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SABICH v. OUTBOARD MARINE CORPORATION

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Court of Appeal, Third District, California.

Vladimir P. SABICH, Plaintiff and Respondent, v. OUTBOARD MARINE CORPORATION, Defendant and Appellant.

Civ. 14748.

Decided: July 29, 1976

Rust, Armenis & Matheny by David C. Rustand David I. Brown, Sacramento, for plaintiff and respondent. Bullen, McKone & McKinley by Stephen J. Gay, Sacramento, and Cyril Viadro, San Francisco, for defendant and appellant.

Defendant manufacturer appeals from the judgment after a jury verdict awarded plaintiff $600,000 compensatory and $1,254,000 punitive damages, for personal injuries suffered when a Cushman ‘Trackester’ all-terrain motor vehicle over-turned while descending a hill.

In summary, the facts established that the Trackster was designed by defendant to be capable of operation on grades of ‘45 degrees plus' and was so represented. In order to facilitate an ascent at this angle, however, the vehicle's center or gravity was shifted forward. The result was that it was unable to descend the same grade which (within its design performance specifications) it could ascend, without a serious likelihood of overturning forward. A decal on the dashboard warned the user: ‘Use caution when going down hills. Sudden stops on some grades could cause vehicle to tip forward.’

Roy Howarth, the vehicle's driver at the time of the accident, purchased it in June of 1971 from the Cushman dealer in Quincy, California; he relied upon the manufacturer's brochure which detailed the unit's specifications. Before the accident, the plaintiff too had read the manufacturer's brochure, as well as the owner's manual.

Howarth was a timber cutting contractor, and purchased the Cushman Trackster for both commercial and recreational use. He was familiar with tracked vehicles generally, and also had been given basic instruction of some 20 or 30 minutes on the operation of the Trackster. He was not informed of its downhill instability, except for what the might glean from the decal on the windshield. Prior to the accident, Howarth had operated the Trackster approximately 80 hours, was satisfied with it, and communicated this fact to the plaintiff. There was testimony that an operator such as Howarth, who had previously used tracked vehicles, would have become ‘an experienced operator’ after such a period of time.

Howarth had told the plaintiff that he would demonstrate the machine to him, and on the evening of July 10, 1971, Howarth and his wife went to visit with the plaintiff and his wife at the latter's rural area home. Howarth, with the plaintiff as his passenger, drove the Trackster along a jeep trail on the Sabich property for approximately one-quarter of a mile. Howarth then turned off the road and went up a hill. After going up grade for some distance, he made a gradual turn and slowly proceeded back down the hill. Sunset was approaching. It was not so dark as to require the use of headlights. Just after the vehicle passed over a small outcropping of granite, while plaintiff was leaning back in the seat bracing himself, it tipped forward end for end. Howarth jumped or was thrown free, but the plaintiff was pinned under the vehicle. Howarth freed the plaintiff and went for help.

The sloping hillside upon which the accident took place had underbrush and rocks scattered throughout. In the accident area itself the angle of the hill varied from approximately 38 degrees to 24 degrees over a span of 50 to 60 feet; the angle of the hill measured approximately 31 degrees just above the granite outcropping and 32 degrees below it. The outcropping itself had an angle of 38 degrees. At all times, the Trackster was being operated within its design specifications and upon the type of terrain on which it was designed to function.

I

Defendant's first assignment of error is that the trial court's instruction on the definition of ‘defect’ was erroneous. The instruction (hereinafter ‘Instruction No. 4’) was as follows:

‘A ‘defect’ as used in these instructions is a condition or conditions existing in an article of manufacture which is the proximate cause of injury to the user, using the article of manufacture in the way it was intended or expected to be used.'

The giving of this instruction was error. To define a ‘defect’ as a ‘condition . . . in an article of manufacture’ is to speak in terms of absolute liability. The sharp edge of a knife, by which a knife-wielder manages to cut himself, is a condition of the knife, but it is not in any was a defect. The 15 pound weight of the head of a sledgehammer is a condition of the hammer, but, in no way is it a defect as to a person who drops the hammer on his or another's toe. Similarly, the weight distribution of a motor vehicle is a condition of the vehicle, but it is not per se a defect as to an injured occupant.

