Filed 2/14/14 Corbo v. Taylor-Dunn Mfg. Co. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


CHRISTOPHER CORBO et al.,
         Plaintiffs and Appellants,
                                                                    A135393
v.
TAYLOR-DUNN MANUFACTURING                                           (Alameda County
COMPANY,                                                            Super. Ct. No. HG09477272)
         Defendant and Respondent.




                                              I. INTRODUCTION
         Christopher Corbo was injured when his foot was crushed by an electric flatbed
truck manufactured by Taylor-Dunn Manufacturing Company. A jury found that Taylor-
Dunn was liable for damages incurred by Corbo and his wife Lydia (appellants) on a
theory of strict liability failure to warn. The trial court, however, granted Taylor -Dunn’s
motion for judgment notwithstanding the verdict on the ground that there was insufficient
evidence to support the jury’s finding that failure to warn was a substantial factor in
causing appellants’ harm.
         Appellants contend the judgment must be reversed because substantial evidence
and reasonable inferences from that evidence support the jury’s finding that the absence
of a warning caused Corbo’s injuries. We reject this contention and affirm the judgment.




                                                             1
                             II. STATEMENT OF FACTS
A.     The Accident
       1.     Background
       On October 3, 2007, Corbo’s foot was seriously injured during an accident that
occurred at the New United Motor Manufacturing Plant (the NUMMI plant) in Fremont,
Alameda County. At the time, Corbo was employed by CTS Advantage Logistics (CTS),
which provided shipping, moving and management services at the NUMMI plant.
Corbo’s direct supervisor was Sergio Fernandez who was employed by Vascor, Ltd., the
contractor responsible for coordinating all logistical services at the NUMMI plant.
       Corbo’s foot was crushed when it was pinned between a metal stairwell outside a
truck dock and the front end of an electric vehicle manufactured by Taylor-Dunn. The
vehicle, described by trial witnesses as both a truck and a cart, was an open top vehicle
with a 76-inch long flatbed separated from the passenger area by a 24-inch high metal
partition. The front passenger area contained two seat cushions separated by a parking
brake. The truck was operated by a toggle switch with three positions (Forward, Neutral,
Reverse) and a floor brake pedal and accelerator pedal.
       The front passenger area of the truck contained two posted warnings: (1) a
“Safety Warning” consisting of a list of admonitions about what to do “Before Operating
The Vehicle,” “While Operating The Vehicle,” and “Before Leaving or Servicing The
Vehicle”; and (2) a decal warning showing the driver and passenger to keep extremities
inside the vehicle. The list of admonitions on the Safety Warning label included
instructions that “All occupants must be seated in manufacturer’s approved seats”; not to
engage in “horseplay”; and to “Apply Parking Brake.”1
       When the accident occurred, three men who worked at the NUMMI plant were in
the front passenger area of the Taylor-Dunn truck. Tai Lam was in the driver’s seat,

       1
         The factual summary in the appellants’ opening brief does not include any
discussion of the safety warnings that were affixed to the truck. Because this is not the
only relevant evidence appellants fail to mention, we encourage them to review the
pertinent rules of court governing appellate briefs that are filed in this court.


                                             2
Davin Castro was in the passenger seat, and Sergio Fernandez was sitting or standing in
between them. At trial, the jury heard different versions of the accident from the four
individuals who were involved.
       2.     Christopher Corbo
       Corbo testified that, near the end of his work day, he and Fernandez drove to the
truck dock to generate some paperwork for a truck that was going to be driven off the
plant that day. Fernandez was already inside the building and Corbo was about to go
inside when he heard someone yell his name. Corbo turned and saw the Taylor-Dunn
truck approaching the dock. Corbo knew Lam, the driver, and his passenger, Castro, both
of whom worked for a different company that provided services at the NUMMI plant.
Lam pulled up and stopped the truck about three or four feet back from the stairwell
leading up to the office.
       Corbo assumed the men had a work-related question and went down the stairs to
see what they needed, stopping directly in front of the Taylor-Dunn truck. Corbo could
not hear the motor running, and did not see any lights on or any other indication that the
truck was still in operation or “potentially capable of movement.” Corbo stood
approximately six inches from the front of the truck with his hands resting on the top rail
and talked with Lam about a part that Lam needed and possibly some other work-related
matters. A few minutes later, Corbo heard Fernandez come out of the office and down
the stairs.
       Corbo saw Fernandez walk over to the pickup truck they had been using and then
to the back of the flatbed truck that Lam was driving. Fernandez climbed onto the back
of the Taylor-Dunn flatbed and then over the partition and sat down in between Lam and
Castro. At that point, Corbo had already taken his hands off the truck bar but he was still
standing only six inches from the front of the truck and he continued to converse with the
others for at least a few minutes. Then, the truck “lunged” forward, and Corbo took a
few steps back before realizing he could not go any farther because the stairwell was
behind him. Corbo felt the stairwell hit the middle of his back and the bottom of the




