Friday, March 29, 2013

Collins v. Navistar (Cal. Ct. App. - March 29, 2013)

I'm not sure what to make of this case.

On the one hand, I agree that the jury instructions in the case seemed a bit confused.  That's perhaps not too surprising, since the case is an intersection of criminal conduct and civil products liability.  There are various jury instructions for each scenario, and they conflict (or are at least in tension), so I can understand why the Court of Appeal might think that the trial court got it wrong by giving the instructions that it did.  And, on that basis, reverse the jury's judgment in favor of the defendant and remand for a new trial.  Which is what the Court of Appeal indeed did.

But I'm nonetheless not at all certain that this is the right result.

The situation here involved a 15-year old child who threw a 2.5 pound piece of concrete at a tractor trailer that was driving on I-5.  The rock smashed through the windshield and hit the driver in the head, causing severe brain injuries to the driver.

That's a crime.  It's also a tort.  So there's no surprise that there's a subsequent civil lawsuit.

But the lawsuit here isn't against the boy or his parents.  It's against the manufacturer of the windshield.  Claiming that the windshield was defectively designed since it allowed a 2.5 pound piece of concrete to go through the windshield of a car driving on I-5.  The Court of Appeal says that's a potentially legitimate basis of liability.


Do I doubt that a manufacturer can create a windshield that withstands the massive forces that are created when a huge chunk of concrete gets thrown at it while the car is going at a high rate of speed?  Sure.  I can easily imagine armor plating.  I'm also confident that the plaintiff's expert is correct that if you use fancy (and presumably more expensive) polymers in the window, and then tilt the windshield back so that it stands less "upright," maybe even a two-and-a-half pound chunk of concrete will bounce off the windshield instead of smashing through it.

For this reason, the Court of Appeal holds that it's a straightforward products liability suit.  The only thing that matters is whether the design selected is superior, on a cost-benefit analysis, to the alternative design that they rejected that would have prevented the accident.

I'm not entirely persuaded.

It seems to me that there are certain types of events that take you out of the realm of cost-benefit analysis, and those things include unforeseeable events like the unexpected criminal conduct of a third party.  It's not that the Court of Appeal doesn't understand that principle.  It does.  But it responds that it's not applicable because the whole purpose of a windshield is to stop objects (including but not limited to rocks) from hitting the driver.  So since the defendant knows that's the object of the product, they've got a duty to stop rocks even in situations that are entirely unexpected.

I understand the argument.  It's got some facial appeal.  But I'm just not sure it's entirely right.

Imagine this hypothetical:  One day, due to quantum fluctuations, gravity along a section of I-5 is suddenly reversed, causing rocks on the side of the road to float into the air, and one of them smashes through a windshield.  On the Court of Appeal's view, there may well be liability there, despite the fact that no one could have possibly anticipated this event, because the whole point of windshields is to stop rocks.  Ditto if space aliens show up and start firing guns that shoot rocks at oncoming traffic.  Whole point of windshields is still to stop rocks.  Potential liability.

It just seems to me that the purpose of the product is not categorically dispositive and that there are some events that are sufficiently remote in terms of foreseeability that we do not (and should not) impose liability even if the harm therefrom could have been prevented were the product alternatively designed.  Yes, it's true, a windshield is designed to stop wind, bugs and even tiny rocks that fly off tires or bounce off the freeway from smashing you in the head.  Those are somewhat common events.  But a 2.5 pound rock deliberately thrown by a teenager?  That's something categorically different.  It doesn't happen every day.  Or even every year.  Which is, in part, why we sentenced the 15-year old thrower to 12 years in prison.  You don't anticipate that stuff.  You may know that, in theory, it might transpire.  Ditto for a 2.5 meteor coming down from space and hitting the windshield.  But it's sufficiently rare that we don't impose liability even if an alternative design would have prevented the harm.  As a matter of law.

For me, there's simply a qualitative difference between the type of tiny rocks that windshields are designed to stop and deliberately thrown "monster" rocks.  I get liability for the former.  But not the latter.  That's not sufficiently foreseeable.  As a result, we don't want post hoc cost-benefit balancing by a jury that might well be (understandably) sympathetic to a horribly injured plaintiff.  Ergo judgment as a matter of law.

