PRODUCT LIABILITY: Uniformity or Calamity? Admitting Customs Evidence in Products Liability


The decision by the California Supreme Court to grant review of Kim. V. Toyota Motor Corp. (2016) Cal.App.4th 1366 ("Kim") may have a resounding impact on the admissibility of evidence in strict liability cases here in California. Prior to Kim, a split of authority existed between the circuits that allowed each circuit to follow one of two bright-line rules: either to admit evidence of industry custom or practice or to deny it in its entirety as irrelevant. The Kim decision muddied the waters further in holding that the inquiry into whether to admit or deny such evidence should be determined on a case-by-case examination. By granting review, the California Supreme Court has a golden opportunity to create a uniform rule of admissibility.

As articulated by the California Supreme Court in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418 (Barker), a product is defective in design and a manufacturer is strictly liable if the product failed to perform as safely as an ordinary consumer would expect (the consumer expectations test), or if the benefits of the challenged design do not outweigh the risk of danger inherent in the design (the risk-benefit test). The test utilized depends on the complexity of the scientific or technical issues involved. Under the former, a product has a design defect if the product, when used in an intended or reasonably foreseeable manner, fails to perform as safely as an ordinary consumer would expect. Under the latter, a product has a design defect if the risks of danger inherent in the design outweigh the benefits.

Prior to the Kim ruling, Appellate Courts applied one of two bright-line rules when analyzing a case under the risk-benefit test regarding evidence of industry custom and practice: either the evidence was wholly admissible or wholly inadmissible without exception. Courts holding that such evidence is always inadmissible aver that a consideration of industry custom and practice is irrelevant to a risk-benefit analysis and impermissibly injects negligence principles into a strict liability cause of action by improperly focusing on the reasonableness of the manufacturer's conduct, rather than the condition of the product itself. By contrast, Courts holding that such evidence is always admissible reason that evidence of compliance with industry standards is not irrelevant and should be properly taken into account through expert testimony as part of the design defect balancing process.

In Kim, the plaintiff sustained injuries when he lost control of his vehicle after swerving to avoid a collision with another vehicle. Asserting a claim for strict liability design defect against the vehicle's manufacturer, the plaintiff alleged that the accident occurred because the manufacturer failed to include as standard, a vehicle stability control device; the absence of which was purportedly a design defect. The prevailing issue in Kim was whether the trier of fact may consider evidence of "industry custom and practice" in its risk-benefit analysis. In declining to follow either of the bright-line rules articulated by circuits before it, the Kim Court carved a new case-by-case approach, holding that evidence of industry custom and practice may be relevant and admissible in a strict products liability action, depending on the nature of the evidence and the purpose for which it is offered.

What is most alarming about Kim is not merely the adoption of a new approach to evidentiary procedure, but rather, that it serves as an example of a broader trend in California to depart from traditional bright-line rules distinguishing the admissibility of evidence in negligence and strict products liability design defect claims. Further, while the new rule may discourage the degree of forum shopping prevalent with the prior bright-line standards, it also creates a larger issue of unpredictability over what evidence would be admissible in any given court.

In granting review, the California Supreme Court may be signaling its intent to further blur the line between negligence and strict liability. It is entirely possible that the holding in Kim v. Toyota Corp., et al. could soon be the new uniform "bright-line" rule in in California regarding the admissibility of evidence of industry custom and practice in a risk-benefit analysis of strict product liability design defect claims.

Whether the California Supreme Court will ultimately adopt one of the three approaches, maintain the status quo with allowance of three separate approaches, or articulate a new approach of its own creation, Poole Shaffery 's renowned transportation practice group is uniquely equipped to counsel clients in the trucking and transportation industry to navigate the changing landscape in this area of the law.

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