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

Kurt R. MEYERING, By and Through his Conservator, Carolyn MEYERING, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants and Respondents.

No. D010498.

Decided: November 30, 1990

Rosenberg & Associates, David Rosenberg and Paula S. Rosenstein, for plaintiff and appellant. Luce, Forward, Hamilton & Scripps, Robert Steiner, Richard R. Spirra, R. Randal Crispen, and Robert B. Clark, Chapin, Brewer & Winet, Edward D. Chapin, Lynne Potter Hill and Shirley A. Banner, for defendants and respondents. Herzfeld & Rubin, Richard L. Ackerman and Seymour W. Croft as amicus curiae, on behalf of defendants and respondents.

Plaintiff Kurt Meyering was severely injured when he was struck on the head by a chunk of concrete thrown from a freeway overpass by two juveniles.   At the time of his injury, Meyering was driving a 1984 Chevrolet Corvette recently purchased by his girlfriend, Jane Casey.   The concrete chunk struck him after penetrating the car's sunroof.   The Corvette was designed and manufactured by defendant General Motors Corporation (GM) and had been sold to Casey by defendant Ball Oldsmobile.

Meyering's complaint alleges the Corvette was defectively designed and manufactured and that defendants were negligent in the design, manufacture and distribution of the automobile.   As more fully explained in his supporting papers both here and in the trial court, Meyering's theory is that the sunroof was made from a type of plexiglass which was too thin and too weak.   He contends there is a relatively inexpensive alternative—lexan polycarbonate sheeting—which is shatterproof and would have prevented the injury he suffered in this case.

In sustaining the separate demurrers filed by GM and Ball, the trial court accepted defendants' argument that the criminal conduct of the two juveniles constituted an unforeseeable intervening act which the manufacturer and seller of the vehicle had no duty to guard against.


Liability of GM

 Meyering has attempted to allege causes of action in both negligence and strict products liability.   Because negligence is generally a more difficult cause of action to plead, we address that issue first.

The role played by “foreseeability” in a negligence cause of action has proven to be a confusing one for courts grappling with questions of duty, negligence and proximate cause.   Recognizing this confusion in Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, the California Supreme Court observed that “the ‘foreseeability concept plays a variety of roles in tort doctrine generally;  in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of ‘duty.’ ”  (Id. at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)  Ballard, went on to caution lower courts against deciding fact-specific issues of foreseeability in the guise of determining whether the plaintiff has pleaded a valid cause of action.  “[A] court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”  (Id. at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, emphasis in original.)

The trial court's comments here in sustaining defendant's demurrers do not make clear whether it understood the limited nature of the foreseeability question before it.   To the extent the court was focusing on the particular facts of this incident, Ballard makes clear it is an inappropriate basis for denying a plaintiff the opportunity to plead a cause of action.   Moreover, it must be remembered that a defendant “may be liable if his conduct was a ‘substantial factor’ in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred.”  (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 976, p. 367 and cases there cited.)   Thus here, even if one could consider fact-specific foreseeability issues at the pleading stage, it is not necessary that GM anticipate that someone might throw a rock off a freeway overpass.   Rather, in designing the Corvette's sunroof, it is only necessary that GM foresee the possibility that objects could fall from above a car and thus pose a danger to its occupants.  (See Green v. Denney (1987) 87 Or.App. 298, 742 P.2d 639 (affirming judgment against auto manufacturer relating to freak accident where horse fell on top of car, collapsing roof).)

Meyering points out that objects can fall from trucks onto cars below;  roadside signs frequently warn of the danger of falling rocks;  indeed, the rock in question here could have been accidentally or negligently kicked off the overpass and onto a passing car.   In addition, it may well be that the sunroof in question would provide inadequate protection to the car's occupants during rollover accidents.  (See, e.g., Shipp v. General Motors Corp. (5th Cir.1985) 750 F.2d 418.)   It is certainly a question of fact as to the extent of the risk posed by the sunroof's design and whether GM was negligent in failing to use stronger materials.

