Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1986)

MEMORANDUM^* 

Curley Joseph Charles appeals the district court's judgment reducing his recovery in accordance with a retroactive application of California Civil Code Sec. 1431 et seq. (Proposition 51). Admiral Equipment Company cross-appeals the district court's denial of its motion for judgment notwithstanding the verdict or, alternatively, a new trial based on the jury finding that Charles' injury was not the result of a foreseeable use of Admiral's product. We affirm the jury's finding of negligence but remand to the district court with instructions to reinstate the jury's original verdict in conformity with the California Supreme Court's decision in Evangelatos v. Superior Court, 44 Cal. 3d 1188, 753 P.2d 585, 246 Cal. Rptr. 629 (1988).

* Charles was injured on July 9, 1980 while working as a "setup" man in the pour room of Allen Industries, Inc., a manufacturer of polyurethane seat cushions. His responsibilities included, among other duties, scraping hardened polyurethane foam which had dripped from a pour head onto the conveyor rollers below. He was to do this while the conveyor belt was in operation.

While Charles was scraping foam from the rollers he placed his right hand on a passing pallet and mold. The mold lid closed and locked on his hand. Unable to free himself, he was dragged along by the conveyor. While his arm was being pulled into another room, his body was squeezed against the wall and crushed by the impact of the next following pallet and mold. He suffered broken bones, a herniated disc, and nerve damage as well as flesh wounds.

Admiral had designed and installed a conveyor system for the Allen plant in 1972. However, in order to increase its production, Allen had converted its processing line from a hot process to a cold foam process. As part of the conversion, Allen replaced Admiral's original pour heads with greater capacity equipment manufactured by an Admiral competitor. Allen also eliminated a series of three separate conveyors which Admiral had designed and installed to run through the pour room and rerouted the line's main conveyor through this area. This conveyor had also been designed by Admiral.

Charles filed this lawsuit in 1981 in the Superior Court for the County of Los Angeles. The case was timely removed to the Federal District Court for the Central District of California based on diversity jurisdiction under 28 U.S.C. § 1332.

Upon conclusion of the trial, the jury returned a special verdict, which consisted of its answers to nine "issues." Issues 1-4 primarily addressed strict liability, 5 and 6 addressed negligence, and 7-9 addressed comparative fault. The jury found that Admiral was not strictly liable. Although it found Admiral's design was defective and that that defect was the proximate cause of Charles' injury, it answered "no" to issue # 4: "Did plaintiff's injury result from a use of the product that was reasonably foreseeable by the defendant, ADMIRAL EQUIPMENT COMPANY?" However, the jury found that Admiral was negligent and that its negligence was the proximate cause of Charles' injury.

Because of a possible inconsistency between these answers, the trial court explained to the jury that foreseeability was also a necessary element of a negligence claim. The court then directed the jury to review the instructions on negligence and to consider them in light of their thinking in answering issue # 4. The court instructed the jury that if it meant to find Admiral negligent, it could simply return the form as originally signed. The court also instructed the jury that it could make any changes to the form or make an additional brief written statement. The jury returned the original verdict form with the following statement:

We believe the 1972 and 1978 versions of the product are two different products. In answering question # 4 our focus was on the 1978 version of the product. This use was not foreseeable to Admiral. In answering question # 5 our focus was on the 1972 and 1978 versions of the product. Here there was foreseeable use in both the '72 and '78 versions. We have two "foreseeabilities."

Under liability--the foreseeability of the use of the product (the 1978 version) was not foreseeable by Admiral. Under negligence--the foreseeability of the use/design of the product (1972 and 1978 versions) was such that the need was present. Therefore negligence existed on the part of the defendant.

The jury returned a verdict awarding $878,148.49 in total damages. With reductions for comparative negligence and credit for Workers' Compensation payments, the net award for Charles amounted to $721,821.05. However, the trial court granted Admiral's motion to apply California Civ.Code Sec. 1431 et seq. (Proposition 51) retroactively and reduced Charles' judgment accordingly.

