When making a claim of strict product liability, the industry custom and practice may be admissible, depending on the type of evidence and the purpose for which the proponent seeks to introduce that evidence.
That was the recent holding of the California Court of Appeals for the Second Appellate District, Division Seven, in the product liability lawsuit of Kim v. Toyota Motor Corp.
The ruling was bad news for the plaintiff, who sought to exclude evidence of the industry practice and custom as it pertained to the manufacture of pickup trucks during a certain period of time.
According to court records, plaintiff was driving his 2005 model pickup truck when he swerved to avoid another vehicle on the highway, lost control of the vehicle and drove off the road. The road had been wet and plaintiff was taking a descending curve at 50 mph. A car driving toward him had crossed part way over into the center line, and he had to veer right to avoid a collision. When he steered left to get back onto the pavement, his truck turned too far to the left and the tires slipped. That’s when he lost control, and the truck rolled onto the roof and then back onto its wheels before landing in an embankment. Firefighters had to use special tools to extricate him, and he suffered serious damage to his neck and spinal cord.
Plaintiff alleged in his injury lawsuit he had only lost control of the vehicle because it lacked an electronic stability control, and that by failing to have this feature, manufacturer released a defectively-designed vehicle.
In a motion filed prior to the start of trial, plaintiffs asked that the trial court not allow defense to present evidence that compared its vehicle to competitors’ vehicles and designs. The defense had asked this evidence be allowed because it showed that its designs weren’t effective because they were the same or better than other competitor models. Plaintiffs argued that just because the designs complied with Federal Motor Vehicle Safety Standards didn’t mean they weren’t defective. However, the trial court denied the motions, but did indicate plaintiffs could present a limiting jury instruction if it was necessary.
At trial, plaintiffs mechanical engineer expert witness explained that electronic stability control is able to sense when the rear of a vehicle starts to swing out and responds by applying the brakes to a front tire so the vehicle doesn’t fishtail and the driver can maintain control. The sensors can also tell when the front tires are slipping and react by applying the rear brakes. The expert testified electronic stability control would have prevented this accident. A computer engineer also attested to this, and another mechanical engineer noted it was cost a manufacturer $300 per truck to add.
One of the manufacturer’s product planning manager was called as an “adverse witness,” testifying that he had recommended the feature be available in its vehicles. It was made standard in most sport utility vehicles by 2001 and was available as an option for pickup trucks by 2005. He had recommended making it standard in those pickup trucks, but he noted no other manufacturer had made the feature standard by that point.
After nine days of trial, jurors concluded there was no vehicle defect. Plaintiffs sought a new trial, but that as denied. They then appealed, but the verdict was affirmed.
Plaintiffs argued before appeals court that it was irrelevant what industry practice and custom was, and that this information was unduly prejudicial. However, the appellate court ruled this was not an abuse of discretion and the trial court had properly refused plaintiff’s motion and proposed jury instructions.
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Kim v. Toyota Motor Corp. , Jan. 19, California Court of Appeal, Second Appellate District, Division 7
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