption of Risk in California:  It's Time to Get Rid of It (1989) 16 Western St.U.L.Rev. 627, 629–631.) 3  As usually defined, “primary” assumption of the risk operates to impliedly relieve a defendant of any duty of care by the plaintiff's acceptance of a known risk or danger.   (See Nelson v. Hall (1985) 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668.)   In applying the affirmative defense of “primary” assumption of the risk, the inquiry focuses on the plaintiff's knowledge of the magnitude of the risk undergone, and his or her voluntariness in choosing to enter or to remain in the zone of known danger.  (Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 270–271, 32 Cal.Rptr. 193, 383 P.2d 777.)

 In contrast, “secondary” assumption of the risk is a variant of contributory negligence.   The focus in applying that affirmative defense (secondary assumption of the risk) is on the plaintiff's failure to exercise due care, measured by an objective, reasonable person standard.  (See Rest.2d Torts, § 496A, com. d;  6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1104, pp. 516–517;  Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 105–106, 243 Cal.Rptr. 536.)4

Although the analysis by the court in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536, focused on the effect of RIAR in reducing the defendant's duty of care “in proportion to the hazards attendant to the event,” since RIAR is an affirmative defense, a more traditionally correct approach would be to remove the focus from duty and place it on causation.5  Justice Traynor foreshadowed this approach in The Ways and Meanings of Defective Products and Strict Liability (Traynor (1965) 32 Tenn.L.Rev. 363, 371 (1965)), where he made the following comments in comparing the disclosure of implied warranties to assumption of the risk in a products liability context:

“Were a consumer deemed to assume all commonly known risks, we would come full circle round to the problems generated by the disclaimer of warranty in the implied warranty cases.   A consumer compelled to assume the risks of the products he uses would be denied recovery in the face of the public policy that holds the manufacturer liable for some of the injuries caused by his products.   The role of assumption of the risk in products liability cases is properly a limited one.   It applies only to actions of the consumer that shift the blame from the manufacturer to him.   Thus, courts require the plaintiff to show that he made “normal use” of the product.   Moreover, if the plaintiff understands the risk in a product, consents to take that risk, and continues to use the product, the harm thereafter incurred would seem to be self-inflicted, and the plaintiff would then be barred from recovery.”  (Traynor, The Ways and Meanings of Defective Products and Strict Liability (1965) 32 Tenn.L.Rev. 363, 371, fns. omitted, italics added.)

The usual method of pleading a cause of action for strict products liability includes a focus on the causation element:

“(1) [T]he product reached plaintiff without substantial change in its condition;  (2) the product was used in the manner intended;  and (3) plaintiff was injured as a result of a defect in the product, of which the plaintiff was not aware, making the product unsafe for its intended use.  [Citations.]”  (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 579, pp. 617–618, italics added.)

Similarly, the Restatement Second of Torts section 402A, comment m, suggests that “ ‘warranty’ must be given a new and different meaning if it is used in connection with this Section [discussing strict liability],” and deletes the contractual elements of a strict liability claim based on breach of warranty.   Causation in the theories of products liability warranty and strict products liability should therefore be treated alike, for purposes of analyzing RIAR.

II

In the watershed opinion of Daly v. General Motors Corp., supra, 20 Cal.3d 725, 742, 144 Cal.Rptr. 380, 575 P.2d 1162, the Supreme Court concluded that the system of comparative fault established by Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 applies to actions founded on strict products liability.  “In such cases the separate defense of ‘ assumption of risk,’ to the extent that it is a form of contributory negligence, is abolished.”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 741, 144 Cal.Rptr. 380, 575 P.2d 1162, italics added.)   Since Daly and Li, the Courts of Appeal have struggled with the issue of the extent of this judicial abolition of the separate defense of assumption of risk.   While one Court of Appeal, in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 169–171, 191 Cal.Rptr. 578, concluded RIAR has been abolished by Li, the majority of courts which have considered the issue have decided otherwise, led by the opinion in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536.  (See, e.g., Nelson v. Hall, supra, 165 Cal.App.3d 709, 211 Cal.Rptr. 668, King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 253 Cal.Rptr. 140, Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1, Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755;  for out-of-state authority, see Annot., Comparative Negligence—Assumption of Risk (1982) 16 A.L.R.4th 700.)

