Morrison Law Journal


The Morrison Law Journal March 2014 Volume IX, Edition 3 Another Victory For Engineers: Court Of Appeal Rules That Designer Of Car Seat Is Not Liable On A Strict Products Liability Theory When It Did Not Manufacture Or Place The Car Seat In the Stream Of Commerce By: Edward F. Morriso n, Jr., Esq. Larry A. Schwartz, Esq.
A legal question that has arisen over the years in California is whether an engineering firm which designs a product but does not market, manufacture or otherwise place the product in the stream of commerce can be liable on a strict products liability theory. In the context of construction defect cases, that question has generally been answered by the Courts which have generally held that engineers who do not participate in bringing a product to market and simply design the product are not subject to strict products liability claims. [See, Swett v. Gribaldo, Jones & Associates (1974) 40 Cal.App.3rd 573, 576, Del Mar Beach Club Owner's Association v. Imperial Contracting Co. (1981) 123 Cal.App.3rd 898] Given that this line of cases deals with construction cases involving mass produced single family residences, a question still remained as to whether an engineer could be liable for strict products liability outside the context of a construction defects claim. That question appears to have been answered in the recently published opinion in Romine v. Johnson Controls (2014) WL 1012960 ("Romine") where the California Court of Appeal, Second District, ruled, in the context of a serious injury automobile accident case, that the designer of a vehicle car seat (or a component of the seat) could not be liable on a strict products liability theory where the engineering firm had not participated or been involved in the manufacture or otherwise placing the car seat in the stream of commerce. In Romine, the plaintiff was involved in a "vehicle chain reaction accident" which occurred when the operator of a Ford Mustang exited the 210 Freeway at a high rate of speed and collided with a Nissan Altima. The Nissan Altima then collided, at a high rate of speed, into the plaintiff's Nissan Frontier pickup truck resulting in serious injuries to the plaintiff. Following the accident, the plaintiff filed suit against, among others, the engineering firm which designed a component of the vehicle car seat. The plaintiff, at Trial, elected to pursue the engineering firm on a strict products liability design defect claim on a consumer expectations theory rather than a risk/benefit test. The jury then returned a verdict in the amount of $24,744,764 and apportioned eighty-percent fault to the 1 operator of the speeding vehicle and twenty-percent to the manufacturer of the vehicle car seat (all of the other defendants had settled prior to Trial). On appeal, the Court of Appeal made a number of rulings. As relevant to this article, the Court of Appeal noted that the engineering firm which designed the vehicle car seat had no involvement in bringing the product to market and simply designed the car seat. The Court ruled that the case law which held no liability for engineering services, such as in Swett v. Gribaldo, Jones & Associates, equally applied to products liability cases not involving real property. In that regard, it is noted that plaintiff attempted to distinguish the engineering cases on the ground that they "crossed over into mass-produced home issues…", but the Court of Appeal dismissed that argument. It is also noted that the Court in Romine ruled that Proposition 51, which provides that liability among defendant co-tortfeasors for non-economic damages is several only, does apply to strict products liability cases such as in Romine where there was more than one product involved in the accident. The Court also ruled that the mention of the full amount of the plaintiff's medical bills, as opposed to the amount that was actually accepted by medical care providers, was not reversible error in spite of the California Supreme Court's holdings in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 and Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308. However, and most significantly, the Romine case holds for the proposition that an engineering firm, not involved in the manufacture or the placing of a product in the stream of commerce, will not be liable under a strict products liability theory whether or not the matter involves mass produced homes or not. This holding should have application in the context of many personal injury cases and other disputes not involving real property construction defect matters. About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com. Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of 2 The Morrison Law Group and should not be construed as legal advice on any matter. 3

A legal question that has arisen over the years in California is whether an engineering firm which designs a product but does not market, manufacture or otherwise place the product in the stream of commerce can be liable on a strict products liability theory. In the context of construction defect cases, that question has generally been answered by the Courts which have generally held that engineers who do not participate in bringing a product to market and simply design the product are not subject to strict products liability claims. [See, Swett v. Gribaldo, Jones & Associates (1974) 40 Cal.App.3rd 573, 576, Del Mar Beach Club Owner's Association v. Imperial Contracting Co. (1981) 123 Cal.App.3rd 898] Given that this line of cases deals with construction cases involving mass produced single family residences, a question still remained as to whether an engineer could be liable for strict products liability outside the context of a construction defects claim.

That question appears to have been answered in the recently published opinion in Romine v. Johnson Controls (2014) WL 1012960 ("Romine") where the California Court of Appeal, Second District, ruled, in the context of a serious injury automobile accident case, that the designer of a vehicle car seat (or a component of the seat) could not be liable on a strict products liability theory where the engineering firm had not participated or been involved in the manufacture or otherwise placing the car seat in the stream of commerce.

In Romine, the plaintiff was involved in a "vehicle chain reaction accident" which occurred when the operator of a Ford Mustang exited the 210 Freeway at a high rate of speed and collided with a Nissan Altima. The Nissan Altima then collided, at a high rate of speed, into the plaintiff's Nissan Frontier pickup truck resulting in serious injuries to the plaintiff. Following the accident, the plaintiff filed suit against, among others, the engineering firm which designed a component of the vehicle car seat. The plaintiff, at Trial, elected to pursue the engineering firm on a strict products liability design defect claim on a consumer expectations theory rather than a risk/benefit test. The jury then returned a verdict in the amount of $24,744,764 and apportioned eighty-percent fault to the

operator of the speeding vehicle and twenty-percent to the manufacturer of the vehicle car seat (all of the other defendants had settled prior to Trial).

On appeal, the Court of Appeal made a number of rulings. As relevant to this article, the Court of Appeal noted that the engineering firm which designed the vehicle car seat had no involvement in bringing the product to market and simply designed the car seat. The Court ruled that the case law which held no liability for engineering services, such as in Swett v. Gribaldo, Jones & Associates, equally applied to products liability cases not involving real property. In that regard, it is noted that plaintiff attempted to distinguish the engineering cases on the ground that they "crossed over into mass-produced home issues…", but the Court of Appeal dismissed that argument.

It is also noted that the Court in Romine ruled that Proposition 51, which provides that liability among defendant co-tortfeasors for non-economic damages is several only, does apply to strict products liability cases such as in Romine where there was more than one product involved in the accident. The Court also ruled that the mention of the full amount of the plaintiff's medical bills, as opposed to the amount that was actually accepted by medical care providers, was not reversible error in spite of the California Supreme Court's holdings in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 and Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308.

However, and most significantly, the Romine case holds for the proposition that an engineering firm, not involved in the manufacture or the placing of a product in the stream of commerce, will not be liable under a strict products liability theory whether or not the matter involves mass produced homes or not. This holding should have application in the context of many personal injury cases and other disputes not involving real property construction defect matters.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of