APPEAL from an order of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. (Super.Ct. No. CV239569).
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[166 Cal.Rptr.3d 205] Robinson & Wood, Arthur J. Casey and Colin G. McCarthy, San Jose, for Defendant and Appellant.
Fitzgerald & Lundberg, Kenneth M. Fitzgerald, Visalia, and Barbare A. Lundberg, for Plaintiff and Respondent.
HILL, P. J.
In this product liability action, defendant appeals from an order granting a new trial on plaintiff's claims of failure to warn of the dangers of the product. The order was entered on the ground of insufficiency of the evidence to support the verdict, after the jury found in favor of defendant on its sophisticated user defense ( Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 74 Cal.Rptr.3d 108, 179 P.3d 905 ( Johnson )). The jury found plaintiff was a sophisticated user of the product who already had, or should have had, knowledge of the dangers of the product; therefore, no warning to him was required. We find no abuse of the trial court's discretion in granting the motion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was employed by Central California Tristeza Eradication Agency (Tristeza), to do maintenance work. On October 7, 2009, he was using a power drill to drill a hole in a piece of angle iron when the drill bit bound and the drill counter rotated, twisting his arm and causing serious injuries. The drill was a Milwaukee Magnum one-half inch pistol grip drill, model No. 0235-1, manufactured by defendant, Milwaukee Electric Tool Corporation (Milwaukee), 17 years earlier. Plaintiff sued defendant and others, alleging causes of action sounding in negligence and strict products liability. In response to the allegations of failure to warn, defendant asserted that plaintiff was a sophisticated user of the drill, and any failure to warn was not a legal cause of plaintiff's injuries because plaintiff already knew or should have known of the dangers involved in the use of the product.
Plaintiff's theory at trial was that the drill could not be used safely without a side handle, also known as an anti-torque bar. Plaintiff contended the drill
was negligently and defectively designed because it did not include an interlock device that would prevent the drill from being used when the side handle was not attached. He also asserted defendant failed to adequately warn of the dangers of using the drill, because there was no label on the drill advising that the side handle had to be used to avoid serious injury, and the warnings in the operator's manual were insufficient to advise of the need to use the side handle and the potential for serious injury if it was not used.
The drill originally came with a side handle, which could be installed on either side of the drill for left- or right-handed use. The operator's manual for the drill advised the user to " [a]lways use a side handle for best control." A label on the drill itself read: " WARNING / HIGH ROTATING FORCE / HOLD OR BRACE SECURELY TO PREVENT PERSONAL INJURY OR DAMAGE TO TOOL / READ SAFETY INSTRUCTIONS BEFORE OPERATING." At the time of plaintiff's accident, however, Tristeza no longer possessed either the operator's manual for the drill or the side [166 Cal.Rptr.3d 206] handle. When plaintiff was given the drill to use, it did not have a side handle; he looked it over briefly, then began to use it. Tristeza's maintenance supervisor, Robert Parrott, who was plaintiff's supervisor, testified that, although the drill had an odd key chuck, plaintiff took the drill and changed the bit like he knew what he was doing.
Defendant contended the drill was not negligently designed or defective, the warnings on the drill and in the operator's manual were adequate, and no warning was required in any event, because plaintiff was a sophisticated user of the drill. Evidence of plaintiff's employment history was presented. Plaintiff was not a licensed contractor, but he had been using power tools and doing handyman work since high school. In the 20 years before going to work for Tristeza, he had worked doing construction for contractors, and had worked for himself, doing kitchen remodeling and other small jobs. He had experience in maintenance, roofing, flooring, electrical work, plumbing, carpentry, cement finishing, and framing. He represented to Parrott that he was a certified electrician and plumber. He had used power tools and drills in his employment, and considered himself to be handy with power tools. There was conflicting evidence regarding whether plaintiff had used the subject drill or one like it prior to the accident.
Witnesses to the accident testified they observed plaintiff using the drill improperly, holding the drill with one hand, pushing it into the metal he was
drilling, while holding the metal with the other hand, pulling it toward the drill, and ignoring warnings from his supervisor not to force the drill. The drill then bound and counter rotated, breaking the bit and twisting plaintiff's arm.
There was evidence that plaintiff, like his coemployees, knew drills can bind and counter rotate when not used properly, or when they hit obstacles, such as nails or knots in wood. There was conflicting evidence regarding whether plaintiff knew about using a side handle in such situations. Plaintiff's expert admitted that someone with plaintiff's background and experience should have known that a drill could bind, counter rotate, and injure the user. Another expert opined that, with his work experience, knowledge, and skill set, plaintiff would be aware of what the subject drill was capable of and that it did have a side handle. Some maintenance worker witnesses testified they did not know the subject drill could not be used safely without a side handle. Some stated it could be used safely; plaintiff's coworkers and an expert testified they had used Tristeza's drill or a similar drill without the side handle numerous times without injury. Plaintiff and his coworkers testified [166 Cal.Rptr.3d 207] they did not know an injury as serious as plaintiff's could result from using the drill.
The jury, in a special verdict, found the drill was not negligently or defectively designed. The jury did not determine whether there was a failure to warn or inadequate warning, because it resolved the failure to warn issue by finding plaintiff was a sophisticated user. Plaintiff moved for a new trial on the ground of insufficiency of the evidence, asserting, among other things, that there was insufficient evidence to support the jury's finding that plaintiff was a sophisticated user. Plaintiff defined the danger of which he should have been warned as " this drill could only be used safely with a side handle," and asserted there was no evidence any witness knew of the danger, much less that it was common knowledge among maintenance workers like plaintiff. In opposition, defendant argued the relevant danger was the danger the drill would bind and counter rotate, twisting the user's wrist or arm. It asserted there was sufficient evidence this danger was common knowledge among maintenance workers, and plaintiff's training, ...