MATUTE v. BELCO INDUSTRIES INC (1983)

Plaintiff Ricardo Matute appeals from the summary judgment granted defendants Belco Industries, Inc. (Belco) and The Farrell Company (Farrell).   Because defendants' affidavits failed to either disprove an essential element of plaintiff's strict products liability complaint or to prove all the elements of an affirmative defense, we must reverse the judgment.

On November 28, 1979, plaintiff, a maintenance worker for Guaranteed Products, was injured while attempting to repair an aging oven in which the false ceiling had collapsed while in operation.   The End Flow Gas Age oven was manufactured and designed by Belco and bought from Farrell.¹

The aging oven is 60 feet long and 8 feet high with a false ceiling made of “pretty heavy” stainless steel panels.   The false ceiling is held in place by 2-inch pieces of angle iron fastened to the oven wall.   Sheet metal screws fasten the angle iron both to the oven walls and the false ceiling.

In his complaint for damages on the theory of strict products liability, plaintiff alleged that the oven was “defective and unsafe for its intended purpose(s) in that its mechanical components were not fastened properly” and that during the course of “raising the ceiling of the age oven” plaintiff was injured “as a proximate result of the defect.”

Both defendants filed answers denying plaintiff's allegations and asserting affirmative defenses.

Belco subsequently filed a motion for summary judgment on the grounds that (1) the aging oven had no design defect and, (2) such design defect, if any, did not proximately cause plaintiff's injuries “because it was not a substantial factor in bringing about plaintiff's injuries, and the ill-conceived attempt to repair the oven by plaintiff and his co-workers superseded to cut off [Belco's] liability.”

Farrell joined in the motion for summary judgment and asserted as an additional ground that plaintiff was barred from recovery by the “fireman's rule.”

Attached to the motion for summary judgment were excerpts from the deposition of John Bevan, Guaranteed's plant manager.   According to Bevan, on the day of the incident, the ceiling collapsed while the machine was in operation, requiring reinstallation.   In order to reposition and refasten the ceiling, Bevan had employees construct a rectangular frame by welding two 30-foot railroad rails to two 8-foot cross-bars.   The framework was placed beneath the fallen ceiling and hoisted with the aid of a forklift so as to raise the ceiling.   The repair structure was up against the ceiling, which was “pretty close” to being in position to refasten, when a weld of the structure broke.   Plaintiff was standing in the middle of the oven and his leg was crushed by one of the 30-foot rails.   Subsequently, the employees succeeded in raising and reattaching the oven's false ceiling, using the same method, but this time welding the 8-foot cross members beneath, instead of on top of, the 30-foot rails.

Belco employee, Thomas Kohn, also submitted an affidavit in which he declared that Belco had installed many ovens using the same design as the oven in this case without failure.

In plaintiff's opposition papers, plaintiff's counsel declared that an engineering and safety expert had examined the oven on October 18, 1980, and subsequently reported to the attorney that “the structural mechanism sustaining the false ceiling in place was defectively designed and manufactured, to wit:  The ceiling is held and fastened to structural angles which in turn are fastened to the inside walls.   While in operation the motor-fan causes vibrations which are transmitted to the whole structure.   These vibrations cause the fasteners to unscrew.   Eventually as the fasteners keep on unscrewing and dropping to the floor, the ceiling becomes a safety hazard for the possibility of the ceiling dropping down increases gradually as more fasteners leave[ ] the structure.   The problem of vibration is compounded in view of the fact that the thin gauge-walls do not offer enough thread engagement.”   Moreover, the engineer reported that “several inexpensive considerations could have been taken by the equipment manufacturer during the design stage to avoid the ․ problem.”

The superior court granted summary judgment in favor of both defendants.   This appeal followed.

SUMMARY JUDGMENT IMPROPERLY GRANTED

Plaintiff contends, and we agree, that the court erred in granting defendants summary judgment.

 The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution.   (Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556, 122 P.2d 264.)   Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried.   (Code Civ.Proc., § 437c;  Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.)   The court may not pass upon the issue itself.  (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436, 74 Cal.Rptr. 895, 450 P.2d 271.)  “[I]f a single issue of fact is found, the trial court is powerless to proceed and must allow such issue to be tried.”  (Lynch v. Spilman (1967) 67 Cal.2d 251, 271, 62 Cal.Rptr. 12, 431 P.2d 636;  Southern Cal. Edison Co. v. Harnischfeger Corp. (1981) 120 Cal.App.3d 842, 851–852, 175 Cal.Rptr. 67.)

“The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.”  (Lipson v. Superior Court, supra, 31 Cal.3d at p. 374, 182 Cal.Rptr. 629, 644 P.2d 822.)  “The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.”  (Slobojan v. Western Travelers Life Ins. Co., supra, 70 Cal.2d at p. 437, 74 Cal.Rptr. 895, 450 P.2d 271;  Southern Cal. Edison Co. v. Harnischfeger Corp., supra, 120 Cal.App.3d at p. 851, 175 Cal.Rptr. 67.)

