Criminal Behavior in a Products Liability Case May Be Less Important than Your Special Verdict Form
Trial attorneys invest substantial effort and expertise in selecting the ideal panel of jurors. The more mundane task of developing the verdict form that guides the jury’s deliberations often receives little attention. Yet the design of the verdict form can be just as important as the composition of the jury regarding the outcome of the trial and the likelihood of success on appeal.
Attorneys have considerable control over the verdict form provided to civil juries. Often a General Verdict form is used, in which case the jury is only required to answer one or two global questions. Sometimes juries are provided Special Verdict forms, which require the jury to answer a series of specific questions relating to the material issues in the case. Which type of verdict form the jurors receive can influence their verdicts.
Trial lawyers must weigh competing considerations when choosing which type of verdict form to propose. Selecting the best verdict form requires an analysis of the various factors that can affect the outcome at trial and on appeal. The trial attorney must consider the advantages of simplicity and structure, case-specific factors such as the type of matter and the position of counsel’s client in the case, the experience and approach of the trial judge, the complexity of the issues and whether the law governing the case is well established.
This article discusses the recent case of Collins v. Navistar, Inc., where the Court reversed a defense verdict concluding that the trial court erred in giving CACI 411 and 433 and the layout of the special verdict form because they prevented the jury from engaging in the risk-benefit test that applies to design defect claims.
In the early morning of December 4, 1997, Joshua Daniel stood on top of a levee, throwing rocks, chunks of concrete and asphalt at passing vehicles. He spent 10 to 15 minutes throwing rocks and hit a few vehicles. One chunk of concrete weighing over two pounds hit a Navistar tractor pulling two trailers, driven by William F. Collins. The rock penetrated the windshield and hit William in the forehead, causing severe brain injuries. William lost control of the truck and hit a sound wall and subsequently died from his injuries.
William and his wife, Barbara, brought suit against Navistar, Inc., the State of California, and several other defendants. Their claim against Navistar was for products liability, alleging the truck’s windshield was defective because it failed to keep the rock that Daniel threw from penetrating.
Over plaintiff’s objection, the trial court gave a modified version of CACI 433 negligence instructions which stated in part:
“The State of California and Navistar, Inc. are not responsible for William F. Collins’s and Barbara Collins’s harm if the State of California and Navistar, Inc. each proved both of the following:
- That the criminal conduct of Joshua Daniel happened after the conduct of the State of California and/or Navistar, Inc., and;
- That the State of California and Navistar, Inc. did not know and could not have reasonably foreseen that another person would be likely to take advantage of the situation created by the State of California and/or Navistar, Inc.’s conduct to commit this type of act.”
The court also gave a modified version of CACI 411 which advised that “Every person has a right to expect that every other person will use reasonable care and will not violate the law unless he or she knows or should know that the other person will not use reasonable care or will violate the law.”
Special Verdict Form
At trial, Navistar argued that Daniel’s criminal conduct constituted a “superseding cause” of the injury. A superseding cause “absolves a tortfeasor [of liability] even though his [or her] conduct was a substantial contributing factor, when an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him [or her] responsible.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9 (Soule).)
The special verdict form indicates the jury accepted this defense and found Navistar could not “have known or have reasonably foreseen that a person would be likely to take advantage of the situation created by Navistar’s conduct to commit” an act like Daniel’s rock throwing. The court entered judgment on the verdict in favor of Navistar.
On appeal, Barbara Collins argued that Navistar had a duty to design its trucks to withstand common road debris, even intentionally thrown rocks and concrete chunks. The appeal challenged the jury instructions and verdict form as erroneously requiring heightened foreseeability solely due to the criminal nature of Daniel’s rock throwing. The proper standard at issue was whether it was foreseeable that the sort of object thrown in this case would hit truck windshields.
The appeals court decided that the trial court erred by instructing the jury that heightened foreseeability was required and was this error was found to be prejudicial. The special verdict form had precluded the jury from considering whether the risk of chunks of concrete hitting the truck’s windshield was a reasonably foreseeable road hazard.
The court held that the required foreseeability is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was a substantial factor in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 976, p. 367.) (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18-19.)
The Court rejected Navistar’s argument that a criminal act superseded the foreseeability of the injury incurred by the Plaintiffs. To deny recovery to an injured user of an otherwise defective product simply because a common road hazard was caused by criminal behavior would negate the manufacturers’ duty to design products to account for reasonably foreseeable risks. Even Navistar acknowledged that “[i]n some cases, intentional torts or criminal acts may be foreseeable and, therefore, within the scope of the risk defendant created, and in such a case the defendant may still be liable for the harm to the plaintiff resulting from the intentional or criminal act.” Strict products liability does not depend on the criminal or noncriminal nature of the source of the risk, but on its foreseeability. Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49.
Due to the order of the questions on the special verdict form, the jury’s answer to the first question prevented them from considering the question of whether the truck’s windshield design was a substantial cause of plaintiff’s injuries. The jury also did not consider whether the benefits of the truck’s windshield design outweighed the risks of the design. Thus, the jury relied on misleading and incorrect instructions concerning the effect of third-party criminal conduct on the standard of reasonable foreseeability for strict products liability claims.
In Collins, an extraordinary event such as a criminal act did not necessarily cut off liability when evaluating the design of a product. As the appellate court found, the trier of fact must be given the opportunity to reach the ultimate question of liability through a reasoned and methodical approach. This case illustrates that a prudent litigator should carefully consider the impact that appropriate jury instructions and verdict forms have in their defense strategy.