In addition, the Supreme Court has granted review of a group of cases presenting the issue of the applicability of RIAR in numerous factual contexts, including recreational activities (water skiing, offroad racing, softball, horseback riding, touch football, hockey), as well as a number of employment-related activities (tree trimming, veterinary practice, fire inspection, and security guard services).6  However, from an order of the Supreme Court dated September 4, 1991 (vacating the submission of the cause and soliciting further briefing in the Ford v. Gouin (ante, fn. 6) matter on the survival of the defense of assumption of the risk, “or the manner in which it has been assimilated into the comparative fault system, in the specific context of an action between co-participants in sports and other recreational activities”), it appears that the forthcoming Supreme Court opinion on this matter may be restricted in application to the recreational and sporting context.   We have accordingly proceeded in this case to consider the application of the affirmative defense of RIAR in this non-recreational, employment-related context, with attention to the particular products liability theories asserted.

 As early as Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, the goal of strict products liability law was “to place the burden of loss on manufacturers rather than ‘․ injured persons who are powerless to protect themselves․’  [Citations.]”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 736, 144 Cal.Rptr. 380, 575 P.2d 1162, citing Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897.)   Combining this concept with the concept of assumption of risk, where a voluntary choice by a person to encounter a particular risk is implied, presents a theoretical problem.   As usually defined, reasoned (reasonable) implied assumption of risk is an affirmative and limited defense which applies only “when the accident arises from a danger known to the victim before the accident, and where the evidence shows that the victim voluntarily chose to enter or to remain in the zone of known danger.   Actual, and not merely constructive, knowledge of the danger is required․   Contributory negligence arises when the plaintiff fails to exercise due care.   Assumption of risk arises regardless of the degree of care used.   It is based, fundamentally, on consent.   Contributory negligence is not.”  (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 270–271, 32 Cal.Rptr. 193, 383 P.2d 777, italics added.)   The definition of RIAR therefore implies a power to choose, which is inconsistent with the concept of injured persons who are powerless to protect themselves, such as the law of strict products liability is intended to protect.

 Fortunately for the purposes of analysis, our Supreme Court has not hesitated to apply concepts developed in the field of negligence law, such as assumption of the risk, to the context of strict liability, to achieve a “just and equitable result.”  (Daly v. General Motors Corp., supra, 20 Cal.3d 725, at pp. 736–737, 144 Cal.Rptr. 380, 575 P.2d 1162;  see Anderson v. Owens–Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002, 281 Cal.Rptr. 528, 810 P.2d 549.)   Our task, therefore, as guided by the Supreme Court's approach in Daly is “to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine would be defeated or diluted” by application of the well-established defense of RIAR.  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 736, 144 Cal.Rptr. 380, 575 P.2d 1162.)

In its reconciliation of negligence principles and strict liability, extending the comparative fault system to actions founded on strict products liability (Daly v. General Motors Corp., supra, 20 Cal.3d at pp. 734–737, 144 Cal.Rptr. 380, 575 P.2d 1162), the Supreme Court retained a distinction between the two forms of the defense of assumption of the risk:  one is akin to a variant of contributory negligence, and is merged into the general scheme of assessment of liability in proportion to fault (id. at p. 735, 144 Cal.Rptr. 380, 575 P.2d 1162), and one by definition (“․ to the extent that [assumption of the risk] is a form of contributory negligence, [it] is abolished”) (id. at p. 742, 144 Cal.Rptr. 380, 575 P.2d 1162) does not share those characteristics.

The Supreme Court in Daly went on to contrast the traditional affirmative defenses of “unreasonable” and “reasonable” implied assumption of the risk, by endorsing the proposition stated in its earlier opinion, Luque v. McLean (1972) 8 Cal.3d 136, 145, 104 Cal.Rptr. 443, 501 P.2d 1163:  Although “most forms of contributory negligence do not constitute a defense to a strict products liability action, plaintiff's negligence is a complete defense when it comprises assumption of risk.  [Citing Luque;  Rest.2d Torts, § 402A, com. b.]”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 733, 144 Cal.Rptr. 380, 575 P.2d 1162, see also p. 738, 144 Cal.Rptr. 380, 575 P.2d 1162.)   The Supreme Court also (with reference to the comparative fault system) reiterated the principle:

“However, we do not permit plaintiff's own conduct relative to the product to escape unexamined, and as to that share of plaintiff's damages which flows from his own fault we discern no reason of policy why it should, following Li, be borne by others.”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 737, 144 Cal.Rptr. 380, 575 P.2d 1162.)