Nor is the foregoing reasoning altered by the requirement that the ‘condition’ be a proximate cause of the injury. It is inconceivable that anyone should be held civilly liable for an injury which he did not cause, whether he be charged with negligence, intentional wrongdoing, or conduct giving rise to absolute liability. Proximate cause is invariably a sine qua non of any tort liability, including absolute liability. To say therefore that the proximate cause requirement of Instruction No. 4 is a limitation on the rule of liability it expresses is to do nothing more than redefine absolute liability and make it the governing consideration in the products liability field. This is of course not the law, as products liability has never been and is not absolute liability. (Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121, 133–134, 104 Cal.Rptr. 433, 501 P.2d 1153.)

It is argued by plaintiff that Instruction No. 4 must be read in the light of B.A.J.I. Instruction 9.00,1 which was also given; and that the two together fairly state the correct law on the subject. This is incorrect. B.A.J.I. 9.00 correctly told the jury it could find against the defendant if the Trackster had a defect: Instruction No. 4 then incorrectly defined a defect. There was nothing in B.A.J.I. No. 9.00 which in any was mitigated the erroneous mature of Instruction No. 4 (cf. Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 715–716, 127 Cal.Rptr. 745.)

In effect the court directed a verdict for the plaintiff on the issue of liability. The only way that this verdict can be sustained on appeal is by surviving review based upon the rules applicable to appellate review of directed verdicts. (See 4 Witkin, Cal.Procedure (2 ed. 1971) Trial, § 353, pp. 3152–3153.) That means that the evidence must be such as to require a reversal of a defense verdict if one had been obtained (ibid), for only thus can there have been no miscarriage of justice. (Cal.Const., art. VI, § 13.)

Plaintiff's expert, Donald Moon, testified that if a vehicle's center of gravity is at its horizontal center, it can ascend and descend a hill with equal facility and safety. But if the center of gravity is shifted forward or rearward, the vehicle will respectively ascend or descend with greater ease and conversely descend or ascend with greater difficulty. With the center of gravity forward, the vehicle will climb a steeper hill efficiently and safely, but cannot descend the same hill without a tendency to tip over. Moon stated that because the Trackster's center of gravity is forward, it is dangerous to the user; it will take him up a given steep hill safely, but having done so, it may not come down the same hill without overturning.

This evidence and opinion were not contradicted. Herbert Jesperson, who was Assistant Chief Engineer of Cushman Motors, a division of the manufacturer, Outboard marine Corporation, and also Senior Project Engineer in charge of the design and development of the Trackster, testified that it was designed to operate both upward and downward on ‘45 degree plus' terrain. He added, however, that in order to achieve ‘climbability,’ the vehicle's center of gravity was shifted forward,2 with the result that stability was traded off for climbability.

‘Q. [W]e're interested in where the center of gravity effectively operates dynamically if we want to go up a hill as opposed to level. We would put the center of gravity forward?

‘A. Yes.

‘Q. And, sir, you did that in this vehicle, didn't you?

‘A. Yes.

‘. . .

‘Q. Now . . . that meant that when this vehicle comes down some of the grades within its design capacity to go up, it will flip over forward?

‘THE WITNESS: Yes, it would flip over forward in an all-terrain vehicle.

‘. . .

‘Q. Within its design limitations it will in fact go up a hill, climb the same rocks, the same little logs, go over the same brush, and you can turn it right around and come down in it and it will flip over, won't it?

‘A. Yes. . . .

‘. . .

‘Q. [s]o that it's clear to the jury and me, when I asked you the question, you heard that, I said to you, that the vehicle, when it comes down the same grade that it could go up within its design criteria, can indeed flip over?

‘A. That is true . . ..’

Jesperson further testified that the accident happened on the type of terrain within which the Trackster was designed to operate. He also stated that the center of gravity was so critical that such things as the amount of fluid in the fuel tank and the movement of the passengers could substantially affect the stability and cause a tip-over.

We quote finally the following portion of Jesperson's testimony:

‘Q. And you were fully aware when this went into production if that vehicle be used within the design criterias [sic] in the specifications that it could in fact tip over coming down a slope?

‘A. Yes.

‘Q. Especially if the slope had rocks or logs on it?

‘A. Yes.

‘. . .

‘Q. And there isn't any question by the design that you made it does in fact; you traded off climbability for stability coming down hill, didn't you?

‘A. That is exactly right.’

Kirk Reimers, assistant to Jesperson, testified substantially in accord with the foregoing. The chief engineer of the Cushman Division, one Mr. Von Seggern, did likewise (by deposition). Thus the operative facts bearing upon the products liability question were not in dispute at the trial. The Trackster was an extremely efficient vehicle when ascending steep grades in rough terrain, but dangerous when descending the same grades because of a tendency to tip over forward.

