APPEAL from a judgment of the Superior Court of San Joaquin County, Lauren P. Thomasson, Judge. (Super. Ct. No. CV007121)
The opinion of the court was delivered by: Hoch , J.
CERTIFIED FOR PUBLICATION
In this strict products liability case, we consider whether the criminal nature of a juvenile's act of throwing rocks and concrete from a freeway overpass relieves a truck manufacturer of the duty to design windshields capable of withstanding common road hazards, such as objects hitting windshields. For the reasons that follow, we conclude the criminal nature of the rock throwing does not cut off liability or negate the duty of the manufacturer to design the truck's windshield to account for reasonably foreseeable risks. We also explain that the definition of negligence for premises liability has no application in strict products liability cases.
This action arises out of injuries plaintiff William F. Collins sustained while driving a big rig truck manufactured by Navistar, Inc. A 2.5-pound piece of concrete thrown by 15-year-old Joshua Daniel penetrated the windshield of the truck and struck William in the head. Daniel would later plead to three counts of assault with a deadly weapon or with force likely to cause great bodily injury and be sentenced to serve 12 years in prison.
William and his wife, Barbara Collins, sued various defendants, including Navistar.*fn1 As to Navistar, plaintiffs claimed the windshield of the truck was defective because its penetration resistance was inadequate. They sought to show two alternative designs would have been safer: (1) windshields made out of "glass-plastic"; and (2) windshields with greater rake angles to deflect road debris. The trial court excluded evidence relating to glass-plastic on the grounds of federal preemption. The case proceeded to jury trial against Navistar only on the question of whether the windshield was defective due to its steep rake angle. At trial, Navistar argued that Daniel's criminal conduct constituted a "superseding cause" of the injury. A superseding cause "absolves a tortfeasor [of liability] even though his [or her] conduct was a substantial contributing factor, when an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him [or her] responsible." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9 (Soule).) The special verdict form indicates the jury accepted this defense, and judgment was entered in favor of Navistar.
On appeal, Barbara challenges the jury instructions and verdict form as erroneously requiring heightened foreseeability solely due to the criminal nature of Daniel's rock throwing. She contends the proper standard is whether it is foreseeable that the sort of object thrown in this case will hit truck windshields. Answering this question in the affirmative, Barbara asserts the instructional error was prejudicial. Barbara also challenges various evidentiary rulings related to the issue of foreseeability. And, she contends it was error to exclude the glass-plastic evidence. Navistar concedes this error, but urges it was harmless because the jury decided the case on superseding cause and never reached the question of design defect.
We conclude the trial court erred in instructing that a heightened foreseeability was required and the error was prejudicial because the special verdict form precluded the jury from considering whether the risk of chunks of concrete hitting the truck's windshield was a reasonably foreseeable road hazard. We accept Navistar's concession that federal law is not preemptive on the issue of whether glass-plastic would have been a safer design for the windshield. Accordingly, we reverse and remand for a new trial.
To provide guidance to the trial court on retrial, we address Barbara's evidentiary contentions. Consistent with our conclusion about the standard of reasonable foreseeability for strict products liability, we conclude Barbara was entitled to introduce evidence that chunks of concrete hitting truck windshields was not an unforeseeably rare occurrence. However, we reject Barbara's assertions of error in the trial court's admission and exclusion of expert testimony proffered by the parties.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of December 4, 1997, Joshua Daniel was on top of the south levee of Smith Canal, throwing rocks -- pieces of concrete and asphalt found on the levee -- at passing vehicles. Interstate Highway 5 crosses over the Smith Canal just south of Country Club Drive. Riprap, including chunks of concrete, lines the waterside slope of Smith Canal to the levee.
Daniel chose rocks about the size of baseballs and threw them overhand, hard enough to hurt anyone he hit. He spent 10 to 15 minutes throwing rocks and hit a few vehicles. He threw a chunk of concrete weighing about two and a half pounds at a Navistar tractor pulling two trailers driven by William. The rock penetrated the windshield and hit William in the forehead, causing severe brain injuries. William lost control of the truck and it hit the sound wall. Daniel heard a large crash.
Daniel was convicted of three counts of assault with a deadly weapon or with force likely to cause great bodily injury. He was sentenced to 12 years in prison.
William and Barbara brought suit against Navistar (previously International Truck and Engine Corporation), the State of California, and several other defendants.*fn2 Their claim against Navistar was for products liability, alleging the truck's windshield was defective because it failed to keep the rock that Daniel threw from penetrating.
