Judge: Daniel S. Murphy, Case: BC701989, Date: 2022-09-26 Tentative Ruling

Case Number: BC701989    Hearing Date: September 26, 2022    Dept: 32

BACKGROUND

            This is a personal injury and wrongful death action filed by Plaintiffs Harold Figueroa ("Harold") individually and on behalf of the Estate of Juan Diego Figueroa ("Estate"), Ana Lopez ("Ana") individually and on behalf of the Estate, and Marcos Figueroa ("Marcos") (collectively, "Plaintiffs") against Defendants AT&T Corporation ("AT&T"); AT&T Mobility Wireless Operations Holdings Inc. ("AT&T Mobility"); All Access Equipment Rentals, Inc. ("All Access"); RBR Properties, Inc. ("RBR"); Vinculums Services, LLC ("Vinculums"); New Cingular Wireless PCS LLC ("Cingular"); JLG Industries, Inc ("JLG"); Joel Lupercio ("Lupercio"); Jorge Ceja ("Ceja"); Roberto Guerrero ("Guerrero") (collectively, "Defendants").

The operative pleading is the First Amended Complaint (''FAC") filed on September 6, 2018. The FAC asserts causes of action for (1) strict product liability-failure to warn, (2) negligence-product liability, (3) negligent entrustment, (4) negligent hiring and retention, (5) premises liability, (6) negligent provision of required safeguards, (7) negligence-peculiar risk of harm, (8) wrongful death, and (9) negligent infliction of emotional distress. The FAC alleges in pertinent part as follows.

All Access and JLG manufacture and supply telescopic boom lifts. On or around January 30, 2018, AT&T, AT&T Mobility, Cingular, and Vinculums (collectively, "Telecommunications Companies") left one of these boom lifts on real property located at 315 E. 87th Place, Los Angeles, CA 90003 ("Property"). Employees of the Telecommunications Companies had been using the boom lift to conduct maintenance on a cellphone transmission tower. The employees provided keys to the boom lift to Juan, a 22-year-old, and allowed Juan on various occasions to operate the boom lift despite Juan lacking qualifications to do so. On the afternoon of January 30, 2018, Juan and his brother Marcos used the telescopic boom lift to trim an overgrown tree located at the Property. Because the sky started to darken, Juan decided to lower the boom lift. As he was lowering the lift, Juan made contact with a high voltage powerline. Juan was subsequently electrocuted, caught on fire, and burned to death. Alongside Juan, Marcos frantically tried to stop Juan from burning. Eventually, the electric charge and heat of the fire became so unbearable that Marcos plunged 20-feet down onto the rooftop of a metal building, sustaining serious injuries to his legs and feet. Plaintiffs allege that the boom lift was defective because it did not include a proximity warning device (“PWD”) that would have prevented contact with the powerline.  

On August 22, 2022, Defendant JLG filed two trial briefs seeking to (1) exclude a jury instruction on the consumer expectations test of products liability and (2) to preclude Plaintiffs from recovering certain damages.

DISCUSSION

I. Consumer Expectations Test

            “Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn.” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1231.) “Defective design may be established under two theories: (1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) the risk/benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design. Both theories may be presented to the jury.” (Id. at pp. 1231-32, internal citations omitted.)

“The consumer expectations test is reserved for cases in which the everyday experience of the products’ users permits a conclusion that the product's design violated minimum safety assumptions, and is defective regardless of expert opinion about the merits of the design.” (Saller, supra, 187 Cal.App.4th at p. 1232.) “[I]f the product is one within the common experience of ordinary consumers, it is generally sufficient if the plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety. The test is that of a hypothetical reasonable consumer, not the expectation of the particular plaintiff in the case.” (Ibid.) “The consumer expectations test is inappropriate when the ultimate issue of design defect calls for a careful assessment of feasibility, practicality, risk, and benefit . . . .” (Id. at p. 1233.) However, “the inherent complexity of the product itself is not controlling on the issue of whether the consumer expectations test applies,” nor is the fact that expert testimony is required to establish causation. (Id. at pp. 1232, 1235.)