From this language, we believe this general principle also obtains in the strict liability context, that injury directly attributable to a plaintiff's own actions may support the assertion of the affirmative defense of RIAR, which must then be factored into the causation analysis by the jury.   (See, e.g., Baker v. Chrysler Corp., supra, 55 Cal.App.3d 710, 717, 127 Cal.Rptr. 745.)   Obviously, the Supreme Court in Daly intended that the law should continue to recognize that a particular plaintiff's conduct might not amount to only “negligent” assumption of risk.   Instead, the earlier authority, such as Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271, 32 Cal.Rptr. 193, 383 P.2d 777 which recognized that knowing and intelligent assumption of the risk was based fundamentally on consent, was left in place to support this affirmative defense in proper fact situations.

We find support for our conclusion that the doctrine of RIAR survives the adoption of the comparative fault system, even in the strict products liability context, in a “dog bite” case, Nelson v. Hall, supra, 165 Cal.App.3d 709, 211 Cal.Rptr. 668.   Assumption of the risk is a defense to strict liability for injuries caused by a dangerous animal.  (Id. at p. 713, 211 Cal.Rptr. 668.)   The survival of the “fireman's rule” in the employment context (Walters v. Sloan (1977) 20 Cal.3d 199, 204, 142 Cal.Rptr. 152, 571 P.2d 609, and Lipson v. Superior Court (1982) 31 Cal.3d 362, 368, 182 Cal.Rptr. 629, 644 P.2d 822:  one who has knowingly and voluntarily confronted a hazard presented by the “very nature” of the work cannot recover for injuries sustained thereby) provides additional support for our conclusion that the Supreme Court in Li and Daly did not intend to abolish the doctrine of IAR entirely.

With regard to Vondrasek's alternative theory of breach of warranty, the viability of the affirmative defense of RIAR is well supported by the language of BAJI No. 9.83, Effect of Use After Defect Is or Should Be Known,7 instructing that no recovery of damages for breach of warranty may be had by a person who used a product after learning of its alleged defect, unless it is found that a reasonable person would have used the product despite knowledge of that defect or condition.   This jury instruction sets forth similar elements of RIAR as have been established in negligence cases:  a known risk or danger, which was voluntarily assumed by the plaintiff, thus relieving the defendant of liability for any breach of warranty.  (See Annot., Products Liability—Implied Warranty (1965) 4 A.L.R.3d 501;  Annot., Strict Products Liability—Defenses (1972) 46 A.L.R.3d 240.)

III

 Having concluded that the Supreme Court left the door open to defendants in strict products liability actions to continue to assert the affirmative defense of RIAR, we consider whether the trial court correctly ruled as a matter of law that RIAR did not bar Vondrasek's causes of action for strict liability and breach of warranty.   In evaluating the ruling on summary adjudication, we consider whether Vondrasek's usage of Milwaukee's tool, in the manner that he did, may constitute his implied agreement to reduce the duty of care owed him by Milwaukee.  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226.)

It is not disputed that Vondrasek was an experienced tradesman who had used power tools, specifically drills, for many years.   Vondrasek had experienced the “binding up” of the drill during use some 20 to 30 times before the accident occurred.   Just before his injury, he had released his left hand from the drill's side handle to hold onto a mullion on the building;  he was resting the side handle of the drill on his left elbow while pushing the drill as hard as he could with his right hand.   He was familiar with the written instruction manual for the drill which told the reader to “Always use side handle to maintain safe control.”   The warning label usually attached to this model drill stated:  “WARNING—HIGH ROTATING FORCE.   ALWAYS USE SIDE HANDLE AND HOLD OR BRACE SECURELY TO PREVENT PERSONAL INJURY OR DAMAGE TO THE TOOL․”   Although Vondrasek was not “holding” the side handle when the accident occurred, a jury might find he was “using” it by bracing it on his elbow.