                                             3
truck hit and “cut through” his left foot, and then come to a stop when it hit the stair
behind his leg.
       3.     Sergio Fernandez
       Fernandez testified that the accident occurred after he and Corbo had finished their
work in the office at the truck dock. According to Fernandez, when he and Corbo came
out of the office together, the Taylor-Dunn truck was already there, stopped several feet
in front of the stairwell, and Lam and Castro were sitting in the truck, each with one leg
over the side resting on the ground, taking a cigarette break.
       Fernandez testified that Corbo stopped to talk while he went over to the pickup
they had been driving and put his clipboard inside. Fernandez could not recall anything
about the conversation other than that the three men laughed and it appeared they would
talk for a while. So Fernandez went around to the back of the flatbed and climbed in.
When he reached the front of the truck, he placed one hand on Lam’s shoulder and the
other on Castro’s shoulder, climbed over the partition, and then sat down. There was
plenty of room for him and he sat comfortably, partially on the driver’s cushion and
partially on the passenger’s cushion, with his hands in his lap. Approximately 45 seconds
later, the flatbed began to move. Then, Fernandez felt a “jerk” motion, the truck seemed
to pick up speed, and it did not come to a stop until it made contact with the metal
stairwell behind Corbo.
       4.     Tai Lam
       Lam testified that he and Castro were using the Taylor-Dunn truck to locate a
pallet of parts at one of the docks when they saw Corbo standing on the exterior stairwell
at the truck dock. Lam called out to Corbo and then stopped the truck about four feet
from the staircase, moved the “toggle switch” on the truck from Forward to Neutral, and
placed his right foot on the floor of the truck under the brake pedal. He did not turn off
the ignition or engage the parking brake.
       Corbo came down the stairs and stood in front of the truck. Less than a minute
later, Fernandez came out of the office and Corbo called him over, suggesting that they
“do a threesome in the cart.” Fernandez, who was holding a clipboard, walked past the


                                              4
side of the truck while Corbo put his hands on the top bar and began pushing down on it.
Then Fernandez climbed onto the back of the flatbed and proceeded to climb over the
barrier into the passenger area of the truck. He put his left hand on Lam’s shoulder while
he held the clipboard in his right. As Fernandez brought his left leg over the barrier, he
kicked Lam in the thigh, and the clipboard hit the toggle switch, pushing it into Forward.
Then Fernandez dropped his left foot directly onto the accelerator pedal. Almost
immediately, the truck began to move forward. Lam acknowledged that he did not take
any action to stop the truck until after it made contact with the stairwell, at which point he
moved the toggle switch from Forward to Reverse and backed it away from Corbo.
       5.     Davin Castro2
       Castro testified that Lam was giving him a ride in the Taylor-Dunn truck when
Corbo, who was sitting on the stairwell in front of the truck dock, called out to them. As
Lam headed toward him, Corbo stood, walked forward a few feet and stopped. Lam
stopped the flatbed a few feet in front of him. Castro was not paying attention to how
Lam was driving, but he did recall that Lam moved the toggle switch to Neutral
immediately after he stopped the truck. The three men exchanged greetings and then
Corbo and Lam began to discuss a shipment of parts that was being delivered.
       Very quickly thereafter, Fernandez came out of the office carrying a clipboard,
said hello and then walked toward the pickup saying he would be right back. While
Corbo and Lam continued their conversation, Corbo had his hands on a bar running
across the front of the flatbed and was shaking the truck by pushing his weight down and
up. The next thing Castro knew, Fernandez jumped into the cart, came up behind them
and hopped in between Castro and Lam. Fernandez had not said anything before he did
this and Castro was very surprised by the sudden movement.
       Castro testified that when Fernandez jumped into the passenger area of the cart,
both Castro and Lam had their legs inside the truck. There was no room between them


       2
        Pursuant to a stipulation between the parties, excerpts from Castro’s deposition
were read to the jury at trial.


                                              5
for Fernandez, who still had his clipboard in his hand, and that is when the accident
occurred. Castro could not recall if Fernandez landed squarely on the floor with both feet
but testified that he landed on some area near the floor and that “the forward momentum
of him jumping forward pushed him into the dashboard of the cart,” and the truck began
to move forward “[a]lmost immediately.” Castro admitted that he did not see any part of
Fernandez’s body hit the toggle switch, but testified that the clipboard that Fernandez was
holding was directly over that switch just before the truck started to move.
B.     The Accident Investigation
       An investigation of Corbo’s accident was conducted by Azadeh Morrison,
NUMMI’s Health and Safety Specialist. Morrison arrived at the truck dock while Corbo
was receiving medical treatment, but waited until he was taken to the hospital to
interview Lam, Castro and Fernandez. The group gave a very general account of the
accident: Lam and Castro were in the stopped truck talking with Corbo; Fernandez
climbed into the truck from the back; the truck moved forward; and Corbo was pinned
between the truck and the stairwell. Although the report was short on details, Fernandez
did deny that his foot hit the accelerator.
       After Morrison returned to her office at the plant, she received a message that Lam
and Castro wanted to talk with her. During the meeting that followed, the two men
reported they had not been comfortable talking about the accident in front of Fernandez
and that they wanted to clarify what happened. They told Morrison that they had been
talking to Corbo when Fernandez arrived, that Corbo suggested that Fernandez climb in
the flatbed so they could have a “threesome,” that Lam had put the truck in the Neutral
position but a clipboard Fernandez was holding hit the switch and flipped it to the
Forward position; and that when Fernandez climbed in between them, his foot hit the
accelerator pedal.
       During her investigation, Morrison determined that the individuals involved in the
Corbo accident had not received special training regarding the use of flatbed trucks but
that Lam, Fernandez and Corbo had all received training to operate a forklift. As part of
that training, they were advised regarding NUMMI’s “[g]eneral driving rules” for


