Unpublished Disposition, 859 F.2d 924 (9th Cir. 1988)

MEMORANDUM^* 

Look Sports, Inc. appeals from the denial of its motions for a directed verdict and for a judgment notwithstanding the verdict by the district court. We have jurisdiction over this diversity case under 28 U.S.C. § 1291. We review all legal questions de novo. On factual questions we must draw all reasonable inferences in Spittler's favor and our review is limited to whether there was substantial evidence from which the jury could reasonably find for Spittler. Peterson v. Kennedy, 771 F.2d 1244, 1252 (9th Cir. 1985), cert. denied, 106 S. Ct. 1642 (1986).

We first review Look's claim that the court erred as a matter of law in submitting Spittler's design defect claim to the jury. Having closely studied California's approach to the "comment k" exemption from strict design defect liability, we are convinced that if any error was made by the district court, it was in Look's favor. The court, after conducting the type of hearing mandated by Kearl v. Lederle Laboratories, 172 Cal. App. 3d 812, 218 Cal. Rptr. 453 (1985), elected to submit the comment k question to the jury. The California Supreme Court's recent decision in Brown v. Superior Court, 245 Cal. Rptr. 412, 751 P.2d 470 (1988), makes clear, however, that under California law the comment k defense is not recognized for recreational products such as ski bindings. See 245 Cal. Rptr. at 420. Thus, as a matter of law the jury should not have been precluded from considering the strict design defect theory on account of the comment k defense.¹ 

On the merits of the strict design defect theory, there was sufficient evidence to allow the jury to consider both the "consumer expectations" test and the "risk/benefit" test. Barker v. Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978). Further, Look's argument that the "consumer expectations" prong of that test was barred because ski bindings are too technically complex for ordinary consumers to understand misstates California law. The test is not whether ordinary consumers would understand the scientific theory behind ski bindings; it is whether they understand, at a high level of generality, how bindings are expected to work under normal conditions. See, e.g., Akers v. Kelley Co., Inc., 173 Cal. App. 3d 633, 650, 219 Cal. Rptr. 513, 523 (1985). Ordinary consumers know that ski bindings are supposed to release at a certain point to prevent injuries. The test was satisfied. In any event, even if ski bindings are too complex for the ordinary consumer, California law allows the jury to consider consumer expectations if an expert testifies to what consumers could expect from the equipment at issue. Rosburg v. Minnesota Mining & Mfg. Co., 181 Cal. App. 3d 726, 732-33 & n. 4, 226 Cal. Rptr. 299, 303-04 & n. 4 (1986). The testimony of both experts satisfied this requirement.

There was also substantial evidence on each of the pre-requisites to a strict liability suit based on defective manufacturing. Under Barker 's "deviation from the norm" test, 20 Cal. 3d at 429, 143 Cal. Rptr. at 236, Dr. Hull's testimony that Spittler's ski bindings were manufactured defectively was sufficient to establish a prima facie case.

Spittler's negligent failure to warn theory was also properly submitted to the jury. Look's contention that this theory was barred as a matter of law because most people know that skiing is dangerous is too general. Although Look did not have a duty to warn about obvious dangers such as the general dangerousness of the sport of skiing, see Prosser & Keeton, Torts Sec. 96(2) (a), at 686-87 (5th ed. 1984), it did have a duty to warn of specific dangers associated with use of its product, such as the risk that the bindings would not release and the tradeoff between their retention and release capabilities. This duty was not discharged by Look's general warning that the risks of skiing "can be minimized, but not totally eliminated, through the use of adequately adjusted equipment." With respect to proximate causation, Spittler's testimony that he might have altered his behavior in response to an adequate warning was sufficient to sustain the verdict. In any event, under California law Spittler was not required to make such a showing under a negligent failure to warn theory. See, e.g., DeLeon v. Commercial Mfg. & Supply Co., 148 Cal. App. 3d 336, 349-50, 195 Cal. Rptr. 867, 875-76 (1983).

With respect to both the strict liability and negligence theories, the district court did not err in declining to instruct the jury on assumption of risk. Even if California recognizes a reasonable assumption of risk defense in some strict liability actions, see Lipson v. Superior Court, 31 Cal. 3d 362, 377 n. 11, 182 Cal. Rptr. 629, 639 n. 11, 644 P.2d 822 (1982) (dictum), it does not do so in strict product liability suits, Baker v. Chrysler Corp., 55 Cal. App. 3d 710, 718-19, 127 Cal. Rptr. 745, 750-51 (1976). Similarly, although the doctrine of reasonable implied assumption of the risk, which relieves "a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in confronting a known danger," is recognized as a defense to some negligence suits, Ordway v. Superior Court, 243 Cal. Rptr. 536, 538-41 (1988) (emphasis in part in original, in part added), it is not logically compatible with a negligent failure to warn theory, which by definition requires that a plaintiff not have assumed a known risk, see Lipson, 31 Cal. 3d at 371, 182 Cal. Rptr. at 635; Nelson v. Hall, 165 Cal. App. 3d 709, 715 n. 4, 211 Cal. Rptr. 612, 673 n. 4 (1985).

Look's arguments regarding the warranty and misrepresentation claims are without merit. The advertisements provided substantial evidence of the creation of an express warranty. See Hauter v. Zogarts, 14 Cal. 3d 104, 120 Cal. Rptr. 681, 534 P.2d 377, 381 & n. 7 (1975); Keith v. Buchanan, 173 Cal. App. 3d 13, 19-21, 220 Cal. Rptr. 392, 394-96 (1985). Spittler also presented sufficient evidence that the advertisements were a substantial factor in inducing him to buy the bindings to meet the reliance requirement for false representation suits, see Restatement (Second) of Torts Sec. 402 B, comment j, as well as the less demanding test for express warranty claims, see Keith, 173 Cal. App. 3d at 22-23, 220 Cal. Rptr. at 397-98.

We reject Look's evidentiary arguments, which we review for abuse of discretion. Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th Cir. 1985). The court did not abuse its discretion in admitting the advertisements, which were relevant to the warranty, misrepresentation, and "consumer expectation" issues. There was no abuse in allowing Dr. Chapman, a leading orthopedist and one of Spittler's treating physicians, to offer an opinion as to how his leg broke. The Convert deposition was admissible under Fed. R. Civ. P. 32(a) (2) and Fed.R.Evid. 801(d) (2) (D); in any event, it was not prejudicial.

Finally, we reject Spittler's arguments for reversing the directed verdict on the fraud claim and for sanctions.

AFFIRMED.