No warning is found in the owners manual or on the vehicle directly alerting the purchaser to this propensity. In addition to the words of warning contained on the decal, the owners manual states: ‘USE EXTREME CARE WHEN ATTEMPTING TO STOP WHILE DESCENDING A STEEP INCLINE. THE VEHICLE CENTER OF GRAVITY CHANGES DRASTICALLY WITH THE CHANGE IN TERRAIN.’ At another point the manual states: ‘USE CAUTION WHEN OPERATING IN UNKNOWN TERRAIN. SNOW, WATER AND GRASS CAN HIDE STUMPS, LOGS AND HOLES.’ At yet another point, the manual reads: ‘USE CAUTION WHEN GOING DOWN HILLS. SUDDEN STOPS ON SOME GRADES COULD CAUSE VEHICLE TO TIP FORWARD.’ (The same warning as on the decal.) There is no warning statement that the vehicle has a tendency to tip over when descending hill slowly and without a stop involved.

In Midgley v. S. S. Kresge Co. (1976) 55 Cal.App.3d 67, 71, 127 Cal.Rptr. 217, 219, we stated:

‘The genesis of the rule of strict liability in products cases is found in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897 [13 A.L.R.3d 1049]. It is repeated substantially in the same form, with modifications not important here, in section 402A of the Restatement Second of Torts. In comment j to that section (p. 353), it is said: ‘In order to prevent the product from being unreasonably dangerous, the seller may be required to give direction or warning, on the container, as to its use.’ In the case of a product with dangerous characteristics not generally known, or, if known, not reasonably expected by a consumer to be found in the product, comment j requires the seller to give warning against the dangers ‘if [the seller] has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the . . . danger . . .. [¶] [A] product bearing such a warning, which is sage for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.’'

In view of the foregoing, no other verdict was legally correct than one in favor of plaintiff. The Trackster was dangerous in certain respects known to defendant. Its user was entitled to assume that it could descend 45 degree hills just as safely as it could ascend them, but this simply was not so. While warnings were given, they were equivocal at best; and did not reasonably convey to the consumer the danger with which he had to deal. The warnings advised caution when descending a hill, but limited the concern to sudden stops; the evidence shows that the vehicle was being driven very slowly (3 miles per hour) and was not in the process of stopping when it tipped over. The warnings as given, if adhered to literally, would not have resulted in any conduct on the part of the driver Howarth different from that in which he actually engaged and which brought about plaintiff's injury. The following excerpt from Jesperson's testimony laconically illustrates the inadequacy of the warning:

‘Q. Are you familiar with the warning on that sticker?

‘A. Yes.

‘Q. Do you know what the warning means?

‘A. In my own understanding, yes.

‘Q. In your own understanding, what does it mean?

‘A. It means drive slowly going down steep slopes.

‘Q. It means drive slowly going down steep slopes?

‘A. That is my interpretation.

‘Q. That is all it means in your interpretation?

‘A. Yes.’

The error in giving Instruction No. 4 was thus harmless. For the same reason, any conceivable error in the failure to warn instruction was also harmless.3

II

Defendant's next contention is that the court failed to instruct the jury that liability based upon fraud must be established by clear and convincing proof.

In addition to strict liability, plaintiff pleaded causes of action for fraudulent concealment and/or fraudulent misrepresentations. The jury was instructed that plaintiff was required to prove the elements of his fraud causes of action by a ‘preponderance of the evidence.’ Defendant claims that this was error because fraud must be proved by ‘clear and convincing’ evidence and the jury should have been so instructed.

The law on this subject appears somewhat confused. Witkin, California Evidence (2d ed. 1966) section 209, page 190, states: ‘In a few situations, for reasons of policy of the substantive law, the ordinary ‘preponderance of the evidence’ is not considered sufficient to establish the fact in issue, and instead the party must prove it by ‘clear and convincing evidence.’ In such cases, of course, the jury or trial judge should not be satisfied with a slight preponderance in favor of the plaintiff. [Citations.]

‘The phrase has been defined as ‘clear, explicit and unequivocal,’ ‘so clear as to leave no substantial doubt,’ and ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’ [Citation.] Otherwise stated, a preponderance calls for probability, while clear and convincing proof demands a high probability. [Citations.]' (Emphasis in original.)