The complaint also sought punitive damages on the grounds that Navistar knew the truck was defective. Navistar moved to strike portions of the complaint relating to punitive damages. The motion was granted with leave to amend. Plaintiffs filed an amendment with new allegations against Navistar regarding punitive damages. Navistar's motion to strike this amendment was denied.
Plaintiffs offered two alternative designs for the windshield. First, they contended the type of glass was defective; instead of a single laminated glass, it should have been made of bi-laminated glass known as glass-plastic. Second, plaintiffs contended the rake angle of the windshield should have been less steep, a more swept-back design, to deflect the rock.*fn3
Exclusion of Glass-plastic Evidence
Two defendants, the manufacturer of the windshield and the supplier of the glass, moved for summary judgment, asserting a state tort action for products liability was preempted by federal law. The windshield in the truck William drove was two layers of glass between which is a bonded layer of plastic. The windshield was manufactured in accordance with Federal Motor Vehicle Safety Standard 205 (FMVSS 205).*fn4 FMVSS 205 also authorized the use of glass-plastic in windshields.*fn5
The trial court granted both motions for summary judgment, finding plaintiffs' claims were preempted by federal law.
In light of these rulings, Navistar moved in limine to exclude any evidence of glass-plastic windshields. The trial court granted the motion.
Summary Adjudication on Punitive Damages
Navistar moved for summary adjudication of plaintiffs' punitive damages claim. Navistar contended plaintiffs had no evidence of fraud, oppression, or malice; the windshield complied with all safety standards; Navistar had not previously heard of glass-plastic; and Navistar had no notice of prior incidents where a projectile penetrated a windshield on one of its trucks. Navistar also noted the glass in the truck was not the original equipment.
The trial court granted the motion. The court found that since it was undisputed that the windshield had been replaced, the glass in the windshield at the time of the accident was not the "product" of Navistar.
Navistar's primary defense was that Daniel's criminal assault constituted a superseding cause of the plaintiffs' injuries and Daniel alone was responsible for the injuries he caused. To support its argument that the assault by Daniel was not reasonably foreseeable, Navistar offered the testimony of Rose Ray, Ph.D., a statistician. Plaintiffs moved in limine to exclude her testimony, contending her methodology was without scientific merit, her opinions lacked a factual basis, and her testimony would confuse and mislead the jury. Plaintiffs argued the databases on which Dr. Ray relied were unreliable, contained too small a sample, and were misleading.
At a hearing pursuant to Evidence Code section 402, Dr. Ray testified about the databases she used in forming her opinions. One database was the Fatality Analysis Reporting System or FARS, collected by the National Highway Traffic Safety Administration (NHTSA). FARS is a census of all fatal traffic accidents in the United States. For purpose of the census, an accident is considered fatal where the fatality occurs within 30 days of the accident and is attributable to the crash. FARS is believed to be 99-percent accurate and is considered the gold standard of databases. The NHTSA relies on it to develop vehicle safety standards and to evaluate their effectiveness.
Another database was the National Automotive Sampling System General Estimate System known as NASS/GES or simply GES. It was developed by the NHTSA to study traffic safety and is relied on by traffic safety professionals and statisticians. GES includes a representative sample of crashes of all levels of severity that are reported by the police.
Dr. Ray also used the National Automotive Sampling System Crashworthiness Database or CDS and the Large Truck Crash Causation Study or LTCCS. CDS was a representative sample of passenger vehicle crashes that were severe enough to require towing. The database included information from witness interviews, crash reconstruction, and evaluation of the vehicles involved. The database was maintained by the NHTSA. The LTCCS was a representative sample, similar to the CDS, but focused on large trucks rather than passenger vehicles.
Dr. Ray downloaded various site tables prepared by the federal Department of Transportation. These tables set forth calculations of vehicle miles traveled for different kinds of vehicles.
Dr. Ray performed a search on Factiva for 1997, the year of William's crash. Factiva is an internet search engine that consists primarily of newspaper reports. The search turned up the incident giving rise to this case.
Dr. Ray also reviewed the deposition of plaintiffs' statistician, Steven Crump.*fn6 Crump relied on the FARS and GES databases.
Dr. Ray testified that the risk of a fatality where the first harmful event was a thrown or falling object was .003 per billion vehicle miles for a combination truck, .004 for a single unit truck, .009 for a light truck, and .006 for a passenger car. Her calculations for a fatality or a major injury from a thrown or falling object were .004 per billion vehicle miles for a combination truck, .009 for a single unit truck, .034 for a light truck, and .046 for passenger cars.