My view, as is obvious, stands in sharp contrast to that of the Court of Appeal.  Which not only lets the suit go forward, but reverses a jury verdict in favor of the defendant.

Wholly apart from my disagreement as a matter of policy and tort principles, I'm also not sure that today's Court of Appeal opinion effectively distinguishes precedent.

There are, as you might imagine, lots of cases that involve unforeseeable events.  Including those in which, as here, the criminal act of a third party allegedly "breaks the chain of causation" as a matter of law.  One of the cases the Court of Appeal distinguishes is a 2004 opinion in which the California Supreme Court held that as a matter of law a daycare center couldn't be liable when a driver deliberately drove his car through a chain link fence surrounding the center and hit some children.  The Court of Appeal says that holding doesn't apply because it was a case of premises -- rather than products -- liability.  But why does that matter?  After all, the purpose of the fence, just like the windshield here, was in part to keep unwanted people and things out.  If, as plaintiffs contended in 2004, the fence could have been built more strongly and in a manner that was cost-benefit effective, why shouldn't there be liability there too?  Yes, the "type" of tort is different -- we give it a different name -- but this is a distinction without a difference.  The same reasoning should apply.

The same seems true for another case that the Court of Appeal distinguishes.  This one involved a motorist whose tire blew out, stranding her in a remote area, at which point someone came along and killed her.  In that case, the appellate court dismissed liability as a matter of law based upon the intervening criminal act of the third party.  That act caused the harm, despite the fact that the murder would surely have been prevented if the tire had been properly built.  How's that case any different?

The Court of Appeal says it's different because in that case "no physical harm was caused by the product itself" (i.e., the tire).  But the exact same is true here.  The windshield didn't cause the harm.  The rock did.  Windshield = Tire.  Rock = Murderer.  Moreover, it seems to me like the Court of Appeal's "purposive" analysis applies equally in both cases.  The Court of Appeal says that the purpose of an effectively designed windshield is, in part, to prevent rocks from hitting the driver, ergo (potential) liability even for unforeseeable acts.  But surely one purpose of an effectively designed tire is similarly to make sure that it doesn't blow out and strand the driver on the side of a road, right?  If that's the case, there should be liability there too, no?

Indeed, as regards foreseeability, which of the following do you think is more likely to occur in a given day or month or year:  (1) Someone deliberately throws a 2.5 pound rock through the windshield of a moving car and kills them, or (2) Someone's tire blows out and a bystander comes by and kills them?  If someone gave you a magic wand and said that you wave it and thereby prevent one -- but only one -- of these events from harming you for the rest of your life, which one would you prevent?

Personally, I'm waving it at No. 2.  Because even though both events are totally unlikely, as between them, I think the second is more probable.  Hence more foreseeable.  But the Court of Appeal is fine with holding no duty with respect to that one as a matter of law and yet imposing potential liability on the other.  I'm just not sure that makes sense.  Either as a matter of policy or as a matter of doctrine.

Are there parts of me that tug the other way?  Sure.  Do I want a world in which windshields are as strong as they can possibly (and cost-effectively) be?  Yes.  Do I want manufacturers to comply with the absolute minimum safety standards.  Not always.  (Though I'll mention that, here, the federal standard seems pretty darn tough, and requires a windshield to withstand penetration from a 5-pound ball dropped from 12 feet.)  Do I feel bad -- really bad -- for someone seriously injured from a rock that might have been stopped by a stronger and more sloped windshield?  Yes.  Of course.

But at some point, you've got to cut off potential liability.  Particularly for intentional criminal acts of third parties, which we hope to prevent through alternative means (e.g., criminal punishment).  Should there nonetheless be liability when those criminal acts are reasonably foreseeable; for example, when they happen relatively commonly, or in the same area, etc.  Sure.  I'm on board for that.  But there's none of that here.

So I'm just not sure this reaches the right result.  Seems to me that we might well be able to say that the jury was right when it decided that the intervening act of a third party was the thing that caused the harm, and so we can thereby save its verdict.  Indeed, it may well be that the case shouldn't even gone to the jury to begin with.