Defendant JLG objects to the consumer expectations test on three grounds: (1) Plaintiffs did not plead the consumer expectations test; (2) the issue is too complex and not derived from ordinary experience; and (3) no hypothetical consumer could form safety expectations given the warnings and instructions provided by Defendant. (Trial Br. 2:23-3:19.)

a. Pleading

The failure to plead the consumer expectations test “is not fatal to plaintiffs' assertion of the test as a theory of recovery at trial.” (See Saller, supra, 187 Cal.App.4th at p. 1237, fn. 12.) “[P]leadings are subject to amendment to conform to proof after trial.” (Ibid.) Thus, this is not a reason to exclude a jury instruction on the consumer expectations test.

b. Ordinary Experience

The circumstances of the boom lift’s alleged failure are commonplace even if the product itself is complex, or expert testimony is required to establish causation. (See Saller, supra, 187 Cal.App.4th at p. 1232, 1235.) Because of the danger’s ubiquity and simplicity, ordinary users of the boom lift likely have minimum safety expectations concerning the boom lift’s electrocution hazards. Defendant argues otherwise, relying on two distinguishable cases involving complex circumstances and obscure product parts. (Trial Br. 9:10-11:21.)

1. Soule v. General Motors

In Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 556, “Plaintiff's ankles were badly injured when her General Motors (GM) car collided with another vehicle. She sued GM, asserting that defects in her automobile allowed its left front wheel to break free, collapse rearward, and smash the floorboard into her feet.” The plaintiff’s injuries resulted from an idiosyncratic combination of failures: “The collision bent the Camaro's frame adjacent to the wheel and tore loose the bracket that attached the wheel assembly (specifically, the lower control arm) to the frame. As a result, the wheel collapsed rearward and inward. The wheel hit the underside of the ‘toe pan’--the slanted floorboard area beneath the pedals--causing the toe pan to crumple, or ‘deform,’ upward into the passenger compartment.” (Id. at p. 557.) Accordingly, the plaintiff’s theory of liability was equally complex: “Plaintiff attributed the wheel collapse to a manufacturing defect, the substandard quality of the weld attaching the lower control arm bracket to the frame. She also claimed that the placement of the bracket, and the configuration of the frame, were defective designs because they did not limit the wheel's rearward travel in the event the bracket should fail.” (Ibid.)

The court in Soule held that the consumer expectations test was inappropriate because “Plaintiff's theory of design defect was one of technical and mechanical detail. It sought to examine the precise behavior of several obscure components of her car under the complex circumstances of a particular accident. The collision's exact speed, angle, and point of impact were disputed.” (Soule, supra, 8 Cal.4th at p. 570.) “An ordinary consumer of automobiles cannot reasonably expect that a car's frame, suspension, or interior will be designed to remain intact in any and all accidents.” (Ibid.)

By contrast, the circumstances surrounding the accident in this case are ubiquitous and simple. The boom lift made contact with a high voltage powerline, resulting in electrocution. Ordinary consumers may reasonably expect that a boom lift that is often used around high voltage powerlines would have a device to prevent contact with said powerlines. This is not a complicated concept that an ordinary consumer or lay jury is incapable of grasping. (See Saller, supra, 187 Cal.App.4th at p. 1232 [“the purposes, behaviors, and dangers of certain products are commonly understood by those who ordinarily use them”].) Plaintiffs’ theory of liability does not seek to examine the behavior of several obscure components of the boom lift failing in conjunction. Rather, Plaintiffs simply claim that the inclusion of a single device, a PWD, would have prevented the accident. That such a device may itself be complex does not preclude application of the consumer expectations test. (Ibid.) Nor is it dispositive that expert testimony is needed to prove that a PWD would actually have prevented the accident under the facts of this case. (Id. at p. 1235.)

