Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
4. Manufacturing versus design. So long as the product liability revolution transpired in the
domain of manufacturing defects—areas where a product was defective because it departed from
the manufacturer or seller’s design—it met with widespread acceptance. There were controversial
cases, to be sure: cases like Speller where some believed the outcomes flawed. But such
controversies were over generic features of tort law like causation and juries, not over anything
specific to the modern products liability transformation. Not so in the law of design defects.
3. Design Defects
Barker v. Lull Engineering Company, Inc., 573 P.2d 443 (Cal. 1978)
TOBRINER, Acting C.J.
In August 1970, plaintiff Ray Barker was injured at a construction site at the University of
California at Santa Cruz while operating a high-lift loader manufactured by defendant Lull
Engineering Co. and leased to plaintiff’s employer by defendant George M. Philpott Co., Inc.
[The high-lift loader was a large construction vehicle akin to an oversized fork-lift resting on four
giant, five-foot tires. The loader in question was designed for use on moderate slopes. Plaintiff
(who was substituting for the regular loader operator) was using it to lift lumber on behalf of his
employer one day when the loader seemed to tip. Plaintiff leapt from the loader to try to reach
safety but was struck by falling lumber. In his suit, plaintiff claimed that the loader ought to have
been outfitted with outriggers, seat-belts, and roll-bars. Defendant contended that plaintiff had
been operating the loader on the kind of steep slope for which the loader was not designed, that a
seat belt would have added to the operator’s risk by trapping him in his seat, and that roll bars
were unnecessary because the machine was too bulky to roll.] . . .
The jury returned a verdict in favor of defendants, and plaintiff appeals from the judgment
entered upon that verdict, contending primarily that in view of this court’s decision in Cronin v. J.
B. R. Olson Corp., 501 P.2d 1153 (Cal. 1972), the trial court erred in instructing the jury “that
strict liability for a defect in design of a product is based on a finding that the product was
unreasonably dangerous for its intended use . . . .”
As we explain, we agree with plaintiff’s objection to the challenged instruction and
conclude that the judgment must be reversed. In Cronin, we reviewed the development of the
strict product liability doctrine in California at some length, and concluded that, for a variety of
reasons, the “unreasonably dangerous” element which section 402A of the Restatement (Second)
of Torts had introduced into the definition of a defective product should not be incorporated into a
plaintiff’s burden of proof in a product liability action in this state. Although defendants maintain
that our Cronin decision should properly be interpreted as applying only to “manufacturing
defects” and not to the alleged “design defects” at issue here, we shall point out that the Cronin
decision itself refutes any such distinction. Consequently, we conclude that the instruction was
erroneous and that the judgment in favor of defendants must be reversed.
. . . Although in Cronin we rejected the Restatement’s “unreasonably dangerous” gloss on
the defectiveness concept as potentially confusing and unduly restrictive, we shall explain that our
Cronin decision did not dictate that the term “defect” be left undefined in jury instructions given
in all product liability cases.
554