 The placement of the burden of proof at trial does not affect the showing required for a summary judgment.  (Security Pac. Nat. Bank v. Associated Motors Sales (1980) 106 Cal.App.3d 171, 179, 165 Cal.Rptr. 38.)   “There is nothing in the [summary judgment] statute which lessens the burden of the moving party simply because at the trial the resisting party would have the burden of proof on the issue[s] on which the summary judgment is sought to be predicated.   In such a case, on the motion for summary judgment, the moving party must generally negative the matters which the resisting party would have to prove at the trial.”  (Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444.)

Summary judgment was improper under the circumstances of this case because defendants failed to “ ‘demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.’ ”  (Southern Cal. Edison Co. v. Harnischfeger Corp., supra, 120 Cal.App.3d at p. 852, 175 Cal.Rptr. 67.)   They did not meet their burden to disprove an essential element of plaintiff's strict products liability complaint.   Rather, the papers herein presented issues of defect and proximate cause which could not be summarily resolved as a matter of law.

In Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, our Supreme Court established two alternative tests for determining whether a product is defectively designed.   Under the first test, “a product may be found defective in design if the plaintiff demonstrates [at trial] that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.”   (Id., at p. 429, 143 Cal.Rptr. 225, 573 P.2d 443.)   Secondly, “a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.”  (Id., at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443.)

Here, plaintiff alleged in his complaint that the aging oven was defective and unsafe because its mechanical components were fastened improperly.   Furthermore, in his affidavit in opposition to the summary judgment motion, plaintiff offered evidence of an engineering expert's opinion that (1) the oven's structural mechanism was defective because the motor fan vibrations would cause the ceiling to collapse, and (2) this design defect could have been avoided inexpensively.

Defendants cannot rely upon purported deficiencies in plaintiff's affidavit to sustain the summary judgment.   Defendants' affidavits failed to negative the existence of a defect in the aging oven.   The mere fact that, according to Kohn's declaration, many similar ovens had been in use without failure or injury does not rule out the possibility that the product is defective in design.  (See Heap v. General Motors Corp. (1977) 66 Cal.App.3d 824, 831, 136 Cal.Rptr. 304;  Cal. Tort Guide (Cont.Ed.Bar (2d ed.) 1979) § 11.3, at p. 195.)   Since defendants did not demonstrably show that the oven was free of defect, it was not even incumbent upon plaintiff to produce competent prima facie evidence of a defect in its opposition papers.  (See Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at pp. 127–128, 81 Cal.Rptr. 444.)

Moreover, “[t]he facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and ․ such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts.”  (Eagle Co. & Ref. Co. v. Prentice, supra, 19 Cal.2d at p. 556, 122 P.2d 264.)

 Furthermore, defendants have waived any evidentiary objections to plaintiff's affidavit by failing to raise them at the hearing on the motion.   (Code Civ.Proc., § 437c, subd. (b).) ²

Accordingly, there is a triable question of fact as to whether the oven was defectively designed.   Even if it is assumed that the oven's structural mechanism satisfied consumer expectations, a jury still has to evaluate the feasibility and cost of alternative design in order to find whether, on balance, the benefits of the design outweigh the risk of the ceiling collapsing.³

Defendants, however, argue that summary judgment was proper because even if a defect existed, the essential element of proximate cause was missing.   Defendants allege that plaintiff's injuries were solely caused by plaintiff's coworkers' negligent welding of the rails in the framework which constituted a “superseding cause” relieving them of any liability.

 But proximate cause is generally a question of fact, and, on the allegations herein, the trial court could not properly find as a matter of law that the defective oven did not proximately cause plaintiff's injury.   (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520, 150 Cal.Rptr. 1, 585 P.2d 851.)

 Defendants' attempted characterization of the welding as an “independent intervening” or “superseding cause” of the incident “is a material fact question for the jury.   Such an assessment by the trier of fact necessarily involves a determination whether any alleged design defect was ‘a substantial factor’ in the accident.”  (Southern Cal. Edison Co. v. Harnischfeger Corp., supra, 120 Cal.App.3d at p. 853, 175 Cal.Rptr. 67.)   Thus, whether defendants' conduct in defectively designing the oven so that the ceiling had a propensity to collapse during normal use had such an effect in producing plaintiff's injury as to lead reasonable people to regard it as a substantial factor in causing the accident is a question of fact.  (Landeros v. Flood, (1976) 17 Cal.3d 399, 411, 131 Cal.Rptr. 69, 551 P.2d 389;  Rest. 2d Torts, § 434, subd. (2)(a).)