It may be, however, the trial court truly understood that fact-specific foreseeability was not an issue at the demurrer stage.   The court may have reasoned—and GM certainly argues—that regardless of how foreseeable the risk of falling objects may be and how negligent GM may have been in failing to take account of that risk, policy considerations dictate a limitation on GM's liability for its negligence.   In more familiar but perhaps less useful terms (see Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 197–199, 208 Cal.Rptr. 384), GM claims it had no “duty” to guard against the criminal acts of third persons.1

As Mr. Witkin points out, GM's argument anachronistically recalls a view long rejected by California courts as well as most other jurisdictions.   “The view ․ that an intervening criminal act is by its very nature a superseding cause ․ is rejected by many courts and writers as an illogical and undesirable formula.   They point out that in a large number of situations the very reason why the defendant's conduct is negligent is that it creates the risk of the particular intervening criminal act, and that it is absurd to invoke the very fact which establishes negligence to absolve the negligent person from liability․  [¶]  The later California cases have fully accepted this theory as to both negligent and intentional intervening acts.” 2  (6 Witkin, Summary of Cal.Law, supra, § 993, pp. 383–384;  see, e.g., Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269 (lack of an ignition lock permits intoxicated persons to joyride in a 26–ton bulldozer);  Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58–59, 192 Cal.Rptr. 857, 665 P.2d 947 (improper siting of a phone booth causes injury to caller when booth is struck by a drunk driver);  Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 808, 205 Cal.Rptr. 842, 685 P.2d 1193 (untrimmed foliage provides hiding place for potential rapist);  Issacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123, 211 Cal.Rptr. 356, 695 P.2d 653 (inadequate lighting and security contributes to shooting of doctor in hospital parking lot).) 3

It is well established that manufacturers must design their products to perform in a reasonably safe manner.   This obligation includes taking into account the possibility that foreseeable negligence or misconduct of the user or third persons may contribute to causing the injury.   Illustrative of this principle and particularly relevant to the facts of this case is the Ninth Circuit Court of Appeals decision in d'Hedouville v. Pioneer Hotel Co. (9th Cir.1977) 552 F.2d 886.   Plaintiff's decedent in d'Hedouville was killed in a hotel fire started by an arsonist.   Plaintiff sued Monsanto Company, the manufacturer of the hotel carpet, for wrongful death alleging that the fiber in the carpet ignited readily, did not self-extinguish and contributed to the outbreak and rapid spread of the fire.  (Id. at p. 889.)   Applying Arizona law, the Ninth Circuit affirmed a jury verdict in plaintiff's favor.   Monsanto had argued, as does GM here, that the arsonist's criminal act constituted a superseding cause of the victim's death which cut off any liability on its part.   Rejecting this argument, the Ninth Circuit observed that “[w]hile this appears to have been the rule stated in early Arizona cases, more recent decisions apply the general principle of foreseeability to intervening criminal acts.”  (Id. at p. 894.)   The court went on to explain that Monsanto could foresee the possibility of fires in buildings in which its carpeting was installed and had the obligation to design its product with these hazards in mind.  (Ibid.;  see also Wheeler v. Andrew Jergens Co. (Ky.App.1985) 696 S.W.2d 326, 328 (jury question whether shampoo manufacturer should have foreseen possibility of criminal tampering with product and designed bottle differently);  Annot., Products Liability:  Injury Caused by Product as a Result of Being Tampered With (1989) 67 A.L.R.4th 964.)

The obligations of automobile manufacturers have been particularly well defined by case law.   In what is perhaps the seminal case nationally on the issue, the Eighth Circuit Court of Appeals rejected GM's argument that it had no duty to design a car to withstand collisions because the intended purpose of an automobile is not to crash into other vehicles or objects.  “This duty of reasonable care in design rests on common law negligence that a manufacturer of an article should use reasonable care in the design and manufacture of his product to eliminate any unreasonable risk of foreseeable injury.   The duty of reasonable care in design should be viewed in light of the risk.   While all risks cannot be eliminated nor can a crash-proof vehicle be designed under the present state of the art, there are many common-sense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision.   The standard of reasonable care is applied in many other negligence situations and should be applied here.”   (Larsen v. General Motors Corporation (8th Cir.1968) 391 F.2d 495, 503;  accord Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126, 104 Cal.Rptr. 433, 501 P.2d 1153.)

It is perhaps unnecessary to add that these principles apply regardless of whether the car is colliding with some other object or, as in this case, some other object is colliding with the car.   It is in this context we mention one additional case which, although it involves neither automobiles nor a product manufacturer, is particularly pertinent.   In Harpell v. Public Service Coordinated Transport (App.Div.1955) 35 N.J.Super. 354, 114 A.2d 295, plaintiff was a passenger on defendant's trolley and was injured when struck by a chunk of concrete thrown by a 15–year–old which crashed through the trolley window.   The evidence at trial indicated a series of prior incidents involving objects being thrown at trolleys.   Plaintiff alleged defendant was negligent in failing to either install safety glass on the trolley or cover the windows with metal screens.   Affirming a jury verdict in plaintiff's favor, the court rejected defendant's argument it had no responsibility to guard against criminal assaults by third persons.  (Id. 114 A.2d at p. 299.)

Here, of course, we have no evidentiary record as to how foreseeable it was to GM that objects might fall on top of a Corvette's sunroof.   As we have explained, however, fact-specific issues of foreseeability must necessarily await discovery and an evidentiary presentation;  they do not serve as a proper basis for disposing of the case by demurrer.

