Products Liability: Unforeseeable Misuse

By on September 26, 2010 - Comments off

Perez v. VAS S.p.A., (Second District, August 24, 2010, as Modified September 17, 2010) 188 Cal.App.4th 658, 115 Cal.Rptr.3d 590, 10 Cal. Daily Op. Serv. 12,229, 2010 Daily Journal D.A.R. 14,719

A man whose right hand was crushed while operating a paper rewinding machine for his employer filed suit against the manufacturer of the machine, asserting various products liability theories. The plaintiff alleged that the rewinder was defectively designed because it had an unguarded nip point created by two cylinders which rotated toward each other in the machine, in violation of title 8, section 4002(a) of the California Code of Regulations. The plaintiff further alleged that there was a defect in the design of the machine because during the slow speed operation there was no physical barrier or optical curtain barrier.

In a nonjury trial, the trial court found that the plaintiff had the burden of proving that the rewinding machine was used in a way that was reasonably foreseeable to the manufacturer, and concluded that the plaintiff had failed to prove the absence of unforeseeable misuse. Following a judgment in favor of the defendant the plaintiff appealed, contending that the trial court had erred in assigning the burden of proof to him to prove the absence of unforeseeable misuse.

The court of appeal agreed that the trial court had erred in applicable burden-shifting analysis, holding that the burden of proof had shifted to the manufacturer. However, the court affirmed the judgment, holding that the error was not prejudicial, and that the plaintiff’s use of the machine in an unforeseeable manner constituted a superseding cause of his injury:

“Here, Perez met his initial prima facie burden. Through Solomon’s expert testimony, he presented evidence that his injury occurred because his hand was caught in a nip point of the VAS rewinder, which was located within his reach. Solomon’s testimony also suggested that the finishing process used by Perez to wrap the cut rolls in plastic was a foreseeable use of a paper rewinding machine.

Given Perez’s showing, the burden of proof shifted to VAS to prove that its design was not defective, and in particular, to prove that Perez’s injury resulted from a misuse of the machine. It is true that the trial court did not use this burden-shifting formula. However, “misallocation of the burden of proof is not ‘reversible error per se,’ [and] does not vitiate the substantial evidence rule.”
. . .
Here, acting as the trier of fact, the trial court determined that the misuse of the VAS rewinder by Pabco and Perez could not be imputed to VAS. It found as follows: . . . Neither Pabco nor its machine operators, including Perez, meaningfully complied with the VAS Manual and the warnings on the machine itself. [¶] The evident persistence of the machine operators, including Perez, in unsafe practices that were at a minimum tolerated or acquiesced in by Pabco cannot reasonably and fairly be imputed to the VAS design and/or its rewinding machine. The evidence showed that, contrary to the Manual and any safe and sound practice with respect to the machine’s two specific operational modes, Perez and his fellow machine operators introduced and used plastic wrapping in the rewinding machine and its operating field. . . . In so doing, the machine operators, including Perez, and their helpers physically moved, maneuvered and walked about in close proximity to the machine and in its operating field, especially and regularly while handling an essentially foreign and unwieldy plastic material that they affixed to paper rolls also rotating in the machine. *610 The foregoing activity by Perez, which was at least tolerated, if not permitted and even encouraged, by Pabco constituted unforeseeable misuse by each of them.”
. . .
There was no dispute that the operating manual prepared by VAS made no mention of use of the rewinder to perform the finishing process. Instead, it specifically instructed the operator to eject the finished rolls after they were cut and before entering the operating area. Based on this evidence, the trial court reasonably concluded that the finishing process was not a use of the VAS rewinder that was actually foreseen by VAS.
. . .
Here, the trial court reasonably concluded, in substance, that Perez’s misuse of the rewinder was so extreme as to be the sole cause of his injury. That conclusion dispensed with the need to apply principles of comparative fault.”

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