                                              6
operating mobile equipment at the plant. Those rules prohibited, among other things,
smoking in vehicles, horseplay and stunt driving. In addition, only one person was to
occupy a seat in a vehicle at any time, and drivers were instructed not to stop the vehicle
in front of a person standing in front of a fixed object.
       Morrison arranged for an inspection of the Taylor-Dunn truck by the NUMMI
maintenance department. She had conducted a preliminary test at the accident scene,
driving it backward, forward and engaging the brake, and found no indication that the
vehicle could have moved from a stopped position without somebody depressing the
accelerator. The inspection performed at the plant’s maintenance department confirmed
that all of the systems on the flatbed truck were in proper working order.
       At the instruction of NUMMI attorneys, Morrison did not complete her
investigation of the accident. However, based on the information she gathered and her
own experience driving flatbed trucks, Morrison concluded that the Taylor-Dunn truck
involved in this accident could not have moved forward unless someone stepped on the
accelerator pedal. At trial, appellants’ expert engineer, John Manning, acknowledged
finding no indication that the flatbed was capable of “spontaneous movement.”
C.     The Present Action
       Appellants’ October 2009 complaint alleged causes of action against Lam,
Fernandez, Taylor-Dunn and several other defendants. However, Taylor-Dunn was the
only remaining defendant in the case when a jury trial commenced in August 2011,
before the Honorable Ronni B. MacLaren.
       Appellants’ claim at trial was that Taylor-Dunn was strictly liable for their
damages because the design of the flatbed truck caused Corbo’s injuries. They attempted
to show that the truck design was defective under three distinct theories: (1) a consumer
expectation theory, that the truck did not perform as safely as an ordinary consumer
would have expected it to perform; (2) a risk/benefit theory, that the truck design was a
cause of Corbo’s injuries and that the risks of the design were not outweighed by its
benefits; and (3) a failure to warn theory, that the truck lacked sufficient instructions or
warnings about the risks of harm.


                                              7
       Appellants’ primary factual theory at trial was that the collision happened
“because of the accidental movement of the toggle into drive, coupled with acceleration.”
Under this theory, the alleged defect in the Taylor-Dunn truck was that it “had a defective
drive toggle, switch mechanism, that could accidentally be engaged.” And the risk of
harm which allegedly gave rise to a duty warn was the risk that human operators make
mistakes and people accidentally bump into things. Taylor-Dunn’s trial theory was that
Lam never actually put the toggle switch in the Neutral position but simply left it in the
Forward position when he stopped to talk to Corbo, and then, when Fernandez jumped in,
somebody’s foot hit the accelerator. Under this theory, Taylor-Dunn was not strictly
liable for Corbo’s injuries because the cause of the accident was horseplay, a misuse of
the vehicle, and not the design of the flatbed truck.
       At the conclusion of the trial, the jury rejected appellants’ consumer expectation
theory and risk/benefit theory, but found that Taylor-Dunn was strictly liable for
appellants’ damages because it failed to warn about the risk associated with the flatbed
truck. Pursuant to a special verdict form, the jury found that (1) the truck had a potential
risk that was known or scientifically knowable at the time it was manufactured; (2) the
potential risk presented a substantial danger to users of the truck; (3) an ordinary
consumer would not have recognized the potential risk; (4) Taylor-Dunn failed to
adequately warn or instruct about the risk; and (5) the lack of sufficient instructions or
warnings was a substantial factor in causing the plaintiffs’ harm.
       The jury also found that the negligence of several other actors were substantial
factors causing Corbo’s harm, and it apportioned fault as follows: Lam – 35 percent;
Fernandez – 30 percent; NUMMI – 20 percent; Taylor-Dunn – 9 percent; Vascor – 4
percent; Corbo – 2 percent.
       On December 28, 2011, Taylor-Dunn filed a motion for partial judgment
notwithstanding the verdict (JNOV) on the ground that there was insufficient evidence to
support the jury’s finding that failure to warn was a substantial factor causing Corbo’s
injuries.




                                              8
       On January 6, 2012, the court entered judgment holding that Taylor-Dunn was
liable to appellants for damages in the total amount of $1,383,417.86, plus costs and
interest.
       On January 27, 2012, the trial court conducted a hearing on the motion for JNOV,
at the conclusion of which it requested supplemental briefing. After a second hearing on
March 9, the court took the matter under submission. On April 2, 2012, the court granted
the motion for JNOV in a detailed order the conclusion of which was that “there was no
evidence from which the jury could have reasonably concluded that it was more likely
than not that the accident would not have occurred if one of the warnings proposed by
Plaintiffs had been provided.” Thus, the trial court vacated the judgment and entered a
new judgment in favor of Taylor-Dunn.
                                     III. DISCUSSION
       Appellants contend that the trial court erred by granting the JNOV because the
evidence supports the jury’s finding that the absence of a warning caused Corbo’s
injuries. “ ‘ “ ‘ “A motion for [JNOV] may properly be granted only if it appears from
the evidence, viewed in the light most favorable to the party securing the verdict, that
there is no substantial evidence to support the verdict. If there is any substantial
evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the
motion should be denied.” [Citation.]’ ” [Citation.]’ [Citation.] In reviewing an order
denying a JNOV, we draw all reasonable inferences in favor of the jury’s verdict.
[Citation.]” (Cash v. Winn (2012) 205 Cal.App.4th 1285, 1304.)
A.     Legal Principles
       In California, strict products liability law recognizes three types of product
defects: (1) manufacturing defects, (2) design defects, and (3) warning defects.
(Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.) This appeal
pertains to the third category, “which applies to ‘products that are dangerous because they
lack adequate warnings or instructions.’ [Citation.]” (Taylor v. Elliott Turbomachinery
Co., Inc. (2009) 171 Cal.App.4th 564, 577 (Taylor).)