Our conclusion does not suggest that an intentional criminal act can never be a superseding cause of injury.   Defendants refer us to Restatement Second of Torts section 442B which provides that an intervening force will not relieve a negligent actor of liability for resulting harm “except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.”   Comment b goes on to emphasize that liability may nonetheless attach under the principles expressed in section 449.  (Ante, fn. 2.)

The illustrations to section 442B explain the concept.   In one, a theater employee negligently leaves a chair near a balcony railing.   While there can be liability if the chair is negligently bumped and falls from the balcony causing injury, the illustration explains there is no liability if a third person intentionally throws the chair from the balcony, intending to injure someone below.   The illustration simply portrays a situation in which the theater's negligence did not cause the injury.   Had the chair been placed some distance from the balcony, the third person would simply have carried the chair a few feet further before hurling it.

The facts here do not present a similar issue.   There is no suggestion that Meyering's juvenile assailants were intent on harming him, knew of the defective sunroof and deliberately took advantage of his vulnerability.   It appears, rather, that the boys were engaged in reckless behavior—much as the drunk driver in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947—likely with no intent to cause personal injury.   There is certainly no superseding cause on these facts which can be resolved as a matter of law.4

 Having stated a negligence cause of action, the same pleaded facts necessarily state a cause of action in strict products liability based on design defect.   Under California law, a product is defective in design “if the plaintiff establishes that the product failed to perform as safely as a ordinary consumer would expect ․ [or] if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish ․ the benefits of the challenged design outweigh the risk of danger inherent in such design.”  (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 432, 143 Cal.Rptr. 225, 573 P.2d 443.)   At least as to the second Barker prong incorporating the risk-benefit test, Meyering's allegations that the sunroof should have been made from a relatively inexpensive but stronger plexiglass state a cause of action in strict products liability.

Liability of Ball Oldsmobile

 Meyering has alleged that Ball was negligent in its distribution of the Corvette, presumably because it knew or should have known of the defect in the sunroof at the time it sold the vehicle.   While we suspect Meyering may have difficulty proving this allegation as to what is clearly a latent defect, the state of Ball's knowledge is not an issue subject to resolution on demurrer.

 A different issue is presented by Meyering's allegations that Ball is strictly liable as the seller of a defective product.   Meyering has conceded the vehicle was a 1984 Corvette sold by Ball as a used product.   Relying on Tauber–Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 161 Cal.Rptr. 789 and LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 176 Cal.Rptr. 224, Ball contends that sellers of used products in California are not subject to strict liability, at least where the defect which caused the injury was present in the product at the time of its initial distribution.

The rule which includes the non-negligent retailer of new products in the “chain of distribution” for strict liability purposes (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168) serves ultimately to benefit the injured consumer who is unable to recover from the manufacturer.  (Id. at p. 262, 37 Cal.Rptr. 896, 391 P.2d 168;  see Note, Sales of Defective Used Products:  Should Strict Liability Apply?  (1979) 52 So.Cal.L.Rev. 805, 826–827.)   It would appear such a rationale would apply equally to the commercial seller of used products where the product was defective when new.   On the other hand, the availability of used products sold by noncommercial sellers—especially in the case of automobiles—suggests that the imposition of strict liability on commercial sellers might actually result in a net decrease in safety.  (See Note, Protecting the Buyer of Used Products:  Is Strict Liability for Commercial Sellers Desirable?  (1981) 33 Stan.L.Rev. 535, 537–539.)

On such a closely balanced issue of policy, we would be ill-advised to depart from settled California precedent holding that commercial sellers of used products are not strictly liable for injuries caused by defects in the products which were present at the time of initial distribution.   We therefore rely on stare decisis in concluding that Ball's demurrer as to the strict liability cause of action was properly sustained.


The judgment of dismissal is reversed.   The trial court is directed to overrule GM's demurrer as to both the negligence and strict liability causes of action.   As to Ball Oldsmobile, the court is directed to overrule the demurrer as to the negligence cause of action.   Meyering shall recover his costs on appeal from GM.   Ball shall bear its own costs.

The majority here determines that a willfully tortious, criminal act which concurs with the antecedent negligence of another party is not a superseding cause of the resulting damage when the occurrence and the injury are foreseeable by the first actor in terms of noncriminal conduct.   The majority also, I believe, elects to expand the scope of tort liability in California for both negligence and products liability.   I assert that the majority is in error in its first premise, and misdirected in its second.

