This personal injury/product liability case arose from the explosion of an automobile battery which occurred in San Francisco, California. 32 year old Andreas von Lowtzow, a German citizen, was in San Francisco for job interviews. He was staying with a friend, Frank Eggloff, who lived in Sausalito. At approximately 8:30 p.m., Mr. Lowtzow and Mr. Eggloff got into Mr. Eggloff’s car which was parked on Northpoint Street in San Francisco, after having visited a nearby health club. Mr. Eggloff was the driver and Mr. Lowtzow was the passenger.
The engine would not start. Both Mr. Eggloff and Mr. Lowtzow got out of the vehicle and looked into the engine compartment to see if anything was obviously loose or disconnected. They had no tools with them and neither individual was smoking. Mr. Eggloff got back into the vehicle while Mr. Lowtzow stood beside the engine compartment. Mr. Lowtzow checked the security of the negative cable by placing his thumb and index finger around it. It was not loose. As Plaintiff Lowtzow was standing beside the vehicle, Mr. Eggloff again attempted to start the engine. The battery exploded, blasting Plaintiff in the face with battery acid and battery case shrapnel. Plaintiff suffered injuries, including the permanent partial loss of vision in one eye.
The vehicle contained a Confidential Battery Manufacturer brand automobile battery. Mr. Eggloff had purchased the vehicle used from Defendant Confidential Automobile Dealer. Discovery has confirmed that the battery was original equipment in the 1993 vehicle, and manufactured for the automobile manufacturer by Defendant Confidential Battery Manufacturer, Inc.
Both the automobile manufacturer and Defendant Confidential Battery Manufacturer, Inc. are subject to strict liability. Under Barker v. Lull Engineering Co., Inc. (1978) 20 Cal.3d 413, the battery was defective in design in that it clearly failed to “perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” There is absolutely no evidence of modification, alteration, or misuse of the product, nor any evidence to support a claim of comparative negligence.
Automobile batteries are products which almost every adult has experience with, therefore the consumer expectation test is appropriate to determine product defect in the instant case. In Soule v. General Motors (1994) 8 Cal.4th 548, our Supreme Court held that the consumer expectation test was appropriate for cases in which the “everyday experience” of the product’s user permits a conclusion that the product’s design violated minimum safety assumptions and thus was defective, “regardless of expert opinion about the merits of the design”. The Court ruled that if the “minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect”; however, expert witnesses are appropriate to testify concerning design and manufacturing defects under the second prong of Barker v. Lull - the risk benefit test.
In Soule, infra, the Supreme Court considered the consumer expectation test in a product liability case against an automobile manufacturer. The alleged defect was the failure of a bracket in the suspension system that allowed the wheel assembly to collapse rearward and inward, and strike the floor board of the vehicle, causing it to deform upward into the passenger compartment, in a vehicular collision. The Court held that “an ordinary consumer of automobiles cannot reasonably expect that a car’s frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding inform such a consumer how safely an automobile’s design should perform under the esoteric circumstances of the collision at issue.” Id at 570. The Court did, however provide the following guidance for the proper use of the consumer expectation test: “For example, the ordinary consumers of modern automobiles may and do expect that such vehicles will be designed so as not to explode while idling at stoplights, experience sudden steering or brake failure as they leave the dealership, or roll over and catch fire in two-mile per-hour collisions.” Id at 566. Further, and particularly pertinent to the present case involving automobile batteries, the Court held the following:
“As we have seen, the consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. It follows that where the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Use of expert testimony for that purpose would invade the jury’s function (see Evidence Code §801, (a), and would invite circumvention of the rule that the risks and benefits of a challenged design must be carefully balanced whenever the issue of product defect goes beyond the common experience of the product’s users.” Id at 567.
The test to determine whether a product can be considered defective under the consumer expectation test is whether the product is one within the “common experience of ordinary consumers” Campbell v. General Motors Corp. (1982) 32 Cal.3d. 112, 127. In Sparks v. Owens - Illinois, Inc., (1995) 32 Cal.App.4th 461, the Court held that the consumer expectation test was appropriate in an action based upon exposure to asbestos. In Breznehan v. Chrysler Corporation (1995) 32 Cal.App.4th 1559, the Court held that the consumer expectation test was appropriate concerning the claim of a defective airbag. In Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, the consumer expectation test instruction was proper in a case involving a poorly placed fuel tank that exploded during a rear-end collision, and in Akers v. Kelley Co. (1985) 173 Cal.App.3d 633, it was appropriate in a case involving a complex freight loading dock adjustable platform:
“In our view the ‘consumer expectation’ test is entirely appropriate in a case such as this one. There are certain kinds of accidents - even where fairly complex machinery is involved - which are so bizarre that the average juror, upon hearing the particulars, might reasonably think: ‘Whatever the user may have expected from that contraption, it certainly wasn’t that.’ Here, a dockboard flew apart and injured Akers. A reasonable juror with no previous experience of dockboards could conclude that the dockboard in question failed to meet ‘consumer expectations’ as to its safety.”
Furthermore, under the alternative risk/benefit test of Barker v. Lull Engineering Co., as set forth in applicable jury instruction, the battery was defective in design because inadequate clearances were provided inside the battery to accommodate the normal and foreseeable changes which occur within the battery over its service life due to charging and discharging cycles, including “grid growth” and oxidation or corrosion. In the instant case the battery exploded because the hydrogen/oxygen gas mixture within the battery was ignited by an arc that occurred between a positive plate in cell one that had grown upward over the separator and contacted a negative polarity plate lug.
Plaintiff presented evidence of manufacturing defects, warnings defects, as well as manufacturer negligence.
Discovery revealed that during the ten year period prior to the subject explosion there were at least 145 occurrences of Defendant Confidential Battery Manufacturer’s automotive batteries exploding and causing injury. This evidence was relevant to the issues of (1) inadequacy of warnings, (2) defective/negligent guarding, and, (3) foreseeable use.
Plaintiff’s medical bills total $9,184.
During trial, the case settled, for a total settlement of $550,000.