Such a determination, in turn, “requires a jury to decide whether [plaintiff's coworkers'] alleged negligence was ‘reasonably foreseeable’ to [defendants].”  (Southern Cal. Edison Co. v. Harnischfeger Corp., supra, 120 Cal.App.3d at p. 853, 175 Cal.Rptr. 67.)   As our Supreme Court has pointed out:  “It is well settled in this state ․ that an intervening act does not amount to a ‘superseding cause’ relieving the negligent defendant of liability [citation] if it was reasonably foreseeable:  ‘[A]n actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct.’ ”  (Landeros v. Flood, supra, 17 Cal.3d at p. 411, 131 Cal.Rptr. 69, 551 P.2d 389.)

Moreover, the rules of the Restatement of Torts for determining whether an intervening act of a third person constitutes a superseding cause have been accepted in California.  (Stewart v. Cox (1961) 55 Cal.2d 857, 863–864, 13 Cal.Rptr. 521, 362 P.2d 345.)   Under these rules, “the fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if ․ the act is a normal response to a situation created by the defendant's conduct and the manner in which the intervening act is done is not extraordinarily negligent.”  (Id. at p. 864, 13 Cal.Rptr. 521, 362 P.2d 345;  Rest. 2d Torts, § 447.)

 Where, as here, the issue is whether the intervening act of a third person was foreseeable and therefore did not constitute a superseding cause “ ‘foreseeability of the risk generally frames a question for the trier of fact.’ ”  (Landeros v. Flood, supra, 17 Cal.3d at p. 411, 131 Cal.Rptr. 69, 551 P.2d 389.)  “If there is room for reasonable men to differ as to whether the intervening act was reasonably foreseeable, then the question is properly left to the jury.”  (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 69, 107 Cal.Rptr. 45, 507 P.2d 653;  Southern Cal. Edison Co. v. Harnischfeger Corp., supra, 120 Cal.App.3d at p. 853, 175 Cal.Rptr. 67;  Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125.)

We conclude that there can be a reasonable difference of opinion as to the foreseeability of the intervening act.   The attempt by plaintiff's coworkers to reinstall the fallen ceiling by constructing a framework with which to lift the ceiling to its original position was a normal, not extraordinary, consequence of the situation created by defendants' conduct.  (See Rest. 2d Torts, §§ 442, subd. (c), 443, 447, subd. (c).)  The workers were performing the reasonably foreseeable task of repairing the oven to restore it to operating condition.⁴

Moreover, neither the description of the manner of welding the repair structure together, nor the fact that a weld broke while the ceiling was being pushed back into place, compels the conclusion as a matter of law that the coworkers' welding was negligent.

Furthermore, even if a jury found that the welding was done in a negligent manner, it might still find that the coworkers' conduct was not so “extraordinarily negligent” as to be unforeseeable after properly taking into account the prevalence of that “occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.”  (Prosser, Law of Torts (4th ed. 1971) § 44, p. 274;  Rest. 2d Torts, § 447, com. e.)   The defective welding would not in that event be a superseding cause but merely the immediate cause of plaintiff's injuries and a contributory factor for which both defendants' and plaintiff's employer and coworkers are concurrently liable.

In short, on the facts before us, there is room for a reasonable difference of opinion as to whether plaintiff's coworkers' attempted repair of welding the rails together was negligent or foreseeable.   Since the negligent character of the workers' intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the defendants of liability for their antecedent conduct, the question of proximate cause should be left to a jury.  (Rest. 2d Torts, § 453, coms. b, c.)

 Our conclusion accords with the policy behind the rule of strict products liability.   That policy “favor[s] jury resolution whenever the evidence can be interpreted to support plaintiff's position.”  (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126, 184 Cal.Rptr. 891, 649 P.2d 224.)  “ ‘[W]hether an inference [of proximate cause] should be drawn may be properly influenced “by a policy which makes the action favored or disfavored.”  [Citation]  “[T]he paramount policy to be promoted by the rule [of strict liability] is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.”  [Citation.]  To deny to plaintiff the benefit of the inference of proximate cause would frustrate that policy.’ ”  (Id., at p. 122, 184 Cal.Rptr. 891, 649 P.2d 224.)   Consequently, the summary judgment herein cannot be sustained on the ground of lack of proximate cause.

Furthermore, the summary judgment cannot be upheld on the grounds that even if plaintiff's injury was proximately caused by a defective aging oven, plaintiff is precluded from recovery by a complete affirmative defense of the “fireman's rule” or assumption of the risk.

