Filed 11/15/13 Boekamp v. General Motors CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


HERBERT BOEKAMP et al.,                                              D062390

         Plaintiffs and Respondents,

         v.                                                          (Super. Ct. No. 37-2010-00069017-
                                                                     CU-PL-EC)
GENERAL MOTORS, LLC,
                                                                     ORDER MODIFYING OPINION
         Defendant and Appellant;                                    AND DENYING REHEARING
                                                                     [NO CHANGE IN JUDGMENT])
FIRST AMERICAN SPECIALTY
INSURANCE COMPANY,

         Intervener and Respondent.

THE COURT:

         It is ordered that the opinion filed herein on October 28, 2013, be modified as

follows:

         On page 16, third line from the bottom, immediately after the phrase "multiple

times for inspection and repair of dashboard electrical components," add as footnote 4 the

following footnote.

         In a petition for rehearing, the Boekamps assert that "the evidence shows
         that no one, other than GM at the time of [the Corvette's] manufacture,
         entered [the dashboard] area." We disagree. Herbert testified on direct
examination that he took the Corvette to the dealer multiple times because
the radio made "a bizarre noise" and indicator lights went on when they
should not have. He further testified that on one occasion, the dealer "kept
the car for two days, and I don't know what they do as far as how they test
it or whatever." When GM's counsel asked Herbert on cross-examination
what the dealer did to fix the electrical problems, the Boekamps' counsel
objected that the question "asks for speculation," and the court sustained the
objection. Further, although no witness from the dealer testified about what
repairs were made or attempted on the Boekamps' Corvette, repair orders
introduced at trial stated the dealer "did multiple radio tests" and replaced a
light bulb. Thus, the evidence does not establish that no one except GM
entered the dashboard area, as the Boekamps assert. In fact, the evidence
supports an inference the dealer entered that area to try to fix the problems
with the radio and indicator lights of which Herbert complained.

There is no change in the judgment.

The petition for rehearing is denied.



                                                            HUFFMAN, Acting P. J.

Copies to: All parties




                                        2
Filed 10/28/13 Boekamp v. General Motors CA4/1 (unmodifed version)
                      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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



HERBERT BOEKAMP et al.,                                              D062390

         Plaintiffs and Respondents,

         v.                                                          (Super. Ct. No. 37-2010-00069017-
                                                                     CU-PL-EC)
GENERAL MOTORS, LLC,

         Defendant and Appellant;

FIRST AMERICAN SPECIALTY
INSURANCE COMPANY,

         Intervener and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Eddie C.

Sturgeon, Judge. Reversed.

         Crowell & Moring and J. Daniel Sharp for Defendant and Appellant.

         Madison Harbor and Ali Parvaneh for Plaintiffs and Respondents.

         Law Offices of Edward W. Hess, Jr., and Edward W. Hess, Jr., for Intervener and

Respondent.
       General Motors, LLC (GM) appeals the judgment awarding damages to Herbert,

Patti, Ashley, Jason, and Jake Boekamp1 and their homeowners' insurer for the

destruction of the Boekamps' residence by a fire that originated in a vehicle manufactured

by GM. GM argues the trial court erred by instructing the jury on the doctrine of res ipsa

loquitur, and the jury's finding that GM was negligent is inconsistent with its finding that

the car did not fail to perform as safely as an ordinary consumer would have expected.

We agree the jury's findings are inconsistent and therefore reverse the judgment.

                                             I.

                               FACTUAL BACKGROUND

       Herbert Boekamp bought a new Chevrolet Corvette from an authorized GM dealer

in September 2005. Over the next several years, Herbert took the Corvette back to the

dealer on multiple occasions with complaints that the radio emitted a high-pitched sound

and maintenance indicator lights went on for no reason. The dealer was unable to

identify the cause of these problems or to correct them. Herbert also had routine

maintenance regularly performed on the Corvette, and had its rear bumper repaired after a

low-impact collision.

       One evening in January 2010, Patti drove the Corvette home and parked it in the

garage of the Boekamps' residence. A few hours later, a fire started in the garage and

eventually destroyed the Boekamps' house and all its contents.




