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Court of Appeal, First District, Division 3, California.

Jesse JIMINEZ, Plaintiff and Respondent, v. SEARS, ROEBUCK & COMPANY and Larson Ladder Company, Defendants and Appellants.

Civ. 25659.

Decided: September 17, 1970

Channell, McNamara & Lewis, Walnut Creek, for appellants. Goodman, Herbert & Lucas, Fairfield, for respondent.

This is an action by Jesse Jiminez (respondent) for personal injuries suffered by reason of his use of a stepladder sold to him by appellant Sears, Roebuck and Company (hereafter Sears) and manufactured by appellant Larson Ladder Company. The jury's verdict was in favor of both defendants Sears and Larson Ladder Company. This appeal is from the trial court's order granting a new trial.

The sole issue on appeal is whether the trial court erred in failing to instruct the jury on negligence and the doctrine of res ipsa loquitur under the facts hereinafter related.

In 1964 respondent purchased a steplader from appellant Sears. A year later respondent, in attempting to place some Christmas presents in an attic in his garage, climbed the ladder while carrying a toy in his hands. This occurred on a rainy day and respondent's shoes were muddy while using the ladder. While standing on the first step from the top, he fell, landing on top of the ladder, incurring a fractured wrist. A few days prior to his fall respondent had attempted to use the ladder to prune some trees in his yard. The ladder was produced at the trial disclosing that it had a broken left side rail. Traces of mud were still on the ladder from its use in the yard.

Respondent produced expert evidence by an engineer that the ladder did not comply with the standards of the American Standard Safety Code in that it did not have the required nails in each step; that the notch placed for each step was cut more deeply than permitted by the code, and the wood was not of the required density.

There was conflicting evidence. On behalf of appellants, expert witnesses testified that the ladder satisfied all safety standards; that the notches were cut according to code, and that in the place of nails equivalents were used which were more effective for safety. Appellants' witness testified that the fracture in the ladder was caused by respondent's falling on it and that the prior use of the ladder on soil caused one leg of it to penetrate further than the other into the ground which placed an abnormal stress on the remaining legs.

The trial judge instructed the jury on the theory of strict liability.

It is argued by appellants that respondent voluntarily withdrew his negligence instructions while respondent contends that the court refused to instruct the jury on this theory of the case.* We have determined that it is immaterial whether these instructions were ‘withdrawn’ as opposed to ‘refused’ and that the trial court properly instructed the uury on struct liability. Further, under the facts before us, refusing to instruct on the negligence theory would not have been improper.

We note at the outset that the granting or denying of a motion for new trial rests within the discretion of the trial court, and appellate courts will not interfere unless there is an affirmative showing of a gross, manifest, or unmistakable abuse of discretion. (McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, 707, 343 P.2d 923; Malkasian v. Irwin, 61 Cal.2d 738, 747, 40 Cal.Rptr. 78, 394 P.2d 822; Weinman v. Gray, 206 Cal.App.2d 817, 820, 24 Cal.Rptr. 189; State of Cal. ex rel. Dept of Water Resources v. Natomas Co., 239 Cal.App.2d 547, 566, 49 Cal.Rptr. 64; Massei v. Lettunich, 248 Cal.App.2d 68, 74–75, 56 Cal.Rptr. 232; Girch v. Cal-Union Stores, Inc., 268 Cal.App.2d 541, 549, 74 Cal.Rptr. 125.)

However, when a motion for a new trial is granted on the basis, as is the case here, that the court erred in refusing to give a particular instruction, the only determination to be made by an appellate court when called upon to review the order is whether the refusal to instruct was in fact error. (Gillingham v. Greyhound Corp., 263 Cal.App.2d 564, 569, 69 Cal.Rptr. 728.) If no error resulted from the refusal to instruct, and no other grounds exist upon which to predicate the new trial, the order granting the new trial must be reversed. Also, even when there is error, a new trial should not be granted unless prejudice is clearly shown. (Cal.Const. art. VI, § 13; Adkins v. Lear, Inc., 67 Cal.2d 882, 921, 64 Cal.Rptr. 545, 435 P.2d 321.)

We cannot find, nor has there been demonstrated to us, how or in what manner respondent was prejudiced by the failure to instruct on the negligence theory.

We feel that to instruct a jury on both the theory of negligence and strict liability would be unnecessarily confusing to it.

In the article ‘Strict Liability to the Consumer in California’ (Prosser, 18 Hastings L.J., pp. 50–51), the author states: ‘The proof of strict liability for a defective product does not appear to differ in any significant respect from the proof of negligence. [Fn. omitted] In a negligence case the plaintiff has the initial burden of establishing three things. The first is that he has been injured by the product. This is no less true of strict liability. * * * The second is that the injury occurred because the product was defective; and this also is no less true of strict liability. * * * The third is that the defect existed when the product left the hands of the defendant; and this again is no less true of strict liability. * * *’ (See also Rest.2d, Torts, §§ 281, 402A, for the comparison of the elements necessary to establish strict liability and those for a negligent act.)