II

The jury found that Admiral was negligent in failing to provide for a safety switch along its conveyor. Admiral makes three arguments in regard to the jury's finding:

A) it is entitled to judgment based on the jury's finding that the equipment that injured Charles was not its product;

B) it is entitled to judgment based on the jury's finding that Charles' injury resulted from an unforeseeable use of the product;

C) the inconsistent verdicts on negligence and strict liability must be reconciled in its favor, or alternatively, the case must be retried.

* Admiral's first argument is without merit. The jury did not state that the equipment causing Charles' injury was not Admiral's product. Instead, it merely stated that the 1972 and 1978 versions of the pour room were "two different products." Although the pour room had been modified, it maintained some elements of Admiral's original design, including one of Admiral's conveyors. Therefore, although the two versions were "different products" Admiral may still be liable for the negligent design and manufacture of its conveyor.

B

Foreseeability is a required element of a negligence claim. However, "the foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was a 'substantial factor' in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred." 5 Witkin, Summary of California Law Sec. 976, at 376 (9th ed. 1988). Although Admiral may not have been able to foresee all of Allen's modifications to the pour room, it was foreseeable that some modifications would eventually occur. Further, it was foreseeable that the use of a conveyor belt without a safety switch could result in injuries.

C

Admiral's third argument is also without merit. As the Supreme Court has held, "it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: 'where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way.' " Gallick v. Baltimore and Ohio Railroad Co., 372 U.S. 108, 119 (1963) (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962)). The apparent inconsistencies in the jury's verdict may be reconciled by a reading which upholds the jury's finding of negligence.

The jury explained its answer to issue # 4 in an additional statement.¹  The jury stated that it viewed the 1972 and 1978 versions as different products. In other words, the original 1972 design had been substantially changed. However, in regard to strict liability, California courts follow Restatement 2d of Torts Sec. 402A, which requires that the product reach the user or consumer without substantial change in the condition in which it is sold. See Putensen v. Clay Adams, Inc., 12 Cal. App. 3d 1062, 91 Cal. Rptr. 319, 325 (1970). The jury's statement indicates that in answering issue # 4 the jury was actually saying that the 1972 design had been substantially changed because Allen had made alterations to the pour room which were not foreseeable by Admiral. Therefore, the jury found that Admiral was not strictly liable.

However, despite this finding, the jury nevertheless found that Admiral was negligent and that its negligence was the proximate cause of Charles' injuries. California courts have upheld findings of negligence where concurrent findings of substantial change have prevented the imposition of strict liability. See Putensen, 91 Cal. Rptr. at 329.

Further, issues 1-4 refer specifically to the "pour room," while issue # 5 merely asks if Admiral was negligent. The jury's verdict may be reasonably construed as meaning that while not all of Admiral's changes to the pour room, i.e., the change in the type of pour heads used, were foreseeable, nevertheless a foreseeable risk existed with respect to the use of the conveyor.

III

There is sufficient evidence to support the jury's finding that Admiral's negligence was a proximate cause of Charles' injuries. Charles' expert, Dr. Youngdahl, testified that the lack of a safety switch rendered the conveyor defective. He also testified that an emergency stop switch is a reasonable accident prevention system: " [i]f someone approaches the conveyor and for some reason makes inadvertent contact, gets inadvertently trapped, they can pull the cord and stop the conveyor." Unlike the expert in Rexall Drug Co. v. Nihill, 276 F.2d 637, 643 (9th Cir. 1960), Dr. Youngdahl did not state that the defendant's negligence may have caused the plaintiff's injuries, i.e. that a person may have been able to stop the conveyor had there been a safety switch. Instead, he testified that with such a switch a person can stop a conveyor. Viewed in a light most favorable to the plaintiff, Charles, this testimony is sufficient to support an inference that had there been a safety switch, Charles would not have been injured. This inference is further supported by the fact that Admiral's original blue prints provided for such a switch.