1      For brevity, we refer to members of the Boekamp family by their first names. In
so doing, we intend no undue familiarity or disrespect.
                                             2
       Several people investigated and reported on the fire. Responding firefighters

prepared a report that stated the fire started in one of the vehicles parked in the garage.

Investigators hired by the Boekamps' homeowners' and automobile insurers concluded

the fire was electrical and started in the dashboard of the Corvette. A mechanical

engineer retained by the Boekamps, Ramaswami Vasudevan, also determined the fire

started in the Corvette. Vasudevan's theory was that (1) fretting corrosion of circuitry in

the motor controlling the movement of the steering column caused the motor not to shut

off when it should have, leading to excessive heat buildup in the motor; (2) the

overheating gradually melted the insulation around some wires and terminals in the

motor, leaving them exposed; and (3) electrical arcing occurred between the exposed

terminals, generating intense heat that ignited the Corvette. An electrical engineer

retained by GM, Thomas Livernois, disagreed with Vasudevan, calling his theory

"impossible." Livernois examined the remains of the burned Corvette but found nothing

indicating an electrical or other cause of the fire.

                                               II.

                             PROCEDURAL BACKGROUND

       The Boekamps filed a complaint against GM for damages. In a count labeled

negligence, they alleged that GM "fail[ed] to properly design and/or manufacture the

Corvette in such a manner so that it would not catch fire after normal and reasonable

use," and that this failure resulted in a fire that destroyed their residence. In a count

labeled strict products liability, the Boekamps alleged GM "designed and/or

manufactured [the Corvette] in such a defective manner that, after normal and reasonable

                                               3
use, it ignited causing the destruction of [their] [r]esidence." The Boekamps'

homeowners' insurer, First American Specialty Insurance Company (First American),

intervened to recover from GM the money it had paid out on the Boekamps' homeowners'

insurance policy. GM filed an answer asserting a general denial and several affirmative

defenses.

       The case proceeded to a jury trial. After the close of evidence, the court gave the

jury instructions on strict products liability based on the consumer expectation test for a

design defect (CACI Nos. 1200, 1203); negligence in the design or manufacture of the

product (CACI Nos. 1220, 1221); and, over GM's objection, res ipsa loquitur (CACI

No. 417). The jury returned a special verdict on liability. Question No. 4 asked, "Was

[GM] negligent?" The jury answered, "Yes." Question No. 9 asked, "Did the 2005

Chevrolet Corvette fail to perform as safely as an ordinary consumer would have

expected when used or misused in an intended or reasonably foreseeable way?" The jury

answered, "No." In a separate damages verdict, the jury awarded the Boekamps damages

for property loss and emotional distress.

       The trial court entered judgment on the jury's liability and damages verdicts,

dividing the property loss award between the Boekamps and First American. The court

denied GM's motion for a new trial, which was made on the grounds, among others, that

the jury's inconsistent verdicts on negligence and strict products liability were "against

law," and that the court's instruction of the jury on the doctrine of res ipsa loquitur was an

"[e]rror in law." (Code Civ. Proc., § 657, subds. 6 & 7.)



                                              4
                                              III.

                                        DISCUSSION

       GM seeks reversal of the judgment on the grounds the jury made inconsistent

findings on the Boekamps' negligence and strict products liability claims, and the trial

court erred by instructing the jury on the doctrine of res ipsa loquitur. The Boekamps

counter that the jury's findings can be reconciled, and the court properly gave instructions

on res ipsa loquitur. For reasons we shall explain, we agree with GM that the jury's

inconsistent liability findings require reversal.

A.     Standard of Review

       The correctness of a special verdict is analyzed as a matter of law, and whether its

findings are inconsistent is subject to de novo review on appeal. (Collins v. Navistar, Inc.

(2013) 214 Cal.App.4th 1486, 1500; Singh v. Southland Stone, U.S.A., Inc. (2010) 186

Cal.App.4th 338, 358.) Findings in a special verdict are inconsistent when they are based

on the same evidence but determine a material issue in contradictory ways. (Cavallaro v.

Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 101.) To decide whether findings in a

special verdict are inconsistent, we review the findings in the context of the record,

including the pleadings, evidence, jury instructions, and arguments of counsel.