As supplemented in 1974, Witkin's treatment of the subject as it relates to fraud is as follows: ‘The principal situations in which the courts have laid down the requirement of this higher degree of proof in civil cases are as follows:

‘. . .

‘(j) (New) Fraud. (See King etc. Corp v. King (1968) 259 Cal.App.2d 383, 396, 66 C.R. 330; but cf. Sierra Nat. Bank v. Brown (1971) 18 C.A.3d 98, 95 C.R. 742, Supp., supra, § 208 holding that King is inconsistent with controlling Supreme Court decision.)’ (Witkin, Cal.Evidence (4th ed. 1974) § 210, p. 288.)

Our first word from the Supreme Court on the subject came in 1861, when it stated: ‘Issues of fact in civil cases are determined by a preponderance of testimony; and this rule applies as well to cases in which fraud is imputed as to any other.’ (Ford v. Chambers (1861) 19 Cal. 143, 144.) The Supreme Court next spoke in Bullard v. His Creditors (1880) 56 Cal. 600, 601, where it disapproved of a jury instruction requiring evidence of the fraud to be ‘clear and satisfactory.’ Next, in Edmonds v. H. W. Wilcox (1918) 178 Cal. 222, 172 P. 1101, the principle was reaffirmed, though recognizing some prior inconsistent judicial expression. At pages 224–225, 172 P. at page 1102, the Edmonds court stated: ‘The court instructed the jury that the case must be decided according to the preponderance of the evidence. This is correct. [Citation.] This is the statutory rule in civil cases, and all judicial expressions concerning the necessity of clear and satisfactory proof of fraud must be construed in the light of the fundamental rule that preponderance of the evidence controls in a civil case. [Citation.]’ Noll v. Baida (1972), 202 Cal. 98, 100–101, 259 P. 433 followed, as well as Divani v. Donovan (1931), 214 Cal. 447, 452–453, 6 P.2d 247, both echoing the same principle.

Nothing more was heard from the Supreme Court until 1962, when Aggregates Associated, Inc. v. Packwood, 58 Cal.2d 580, 25 Cal.Rptr. 545, 375 P.2d 425, was decided. At page 588, 25 Cal.Rptr. at page 548, 375 P.2d at page 428 the court ruled: ‘While it is true that proof of fraud may, and must often be made by circumstantial evidence (Fross v. Wotton, 3 Cal.2d 384, 393, 44 P.2d 350), it remains true that actual fraud must be proved by clear and convincing evidence (United States Fid. & Guar. Co. v. Postel, 64 Cal.App.2d 567, 571, 149 P.2d 183). . . .’ (Emphasis added.) This is the last Supreme Court pronouncement regarding the burden of proof in fraud cases. Since then, Stearns v. Los Angeles City School Dist. (1966), 244 Cal.App.2d 696, 53 Cal.Rptr. 482, cited the Aggregates case and followed it. King etc. Corp. v. King, supra, in 1968, followed the Aggregates rule, without however referring to the Aggregates case. Santoro v. Carbone (1972), 22 Cal.App.3d 721, 728, 99 Cal.Rptr. 488, 492, both cited and followed the Aggregates rule, stating: ‘Defendant correctly states that fraud must be proved by clear and convincing evidence. (Aggregates Associated, Inc. v. Packwood (1962) 58 Cal.2d 580, 588 [25 Cal.Rptr. 545, 375 P.2d 425]; Evid.Code, § 115.) But it is the function of the trial court, not the reviewing court, to determine whether that standard has been met, and the trial court's determination of the issue is conclusive where, as here, it is supported by substantial evidence.’

Sierra Nat. Bank v. Brown, supra, went the other way, but its stated reasoning makes its holding open to serious question. It first erroneously designates Divani v. Donovan, supra, as ‘the latest expression of the Supreme Court . . . concerning the degree of proof required in a fraud case’ (18 Cal.App.3d at p. 105, 95 Cal.Rptr. at p. 747); then it concludes: ‘Naturally we are obliged to follow the decisional law of the Supreme Court of the state. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) The Supreme Court has clearly stated in Divani, Noll, Edmonds and Bull [fn. omitted] that a preponderance of the evidence is the degree of proof required in a fraud case.’ (18 Cal.App.3d at p. 106, 95 Cal.Rptr. at p. 747.) It is immediately apparent that the Sierra Court inadvertently overlooked the latest Supreme Court expression in Aggregates (cf. Neumeyer v. Crown Funding Corp. (1976) 56 Cal.App.3d 178, 184, 128 Cal.Rptr. 366), and that had it not done so, it would have reached a contrary result. (Auto Equity Sales, Inc., supra.)