IV

Admiral offered evidence that Charles' pain would have been reduced by his participation in a pain management program. Admiral argued that Charles' refusal to participate in such a program constituted a violation of his duty to mitigate damages. However, the trial court refused Admiral's request for a specific instruction regarding Charles' duty to mitigate his damages.

The failure to give instructions regarding Admiral's theory of the case is reversible error if the theory is legally sound and evidence in the case makes the theory applicable. United States v. Escobar-de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984).

The district court apparently based its decision on Charles' low mental capacity. Such a determination is not inconsistent with California law. California courts have looked to the condition of the particular plaintiff in determining what is "reasonable" in regard to his duty to mitigate. See Berge v. Int'l Harvester Co., 142 Cal. App. 3d 152, 163, 190 Cal. Rptr. 815, 823 (1983) ("Mitigation is not required where the injured person is financially unable to accomplish it."); Stiner v. Travelers Indemnity Co., 226 Cal. App. 2d 128, 133, 37 Cal. Rptr. 813, 816 (1964) ("owner is under no duty to secure release of attachment if he is financially unable to do so, and the burden to prove duty to mitigate damages is on the party asserting that duty"). In fact, "what is reasonable in a given situation is determined by the facts, knowledge and problems then existent in relation to the person in trouble, the injured person, and his point of view at the time." Basin Oil Co. of California v. Baash-Ross Tool Co., 125 Cal. App. 2d 578, 602, 271 P.2d 122, 136 (1954). Other jurisdictions have held in accord with this view. See Wzorek v. City of Chicago, 708 F. Supp. 954, 960 (N.D. Ill. 1989) ("Wzorek did not attempt to mitigate his damages, but this failure was understandable: he was and continues to be an emotional wreck").

V

Admiral argues that the district court erred in admitting evidence of the injury to Charles' hand and in excluding evidence regarding Charles' alleged drinking and use of marijuana as well as evidence regarding the custody proceedings between Charles and his former wife. We review a district court's decision regarding admission of evidence for an abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir. 1986), cert. denied, 479 U.S. 1104 (1987). Under this standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment. See Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985).

With respect to the evidence of injury to Charles' hand, there was evidence that he would have been able to free his hand and that it would not have been pulled along and stretched into the next room had there been a safety switch. Therefore, it was a question of fact for the jury whether Charles' hand injuries were also caused by Admiral's negligence.

Additionally, the court did not abuse its discretion in refusing to admit the testimony of Charles' ex-wife regarding his alleged drinking and use of marijuana. There was no direct evidence that Charles had been drinking or using marijuana on the date of the accident. The court properly held that the probative value of Cheryl Charles' testimony was outweighed by the risk of unfair prejudice.

Finally, the scope of redirect is a matter within the sound discretion of the trial court. Murray v. Toyota Motor Distribs. Inc., 664 F.2d 1377, 1380 (9th Cir.), cert. denied, 457 U.S. 1106 (1982). The court did not abuse that discretion when it determined that additional questioning regarding the custody proceedings between Charles and his former wife would be merely cumulative evidence of the hostility between them and of insignificant value to the proceedings at hand.

VI

Subsequent to the district court's decision, the California Supreme Court held in Evangelatos that Proposition 51 should not be applied to actions pending prior to its effective date, June 4, 1986. Therefore, we remand to the district court with instructions to reinstate the original verdict.

VII

Charles is entitled to interest on the full amount of the reinstated verdict from the original date of entry of the judgment. He has been deprived of the use of that sum during the intervening period while Admiral has had the use of those funds. See Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1299-1300 (9th Cir. 1984), cert. denied, 469 U.S. 1190 (1985).

VIII

The district court's retroactive application of Proposition 51 is reversed, and this case is remanded for reinstatement of the original verdict. The district court's verdict is affirmed on all other issues. Charles is awarded interest on the entire judgment from the original date of entry. Charles shall also recover his costs on appeal.

AFFIRMED in part, REVERSED and REMANDED in part.