                                              9
       “Our law recognizes that even ‘ “a product flawlessly designed and produced may
nevertheless possess such risks to the user without a suitable warning that it becomes
‘defective’ simply by the absence of a warning.” [Citation.]’ [Citation.] Thus,
manufacturers have a duty to warn consumers about the hazards inherent in their
products. [Citation.] The purpose of requiring adequate warnings is to inform consumers
about a product’s hazards and faults of which they are unaware, so that the consumer may
then either refrain from using the product altogether or avoid the danger by careful use.
[Citations.] (Taylor, supra, 171 Cal.App.4th at p. 577.) Accordingly, California holds
“manufacturers strictly liable for injuries caused by their failure to warn of dangers that
were known to the scientific community at the time they manufactured and distributed
their product. [Citations.]” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56,
64-65.)
       However, “[t]o be liable in California, even under a strict liability theory, the
plaintiff must prove that the defendant’s failure to warn was a substantial factor in
causing his or her injury. [Citation.]” (Huitt v. Southern California Gas Co. (2010) 188
Cal.App.4th 1586, 1604 (Huitt); see also Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal.4th 953, 968 (Rutherford); Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 112
(Conte); CACI No. 1205 [plaintiff has burden of proving that lack of sufficient warnings
or instructions was a substantial factor in causing plaintiff’s harm].) “The natural
corollary to this requirement is that a defendant is not liable to a plaintiff if the injury
would have occurred even if the defendant had issued adequate warnings. [Citation.]”
(Huitt, supra, 188 Cal.App.4th at p. 1604.)
B.     Analysis
       As reflected in our factual summary, the jury found that Taylor-Dunn’s failure to
warn about a risk associated with the electric truck caused Corbo’s injury. However, the
jury did not identify what risk the truck presented or what warning would have made a
difference.
       Appellants maintain that the risk of harm that gave rise to a duty to warn was that
the flatbed would “suddenly and silently lurch forward and pin [Corbo] against a


                                               10
stairway, causing serious and permanent injuries.” With a variety of embellishments, this
notion runs throughout their arguments on appeal. However, the record does not support
this characterization of the risk associated with the flatbed because the jury rejected
appellants’ two theories of strict liability for defects in a product design. Indeed, the
special verdict form contains an express finding that the design of the Taylor-Dunn truck
was not a substantial factor causing Corbo’s injury. Thus, the jury necessarily rejected
testimony by Fernandez and Corbo that the flatbed suddenly lurched forward for no
reason even though nobody stepped on the accelerator.
       As noted in our factual summary, during closing argument, appellants’ trial
counsel argued that the risk of harm was that human operators make mistakes and that
people accidentally bump into things. In other words, the risk was that the shift
mechanism and accelerator on the flatbed could be unintentionally engaged. For
purposes of this appeal, we will assume that the jury accepted this characterization of the
risk of harm, which is supported by the evidence.
       As best we can determine, appellants never clearly articulated for the jury how a
warning about this risk should have been communicated by Taylor-Dunn. In this court,
appellants contend that the jury could have based its liability finding on the absence of
any one of three warnings: (1) a sign, light or signal on the front exterior of the truck
warning pedestrians not to stand in front of the truck; (2) a warning label affixed to the
interior of the truck cautioning the driver not to park the truck and remain in the driver’s
seat without turning off the ignition and engaging the parking brake; and (3) an interior
sticker warning passengers not to have three people in the front seat.
       Preliminarily, we reject appellants’ contention that the absence of an exterior
warning light or audible signal caused Corbo’s injury. As the trial court explained in its
order granting the JNOV, the absence of some form of sound or light signal that the
motor was running is an alleged design defect which cannot support a liability finding
based on failure to warn under the circumstances of this case because the jury rejected
appellants’ design defect theories. Thus, in addressing appellants’ arguments on appeal,
we limit our analysis to hypothetical warning labels or stickers that could have been


                                              11
affixed to the Taylor-Dunn electric vehicle on locations that would have been in the line
of view of the individuals involved in Corbo’s accident.
        During the JNOV proceedings, appellants did not dispute that “there was no
testimony at trial that any of the individuals involved in the injury-causing incident
testified that he would have heeded a warning, if one had been provided.” Indeed, Corbo
did not testify that, if he had seen a warning label on the exterior of the Taylor-Dunn
truck, he would have stopped to read it and then acted differently than he did when the
accident occurred. Lam did not testify that he would have taken notice of or complied
with any warning label about sitting in the driver’s seat without turning off the ignition or
engaging the parking brake. Nor did Fernandez or any other witness testify that he would
have acted differently had he seen a warning label to not have three people in the front
seat.
        On appeal, appellants spend significant time arguing that direct evidence of
causation is not required in a strict liability failure to warn case. They contend, among
other things, that such self-serving testimony regarding a “[h]indsight [t]ruism” wastes
times, lacks substantive weight, and will almost always elicit an objection from the
defense. We are perplexed by these arguments.
        Courts in this state have long recognized that proving causation in a defective
products case can be difficult and, indeed, that direct evidence of causation may not exist.
(Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 183 (Dimond).) Thus, a
plaintiff may carry his burden of proving causation by circumstantial evidence. (Ibid.)
Furthermore, as best we can tell, there has never been any dispute in this case that the
causation element of a failure to warn claim can be proven with circumstantial evidence.
In fact, the jury was instructed pursuant to CACI No. 202, that “[s]ome evidence proves a
fact directly,” that “[s]ome evidence proves a fact indirectly,” that indirect evidence is
sometimes referred to as “ ‘circumstantial evidence,’ ” and that “As far as the law is
concerned, it makes no difference whether evidence is direct or indirect.”
        Appellants strongly intimate that the trial court erroneously demanded direct
evidence of causation. However, the order granting the JNOV contains an express