The Book of Approved Jury Instructions (B.A.J.I.) committee in its 1975 supplement concluded that the preponderance of the evidence rule should apply, citing Edmonds v. Wilcox, supra, and Divani v. Donovan, supra, along with four Court of Appeal decisions, ending with Sierra Nat. Bank v. Brown. (B.A.J.I. 12.55.) But like the Witkin treatise, the committee took no notice of the Aggregates case; it also did not mention the contrary appellate court holdings.

Plaintiff supports the preponderance of the evidence claim by reference to the 1965 repeal of Code of Civil Procedure section 1963, subdivision 1 and section 2061, subdivision 5 and their replacement by Evidence Code sections 520 and 115. (See Sierra Nat. Bank v. Brown, supra; King etc. Corp. v. King, supra.) The argument is unpersuasive, both as presented by plaintiff and as applied in Sierra and King. The new statutes and the Law Revision Commission Comment to Evidence Code section 500 do not in any was indicate an intention to nullify the Aggregates rule; if any thing, they would seem to support it.

Nor are we impressed by the argument that the clear and convincing proof standard of Aggregates Associated, Inc. v. Packwood, supra, ‘states nothing more than a rule of evidence directed to the trial court; and if that court found that fraud is established by a preponderance of the evidence, a reviewing court must accept that determination’ (citing Chung v. Johnston (1954) 128 Cal.App.2d 157, 164, 274 P.2d 922, 926). If the proper standard is one of clear and convincing evidence, the trier of fact should be governed by it. The trier of fact in this case, the jury, was not so governed, having been instructed to apply the qualitatively lesser preponderance standard. Nothing can alter this fact.

Our own court has expressed a position in accord with the Aggregates case. In Carroll v. Dungey (1963) 223 Cal.App.2d 247, 253, 35 Cal.Rptr. 681, 685, we held: ‘The concept which must pervade our decision is stated in Beck v. Weather-Vane Corp., 185 Cal.App.2d 688, 693, 8 Cal.Rptr. 680: ‘The law is clear that in a fraud action the plaintiff must establish his case by clear and convincing evidence.’'

We deem ourselves obliged to follow our own precedent and that of the Supreme Court as most recently pronounced. Accordingly we hold that the trial court erred in its instruction on burden of proof in the fraud cause of action. The error was prejudicial. (See Vance v. De Long (1961) 191 Cal.App.2d 689, 691–692, 13 Cal.Rptr. 65.) It was not waived by failure to object thereto. (Code Civ.Proc., § 647.)

This error requires reversal of the punitive damage award.4 Accordingly, defendant's remaining contentions relating to punitive damages require no discussion. Since we have determined however that plaintiff as a matter of law was entitled to compensation for his injuries, and therefore that the compensatory damage award should not be reversed, we shall address the remaining contentions of defendant pertaining to it.

III

Defendant assigns as error the trial court's refusal to take judicial notice of the B.A.J.I. ‘present value’ tables. At defendant's request after all the evidence was in, the trial court gave B.A.J.I. 14.70, which states:

‘Any award for future pecuniary loss must be only for its present cash value.

‘Present cash value is the present sum of money which, together with the investment return thereon when invested so as to yield the highest rate of return consistent with reasonable security, will pay the equivalent of lost future benefits at the times, in the amounts, and for the period that you find such future benefits would have been received.

‘The present cash value will, of course, be less than the amount you find to be the loss of such future benefits.’

Since neither party had presented any expert testimony as to ‘the highest rate of return consistent with reasonable security,’ however, the trial court refused to take judicial notice of any ‘present value’ tables for submission to the jury.

Having received the request for a present value instruction only after the close of all the evidence, the trial court had discretion to refuse it in its entirety. (Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 613, 102 Cal.Rptr. 31.) Counsel for defendant did not submit a proposed instruction which included a present value table; in fact he requested such a table orally only moments before arguments were to commence, and then in a manner ultimately equivocal to say the least.

‘[Defendant's counsel]: I take it the court will also take judicial notice of a present value table?

‘THE COURT: No, I am going to deny that request. It comes late . . .. You can argue what has been presented here, and——

[Defendant's counsel]: That's fine, Your Honor. It makes no difference to me.'