We must assume in this case, because of its origin in terms of the sustaining of demurrers, the truth of the complaint's allegations.   We proceed, therefore, upon the premise that General Motors was in some way negligent in the manufacture of the sunroof of plaintiff's automobile, or (in terms of strict products liability) that it manufactured a defective product.   The majority's discussion of the roots of foreseeability, therefore, is beside the point.   In ruling on the demurrer we must accept the proposition that the sunroof was badly made, and that General Motors could reasonably anticipate someone's being injured as a result of the defect, as for instance by a falling rock.1

One also must acknowledge the principle that if harm is foreseeable as a result of one's lack of care, the fact that the damage occurs through an unforeseeable chain of events does not exonerate the negligent party.  (P. 348.)

These settled principles are not disputed.   My departure from the majority relates to another settled principle of California law, as set forth in Restatement Second of Torts section 442B:

“Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.”  (Emphasis added.)

It is established that the law of this state in the general areas of causation, duty and proximate cause is grounded on the Restatement.   This was determined by a long line of cases, to which I have found no dissent.2  The black letter law of California, therefore, is that even though one is negligent in creating a product (or situation) likely to cause injury, his negligence is not deemed a proximate cause of subsequent injury which is inflicted by the willful, tortious act of a third party.   That is exactly our case.   How does the majority distinguish the Restatement?

The majority cites and relies upon cases and authority which, I respectfully suggest, are inapposite.   Mr. Witkin is cited for the proposition that General Motors' argument is “anachronistic.”   The cited passage (6 Witkin, Summary of Cal.Law (9th ed. 1985) Torts, § 993, pp. 383–384) deals with cases in which the original negligent act makes criminal conduct more likely—and nowhere does Witkin refer to any portion of the Restatement as being “anachronistic.”   One in the business of providing security guards must anticipate criminality.   (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199, 200, 208 Cal.Rptr. 384.)   Where one's conduct can specifically be anticipated to induce criminal conduct, he will be held to foresee it.   (Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 219, 157 P.2d 372 [leaving boxes unattended induces vandalism by boys];  Terrell v. Key System (1945) 69 Cal.App.2d 682, 688, 159 P.2d 704 [failure to anticipate injury to a rail passenger from permitted gambling activities on train];  Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36 [radio station disc jockey distributes money in auto chase around Los Angeles, must anticipate reckless drivers following];  Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269 [lack of an ignition lock permits intoxicated persons to joyride in a 26–ton bulldozer].)   Cases of this nature are discussed and distinguished from the section 442B rule in section 449 of the Restatement.

Our case does not fit this category.   Nothing General Motors did can be deemed to have induced or made more likely the subsequent tortious act of the rock thrower.   Our record discloses no evidence suggesting the tortfeasor selected Meyering's car because it had a sunroof, or that he had some knowledge that it was a defective sunroof.

A second inapposite line of authority cited by the majority is that composed of cases in which the obligation of the first actor is enhanced by his special relationship to the injured party.  Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, for instance, involved the maintenance of a parking lot by a hospital for its employees.   Because of the relationship of the landowner to its employees and invitees, it was held there could be an obligation to foresee and protect against criminal attacks in the parking lot.  (See also Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 808, 205 Cal.Rptr. 842, 685 P.2d 1193 [college's obligation to protect students by keeping foliage trimmed so as to preclude hiding place for rapists];  Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329, 176 Cal.Rptr. 494 [obligation of landlord to provide operative locks on apartment building in high crime area];  Gomez v. Ticor (1983) 145 Cal.App.3d 622, 626–630, 193 Cal.Rptr. 600 [increased danger to patrons resulting from operation of parking lot imposes liability for shooting in the lot];  Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 140–141, 203 Cal.Rptr. 572 [operation of all-night store creates foreseeability of injury from third party criminal conduct].)

A third line of cases which is distinguishable is that which deals with superseding negligence, as opposed to superseding intentional or criminal acts.   Typical of these is Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947, in which liability of the telephone company was found possible when the plaintiff, using its telephone booth, was injured by a drunk driver who ran into it.   Although drunk driving may be a crime, its civil nature is essentially that of negligence.  (See also the line of cases relating to dram shop operators, in which the subsequent drunk driving, presumably both criminal and grossly negligent, of a person who purchases alcohol when inebriated is deemed by statute the proximate cause of the injury;  Bus. & Prof.Code, § 25602.1;  Salem v. Superior Court (1989) 211 Cal.App.3d 595, 259 Cal.Rptr. 447.)