To evaluate these facts for purposes of deciding as a matter of law whether the affirmative defense of RIAR should be available, we are required to assess the degree of the injured plaintiff's subjective awareness of the risk to be encountered.  “The doctrine [of assumption of risk] requires knowledge of the particular risk and appreciation of its magnitude.  [Citations.]”  (6 Witkin, Summary of Cal.Law, supra, § 1106, p. 519.)   However, “assumption of the risk does not require ‘the clairvoyance to foresee the exact accident and injury which in fact occurred.’  [Citation.]   The only knowledge required is that an injured plaintiff be aware that he is placing himself in danger.”   (Baker v. Chrysler Corp., supra, 55 Cal.App.3d at p. 718, 127 Cal.Rptr. 745.)

Historically, California courts have recognized the difficulty of a user or consumer of a product in evaluating the soundness of the product.   In Justice Traynor's concurring opinion in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 467, 150 P.2d 436, he stated:

“Manufacturing processes ․ are ordinarily inaccessible to or beyond the ken of the general public.   The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks.  [Citations.]   Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trademark.  [Citations.] ․   The manufacturer's obligation to the consumer must keep pace with the changing relationship between them․”  (Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d at p. 467, 150 P.2d 436.)

Similarly, in Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 671–672, 117 Cal.Rptr. 1, 527 P.2d 353, a post-Luque (supra, 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163) and pre-Li (supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226) case, an action for damages for strict liability in tort alleging that a crane was defective in design, the Supreme Court reversed a defense verdict for instructional error, and held inter alia that the evidence raised issues of fact on whether the plaintiff's decedent assumed the risk of harm in the product manufactured by defendant, because of the way in which the accident happened.   The Supreme Court also noted that “the necessities of the [plaintiff's] employment may be considered by the jury in deciding whether he proceeded unreasonably in using the product.”   (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d at p. 672, fn. 11, 117 Cal.Rptr. 1, 527 P.2d 353.)

In King v. Magnolia Homeowners Assn., supra, 205 Cal.App.3d 1312, 253 Cal.Rptr. 140, where the injured party was a workman (an independent contractor who had fallen off a ladder attached to a building), the Court of Appeal considered whether an employee in general has the ability to protect him- or herself from injury:  “Thus the courts will not permit the defense of assumption of the risk in those situations where the plaintiff is in a class of persons unable to protect themselves.   Most of the applications of this principle involve employees.”  (Id. at p. 1317, 253 Cal.Rptr. 140.)   However, the court affirmed a summary judgment in favor of the land-and ladder-owner, holding the plaintiff workman had “elected to assume the risk” (ibid.) of climbing on a ladder he knew from his experience to be defective, and had failed to show he was not free to refuse to do the work after discovering the risk in the ladder.

A treatise writer has made similar observations:

“[T]here is power in the idea that assumption of risk is a distinct defense, particularly in products liability cases.   The Restatement [of Torts (2d ed. 1965) section 402A, comment n] effectively bolsters this position with its formulation of the concept of unreasonable and voluntary confrontation with a known risk.   There is, indeed, considerable intuitive appeal in the idea that inadvertent user conduct should be distinguished from voluntary encounters with known risks․

“․

“The decisions in this area capture a kind of social intuition about what is fair in situations in which the plaintiff arguably has truly made a realistic choice.   This kind of intuition applies in cases of even short-term familiarity with a product, ․” (Shapo, The Law of Products Liability (2d ed. 1990) § 20.03[1], p. 20–20, fns. omitted;  id. (1992 supp.) § 20.03[5][b] [i], p. S20–5.)

With this background in mind, we conclude the papers presented to the trial court at Milwaukee's motion for summary adjudication disclose that triable issues of fact remain as to Vondrasek's subjective appreciation of the nature of the risk that he encountered in using the product, and the extent of his voluntary consent to relieve Milwaukee from either a duty of care to him regarding the product, or liability for any injury he might sustain in using the product.   The issue of assumption of the risk is a factual question for the jury.  (Baker v. Chrysler Corp., supra, 55 Cal.App.3d at p. 717, 127 Cal.Rptr. 745.)   Moreover, as noted by the authors of the Restatement Second of Torts section 496C, comment h, “The basis of assumption of risk is consent to accept the risk.   In order for assumption of risk to be implied ․ it must be such as fairly to indicate that the plaintiff is willing to take his chances.   Implied consent is consent which exists in fact, but is manifested by conduct rather than by words.”  (Ibid.)  The authors continue, “Since the interpretation of conduct is seldom so clearly indicated that reasonable men could not differ as to the conclusion, it is ordinarily a question for the jury whether what the plaintiff has done is a manifestation of willingness to accept the risk.”  (Ibid.)