This acquiescence indicates that defendant considered the matter of little substance and was willing to waive it. Defendant will not be heard to complain that any conceivable error under such circumstances requires reversal. (See Wilson v. Gilbert, supra; Valentine v. Kaiser Foundation Hospitals (1961) 194 Cal.App.2d 282, 290–292, 15 Cal.Rptr. 26.)

IV

Finally, defendant argues that the $600,000 compensatory damage award was excessive and unsupported by the evidence.

A reviewing court must uphold an award of damages whenever possible, and all presumptions favor the judgment. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61, 118 Cal.Rptr. 184, 529 P.2d 608.) The question on appeal is whether or not the amount of the verdict is so out of line with reason that it shocks the conscience and implies necessarily that the verdict was the result of passion and prejudice of the jury. (Bertero v. National General Corp., supra, 13 Cal.3d at p. 65, fn. 12, 118 Cal.Rptr. 184, 529 P.2d 608; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507–508, 15 Cal.Rptr. 161, 364 P.2d 337.)

Plaintiff's injuries were severe. He suffered crushing injuries to his chest, abdomen and legs, which resulted in the partial collapse of both lungs. He developed blood clots in the lungs, and continued, up to the date of trial to experience recurrent painful pulmonary emboli, which are life-threatening. He continued to have symptoms related to his legs which are compatible with obstructive venous disease; and he developed thrombophlebitis, which is a permanent, painful condition, and creates the possibility of ulceration in the future. Several bones were broken in the accident, and plaintiff's ankle was ultimately fused. As a result of these physical injuries, plaintiff also experienced memory lapses and emotional problems.

The plaintiff was at the time of injury a 56-year-old retired California Highway Patrolman, who had developed a business selling equipment and materials to various construction projects. His business required him to be active, and although he continued to try to operate the business after the accident, at the time of trial, it was doubtful that he could do so much longer.

By the time of trial, plaintiff had incurred $18,000 in medical bills, and $36,037 to $41,970 in lost income. Plaintiff's expert projected future lost income at between $145,133 and $176,685. Substantial future medical expense was also indicated. There is no doubt that a substantial portion of the award was for pain and suffering. Mental suffering frequently constitutes the principle element of tort damages and can be composed of fright, nervousness, grief, anxiety, worry, mortification . . . humiliation . . . embarrassment, terror or ordeal. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893, 103 Cal.Rptr. 856, 500 P.2d 880.) Admittedly, these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty; but the detriment is a genuine one and requires compensation. The issue generally must be resolved by the impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence. (Ibid.)

Adhering to the historically honored standard of reversing as excessive only those judgments which the entire record (when viewed most favorably to the judgment) indicates were rendered as a result of passion and prejudice, we do not find this verdict so great in amount as to be excessive as a matter of law and to require reversal. We cannot say that the damages were flagrantly outrageous or extravagant, Anderson v. San Francisco—Oakland Rys. (1923) 61 Cal.App. 21, 26, 214 P. 289, or influenced by passion or prejudice. (Casaretto v. DeLucchi (1946) 76 Cal.App.2d 800, 814, 174 P.2d 328; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 408, 89 Cal.Rptr. 78.)

That part of the judgment awarding compensatory damages is affirmed. That part awarding punitive damages is reversed. Defendant shall recover costs on appeal.

FOOTNOTES

1.  B.A.J.I. 9.00 was given in the following form:‘The manufacturer of an article is subject to liability for injuries proximately caused by a defect in the article which existed when the article left possession of the defendant provided that the injury resulted from a use or the article that was reasonably foreseeable by the defendant.’

2.  The owners manual pictorially places the center of gravity at approximately the forward one-third of the Trackster.

3.  The failure to warn instruction was given as follows:‘Failure to adequately . . . warn of risks and dangers may be a defect within the meaning of the doctrine of liability of manufacture as set forth in these instructions.’ Defendant claims error in that it requires no showing that the risks and dangers were unreasonably so. (See Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153; Dosier v. Wilcox-Crittenden Co. (1975) 45 Cal.App.3d 74, 119 Cal.Rptr. 135; Midgley v. S. S. Kresge Co. (1976) 55 Cal.App.3d 67, 127 Cal.Rptr. 217.)

4.  To the extent that the punitive damage aware may have been based upon oppression or malice, as distinguished from fraud (the jury was instructed on the subject in the language of Civ.Code, § 3294), this too was error. The rationale which supports a clear and convincing standard for fraud applies with equal force to malice and oppression.

PARAS, Associate Justice.

PUGLIA, P. J., and REGAN, J., concur.

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