                                             12
finding that “None of the testimony cited by Plaintiffs provides a basis from which it can
be logically and reasonably inferred that any of the participants would have altered his
conduct, in a way that would have prevented Plaintiff Corbo’s injuries, if he had seen a
warning.” Thus, the court granted the JNOV because if did not find sufficient direct or
circumstantial evidence to support the jury’s causation finding.
       Our review of the evidence leads us to the same conclusion the trial court reached.
It remains undisputed that there is no direct evidence that the absence of these warnings
caused this accident to happen. Nor do we find substantial circumstantial evidence of
causation in the trial record. For example, there is no evidence suggesting any of the
individuals involved in this accident are careful people, or that they looked for, were
concerned by, or followed warnings regarding the performance of their job duties at the
NUMMI plant. Nor were there any circumstances about this particular incident which
suggest in any way that the people involved would have acted differently if one of
appellants’ hypothetical warnings had been affixed to the electric truck.
       Appellants insist that this record supports an inference that the absence of an
adequate warning caused this accident. They maintain that “the only reasonable—
indeed, virtually inescapable—inference, which the jury was allowed to make and did in
fact make, is that Corbo would have heeded a warning not to stand in front of Taylor-
Dunn’s truck if he had known that it would suddenly and silently lurch forward and pin
him against a stairway, causing serious and permanent injuries.” But the issue is not
whether Corbo would have heeded a warning had he known that failure to do so would
cause him injury. The pertinent question is whether, without the benefit of that hindsight
knowledge, Corbo or one of the other three men would have altered their conduct in a
way which would have avoided the accident if the truck had contained a specific warning
about the danger of a negligent or accidental acceleration.
       “An inference is a deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established in the action.” (Evid.
Code, § 600, subd. (b)) In other words, an inference must be drawn from the evidence.
(Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 808 (Collin).)


                                             13
Appellants do not identify any evidence to support an inference that the absence of a
warning was a substantial factor causing this accident. Dimond, supra, 65 Cal.App.3d
173, a case upon which appellants’ mistakenly rely, illustrates our point.
       Dimond was a strict liability product defect case against the manufacturer of a
forklift that plaintiff was using when he suffered serious personal injuries during a
warehouse accident. The plaintiff alleged that the forklift was defective both in its design
and because it was accompanied by a defective warning. (Dimond, supra, 65 Cal.App.3d
at p. 176.) To prove these claims, the plaintiff produced evidence that he sustained his
injuries while working alone in a warehouse, using the forklift to move and store
packaged rolls of printing paper weighing approximately 550 pounds each. (Id. at p.
177.) Co-workers found the plaintiff after they heard a “loud boom” in the warehouse.
He was face-down on the ground behind the forklift, with his feet closest to it. Two of
the 550 pound rolls were on top of the plaintiff and a third roll was on the other side of
the forklift. There was a dent in the overhead protective cage of the forklift which had
not been there when the plaintiff started his shift; the “clamp” component of the forklift
was secured around a stack of papers; and the gear shift was in the neutral position,
although the motor was still running. (Id. at p. 178.)
       At trial, the Dimond plaintiff was unable to recount the circumstances of the
accident itself because his injuries caused retrograde amnesia. (Dimond, supra, 65
Cal.App.3d at p. 178.) Nevertheless, he testified that he had seen warnings in the
operator’s manual and on the forklift itself which advised that the overhead cage would
not afford protection against “ ‘heavy or capacity loads.’ ” (Ibid.) Plaintiff also testified
that he had feared that something might hit the exposed propane tank on the forklift and
cause an explosion to occur. Finally, plaintiff testified that he always placed the forkli ft
gear in neutral and turned off the motor before he dismounted the vehicle. (Ibid.) At
trial, the plaintiff also presented expert testimony that the position of the propane tank
rendered the forklift defective and that the posted warning regarding the strength of the
overhead cage was inadequate and defective because it was ambiguous and dangerously
misleading. (Id. at p. 179.)


                                              14
       After the Dimond plaintiff presented his case at trial, the court granted a nonsuit to
the defendant on the ground there was insufficient evidence to establish causation.
(Dimond, supra, 65 Cal.App.3d at p. 180.) The Dimond court reversed. The court
reasoned that, in order to accept the plaintiff’s theory of liability, the factfinder would
have to draw two inferences: (1) that the plaintiff was on the forklift when the paper rolls
began to fall; and (2) that the plaintiff left the “safe enclosure of the overhead guard”
either because of the misleading warning or because of the positioning of the exposed
propane tank. Finding that substantial circumstantial evidence supported these
inferences, the court concluded that the nonsuit should not have been granted. (Id. at pp.
180-183.)
       Regarding the element of causation, the Dimond court acknowledged plaintiff’s
amnesia precluded his direct testimony on this issue. (Dimond, supra, 65 Cal.App.3d at
p. 182.) Nevertheless, causation was established by evidence that the plaintiff had read
the misleading warnings that the overhead cage would not protect him from a heavy or
capacity load and that plaintiff feared a possible explosion from a falling object striking
the propane tank. In light of this evidence, the court found, “[i]t is a perfectly logical and
reasonable deduction that when confronted with a falling object of substantial weight,
plaintiff acted in conformity with his expressed concerns.” (Id. at p. 185.)
       Dimond illustrates that direct evidence of causation is neither required nor
necessary to establish the causation element of a strict product liability failure to warn
claim. But, as the Dimond court underscored, that does not mean that the burden of proof
shifts to the defendant; causation can be inferred, but only when there is sufficient
circumstantial evidence to support that inference. (Dimond, supra, 65 Cal.App.3d at p.
184.) In the present case, appellants have not identified any direct or circumstantial
evidence in this record which substantially supports the jury’s finding that the absence of
a warning about the risk of using the Taylor-Dunn flatbed truck was a substantial factor
causing this accident.
       In fact, many circumstances established or supported by the trial evidence are
inconsistent with the inference that the warning labels appellants propose would not have