 Farrell argues the “fireman's rule” bars plaintiff's recovery.   But the parameters of the fireman's rule are narrow and well defined.  (Lipson v. Superior Court, supra, 31 Cal.3d 362, 372, 378, 182 Cal.Rptr. 629, 644 P.2d 822.)   That rule “bars certain tort causes of action by firemen and policemen injured during the course of their hazardous occupations.”  (Hubbard v. Boelt (1980) 28 Cal.3d 480, 483, 169 Cal.Rptr. 706, 620 P.2d 156, emphasis added.)   Our Supreme Court has pointed out that the rationale underlying the fireman's rule is not only the traditional principle that “ ‘one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby’ ” but also “a public policy to preclude tort recovery by firemen or policemen who are presumably adequately compensated (in special salary, retirement, and disability benefits) for undertaking their hazardous work.”  (Id., at p. 484, 169 Cal.Rptr. 706, 620 P.2d 156;  Walters v. Sloan (1977) 20 Cal.3d 199, 204–206, 142 Cal.Rptr. 152, 571 P.2d 609.)

 The public policy rationale limits application of the rule to fire and crime fighters.  (Malo v. Willis (1981) 126 Cal.App.3d 543, 547, 178 Cal.Rptr. 774.)   As was explained in Malo:  “The rule exists because of the peculiar nature of the risks encountered by and the special training given to these public employees.   There would be no point in applying the rule to injuries resulting from risks faced in common by all members of the public, or a significant percentage thereof, as to which no special training had been received.”  (Ibid., emphasis added.)   Accordingly, we decline the drastic resolution urged by Farrell of extending the “fireman's rule” to preclude recovery by maintenance workers in private industry who are neither necessarily specially compensated nor trained.⁵

 Also without merit is Belco's claim that it is relieved from any responsibility as a matter of law because plaintiff assumed the risk by unreasonably proceeding to repair the aging oven.   In California, “the separate defense of ‘assumption of risk’ to the extent that it is a form of contributory negligence [has been] abolished.”  (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 742, 144 Cal.Rptr. 380, 575 P.2d 1162 [strict liability];  Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226 [negligence].)

 The principles of comparative fault, under which responsibility and liability are assigned in direct proportion to the amount of negligence of each of the parties, apply also to actions founded on strict products liability.  (Daly, supra, at pp. 730, 742, 144 Cal.Rptr. 380, 575 P.2d 1162.)   In both negligence and strict products liability actions, “the defense, if established, will reduce but not bar plaintiff's claim.”  (Id., at p. 738, 144 Cal.Rptr. 380, 575 P.2d 1162.)

 It is the function of the trier of fact to apportion liability between the parties in proportion to the percentage of fault attributable to each of them, reducing plaintiff's recovery to the extent his own lack of reasonable care contributed to his injury.  (Id., at pp. 737–738, 742, 747, 144 Cal.Rptr. 380, 575 P.2d 1162.)   Thus, Belco's affidavits in support of its summary judgment motion cannot establish a complete affirmative defense.   Belco's exposure will be lessened “only to the extent that the trier finds that the [plaintiff's] conduct contributed to his injury.”  (Id., at p. 737, 144 Cal.Rptr. 380, 575 P.2d 1162.)

The judgment is reversed.

FOOTNOTES

1.   The oven was part of a 2200 ton aluminum extrusion press system sold by Farrell to plaintiff's employer Guaranteed.

2.   Pursuant to California Rules of Court, rule 12(a), we have augmented the record on appeal to include the entire superior court file.   That file does not show any evidentiary objections.

3.   Because we have concluded that there is a factual issue of design defect, we need not reach plaintiff's additional argument that the absence of warnings of the ceilings propensity to collapse or of directions for repair also rendered the oven defective.

4.   Defendants characterize the act as an independent intervening force, but such an attempted repair was a dependent intervening act since it was caused or stimulated by the collapse of the ceiling for which defendants were allegedly responsible.  (Werkman v. Howard Zink Corp. (1950) 97 Cal.App.2d 418, 425, 218 P.2d 43;  see Rest. 2d Torts, § 441, com. c.)

5.   Farrell's reliance on Baker v. Superior Court (1982) 129 Cal.App.3d 710, 181 Cal.Rptr. 311, is misplaced as that case involves firefighters, who, though volunteers, were paid call members of a county fire department, received special training as firefighters and were entitled to some special workers' compensation benefits.Nor are we persuaded by Farrell's claim that Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821, shows that “the Supreme Court has already tested the applicability of the fireman's rule in a situation involving neither a policeman nor a fireman.”   Solgaard did not involve extension of the fireman's rule barring recovery.   Rather, it approved application of the “rescue rule” permitting recovery to a doctor who had contracted to treat employees.   The court distinguished the doctor from a paid firefighter on the grounds of exposure to the particular risks of harm.   However, the court never suggested that it was sanctioning the expansion of the limited parameters of the fireman's rule to bar recovery by persons who were neither firefighters nor police officers.

THOMPSON, Associate Justice.

SCHAUER, P.J., and JOHNSON, J., concur.