(Snodgrass v. Hand (1934) 220 Cal. 446, 448; Oxford v. Foster Wheeler LLC (2009) 177

Cal.App.4th 700, 718, 719-720 & fn. 9 (Oxford); Zagami, Inc. v. James A. Crone, Inc.

(2008) 160 Cal.App.4th 1083, 1092 (Zagami).) When the inconsistency is between two

findings in a special verdict, we neither imply findings in favor of the prevailing party nor

presume in favor of upholding the verdict. (Zagami, at p. 1092.) Nor may we choose

                                               5
between inconsistent findings in a special verdict, because neither party is entitled to have

the favorable verdict credited and the unfavorable verdict disregarded. (City of San

Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682;

Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346 (Shaw).) If findings in a

special verdict are inconsistent, the verdict is "against law," and the proper remedy is a

new trial. (Code Civ. Proc., § 657, subd. 6; Singh, at p. 358.)

B.     Legal Analysis

       Applying the legal principles above, we first discuss the arguments that GM

asserts in support of reversal. We then address the counterarguments of the Boekamps.

       1.     GM's Contentions

       GM contends the jury's finding that it was negligent is inconsistent with the

finding that the Corvette did not fail to perform as safely as an ordinary consumer would

have expected. We agree. As we shall explain, the jury's findings cannot be reconciled

because the record shows the negligence and strict products liability theories pursued at

trial by the Boekamps both depend on the same design defect of the Corvette.

       At the outset of the case, the Boekamps pointed to a defect in the design or

manufacture of the Corvette as the cause of their injuries. In the negligence count of their

complaint, the Boekamps alleged that GM "fail[ed] to properly design and/or

manufacture the Corvette in such a manner so that it would not catch fire after normal

and reasonable use." In their strict products liability count, the Boekamps similarly

alleged that GM "designed and/or manufactured [the Corvette] in such a defective

manner that, after normal and reasonable use, it ignited." This improper or defective

                                              6
design or manufacture, the Boekamps further alleged, caused the Corvette to catch fire

and burn their house down.

       At trial, the Boekamps narrowed the scope of their negligence and strict products

liability claims by introducing evidence of a design defect only; they put on no evidence

of a manufacturing defect. The Boekamps' engineering expert, Vasudevan, was the only

witness to testify on their behalf as to how the fire started. He testified that corrosion of

the circuitry of a motor that controlled the movement of the steering column caused an

electrical fire inside the Boekamps' Corvette. According to Vasudevan, the rate of

corrosion was accelerated and could have been slowed by such "simple things" as

including additional mechanical or chemical components in the circuitry of the motor or

replacing an analog sensor with a digital one. Neither Vasudevan nor any other witness

testified that anything had gone wrong in the manufacture of the specific Corvette

purchased by the Boekamps, that the electrical components of the steering column motor

of their Corvette differed from those called for by GM's design or from those installed in

other 2005 Corvettes, or that the steering column motor of their Corvette performed

differently from those of other 2005 Corvettes. Thus, the Boekamps' evidence indicated

only a design defect in the 2005 Corvette's electrical system as the cause of the fire that

destroyed their home.

       The instructions the trial court gave the jury also focused on the Boekamps' design

defect theory, although the instructions did briefly mention the concept of a

manufacturing defect. As to strict products liability, the court instructed the jury

generally that the Boekamps claimed they were harmed by a product designed,

                                              7
manufactured, and distributed by GM that "contained a manufacturing defect" or "was

defectively designed." (CACI No. 1200.) The court did not instruct specifically on

manufacturing defects, however. (CACI Nos. 1201, 1202.) It did instruct the jury

specifically on design defect, but only under the consumer expectation test, pursuant to

which the jury could find the Corvette defective if it "did not perform as safely as an

ordinary consumer would have expected it to perform when used or misused in an

intended or reasonably foreseeable way." (CACI No. 1203, italics added; see Soule v.