The authority asserted by the majority to be definitively in point consists of three out-of-state cases:  d'Hedouville v. Pioneer Hotel Co. (9th Cir.1977) 552 F.2d 886,  Wheeler v. Andrew Jergens Co. (Ky.App.1985) 696 S.W.2d 326, 328, and Harpell v. Public Service Coordinated Transport (App.Div.1955) 35 N.J.Super. 354, 114 A.2d 295.   The d'Hedouville case involved the liability of Monsanto Company for furnishing a hotel with flammable carpet.   One of Monsanto's defenses was that the fire which damaged the plaintiffs was the result of arson, contending the arson was a superseding cause.   The only portion of the lengthy opinion directed to the issue before us is the brief paragraph as follows:

“Monsanto argues that under Arizona decisions the criminal act of a third person constitutes a superseding cause as a matter of law.   While this appears to have been the rule stated in early Arizona cases, more recent decisions apply the general principle of foreseeability to intervening criminal acts.”   (d'Hedouville v. Pioneer Hotel Co., supra, at p. 894.)

It is to be noted that this brief passage makes no reference to Restatement principles, nor does it cite any California cases.   Two Arizona cases in a footnote serve as its sole precedent.   The first, Nichols v. City of Phoenix (1949) 68 Ariz. 124, 202 P.2d 201, 209–210, held that the grossly reckless driving of one defendant did not constitute a superseding cause when it concurrently operated with the negligence of the city's bus driver.   The principal holding of the case is that criminal conduct does not constitute a superseding cause when the first actor's negligence is concurrent in time, citing Restatement of Torts section 439.   The second Arizona case is Campbell v. City of Tucson (1966) 4 Ariz.App. 155, 418 P.2d 401, 403–404, which involved the malicious tampering with a traffic signal light maintained by the city.   Citing Restatement section 449, the court held that such vandalism was a type of hazard which the city reasonably should have foreseen.

These authorities from Arizona and the Ninth Circuit are not persuasive.   The Arizona cases, as noted above, do not deal with the precise issue here at hand.   While the broad statement in d'Hedouville is in point, it should not be deemed controlling in that little or no consideration or discussion is devoted to the question, and the authority it cites does not support the broad proposition espoused.

The second case cited is Wheeler v. Andrew Jergens Co., supra.   This was an action by a consumer against a shampoo manufacturer for injury to her hair and scalp.   The defense was that the shampoo had been tampered with by a third party.   A directed verdict in favor of the shampoo company was reversed, the court concluding that the question of foreseeability of third party tampering should have been reserved to the jury.   I find no helpful discussion or analysis of our problem in this case.

The final out-of-state authority is Harpell v. Public Service Coordinated Transport, supra, 114 A.2d 295.   The issue here was whether the operator of an electric trolley could be held liable for injuries to a passenger resulting from someone's throwing a rock through the window of the trolley.   Recognizing that the defendant was a common carrier, the court stated:  “There is some authority to the effect that the duty of a high degree of care extends to acts of strangers who throw missiles, if the action could reasonably have been anticipated.”  (Id. 114 A.2d at p. 300.)   Although not specifically referenced in my list of exceptions to the Restatement rule, supra, it is obvious that the obligations of common carriers to their passengers are different from the obligations of manufacturers of ordinary products, and I suggest this case constitutes no authority for abandoning the proposition of Restatement section 442B.

If one is to go out of state, he will find considerable authority which supports the concept that criminality (absent the special circumstances set forth above) constitutes a superseding cause of damage.   This authority is relatively current and certainly not an anachronism.   In Burns v. Gleason Plant Sec., Inc. (1987) 10 Conn.App. 480, 523 A.2d 940, the court held that one who leaves a car unattended with the key in the ignition cannot be held liable for felonies later perpetrated through use of the car by thieves.   Citing Restatement section 442B at length, the court pointed out the rationale for the rule, stating “ ‘in such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him.’ ”  (Id. 523 A.2d at p. 943.)

Tetro v. Town of Stratford (1983) 189 Conn. 601, 458 A.2d 5 also cites and relies upon Restatement section 442B, and provides insight into the phrase “not within the scope of the risk created by the actor's conduct.”   The issue was whether the negligent conduct of city police in chasing a fleeing vehicle through town would be superseded by the criminal conduct of the driver attempting to escape.   It was held that the recklessness of the pursued driver did not cut off the city's liability because “the trier of fact may find that the plaintiff's injury falls within the scope of the risk created by their negligent conduct in maintaining a police pursuit at high speeds in the wrong direction on a busy one-way street.”  (Id. 458 A.2d at p. 8.)   We are taught, in other words, that the phrase “within the scope of risk” as utilized in Restatement section 442B means criminal conduct which the first actor's actions might reasonably be expected to induce.   Applying this reasoning to General Motors, it cannot be said that making weak sunroofs is conduct which is likely to inspire rock throwing.3

The conclusion to the above somewhat rambling discussion, I suggest, is that (1) California has long adhered to the Restatement analysis of proximate cause, including superseding cause resulting from criminal conduct;  (2) there is nothing in either California or out-of-state authority suggesting that the rule of Restatement section 442B is either erroneous or anachronistic;  and (3) therefore the ruling of the majority is a departure from current law.