                                              15
prevented this accident. First, as reflected in our factual summary, the Taylor-Dunn truck
did have a Safety Warning label. Yet the circumstances show that Lam, Castro and
Fernandez ignored several of the admonitions listed on that warning. Furthermore, to the
extent the jury credited Fernandez’s version of the accident, Lam and Castro also ignored
the decal advisement to keep their legs inside the vehicle.
       Second, as we also note above, Corbo, Fernandez and Lam received training
regarding operating a forklift, which included advisement regarding the “[g]eneral
driving rules” at the NUMMI plant. In addition, Gary Durham, who was Fernandez’s
direct supervisor at the time of the accident, testified that he discussed several of these
rules with Fernandez and Corbo.3 Although there was conflicting evidence regarding
compliance with some of these safety rules (e.g., smoking in the vehicle, horseplay),
undisputed evidence shows that these men did not follow the general rules that only one
person was to occupy a seat in a vehicle at any time and that a driver was not to stop a
vehicle in front of a person standing in front of a fixed object.
       Third, evidence presented at trial showed that Lam and Castro were not only
aware of the rule against having three people in a vehicle seat that was designed for two
people, they had been disciplined for violating that rule in the past. At trial, Lam
admitted that, on an occasion before Corbo’s accident, he and Castro were “busted” by a
supervisor for having three people in the front seat of a golf cart.
       In their reply brief, appellants contend these circumstances are not dispositive
because the jury was not required to draw the inference Taylor-Dunn wanted, i.e., that the
individuals involved in this accident would not have heeded a warning. This argument
misperceives the burden of proving causation. Appellants had that burden and they did
not produce sufficient circumstantial evidence to support an inference of causation.
Taylor-Dunn did not have the burden of rebutting an inference that was never established.




       3
       Durham also testified that Fernandez had a reputation among his co-workers as
someone who goofed around.


                                              16
       Finally, appellants argue that, to the extent the resolution of this issue depends on
an inference, the “telling fact is that Corbo was crushed because he was standing in front
of the truck when it lurched forward. That fact supports an inference he would not have
stood in front of the truck had he been warned of the danger. There was no evidence, for
example, that Corbo did not care whether he was crushed against a stairwell.”
       This final argument highlights a flaw that runs throughout appellants’ arguments
on appeal. If the fact of injury itself was sufficient to support an inference of causation,
then causation would never be an issue in a failure to warn strict products liability case.
That simply is not the law; the plaintiff has the burden of proving causation and he cannot
sustain that burden if there is no evidence that a warning would have made any
difference. In other words, the question is not what Corbo would have done had he
known his foot would be pinned between the truck and metal stairs but, rather, whether
he would have heeded a warning not to stand in front of the truck even though he did not
know that the accident was about to happen.
C.     Appellants’ Alternative Theories for Proving Causation
       Although appellants fail to squarely acknowledge the evidentiary void in this case,
they propose two alternative grounds upon which to affirm the jury’s causation finding:
(1) that causation in this context is a question of common sense which can be established
by asking what a reasonable person in Corbo’s position would have done had a warning
been provided; and (2) that this court should recognize a “presumption” that Corbo would
have heeded a warning if one had been provided.
       1.     The Reasonable Person Test
       Claiming to raise a question of first impression under California products-liability
law, appellants ask this court to find that an “objective reasonable-person test”
substantially supports the jury’s causation finding in this case. Appellants contend that
the causation element of a failure to warn claim is different than causation in other types
of product liability cases because an inquiry about what an actor would have done if a
warning had been given is inherently speculative. Therefore, appellants posit that




                                             17
employing an objective reasonable person analysis to determine whether the absence of a
warning caused a plaintiff’s harm would be the most equitable way to resolve this issue.
         The first problem with this theory is that it is not the theory upon which this case
was tried and this jury was instructed. The trial court used a version of CACI No. 1205
to instruct the jury regarding the essential factual elements of appellants’ strict liability
failure to warn claim. That instruction stated that plaintiffs were required to prove seven
elements, the last of which was “That the lack of sufficient instructions or warnings was a
substantial factor in causing Christopher Corbo’s harm.” We find no indication in the
record that appellants objected to this instruction or requested any special instruction
regarding the causation element of its failure to warn claim.
         Another problem with appellants’ reasonable person test for proving causation is
that it does not raise a “question of first impression” as appellants contend. (See Saelzler
v. Advanced Group 400 (2001) 25 Cal.4th 763 (Saelzler); Huitt, supra, 188 Cal.App.4th
1586.)
         In Saelzler, supra, 25 Cal.4th 763, plaintiff sued a business owner for injuries she
sustained during a criminal assault that occurred on the defendant’s premises. In
affirming a plaintiff’s verdict, the Court of Appeal adopted a “practical approach to the
causation issue” by relying on “common sense and common experience” to conclude that
the absence of required security measures at the defendant’s premises was a contributing
cause of the crime. (Id. at p. 778.) However, the Supreme Court reversed the judgment
on the ground there was insufficient evidence of causation. The court reasoned that the
Court of Appeal’s common sense approach was not based in the evidence, and was
fundamentally unfair to the defendant because it permitted a lay jury to make an after the
fact determination of causation. As the court explained, “if we simply relied on
hindsight, the mere fact that a crime has occurred could always support the conclusion
that the premises were inherently dangerous.” (Ibid.)
         Thus, the Saelzler court held that “to demonstrate actual or legal causation, the
plaintiff must show that the defendant’s act or omission was a ‘substantial factor’ in
bringing about the injury. [Citations.] In other words, plaintiff must show some