General Motors Corp. (1994) 8 Cal.4th 548, 562 (Soule) ["a product is defective in

design if it does fail to perform as safely as an ordinary consumer would expect"].) 2 As

to negligence, the court gave the jury general instructions regarding the elements of a

claim, standard of care, and causation. (CACI Nos. 400, 401, 430, 431.) It also gave

more specific instructions that the Boekamps had to prove GM "was negligent in

designing or manufacturing the 2005 Chevrolet Corvette"; and that in determining

whether GM had been negligent, the jury should "balance what [GM] knew or should

have known about the likelihood and severity of potential harm from the product against

the burden of taking safety measures to reduce or avoid the harm." (See CACI

Nos. 1220, 1221, italics added; see Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d

1062, 1077-1078 (Putensen) ["In determining what precautions, if any, were required



2       The Boekamps opposed giving instructions on design defect under the risk-benefit
test (CACI No. 1204; see Soule, supra, 8 Cal.4th at p. 562 [" 'a product may be found
defective in design . . . if the jury finds that the risk of danger inherent in the challenged
design outweighs the benefits of such design' "]), and the court did not instruct the jury on
that test.
                                              8
under the circumstances, the likelihood of harm, and the gravity of the harm if it happens,

must be balanced against the burden of the precaution which would be effective to avoid

the harm."].) Hence, although the jury instructions mentioned manufacturing, they

specifically and repeatedly directed the jury's attention to the safety aspects of the design

of the Corvette.

       The arguments made by the Boekamps' counsel throughout the course of the trial

further indicated that their negligence and strict products liability counts were both based

on a defect in the Corvette's design. In the Boekamps' trial brief, counsel asserted the

"claims against [GM] founded in negligence flow from the underlying strict products

liability claim that has been brought alongside this claim," and later described that

underlying claim this way: "By designing the electrical system of the Corvette in such a

manner as to allow the [steering column motor] to fail, [GM] will be seen to have

defectively designed the Corvette and will be liable to [the Boekamps] for the resulting

harm caused by the failure." (Italics added.) In a memorandum filed in opposition to

GM's motion in limine regarding res ipsa loquitur, the Boekamps' trial counsel asserted:

"The only theory that any party will be proffering is the theory that the fire originated in

the steering column of the [Corvette] due to a defect in the [Corvette]." (Italics added.)

In closing argument to the jury, the Boekamps' trial counsel also pointed out the overlap

between the negligence and strict products liability theories. He contended the Corvette

"was so poorly designed it suffered fretting corrosion throughout that steering column

through the design." (Italics added.) Counsel also specifically asserted GM's negligence

consisted of its "failure to design a system that does not catch fire by itself." (Italics

                                               9
added.) Similarly, as to strict products liability, counsel argued the Boekamps' "Corvette

did not perform as safely as an ordinary consumer would have expected. We don't expect

what is inside the dash to catch on fire." (Italics added.) Therefore, as the Boekamps'

trial counsel repeatedly urged, both of their theories of liability depended on the existence

of a defect in the design of the Corvette.

       In sum, based on the pleadings, evidence, jury instructions, and arguments of the

Boekamps' trial counsel, we conclude the negligence and strict products liability theories

on which the Boekamps proceeded to trial both posited the same defect in the design of

the electrical system of the Corvette as the cause of the fire that destroyed their home.

Where, as here, "liability depends on the proof of a design defect, no practical difference

exists between negligence and strict liability; the claims merge." (Lambert v. General

Motors (1998) 67 Cal.App.4th 1179, 1185 (Lambert).) Thus, "[t]he jury could not have

concluded that [GM] negligently designed the [Corvette] and at the same time conclude

that it was not defective." (Id. at p. 1186.) The jury here, however, did just that: It found

GM was negligent even though it also found the Corvette was not defective under the

consumer expectation test, the only strict products liability test on which the Boekamps

requested the jury be instructed. (See Soule, supra, 8 Cal.4th at p. 562 ["a product is

defective in design if it does fail to perform as safely as an ordinary consumer would

expect"].) A judgment based on such inconsistent findings in a special verdict is "against

law" and must be reversed. (Code Civ. Proc., § 657, subd. 6; Shaw, supra, 83

Cal.App.4th at pp. 1344, 1349; Lambert, at p. 1186.)



                                             10
       2.      The Boekamps' Contentions

       The Boekamps offer several procedural and substantive arguments in opposition to

our conclusion the judgment must be reversed on the ground of inconsistent verdicts. As

we shall explain, none is persuasive.