Saying this, the logical next question is “Why shouldn't we depart from current law?”   Admittedly, there is no binding Supreme Court authority on the subject.   Since the majority avers that it is simply applying existing law, it provides little by way of argument for its position.   Perhaps its philosophy can be gleaned, however, from the reflections contained in footnote 1, page 5 of the slip opinion.   Citing Palsgraf, Dillon v. Legg, Marois, and Prosser and Keaton on Torts, the majority acknowledges that concepts of duty and proximate cause reflect policy decisions.   Decisions in this sphere constitute judicial line drawing which to some extent is necessarily arbitrary.   Notwithstanding the existence of negligence and actual cause, the defendant's liability is to be restricted because of the remoteness or unusual nature of the events leading to the injury.   The majority's decision expands the current limits of liability.4  It is clearly a policy decision favoring recovery by plaintiffs from remote actors, increasing the potential scope of liability for manufacturers, and fostering claims and litigation.   Is this the direction in which we are presently headed in the California judiciary?   I think not, and therefore dissent from the policy decision implicit in the majority's opinion.

Whether plaintiffs' litigation potential vis-a-vis manufacturers of products should be increased or decreased is no doubt a matter of politics and philosophy, presumably best determined by the legislature.   The function of an intermediate appellate court is, I contend, not to determine such philosophy but simply to reflect it.   We have known periods of great expansion in the rights of plaintiffs.   We are not now in one of those periods.   If we are to follow the evident signals from legislative and judicial authority, I think we will not expand the grounds for litigation.   This brief dissenting opinion is no appropriate place for adequate discussion of such broad policy issues.   I but cite a recent article by retired Supreme Court Justice Marcus Kaufman which appeared in the August issue of California Lawyer (p. 28).

Justice Kaufman reviewed a small sample of the kinds of litigation which have been restricted in recent years.   He cites Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582, which barred suits by unmarried cohabitants for loss of consortium or emotional distress;  Moradi–Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58, limiting bad faith insurance actions;  Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 251 Cal.Rptr. 202, 760 P.2d 399, which eliminated certain causes of action for indemnity;  Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, restricting actions for bad faith discharge;  John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948, declaring an employer's nonliability for sexual assault by an employee;  Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, restricting actions for negligent infliction of emotional distress for injuries to third parties.

The recitation of this list establishes the point.   We should not now in the Court of Appeal be expanding grounds for liability in negligence or strict products liability.   The Supreme Court has recognized, via the above-cited cases, that litigation is not and cannot be the ultimate answer to all grievances.   We are in a trend of restriction, not expansion, of litigation rights.   This, I suggest, is in harmony with enlightened legal thought.5

My analysis of the applicability of proximate cause concepts applies equally to the claim against Ball Oldsmobile, and I therefore would vote to affirm the sustaining of the demurrer as to that defendant also.   The majority agrees with this position at least with respect to the claim based upon strict liability.   I concur in this conclusion, agreeing that even if the criminal act of the third party is not regarded as a superseding cause, strict products liability concepts are not applicable to sellers of used products.   To this extent, therefore, I concur in the majority opinion.


1.   As the opinions of Judges Cardozo and Andrews in the venerable case of Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99 illustrate, the concepts of “duty” and “proximate” causation are effectively interchangeable ideas addressing the identical issue:  At what point do external policy considerations require that a concededly negligent defendant's liability be restricted?  (Compare Dillon v. Legg (1968) 68 Cal.2d 728, 733–734, 69 Cal.Rptr. 72, 441 P.2d 912 (duty) with Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 430 P.2d 57 (proximate cause).)   Having previously expressed our concerns with the “duty” rubric (see Marois, supra;  Hucko v. City of San Diego (1986) 179 Cal.App.3d 520, 523, 224 Cal.Rptr. 552), we nonetheless employ that formulation as the lesser of two evils.  (See Prosser and Keeton on Torts (5th ed. 1984) § 42, p. 273 (The issue of proximate causation “is not a question of causation, or even a question of fact, but quite far removed from both;  and the attempt to deal with it in such terms has led and can lead only to utter confusion.”).)

2.   Section 449 of the Restatement 2d Torts considers the identical issue and reaches a similar conclusion.  “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.”   Comment b to the section further explains:  “The happening of the very event the likelihood of which makes the actor's conduct negligent and so subjects the actor to liability cannot relieve him from liability.   The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger.   To deny recovery because the other's exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.”  (See also, e.g., Lillie v. Thompson (1947) 332 U.S. 459, 462, 68 S.Ct. 140, 142, 92 L.Ed. 73.)