                                               18
substantial link or nexus between omission and injury.” (Saelzler, supra, 25 Cal.4th at p.
778.) The Court of Appeal’s “ ‘common sense’ ” rule, was inconsistent with this test
because under that faulty approach “the defendants’ omission itself would constitute the
missing link.” (Ibid.) The Saelzler court also rejected the appellant’s contention that the
substantial factor test for proving causation would make it “virtually impossible” to prove
a negligence claim against a landlord or property owner for failure to take reasonable
protective measures to safeguard others from a third party criminal assault. (Id. at p.
779.) The court reasoned that it could readily imagine a case in which “direct or
circumstantial evidence” would establish the requisite substantial causal link between the
third party assault and the defendant’s negligence, although no such evidence was
produced by the appellant. (Ibid.)
       Finally, the Saelzler court rejected appellant’s contention that the circumstances
justified shifting the burden of proving causation to the defendant. (Saelzler, supra, 25
Cal.4th at p. 779.) The Court of Appeal had accepted that notion, finding that the
defendant’s “flagrant failure to provide daytime security justified shifting the burden of
proof to defendants to conclusively establish the absence of a causal relation between its
breach of duty and the assault on plaintiff . . . .” (Id. at pp. 779-780.) However, the
Saelzler court strongly disagreed, holding that “[n]o matter how inexcusable a
defendant’s act or omission might appear, the plaintiff must nonetheless show the act or
omission caused, or substantially contributed to, her injury. Otherwise, defendants might
be held liable for conduct which actually caused no harm, contrary to the recognized
policy against making landowners the insurer of the absolute safety of anyone entering
their premises. [Citations.]” (Id. at p. 780.)
       The Saelzler holdings were applied in a strict liability failure to warn case in Huitt,
supra, 188 Cal.App.4th 1586. The Huitt plaintiffs were injured while attempting to light
a water heater at a construction site. When the heater would not light, they decided to
bleed any accumulated air in the natural gas pipe. However, when they made another
attempt to light the pilot light, the gas that had been released into the water heater closet
exploded and plaintiffs were seriously injured. (Id. at p. 1588.) In the strict liability


                                              19
action that followed, plaintiffs alleged the defendant gas company had a duty to warn
them that new steel gas pipes absorb an odorant which is added to natural gas so that its
presence is detectable. Plaintiffs also alleged that the breach of that duty to warn caused
their injuries because if plaintiffs had known about the odor fade they would not have
bled the gas pipe into the water heater closet. The jury accepted this theory and awarded
plaintiffs compensatory and punitive damages. (Ibid.)
       The Huitt court reversed the judgment, finding insufficient evidence that the
defendant’s failure to issue a warning was a substantial factor causing the plaintiffs’
harm. (Huitt, supra, 188 Cal.App.4th at pp. 1589, 1596-1600.) The court reasoned that
the primary causation issue presented by the facts was whether there was any effective
way that a warning issued by the gas company would have reached the plaintiffs. No
evidence was produced to support an affirmative response to that question. Instead, the
plaintiffs relied solely on “common sense and common experience to convince the jury
that if a warning had been issued, the accident would have been avoided.” (Id. at p.
1602.) Then the trial court permitted the jury to use “hindsight to conclude that plaintiffs
would have acted differently if they had known of the odor fade.” (Ibid.) The Huitt court
found that this “approach” was error because it permitted the jury to ignore the causation
element of the failure to warn claim. (Ibid.)
       Appellants’ reasonable person test for proving causation is just another label for
the common sense approach disapproved in Saelzler and Huitt. Adopting such a test
would relieve the plaintiff of his burden of proving the causation element of a failur e to
warn claim by authorizing the jury to speculate about what a hypothetical reasonable
person would do rather than basing its causation determination on the evidence in the
case. In their opening brief to this court, appellants ignore Saelzler and, in their reply
brief, they take the position that Saelzler is inapposite because it was not a strict liability
failure to warn case. However, the Saelzler court addressed the same substantial factor
test that California uses to determine causation in a failure to warn case. Furthermore,
Huitt applied the Saelzler holding to resolve the same issue raised by this appeal.




                                               20
       Contending that our Supreme Court has already tacitly approved a reasonable
person test for proving causation, appellants direct our attention to Cobbs v. Grant (1972)
8 Cal.3d 229, 245 (Cobbs).) The Cobbs court addressed the elements of a medical
malpractice case based on a theory that a doctor’s failure to disclose the risks of surgery
vitiated the plaintiff’s consent to an operation. The court confirmed that informed
consent cases require a causal relationship between the physician’s failure to inform and
the plaintiff’s injury. (Ibid.) But the court also acknowledged problems inherent in a
plaintiff’s testimony on this subject since, at the time of trial, the uncommunicated hazard
has already materialized. Thus, the court found that “an objective test is preferable: i.e.,
what would a prudent person in the patient’s position have decided if adequately
informed of all significant perils.” (Ibid.) As appellants contend, this objective standard
for proving causation is also embodied in standard jury instructions regarding informed-
consent medical malpractices cases. CACI No. 533 states that, in order to establish
causation, the plaintiff must show “[t]hat a reasonable person” in the plaintiff’s position
would not have agreed to the procedure if he had been fully warned of its risks.
       However, appellants overlook the fact that this is not a medical malpractice case.
They provide no reason or authority for their assumption that the policies underlying
medical malpractice law should apply in this very different context. More to the point,
because this is not a medical malpractice case, CACI No. 533 was not the causation
instruction that was given to the jury in this case. Here, the jury was instructed—without
objection—that the plaintiffs had the burden of proving that the alleged failure to warn
about a risk of the flatbed truck was a substantial factor causing harm. That substantial
factor test cannot be satisfied by resort to common sense or an objective reasonable
person test. (Saelzler, supra, 25 Cal.4th 763; Huitt, supra, 188 Cal.App.4th 1586.)
       2.     The Heeding Presumption
       Appellants’ second argument is that the jury’s verdict can be sustained by giving
Corbo the benefit of a “heeding presumption” that he would have heeded a warning not
to stand in front of the Taylor-Dunn flatbed if such a warning had been given.