            2. Verrazono v. Gehl

In Verrazono v. Gehl Co. (2020) 50 Cal.App.5th 636, 641, the plaintiff sued for product liability after a forklift he was operating tipped over and he was ejected. The plaintiff attempted to apply the consumer expectations test, arguing that an ordinary user of the forklift would not expect that “upon rolling over, the operator would be ejected from the operator cage and subjected to the severe injuries that [he] suffered.” (Id. at p. 644.) The plaintiff claimed that “in addition to a roll bar and cage, and a two-point lap belt, the telehandler also should have been equipped with a nonremovable door, a belt with more than two-point attachment, and interlocks preventing operation of the forklift without a door or lap belt.” (Id. at p. 648.) The court held that “whether or not the lack of these features constituted a design defect was not an evaluation the jurors were equipped to make in the absence of expert testimony.” (Ibid.) However, the court recognized that if the forklift had simply lacked a roll cage or safety belt at all, the consumer expectations test could have easily applied, because an ordinary consumer can form minimal safety expectations that a forklift would have features to prevent a user from being squashed during a rollover. (Ibid.)

Here, an ordinary consumer can form minimal safety expectations that a boom lift would have features to prevent a user from making contact with high voltage powerlines. Unlike the plaintiff in Verrazono, Plaintiffs here do not allege the combined failure of several obscure parts or claim that existing parts should have been designed differently than they were. Rather, Plaintiffs claim that the boom lift simply lacked a safety device that would have warned its users that they were approaching a powerline, much like a forklift may simply lack a roll cage or lap belt to protect its users, which would justify application of the consumer expectations test. (See Verrazono, supra, 50 Cal.App.5th at p. 648.) In Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 562, the question of whether a forklift should have had a safety guard and fully visible warning light would “not involve complex or sophisticated technology or an understanding of concepts outside the scope of everyday experiences of the consumers of the product.” By the same token, the question of whether a boom lift should have had a safety device to warn users of their proximity to powerlines is also not complex and is within the everyday experiences of consumers.   

            3. Untrained and Unqualified Consumer

Lastly, Defendant argues that a hypothetical untrained and unqualified consumer such as Juan cannot possibly form expectations about the inclusion of PWDs on boom lifts. (Trial Br. 17:20-21.) However, “the inherent complexity of the product itself is not controlling on the issue of whether the consumer expectations test applies.” (Saller, supra, 187 Cal.App.4th at p. 1232.) Because of the danger’s ubiquity and simplicity, ordinary users of the boom lift likely have minimum safety expectations concerning the boom lift's electrocution hazards. Moreover, that Juan was untrained and unauthorized to use the lift does not mean that reasonable consumers of the lift cannot form minimal safety expectations. The consumer expectations test analyzes the expectations of “a hypothetical reasonable consumer, not the expectation of the particular plaintiff in the case.” (Ibid.)

            c. Warnings and Instructions

            Defendant argues that the warnings it placed on the lift and the safety manuals it employed, which were found sufficient as a matter of law to warn users of the risk of electrocution, make it unreasonable to form an expectation that the lift would contain a PWD to prevent contact with a powerline. (Trial Br. 15:10-17:16.) However, failure to warn and consumer expectations are distinct theories of product liability. None of the cited authority stands for the proposition that the consumer expectations test is inapplicable when a product includes adequate warnings and instructions. In fact, the test applies even when a product is being misused. (CACI 1203.) The requirement is for a product to be used in a reasonably foreseeable way, not necessarily in a correct way that abides by instructions. (See Soule, supra, 8 Cal.4th at p. 560.)

            In conclusion, the consumer expectations test may apply in this case, and the associated jury instruction cannot be precluded at this stage.  

II. Damages

It is undisputed that Juan’s parents, Harold and Ana, individually and on behalf of the estate of Juan, cannot recover for negligent infliction of emotional distress or for Juan’s pain and suffering. It is also undisputed that Juan’s brother, Marcos, cannot recover for loss of consortium. However, the parties dispute whether Marcos is entitled to NIED damages from observing Juan’s death.  

“[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress -- a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-68.)