At present, the record is insufficient to answer these questions:  Was the risk of injury that Vondrasek assumed in using the tool in the manner that he did a danger normally associated with the activity (use of the tool)?   Did Vondrasek's manner of use of the tool and its side handle create added dangers for which the manufacturer should not be responsible?   Did the “necessities of the [plaintiff's] employment” (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d at p. 672, fn. 11, 117 Cal.Rptr. 1, 527 P.2d 353) require or justify the manner of use of the drill at the time of injury?   Do these facts support a jury instruction along the lines of BAJI NO. 9.71, Effect of Improper Use? 8  These are jury questions:  evaluating Vondrasek's actions to decide whether he manifested willingness to accept the risk of injury in the manner that it occurred.

IV

Because we find that triable issues remain as to the application of the doctrine of RIAR to Vondrasek's claims for strict products liability and breach of warranty, the issues raised by Liberty Mutual's complaint and intervention must likewise remain unresolved at this stage of the proceedings.   For the guidance of the superior court, we reiterate that although we deny Milwaukee's petition for writ of mandate, we hold that in a proper case, the affirmative defense of reasoned (reasonable) implied assumption of the risk may as a matter of law bar recovery for damages on theories of strict products liability or breach of warranty.   In further proceedings, facts may be developed that may justify the use in this case of a jury instruction or special verdict on the applicability of RIAR.

In conclusion, a word on the troublesome procedural context of this case:  As we noted in footnote 1, ante, Vondrasek has not sought extraordinary relief from the portion of the trial court's order granting Milwaukee's motion for summary adjudication and determining that RIAR bars the cause of action for negligence.   Under Code of Civil Procedure, section 437c, subdivision (1), such a cross-petition for mandamus could have been brought to challenge the granting of that part of the motion;  during the five months that this matter has been pending in this court, no such action was taken.   We can only assume, therefore, that Vondrasek has made a tactical decision to seek trial only on the strict products liability and breach of warranty claims.

In recognizing this procedural state of affairs, we do not mean to imply that there is any doctrinal reason for treating any of Vondrasek's three theories of liability differently, with respect to the assertion of the affirmative defense of RIAR.   The same facts gave rise to each alternative theory and to the affirmative defense pled.   However, since Milwaukee's petition only addressed the causes of action for strict products liability and breach of warranty, our discussion is likewise confined to those theories.

DISPOSITION

The petition is denied.   The stay is vacated.   Each party shall bear its own costs.

FOOTNOTES

1.   An additional real party in interest, Liberty Mutual Insurance Company (Liberty Mutual), seeks through its complaint in intervention (Lab.Code, § 3852) to recover worker's compensation benefits paid to Vondrasek after his injury.   Liberty Mutual joins Vondrasek in opposing Milwaukee's petition for writ of mandate.   An additional real party in interest, plaintiff Ramona Vondrasek, has not challenged the trial court's order summarily adjudicating that her claim for loss of consortium was without merit on the grounds that she and plaintiff Lawrence Vondrasek were not married at the time of his injury.We also note that Lawrence Vondrasek has not challenged the trial court's ruling on the motion for summary adjudication granting Milwaukee's request that the cause of action for negligence be adjudicated in its favor, on the basis that RIAR bars that claim.   However, Milwaukee's petition does not present any issue concerning the negligence claim for our consideration, and it is not before us in this writ, as we shall discuss in more detail in part IV, post.

2.   Milwaukee is a subsidiary of an additional defendant, Amstar, which prevailed in an earlier motion for summary judgment because it had no connection with this tool.

3.   A third form of assumption of the risk, not involved here, is express assumption of risk, usually found in exculpatory contracts or releases.  (See Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 236 Cal.Rptr. 181.)

4.   The court in Ordway (supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536) made the observation that in some ways, the traditional rubrics of “reasonable implied assumption of risk” and “unreasonable implied assumption of the risk” are misleading.   As usually described, “reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger.   A second variety of implied assumption of risk is labeled unreasonable.  [Citation.]”  (Id. at p. 102, 243 Cal.Rptr. 536.)   In the court's view, a better term for RIAR would be “knowing and intelligent” assumption of the risk, with the “unreasonable” variety better labeled “negligent or careless” assumption of the risk.  (Id. at p. 105, 243 Cal.Rptr. 536.)   We agree that in discussing the affirmative defense of RIAR, the meaning to be understood from that term is that a plaintiff has “knowingly and intelligently” agreed to undertake a certain risk.   Accordingly, we suggest that a less misleading formulation of the concept would be “reasoned” implied assumption of the risk (thus preserving the useful and accepted acronym for this subject).