3.   The dissent attempts to distinguish some of these cases on the ground they involve a defendant with a “special relationship” to the injured victim.  (See dis. opn., post, pp. 353–354.)   Given the traditional reluctance to base tort liability on nonfeasance, the special relationship doctrine has developed as a means to avoid imposing obligations of protection on persons with no relationship to the victim.   (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334;  Prosser & Keeton on Torts, supra, § 56, pp. 375, 383.)   Since a manufacturer's responsibility to design its product so that it may be used safely is fundamental to tort law (see generally Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897;  Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443), no one we are aware of has suggested the relationship between the manufacturer and the consumer is an insufficient nexus on which to base an obligation of protection.   Indeed, the numerous cases which have specifically recognized an automobile manufacturer's responsibility to anticipate vehicle collisions (see post, p. 350) belie any such suggestion.

4.   We wholeheartedly agree with the dissent that the facts of this case and our status as an intermediate appellate court do not call for the creation of expansive new theories of tort liability.  (See dis. opn., post, pp. 356–357.)   Our point of disagreement is that we believe the result we reach is compelled by existing—indeed well-established—precedent.   As a result, we eschew reliance on “enlightened” legal thought (see, e.g., Huber, Liability, The Legal Revolution And Its Consequences (1988), quoted in dis. opn., post, p. 357, fn. 5) which fervently exhorts a substantial change in the legal status quo because of perceived disastrous consequences caused by existing legal rules.Ultimately, of course, this opinion must rest on the correctness of its conclusion.   Accordingly, a point-by-point refutation of the dissent is both inappropriate and unnecessary.   We indulge, however, in the following general observations.We are intrigued by the dissent's failure to appreciate the importance of its several concessions.  (See dis. opn., post, pp. 352–353.)   By passing them off as innocuous, the opinion attempts to minimize their importance.   The dissent agrees that GM may be liable for negligence if it builds its Corvettes with plexiglass sunroofs that are too weak.   It concedes Meyering has sufficiently alleged such negligence here in that had he been struck by the same chunk of concrete, a cause of action would be stated as long as the rock was not intentionally thrown by a criminal actor.We find the absurdity of this result apparent.   The sunroof is not any less defective—and GM not less negligent—because the object which penetrates it is intentionally thrown rather than negligently kicked or accidentally dropped.   A critical flaw in the dissent's reasoning lies in its misinterpretation of Restatement Second of Torts section 442B which, as we have explained, must be read in conjunction with section 449.   Since fact-specific issues of foreseeability are not resolvable on demurrer (see ante, pp. 348–349) we do not know how aware GM was or should have been of the possibility that criminal actors might throw objects from overpasses.   If such conduct was foreseeable, it is “one of the hazards which makes the actor negligent” (§ 449) and is thus “within the scope of the risk created by the actor's conduct” (§ 442B).   Even assuming a jury were to find that this particular criminal act was not foreseeable to GM, there is still liability if GM is otherwise negligent because—as is again conceded—the particular manner of occurrence of an injury need not be foreseeable as long as the general type of injury is and the injury would have been prevented had the defendant acted in a non-negligent fashion.   Here, if the allegations of the complaint prove true, a properly designed and manufactured sunroof would have prevented or at least minimized Meyering's injuries.   Properly interpreted, therefore, section 442B supports the conclusion that a cause of action has been stated.

1.   The majority labors unnecessarily, I believe, in questioning whether the trial court was erroneously determining a “fact-specific” issue (which should be left to the jury) or “the general calculus to which the court looks in defining the boundaries of duty” (as per Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, cited and relied upon by the majority;  see p. 348).   In its oral ruling from the bench the trial court cited Lehr v. Otis Elevator Co. (1989) 208 Cal.App.3d 218, 256 Cal.Rptr. 57 and Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99.   While neither case is directly in point, and Lehr cannot now be cited because it has been depublished, the citations make clear the ground of the court's decision.   The scope of “duty” was established in the Palsgraf case as a matter of law, based upon a “general calculus” of obligation.  Otis Elevator dealt with the precise issue posed by our case:  whether the subsequent act of a third person which precipitates the injury constitutes a superseding cause insulating the original negligent actor from liability.

