Products Liability Law Daily Refusal of jury instruction on consumer expectations test in vehicle tip-over case justifies new trial
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Wednesday, May 10, 2017

Refusal of jury instruction on consumer expectations test in vehicle tip-over case justifies new trial

By John W. Scanlan, J.D.

A passenger in a Yamaha off-road vehicle who broke a leg when the vehicle tipped over was entitled to a jury instruction on the consumer expectations test for her design defect claim because ordinary users would not expect the vehicle to tip over under the circumstances alleged by the passenger, a California appellate court said in reversing a trial court judgment and ordering a new trial on this claim. However, a jury instruction was not required for her alternate theory that the vehicle was defective because it lacked doors or other safeguards, and the trial court properly granted nonsuit on her failure to warn claim, the appellate panel ruled in the unpublished decision (Yamaha Rhino Litigation, May 9, 2017, Aronson, R.).

The passenger and her husband owned several off-road vehicles, including a 2007 Yamaha Rhino 660 SE—an off-road utility task vehicle (UTV) that resembles a golf cart with no doors. The husband was driving the vehicle at a campsite surrounded by a natural desert landscape when he began a left turn, the driver’s side wheels lifted off the ground, and the vehicle began tilting toward the passenger’s side. The passenger stuck her right leg out the window to brace herself, which resulted in her leg being broken below the knee. Subsequently, her leg had to be partially amputated.

The speed of the vehicle, the sharpness of the turn, and the flatness of the terrain were in dispute. The passenger brought strict liability design defect and failure to warn claims against Yamaha (as well as a general negligence claim that was dropped at trial), and asked for exemplary damages. She alleged that the design of the Rhino was defective because it had a high center of gravity that made it dangerously unstable even on low-speed turns on flat terrain, and also because it lacked safeguards (such as doors) to protect passengers in tip-over accidents.

At trial, the court excluded testimony by the passenger’s expert that the vehicle was defective because it had no rear differential and had a "jackrabbit" throttle that caused it to accelerate disproportionately inasmuch as the expert lacked a factual basis for those conclusions. The court later granted Yamaha’s motion for nonsuit on her failure to warn claim, finding that any inadequacy in the warnings did not cause the action because she and her husband did not review the warnings that had been provided. The trial court instructed the jury on the risk-benefit test for her design defect claim but refused her request for an instruction on the consumer expectation test. The jury found in favor of Yamaha without explanation, and the court entered judgment. The passenger appealed.

Consumer expectation test. The court should have instructed the jury on the consumer expectation test in addition to the risk-benefit test, because ordinary users of Rhinos and other off-road vehicles have the experience and knowledge to form assumptions as to the safe operation of the vehicles and would reasonably expect that they would not tip over during a gentle turn at 15 mph on level and firm terrain. The passenger and her husband testified that these were the conditions when the vehicle tipped, and a Yamaha product liability manager testified that ordinary users would not expect a vehicle to tip under those circumstances. This was enough to support the requested instruction. Although Yamaha disputed this version of the accident and asserted a different version of the facts, the trial court (and, thus, the appellate court) was required to view the evidence in the light most favorable to the passenger. Yamaha also argued that the consumer expectations test was unsuitable in this case because the Rhino is a complex product, but application of the test is determined by the circumstances under which the product failed rather than the complexity of the product. Technical expertise was not required to establish that ordinary users do not expect a vehicle to tip over during a slow, gentle turn on level ground.

It was probable that the trial court’s refusal to instruct the jury on the consumer expectation test was prejudicial because the jury could have found the vehicle defective under that test even if it also found the vehicle not defective under the risk-benefit test as the two tests are not mutually exclusive. If the jury resolved the questions about how the accident occurred in favor of the passenger, it likely would have found in her favor on the consumer expectation test. However, due to the sharp conflicts in the evidence, the appellate court could not predict how the jury would have ruled had it received this instruction; therefore, the error was prejudicial.

However, a consumer expectations instruction was not required on the passenger’s alternate design defect theory regarding a lack of doors or other safeguards. She forfeited this claim by failing to present any evidence regarding the expectation of Rhino users about safeguards in the event a vehicle tipped over, and Yamaha presented evidence showing that the decision not to include doors required the balancing of competing factors. As a result, the risk-benefit test was the only proper instruction for this theory.

Failure to warn. However, the trial court did not err in granting nonsuit on her failure to warn claim because she and her husband testified that they had not read Yamaha’s existing warnings in the manual or on the labels affixed to the vehicle. It was irrelevant that she "may have" read safety warnings on other off-road vehicles or that her husband had seen many warning labels on other vehicles during his many years of off-roading, and she did not present evidence that her husband had been informed of the contents of these warnings from talking with other Rhino users about Yamaha’s warnings. Her husband’s testimony that he would not have purchased the vehicle had he known that it could tip over during slow turns on level terrain confused knowledge with causation, and the passenger was required to prove that if Yamaha had issued an adequate warning that they would have acquired knowledge that they did not have, which they were not able to do.

Expert testimony. Finally, the trial court properly excluded testimony by her expert that the "jackrabbit" throttle and lack of a rear differential contributed to the accident. The trial court excluded the testimony about the throttle because her husband testified he took his foot off the pedal and was decelerating when the vehicle tipped, and nothing in the trial court’s ruling prevented the expert from also testifying about a "transient throttle" and engine braking that she now asserts may have contributed to the accident. Testimony about the rear differential was excluded because her expert conceded that he lacked facts necessary to conclude that the lack of a rear differential contributed to this particular accident.

Concurrence/dissent. In an opinion that otherwise agreed with the majority, Judge O’Leary stated that the trial court did not err in failing to give a jury instruction on the consumer expectations test. Expert testimony showed that determining whether the accident resulted from a design defect was not a simple task and the circumstances were not within the common knowledge and experience of ordinary Rhino users. The appropriate test was the risk-benefit test used by the trial court, she said.

The case is No. G052182.

Attorneys: Benjamin Lee Coleman (Coleman, Balogh & Scott LLP) for Elizabeth Ault-Smietana. Paul G. Cereghini (Bowman and Brooke LLP) for Yamaha Motor Corp. USA, Yamaha Motor Manufacturing Corp. of America and Yamaha Motor Co., Ltd.

Companies: Yamaha Motor Corp. USA; Yamaha Motor Manufacturing Corp. of America; Yamaha Motor Co., Ltd.

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