5.   Generally speaking, “the existence of a legal duty on the part of a person in the defendant's situation to the class of persons of which the plaintiff is a member ․ is primarily for the court to determine, ․” (6 Witkin, op. cit. supra, § 748, p. 83.)   In contrast, determinations of causation and contributory fault are factual questions.   (Op. cit. supra, see also § 749, pp. 86–87.)   Assumption of risk is normally treated as a question of fact for the jury.  (Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 712, 127 Cal.Rptr. 745.)

6.   Ford v. Gouin (1990) 234 Cal.App.3d 684, 266 Cal.Rptr. 870 review granted May 23, 1990 (S014828);  Harrold v. Rolling J Ranch (1990) 235 Cal.App.3d 54, 266 Cal.Rptr. 734 review granted May 23, 1990 (S014818);  Knight v. Jewett (1990) 232 Cal.App.3d 1142, 275 Cal.Rptr. 292 review granted February 14, 1991 (S019021);  Cohen v. McIntyre (1991) 233 Cal.App.3d 201, 277 Cal.Rptr. 91 review granted March 14, 1991 (S019527);  Krol v. Sampson (1991) 234 Cal.App.3d 579, 278 Cal.Rptr. 164 review granted May 2, 1991 (S020188);  Hacker v. City of Glendale (1991) 235 Cal.App.3d 157, 279 Cal.Rptr. 371 review granted June 20, 1991 (S020643);  Donohue v. San Francisco Housing Authority (1991) 1 Cal.App.4th 1231, 281 Cal.Rptr. 446 review granted August 15, 1991 (S021823);  Maehl v. O'Brien (1991) 2 Cal.App.4th 1034, 283 Cal.Rptr. 23 review granted October 17, 1991 (S022310);  Van Meter v. American Motors Sports Assn. (1991) 234 Cal.App.3d 707, 278 Cal.Rptr. 288 review granted May 2, 1991 (S020270);  Johnson v. Careercom Corp. (July 25, 1991) C007943 [nonpub. opn.], review granted October 17, 1991 (S022718);  Sudlow v. K–Mart Corporation (April 1, 1991) B051973 [nonpub. opn.], review granted June 20, 1991 (S020901);  Galardi v. Seahorse Riding Club (Apr. 1, 1991) B051973 [nonpub. opn.], review granted July 11, 1991 (S021122);  Grenon v. Armitage (May 30, 1991) D011384 [nonpub. opn.], review granted August 15, 1991 (S021976).

7.   BAJI No. 9.83 reads as follows:  “One who seeks recovery for breach of warranty may not recover damages for injuries [proximately] [legally] caused by use of a product which occurred after the person learned of the defect or condition which is claimed to constitute a breach of warranty, unless you find that under the particular circumstances a person of ordinary prudence would have used the product despite knowledge of such defect or condition.  [¶]  Nor may a party recover for injuries [proximately] [legally] caused by use of the product which occurred after such defect could have been discovered by the party in the exercise of ordinary care, unless you find that under the circumstances a person of ordinary prudence would have used the product without such inspection as would have revealed the defect.  [¶]  However, a party may recover for injuries [proximately] [legally] caused by a breach of warranty before the defect or condition constituting the breach was discovered or could have been discovered by the party in the exercise of ordinary care.”  (See also White & Summers, Cal.U.Com.Code (3d ed. 1988) § 11–8, pp. 542–543.)

8.   BAJI No. 9.71 reads as follows:  “Any warranty of the goods involved in this case was based on the assumption that they would be used in a reasonable manner appropriate to the purpose for which they were intended.   If you should find that whatever injury or damage the plaintiff suffered in this case resulted solely from plaintiff's improper use of the goods involved, then plaintiff cannot recover damages for breach of warranty.”

HUFFMAN, Acting Presiding Justice.

FROEHLICH, J., concurs. NARES, J., concurs in the result.

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