       The Boekamps try to erect a procedural barrier to GM's attack on the jury's special

verdict by arguing GM waived any "ambiguity" in the special verdict because it failed to

request correction or clarification of the verdict before the jury was discharged. (See,

e.g., Zagami, supra, 160 Cal.App.4th at p. 1092, fn. 5 [if "verdict is merely ambiguous, a

party's failure to request a correction or clarification of the verdict before the jury is

discharged may amount to a waiver of the ambiguity or defect"].) GM correctly responds

that this argument "attacks a 'straw man,' i.e., an erroneous premise." GM is not

challenging the special verdict on the ground the jury's findings are ambiguous. The

findings are not ambiguous, because the jury clearly found in favor of the Boekamps on

negligence, and just as clearly found against them on strict products liability. Rather,

GM is attacking the special verdict on the ground it contains inconsistent findings. "[A]

defect of that type is not waived by failure to call it to the attention of the trial court prior

to discharging the jury." (Morris v. McCauley's Quality Transmission Service (1976) 60

Cal.App.3d 964, 972; accord, Behr v. Redmond (2011) 193 Cal.App.4th 517, 530 ["Nor is

an objection required when the verdict is fatally inconsistent."]; Zagami, supra, 160

Cal.App.4th at p. 1093, fn. 6 ["inconsistent jury findings in a special verdict are not

subject to waiver by a party"]; Lambert, supra, 67 Cal.App.4th at p. 1182 ["no objection

was required to preserve the issue for review"].)

                                               11
       On the merits, the Boekamps contend that "[a] simple read of Questions Nos. 4

and 9 proves that there is no inconsistency among them[.]" Question No. 4 asked the

jury, "Was [GM] negligent?" Question No. 9 asked, "Did the 2005 Chevrolet Corvette

fail to perform as safely as an ordinary consumer would have expected when used or

misused in an intended or reasonably foreseeable way?" According to the Boekamps:

"Ordinary usage and performance of a motor vehicle is commonly understood to relate to

its operational attributes such as size, speed, acceleration, handling, and the like, i.e.[,]

what the car does when it is driven. . . . The jury could naturally conclude that

operationally the Corvette did 'perform' safely when 'used,' without agreeing that the

same car was not defective when it ignited while parked 'quietly in the garage[.]' " We

disagree.

       The Boekamps' interpretation of the jury's findings ignores the evidence and

argument actually presented at trial. The Boekamps introduced no evidence of a design

defect concerning the "size, speed, acceleration, [or] handling" of their Corvette. Nor did

they urge the jury to hold GM strictly liable for a defect that made the Corvette unsafe

while being driven, but hold GM liable in negligence for a different defect that made the

Corvette unsafe while parked. Rather, the only alleged defect on which the Boekamps

presented evidence was the electrical defect in the steering column motor that caused the

motor to overheat and ignite the Corvette, and this defect underlay both the strict

products liability and negligence theories argued to the jury. As to negligence, the

Boekamps' trial counsel told the jury that "a car isn't going to catch on fire. The dash

area doesn't burn by itself, unless someone was negligent." As to strict products liability,

                                               12
counsel similarly told the jury: "[T]he 2005 Corvette did not perform as safely as an

ordinary consumer would have expected. We don't expect what is inside the dash to

catch on fire." On this record, "[t]he jury could not have concluded that [GM]

negligently designed the [Corvette] and at the same time conclude that it was not

defective." (Lambert, supra, 67 Cal.App.4th at p. 1186.) Thus, reviewing the special

verdict de novo in light of the theories of liability actually presented to the jury (see, e.g.,

Oxford, supra, 177 Cal.App.4th at pp. 707, 718, 719-720 & fn. 9), we reject the

Boekamps' strained reading of the special verdict.

