                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 07 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBBIE D. BISPO,                                 No. 08-36052

             Plaintiff - Appellant,              D.C. No. 3:05-cv-01223-PK

  v.
                                                 MEMORANDUM *
GSW, INC.; AMERICAN WATER
HEATER COMPANY, doing business as
US Craftmaster; LOWE’S HIW INC;
BLUE STAR GAS SERVICE, LTD dba
Blue Star Gas Service; CHEVRON U.S.A.
INC.,

             Defendants,

 and

ROBERTSHAW CONTROLS
COMPANY, dba Invensys Appliance
Controls dba as Invensys Controls,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted December 11, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.




      Plaintiff Robbie D. Bispo (“Bispo”) appeals the district court’s award of

summary judgment to defendant Robertshaw Controls Company (“Robertshaw”)

on Bispo’s claims of strict products liability and failure to warn. Bispo was

severely injured when he unwittingly ignited a large quantity of propane gas that

collected in his basement after the rubber seal on a valve in his hot water heater

became displaced. Robertshaw manufactured the valve.

      (1) Bispo first argues that the district court erred in concluding that a

reasonable jury would necessarily find that the benefits of Robertshaw’s valve

design outweighed the risks. In a strict products liability claim in California, a

prima facie showing that the product’s design caused the injury shifts the burdens

of production and proof to the defendant regarding risk-benefit. Barker v. Lull

Engineering Co., 20 Cal.3d 413, 431-32 (Cal. 1978).




                                           2
      Here, there was undisputed evidence that Robertshaw’s valve included a

rubber seal1; that the rubber seal on Bispo’s water heater was designed in a manner

that allowed it to become displaced under high pressure; and that the displacement

of the rubber seal allowed gas to flow through the valve and into Bispo’s basement.

The design of the valve, therefore, was a “substantial factor” in causing Bispo’s

injury. See Campbell v. General Motors Corp., 32 Cal.3d 112, 125 (Cal. 1982).

Bispo also made a sufficient showing that the injury was foreseeable, because

several Robertshaw valves had failed in the past and Robertshaw should have

known that propane tanks can supply far more pressure than its valves were

designed to withstand.

      In granting summary judgment because Bispo failed to produce evidence of

risk, the district court misapplied California law. Even where a plaintiff never so

much as mentions “risk-benefit,” a prima facie showing of injury and causation

shifts the burden to the defendant. McCabe v. American Honda Motor Co., 100

Cal. App. 4th 1111, 1127 (Cal. Ct. App. 2002). In any event, the district court’s

determination that Bispo produced no evidence of risk was clearly incorrect. The




      1
       Some of the experts deposed by the parties refer to the rubber part of the
valve as a “seat,” others as a “seal.” We adopt the latter term.

                                          3
accident itself, caused by the failure of the rubber seal and resulting in severe

injury, is evidence of risk.

      Moreover, Robertshaw did not show any benefits of its valve design. See

Bernal v. Richard Wolf Medical Instruments Corp., 221 Cal. App. 3d 1326, 1335

(Cal. Ct. App. 1990) (holding that the defendant, not the plaintiff, bears the burden

with regard to feasible alternative designs). Robertshaw cannot carry its burden of

showing that risk is outweighed without presenting some evidence of a benefit that

the risk is outweighed by. Entry of summary judgment on Bispo’s risk-benefit

theory of strict liability was improper.

      (2) Bispo next challenges the entry of summary judgment on his consumer

expectations theory of strict liability. Strict products liability, however, may not be

premised on the consumer expectations theory when “the question of how safely

the product should have performed cannot be answered by the common experience

of its users.” Soule v. General Motors Corporation, 8 Cal. 4th 548, 556 (Cal.

1994). A product’s complexity is not controlling. Rather, “[t]he critical question

is whether the ‘circumstances of the product’s failure permit an inference that the

product’s design performed below the legitimate, commonly accepted minimum

safety assumptions of ordinary consumers.’” McCabe, 100 Cal. App. 4th at 1122-

23 (quoting Soule, 8 Cal. 4th at 568-69). We see no reason to disturb the district


                                           4
court’s conclusion that ordinary consumers have no firm expectations regarding

the gas pressure that safety valves should withstand.

      (3) Bispo challenges the district court’s entry of summary judgment on the

claim of failure to warn on the ground that the risk posed by Robertshaw’s valve

was unknown and unknowable. For the reasons we have mentioned, it was error

for the district court to conclude that the risk of failure of Robertshaw’s valve was

unknowable as a matter of law. However, Bispo has presented no facts — or even

any specific argument — tending to show that additional warnings would have

effectively averted any risk, especially in light of the fact that the component valve

was ultimately sold to consumers by a sophisticated intermediate user. See

Johnson v. American Standard, Inc., 43 Cal.4th 56, 65 (“[The sophisticated user]

defense applies equally to strict liability and negligent failure to warn cases.”). For

that reason, entry of summary judgment on Bispo’s failure to warn claim was

proper.

      The district court’s entry of summary judgment is REVERSED and the case

REMANDED for further proceedings.




                                           5