                                             21
        Courts in some jurisdictions have applied a heeding presumption to the causation
element of product-liability cases based on a failure to warn theory. (See Coffman v.
Keene Corp. (1993) 133 N.J. 581, 600-603 (Coffman), and authority collected there.) In
those jurisdictions, the plaintiff is “afforded the use of the presumption that he or she
would have followed an adequate warning had one been provided, and . . . the defendant
in order to rebut that presumption must produce evidence that such a warning would not
have been heeded.” (Id. at p. 603.) Thus, use of this rebuttable heeding presumption
shifts the “plaintiff’s burden of proof on the issue of causation as it relates to the absence
of a warning.” (Ibid.)
        Appellants cannot rely on the heeding presumption to establish causation in this
case for at least two reasons. First, as best we can determine, appellants never even
mentioned this heeding presumption until after the trial was completed. Certainly, a jury
instruction on the heeding presumption was neither given nor requested. Therefore, two
principles bar appellants from raising this theory now: (1) a plaintiff cannot complain
about the trial court’s failure to give an instruction he never requested; and (2) issues not
raised in the trial court cannot be raised for the first time on appeal. (Willden v.
Washington National Ins. Co. (1976) 18 Cal.3d 631, 636; Montez v. Ford Motor Co.
(1980) 101 Cal.App.3d 315, 320; Jines v. Abarbanel (1978) 77 Cal.App.3d 702, 712-
713.)
        Applying these principles to preclude appellants from raising this new theory is
particularly appropriate in light of the fact that the heeding presumption shifts the burden
of proof; since appellants did not invoke this presumption at trial, Taylor-Dunn had no
notice of or opportunity to rebut it. Furthermore, as a matter of fact, this heeding
presumption cannot be used to support a finding by a jury that was never even instructed
about the presumption.
        Second, as the trial court stated in its JNOV order, California does not recognize
the heeding presumption. (Huitt, supra, 188 Cal.App.4th at p. 1603; see also Dimond,
supra, 65 Cal.App.3d at p. 185 & fn. 8 [finding no California case applying presumption
and expressly declining to rely on a presumption to establish causation]; Motus v. Pfizer,


                                              22
Inc. (C.D. Cal. 2001) 196 F.Supp.2d 984, 992, fn. 5 [“the California Supreme Court has
not applied and would not apply the presumption.”].)
       Appellants contend that a special jury instruction on the heeding presumption was
not required because this “permissive presumption” is really nothing more than an
inference that the jury was allowed to and allegedly did make. This “inference” was
permissible, appellants contend, because it is implicitly recognized by California law.
We will separately address the two flawed prongs of this erroneous argument.
       First, the heeding presumption is not an inference. As explained earlier in our
analysis, an inference is a deduction of fact that may logically and reasonably be drawn
from evidence in the case. (Evid. Code, § 600; Collin, supra, 21 Cal.App.4th at p. 808.)
Furthermore, an inference does not shift the burden of proof. (Dimond, supra, 65
Cal.App.3d at p. 184.) By contrast, the heeding presumption does shift that burden.
(Coffman, supra, 133 N.J. at p. 603.)
       Appellants maintain that there is no substantive distinction between a “permissive
presumption” and an inference. (Citing People v. McCall (2004) 32 Cal.4th 175, 182.)
This observation is beside the point because the heeding presumption is a mandatory
presumption; it shifts the burden of proof. (Coffman, supra, 133 N.J. at pp. 600-603.)
Furthermore, if the heeding presumption could somehow be re-packaged as an inference,
then circumstantial evidence would be required to support it. As we have already
explained above, the causation element of a failure to warn claim can be established
inferentially with circumstantial evidence. (Dimond, supra, 65 Cal.App.3d 173.) Here,
however, there is no circumstantial evidence in the trial record to support an inference of
causation. Thus, what appellants ask now is to fill that evidentiary void by “recognizing”
a presumption that would not only lessen their burden of proof but shift that burden to
Taylor-Dunn.
       The second prong of appellants’ erroneous argument is that, although no
California case has explicitly adopted the heeding presumption, this doctrine is “inherent
in—indeed, is the premise of—California’s reasonable person test.” As we have already
explained, appellants’ reasonable person test is not the standard that California applies in


                                             23
a strict product liability case. Under California law, the plaintiff alleging strict liability
for a failure to warn must prove that the alleged failure to provide adequate warning was
a substantial factor in bringing about the injury. (Huitt, supra, 188 Cal.App.4th at p.
1604; Rutherford, supra, 16 Cal.4th at p. 968; Conte, supra, 168 Cal.App.4th at p. 112;
CACI No. 1205.)
       Furthermore, the heeding presumption is not another label for a reasonable person
test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an
essential element of a failure to warn claim. (Coffman, supra, 133 N.J. at pp. 600-603.)
There may be sound policies for adopting that doctrine, but in view of the law discussed
above, this appeal is not the proper process for seeking such a change.
                                     III. DISPOSITION
       The judgment is affirmed.



                                                    _________________________
                                                    Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




       * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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