       The Boekamps also argue the special verdicts are not inconsistent because the jury

might have based its negligence finding on something other than GM's defective design

of the Corvette's electrical system. They correctly point out that "negligence and strict

products liability are not identical doctrines," and "whether the verdicts can be reconciled

depends on the precise instructions that were given and the particular evidence that was

before the jury." (Oxford, supra, 177 Cal.App.4th at p. 718.) The Boekamps go on to

contend that based on the evidence introduced at trial and the instructions given by the

court, the jury could have found GM negligently manufactured their Corvette or

negligently failed to retrofit all 2005 Corvettes to remedy the problem of accelerated

fretting corrosion. In so contending, the Boekamps rely on cases holding that a "jury's

finding of 'no' on design defect . . . is not inconsistent with a determination that the

product was negligently manufactured" (Williams v. Volkswagenwerk Aktiengesellschaft

(1986) 180 Cal.App.3d 1244, 1267, second italics added), and a manufacturer's failure "to

conduct an adequate retrofit campaign may constitute negligence apart from the issue of

                                               13
defective design" (Hernandez v. Badger Construction Equipment Co. (1994) 28

Cal.App.4th 1791, 1827 (Hernandez)). These holdings, however, have no application to

this case.

       The alternative negligence theories postulated by the Boekamps for the first time

on appeal have no support in the record developed at trial. The Boekamps introduced no

evidence that their Corvette had "come[] off the assembly line in a substandard

condition" (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429), had been

"manufactured negligently or in nonconformity with the specifications or with other

apparently identical [Corvettes]" (Dierks v. Mitsubishi Motors Corp. (1989) 208

Cal.App.3d 352, 356), contained a steering column motor that "performed differently

from other identical units" (Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780,

792), or was otherwise defective so as to indicate GM had been negligent in

manufacturing their particular Corvette. Nor did the Boekamps introduce any evidence

that GM knew or should have known of the accelerated fretting corrosion problem

identified by Vasudevan, but failed to undertake a campaign to fix the problem.

(Cf. Hernandez, supra, 28 Cal.App.4th at p. 1828 [jury finding crane was not defective in

design when sold was not inconsistent with finding manufacturer "was negligent when

upon determining [safety device] should be installed on all its new cranes it did not

adequately seek to retrofit with [a safety device] the crane ultimately injuring

[plaintiff]"].) Further, although the instructions given to the jury referred to negligence in

manufacturing (CACI Nos. 1220, 1221), the jury was not specifically instructed on either

manufacturing defect (CACI Nos. 1201, 1202) or failure to retrofit (CACI No. 1223), and

                                             14
the Boekamps' trial counsel did not argue either of these theories to the jury. Rather, as

we explained earlier, the arguments of trial counsel, "the precise instructions that were

given and the particular evidence that was before the jury" (Oxford, supra, 177

Cal.App.4th at p. 718) show that the Boekamps' negligence theory was based on the same

design defect in the Corvette's electrical system that underlay their strict products liability

theory. We thus reject the Boekamps' contention the jury could have found negligence

based on some theory other than the design defect theory they actually pursued at trial. 3

       Finally, the Boekamps contend they did not need to prove a specific defect for the

jury to find GM liable for negligence under the doctrine of res ipsa loquitur. That

doctrine affects the burden of producing evidence in cases involving "certain kinds of

accidents that are so likely to have been caused by a defendant's negligence that, in the

Latin equivalent, ' "the thing speaks for itself." ' " (Baumgardner v. Yusuf (2006) 144

Cal.App.4th 1381, 1389.) The res ipsa loquitur doctrine was applied in the products

liability context by the California Supreme Court in Jiminez v. Sears, Roebuck & Co.

(1971) 4 Cal.3d 379 (Jiminez), on which the Boekamps principally rely. In Jiminez, the

court held that in a products liability case, the doctrine "do[es] not require proof of any

particular defect but only a showing that the occurrence of the injury is of such a nature

that it can be said in light of past experience that it was probably the result of negligence


3       Our conclusion the Boekamps' negligence and strict products liability theories
were based upon the same design defect also defeats their related argument that Lambert,
supra, 67 Cal.App.4th 1179, "is easily distinguishable." That argument proceeds from
the premise that "[t]he pleadings, evidence, instructions, verdict form, and argument at
trial show that [their] theory of negligence included negligent manufacturing and failure
to remedy." As we have explained, that premise is false.
                                              15
of someone and that the defendant is probably the one responsible." (Id. at p. 385.)