2.   See, e.g., Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210, 186 Cal.Rptr. 847, in which Justice Work for the court states it is settled that “ ‘the principles of causation of the Restatement of Torts, at least as they relate to intervening and superseding causes, have been declared to be the law of this state․,’ ” quoting Ewart v. Southern Cal. Gas Co. (1965) 237 Cal.App.2d 163, 170, 46 Cal.Rptr. 631;  Stewart v. Cox (1961) 55 Cal.2d 857, 863–864, 13 Cal.Rptr. 521, 362 P.2d 345 [“The rules set forth in sections 442–453 of the Restatement of Torts for determining whether an intervening act of a third person constitutes a superseding cause which prevents antecedent negligence of the defendant from being a proximate cause of harm complained of have been accepted in California.”];  Richards v. Stanley (1954) 43 Cal.2d 60, 63, 271 P.2d 23;  Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49, 123 Cal.Rptr. 468, 539 P.2d 36.

3.   I here perceive a crucial difference with the reasoning of the majority.   The majority appears to construe “within the scope of risk created by the actor's conduct” (contained in section 442B of the Restatement) as synonymous with any foreseeable criminal conduct.   As so construed, the phrase would appear meaningless, since if criminal conduct is completely unforeseeable the actor simply will not have been negligent in failing to guard against it.   I believe, in harmony with the Connecticut court, that the phrase is intended to identify particular criminal conduct which the actor's previous negligence either induces or makes more likely.   As such, we are essentially incorporating the rule of section 449.   For other cases approving the rule of Restatement section 442B, see Sharp v. Fairbanks North Star Borough (Alaska 1977) 569 P.2d 178;  Parness v. City of Tempe (App.1979) 123 Ariz. 460, 600 P.2d 764;  Batko v. Mecca Inv. Co. (Tex.App.1982) 642 S.W.2d 41;  Barnes v. Gulf Power Co. (Fla.App.1987) 517 So.2d 717;  (but see Concord Florida, Inc. v. Lewin (Fla.App.1976) 341 So.2d 242, which construes “scope of the risk” in a manner contrary to that set forth in Burns v. Gleason Plant Sec., Inc., supra.

4.   I apprehend the majority's approach will in fact gut the entire concept of superseding cause based upon interjection of criminal conduct.   While the majority disclaims such is the intent or effect of its opinion, stating “Our conclusion does not suggest that an intentional criminal act can never be a superseding cause of injury,” (p. 350), the majority “doth protest too much, methinks.”  (Shakespeare, Hamlet, act III, scene 2.)   The majority does not satisfactorily explain under what circumstance it might ever recognize supersedure.   It suggests that it might have reached a different conclusion in this case had it been shown that the juvenile assailants were intent on harming Meyering, specifically, knowing of the vulnerability of the sunroof and taking advantage of it.   I see no logic in this distinction.   The concept of the criminal's being the sole cause of damage inflicted via his crime seems to be that his conduct is so repulsive and removed from mainstream demeanor that he must shoulder the entire responsibility for its results.   Is, then, the criminal who seeks an intended victim more culpable and deserving of sole responsibility than the criminal who haphazardly assaults unknown persons?   I should think a good argument could be made to the contrary.   At least the assault based upon a personal grudge is to some extent understandable, whereas the random launching of missiles into the ranks of passive and unknown victims, as occurred in this case, seems to me the more reprehensible of activities.   More importantly, the policy question we address here is whether to hold an actor liable for the damage wrought by the criminal;  insofar as the actor is concerned, whether the criminal attack is on a targeted victim or a random victim should not change our assessment of any of the seven factors we consider in imposing a “duty” upon the actor.  (See Ballard v. Uribe, supra, 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

5.   See, for instance, Huber, Liability, The Legal Revolution and Its Consequences (1988) where it is persuasively argued that our system of determination of compensation for injuries through tort litigation is haphazard, poorly directed, excessively expensive, and generally detrimental to our competitive world position.   Huber states at page 221:“Applied as it has been in recent years, open-ended tort law serves only as an engine of social destruction.   Sometimes the effect is to alienate individuals from each other.   The freedom of contract is undermined, private bilateral deals are curtailed.   Sometimes the effect is to alienate the individual from community and state.   Each individual is issued his own quiver of claims against the state and the publicly risky activities it has sanctioned;  the state strikes back with more and more paternalistic legislation to protect citizens willy-nilly from injury.   The unchecked inflation of the nonnegotiable right to sue eventually undercuts a panoply of other freedoms.”Note also:  Schuck, “The New Judicial Ideology of Tort Law” in “New Directions in Liability Law” (1988) 37 Proceedings of the Academy of Political Science, which reviews and analyzes the problems associated with judicial attempts to organize society via private tort law;  Staying, “The U.S. Product Liability System:  A Competitive Advantage to Foreign Manufacturers” (1988) 14 Canada–United States Law Journal 193;  Viscusi, “Toward a Diminished Role for Tort Liability:  Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety” (1989) 6 Yale Journal on Regulation 65.

WIENER, Acting Presiding Justice.

WORK, J., concurs.