In the case before us there is no issue on the question that the defect, if any, in the ladder existed when the product left the hands of the manufacturer, and that it came into possession of respondent unchanged in any respect. Thus, all that was necessary to be proven by respondent was that there was a defect. Under a negligence theory, it would also be necessary for him to establish that the defect was the result of come negligence on the part of the retailer or the manufacturer. It is true that under the negligence theory respondent may have been entitled to further instructions on the doctrine of res ipsa loquitur. There is doubt as to the propriety of that instruction under the facts where the issue of nefligence is not present. Here it was a simple question as to the presence or absence of a defect. Appellants conceded full responsibility for its manner of construction but maintained that there was no defect.

It is apparent that proceedings under the theory of strict liability are preferable to proceedings under a negligence theory for plaintiffs. To recover for negligence the plaintiff must prove everything required for strict liability (i. e., a defect, proximate cause, damages, etc.), in addition to proving that whatever defect existed in the product was the result of the defendant's negligence. Negligence in causing the defect is not required to be prven for recovery under strict liability.

There is also no claim that appellants were negligent in failing to provide instructions on the care and use of the ladder to insure safe operation. (See Skaggs v. Clairol Inc., 6 Cal.App.3d 1, 85 Cal.Rptr. 584.) Although an instruction on this subject was originally submitted by respondent, it too bears the notation ‘withdrawn’ and appears to have been abandoned.

Thus, it is apparent that if the jury found in favor of the defendants-appellants after having been instructed on strict liability, no prejudice could possibly have inured to respondent-plaintiff from the failure to instruct on ordinary negligence as an additional theory of liability. In finding for the appellants herein, the jury necessarily determined (1) that there was no defect in the ladder when it left the hands of either appellant Sears, or the manufacturer, Larson Ladder Company, or (2) if a defect did exist, it was not the proximate cause of respondent's injury, of (3) that the respondent-plaintiff had used the ladder for purposes which placed an abnormal stress on its parts. (See also Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897; Vandermark v. Ford Motor Company, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168.) An unfavorable finding on any one of the above would likewise preclude a verdict in favor of the respondent on a theory of negligence.

We have concluded that the trial court did not err in failing to instruct on a neglience theory of liability. It was also not error for the court to refuse instructions on the doctrine of res ipsa loquitur.

It is established that an instruction on res ipsa loquitur is not applicable to a cause of action based upon strict liability. (McCurter v. Norton Co., 263 Cal.App.2d 402, 408, 69 Cal.Rptr. 493; Tresham v. Ford Motor Co., 275 A.C.A. 456, 460–461, 79 Cal.Rptr. 883, hear. den.) Any alleged defect in a product, however, may be established by circumstantial evidence. (Vandermark v. Ford Motor Co., supra, 61 Cal.2d at 260, 37 Cal.Rptr. 896, 391 P.2d 168; Ericksin v. Sears, Roebuck & Co., 240 Cal.App.2d 793, 799, 50 Cal.Rptr. 143; Garcia v. Halsett, 3 Cal.App.2d 319, 326, 82 S.Ct. 420.)

Respondent relies on Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 55 Cal.Rptr. 94; Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168; and Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229, in contending that he was entitled to instructions on negligence and res ipsa loquitur.

In Gherna v. Ford Motor Co., supra, the court stated that it was error for the trial court to grant a nonsuit for the reason that the evidence disclosed that a recovery could have been predicated upon either a theory of strict liability or neglience. The negligence referred to, however, was negligence on the failure to warn of dangerous propensities of the transmission of an automobile in its use under certain conditions. In Gherna the court said 246 Cal.App.2d at page 651, 55 Cal.Rptr. at page 102: ‘[A] product, although faultlessly made, may nevertheless be deemed ‘defective’ if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning [citations].'

In the case before us any contention made to the effect that appellants were negligent in failing to issue an instruction on the use of the ladder was abandoned. As we have heretofore noted, these instructions were withdrawn by the parties.

In Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 260, 37 Cal.Rptr. 896, 391 P.2d 168, and in Pike v. Frank G. Hough Co., supra, 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229, the court merely held that it was error for the trial court to grant a nonsuit where under either theory of strict liability or negligence there was evidence on which a jury could predicate a verdict for the plaintiff. Neither case held that the mandatory instructions on both theories should be given in all cases.

In conclusion, it is the opinion of this court that if instructions on a theory of strict product liability are appropriate, instructions on a theory of negligence would be superfluous and confusing.

Our attention has not been directed to, and we cannot conceive of, a factual situation where a plaintiff might recover under a negligence theory while failing to recover under the doctrine of strict liability (assuming the latter theory to be applicable). We do not eliminate the possibility of circumstances where causes of action for both negligence and strict liability might be present as in those cases where there is strict liability for a structural defect in a product and also negligence in the failure to instruct in the safe and prudent use of the product. We have determined only that situation is not presently before us.

For the foregoing reasons, the order granting the new trial was error and the matter is therefore remanded to the trial court with directions to enter judgment in favor of appellents in conformity with the jury's verdict.


FOOTNOTE.  On the instructions in question, there is a notation that they were ‘withdrawn’ rather than ‘refused’.

HAROLD C. BROWN, Associate Justice.

DRAPER, P. J., and CALDECOTT, J., concur.

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