When such a showing is made, the jury may infer there was a defect in the product

simply from the happening of the accident, and the plaintiff may prevail "without

identifying the particular defect." (Ibid.) The Boekamps thus assert "the res ipsa doctrine

allowed the jury to find GM negligent without proof of a particular defect." We reject

this attempt to salvage the inconsistent special verdict.

       The doctrine of res ipsa loquitur is inapplicable because the evidence did not

establish all the conditions necessary to its application. There are three such conditions:

(1) the accident must be of the type that does not occur unless someone is negligent;

(2) the accident must be caused by an agency or instrumentality under the defendant's

exclusive control; and (3) the accident must not have been due to any voluntary action or

contribution by the plaintiff. (Newing v. Cheatham (1975) 15 Cal.3d 351, 359.) To

establish the second condition, the plaintiff must "show that the instrumentality was not

mishandled or that its condition had not been changed after it left the defendant's

possession." (Putensen, supra, 12 Cal.App.3d at p. 1075.) Here, evidence at trial

showed that the condition of the Corvette had changed substantially: it had been out of

GM's possession for more than four years at the time of the fire that destroyed the

Boekamps' home, driven by several members of the Boekamp family for a total of more

than 44,000 miles, serviced regularly for routine maintenance, taken to the dealer

multiple times for inspection and repair of dashboard electrical components, and repaired

after a minor collision. "Accordingly, under the circumstances it cannot be said that it is

more probable than not that the [fire] was the result of [GM's] negligence . . . . The

                                             16
absence of the second requisite condition precludes, therefore, the application of the

doctrine of res ipsa loquitur." (Id. at p. 1076.)

       Even if we assume for the purposes of argument that the res ipsa loquitur doctrine

applied, the jury's finding of negligence would still be inconsistent with its finding of no

design defect. Had the jury used the res ipsa loquitur doctrine to infer from the

occurrence of the fire at the Boekamps' residence that GM was negligent, that inference

would "have necessarily meant that there was a defect in the [Boekamps' Corvette]."

(Jiminez, supra, 4 Cal.3d at p. 385.) Further, the jury would have had to infer the defect

was some kind of design flaw that caused the Corvette to self-ignite while parked in the

Boekamps' garage, because the only negligence theory the Boekamps' trial counsel

argued to the jury was GM's "failure to design a system that does not catch fire by itself."

The existence of such a defect, however, cannot be reconciled with the jury's finding that

the Corvette did not fail to perform as safely as an ordinary consumer would have

expected and, therefore, was not defective under the only strict products liability theory

the Boekamps presented at trial. (See Soule, supra, 8 Cal.4th at p. 562 ["a product is

defective in design if it does fail to perform as safely as an ordinary consumer would

expect"]; Lambert, supra, 67 Cal.App.4th at p. 1186 ["The jury could not have concluded

that [GM] negligently designed the [Corvette] and at the same time conclude that it was

not defective."].) Thus, even if the res ipsa loquitur doctrine applied, it would not

eliminate the inconsistency in the special verdict.




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       3.      Conclusion

       For the reasons discussed above, we conclude the jury's finding that GM was

negligent is inconsistent with its finding that the Boekamps' Corvette did not fail to

perform as safely as an ordinary consumer would have expected. Such inconsistent

findings are "against law," and require reversal of the judgment and remand for a new

trial. (Code Civ. Proc., § 657, subd. 6; Oxford, supra, 177 Cal.App.4th at p. 722;

Lambert, supra, 67 Cal.App.4th at p. 1186.) "As we have concluded that this case must

be remanded for new trial, we need not address [GM's] claim of instructional error

[regarding res ipsa loquitur]." (Oxford, at p. 722.) Nevertheless, for the guidance of the

trial court on remand, we point out that if the evidence of the changed condition of the

Boekamps' Corvette that was introduced at trial is again introduced on retrial, the res ipsa

loquitur doctrine would be inapplicable. (See pp. 16-17, ante.)

                                      DISPOSITION

       The judgment is reversed.



                                                                                  IRION, J.

WE CONCUR:



            HUFFMAN, Acting P. J.



                        NARES, J.



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