Her first opinion, for which she relied upon FARS, GES, the vehicle miles traveled data, and LTCCS, was that the risk of fatality or serious injury as a result of a thrown or falling object was very low. It was a rare event. She relied on the same data for her second opinion, that such risk was higher for a passenger vehicle than a medium or heavy truck. Her third opinion was that a vehicle with a rake angle similar to passenger vehicles does not prevent penetration of a windshield by a thrown or falling object.
At trial, plaintiffs again objected to Dr. Ray's testimony, particularly her second and third opinions. They argued her statistics were inadmissible under Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757 (Grimshaw); her opinions were based on multiple levels of hearsay; and statistics provided an inappropriate method to prove causation.
Navistar argued that Dr. Ray's testimony was not offered to establish causation or a defect, but offered for the risk-benefit analysis under products liability and for the defense of superseding cause. Navistar argued Dr. Ray reviewed national databases and determined this was a rare event; thus, it was not foreseeable for a manufacturer to design for such rare circumstances. The trial court overruled plaintiffs' objections and allowed Dr. Ray to offer her three opinions at trial.
To rebut Dr. Ray's testimony, plaintiffs wanted to recall Keith Friedman, a safety researcher who had opined it was feasible for Navistar to increase the rake angle of the windshield in the Navistar 8200 truck. Plaintiffs proffered that Friedman would testify that the foundational facts for Dr. Ray's opinions did not exist and her numbers were without support. The trial court ruled Friedman's proposed testimony was not proper rebuttal, but a difference of opinion on how the numbers and factors could be used. In response, plaintiffs moved for a mistrial, arguing the statistics never should have come in. The court denied the motion for a mistrial.
Other Trial Testimony Relating to Foreseeability
Victor Alvarez, a truck driver, was also driving north on Interstate Highway 5 through Stockton that morning. A chunk of concrete, weighing 3.49 pounds, hit his truck and "busted out my windshield." To his testimony about these events he added, "almost a common occurrence in our industry." Both the State and Navistar objected and the trial court struck the remark as non-responsive. Plaintiffs' counsel then asked Alvarez if he had been hit by other objects while driving a truck. The court sustained a relevance objection. A third truck driver, Bill Warren, Jr., testified that he had a rock come through his windshield that morning.
California Highway Patrol Officer Paul McClellan had been dispatched two or three times to reports of an object being thrown at a vehicle in the area of Smith Canal. Two police officers who interviewed Daniel testified that Daniel had said he threw rocks at motorists on three prior occasions.
Ronald W. Nelson, a civil and traffic engineer who had worked for the California Department of Transportation for over 40 years and was now a consultant, testified that vehicle to vehicle rock throwing was fairly common as a type of road rage. In his experience, the injury to William due to a rock throwing incident was "[e]xtremely rare." An engineer who did crash testing testified that in all his years of professional experience he had never run into a case like this before.
The case was submitted to the jury, which found Navistar could not "have known or have reasonably foreseen that a person would be likely to take advantage of the situation created by Navistar's conduct to commit" an act like Daniel's rock throwing. The court entered judgment on the verdict in favor of Navistar.
Plaintiffs moved for a new trial. They raised the points urged on appeal and others. The trial court denied the motion. Plaintiffs thereafter timely filed a notice of appeal.
The Requisite Foreseeability for Strict Products Liability Involving Third-party Criminal Conduct
On appeal, Barbara argues Navistar had a duty to design its trucks to withstand common road debris, even intentionally thrown rocks and concrete chunks. Thus, she contends the jury was improperly instructed that a heightened foreseeability was required to prove a design defect claim just because it involved third-party criminality. As we explain, the argument has merit.
Pattern CACI instructions include a set that addresses strict products liability. To define the standard of proof, CACI 1203 sets forth the consumer expectation test and 1204 articulates the risk-benefit test. At trial, plaintiffs did not claim that Navistar's tractor failed to meet the consumer expectation test. Instead, they pursued only a design defect theory of the case for which the trial court gave CACI 1204 as follows:
"'The following instruction applies to Navistar, Inc. only.
"'William F. Collins and Barbara Collins claim that the 1994 Model 8200 tractor's design caused harm to William F. Collins and Barbara Collins. To establish this claim, William F. Collins and Barbara Collins must prove all of the following:
"'(1) That Navistar, Inc. manufactured, distributed or sold the 1994 Model 8200 tractor;
"'(2) That the 1994 Model 8200 tractor was used in a way that was reasonably ...