The issue here concerns the second element. It is undisputed that Marcos was at the scene of the incident, as he was a passenger in the boom lift. However, Defendant argues that Marcos could not have been aware that the lack of a PWD caused Juan’s injuries and death, because it is an unobservable product defect. (Trial Br. 12:10-18.) Defendant relies on Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 845-46, where the plaintiff observed her brother dying during a scuba diving accident but could not recover for NIED against the manufacturer of the scuba equipment because she believed at the time that her brother was suffering a heart attack. The court in Fortman rejected the plaintiff’s “attempt to expand bystander recovery to hold a product manufacturer strictly liable for emotional distress when the plaintiff observes injuries sustained by a close relative arising from an unobservable product failure.” (Id. at pp. 843-44.)

Defendant argues that the absence of a PWD on the boom lift is also an unobservable product failure which Marcos could not have contemporaneously understood to be the cause of Juan’s injuries. However, the critical distinction between Fortman and this case is that in Fortman, it was undisputed that the plaintiff “did not have a contemporaneous, understanding awareness that the company's defective product was causing her brother's injury . . . [because] Fortman thought that her brother's injury was caused by a heart attack.” (Fortman, supra, 212 Cal.App.4th at p. 843.) Here, there is no indication that Marcos similarly held a mistaken belief regarding Juan’s injuries. As the second passenger in the boom lift, Marcos would have observed the lift contacting the powerline and recognized that as the cause of Juan’s electrocution.

The court in Fortman rejected the contention that “the second Thing requirement precludes bystander recovery in all strict products liability cases.” (Fortman, supra, 212 Cal.App.4th at p. 844.) In fact, the court “envision[ed] a number of scenarios in which a bystander plaintiff might recover against a product manufacturer for NIED.” (Ibid.) For example, where a plaintiff observes a propane tank explosion or a collapsing ladder injure a relative, she would have a contemporaneous understanding of the injury-producing event, or the product failure. (Ibid.) Importantly, the plaintiff “need not know the cause of the propane tank explosion or why the ladder collapsed,” as long as she understands that the defendant’s product is the cause of the harm. (Ibid.) In other words, a plaintiff seeking to recover for NIED needs only to observe the product failure and attribute it as the cause of a relative’s injuries, but does not need to understand how or why the product failed.

By arguing that Marcos could not have known about the lack of a PWD, Defendant is conflating the injury-producing event (the product failure) with the reason for the product failure. Marcos does not need to understand why the boom lift failed. He only needs to understand that the boom lift’s failure to prevent the contact was the cause of Juan’s electrocution. It is for a jury to determine whether Marcos sufficiently understood this at the time of the accident, and his NIED claim cannot be precluded at this stage. Like the hypothetical plaintiff who observes a propane tank explosion or collapsing ladder, Marcos would have observed the boom lift crashing into a powerline. Just as those plaintiffs need not understand the cause of the explosion or collapse, Marcos need not understand the cause of the crash. Defendant argues that Marcos could not have observed a product failure because the product did not fail. However, it remains to be seen whether a jury will find the product failed, under either the consumer expectations test or risk/benefit test.

Defendant also argues that “Marcos cannot recover bystander emotional distress damages from JLG simply because he saw Diego die in a fire on the boom lift” and that “he was aware only that Diego died from contacting the electrified power lines.” (Reply 4:11-22.) However, this is an incomplete rendition of events. It is not as if Marcos arrived on the scene to see Juan burning on the boom lift. Rather, Marcos could have been aware that Juan was electrocuted and caught fire because the boom lift carried him into the powerline without stopping. Marcos was on the boom lift himself and observed it coming into contact with the live wire, resulting in Juan’s electrocution. Marcos would have contemporaneously observed this product failure and could have attributed Juan’s injuries to the failure. Therefore, Marcos may recover for NIED, subject to proof at trial.

CONCLUSION

            Based on the above analysis, the Court rules as follows: (1) Plaintiffs are entitled to a jury instruction on the consumer expectations test; (2) Harold and Ana cannot recover for Juan’s pain and suffering; (3) Harold and Ana cannot recover for NIED; (4) Marcos cannot recover for loss of consortium; and (5) Marcos may recover for NIED.