Shelton v. Hyundai Motor America CA2/5 ( 2023 )

Filed 7/26/23 Shelton v. Hyundai Motor America CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JAMES SHELTON, B319440
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV45621)
HYUNDAI MOTOR AMERICA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephanie M. Bowick, Judge. Affirmed in part,
reversed in part, and remanded.
MLG, Jonathan A. Michaels and Christopher D.
Henderson, for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Anthony E. Sonnett and
Jocelyn A. Julian, for Defendant and Respondent.
Plaintiff James Shelton (plaintiff) was injured when his
fingers were caught in the window of his vehicle, a Hyundai
Equus. Plaintiff sued the vehicle’s distributor, Hyundai Motor
America (defendant). In this appeal from the trial court’s grant
of defendant’s motion for summary judgment, we are asked to
decide whether plaintiff raised triable issues of fact as to his
claims for negligence and strict products liability that allege both
design and manufacturing defects.
I. BACKGROUND
A. The Hyundai Equus and Plaintiff’s Injury
Plaintiff leased and subsequently purchased a 2016
Hyundai Equus, which is equipped with power windows. As
stated in the owner’s manual, an “[a]uto [u]p/[d]own” feature
enables users to “completely raise or lower the window[ ] even
when the switch is released” by “[m]omentary pressing or pulling
up of the [p]ower [w]indow [s]witch . . . .” An “[a]utomatic
[r]everse” feature ensures that “[w]hen a window sensor detects
any obstacle while automatically closing the window, the window
will stop the upward movement, and then be lowered by
approximately 12 in (30 cm) to allow the object to be cleared.”
The discussion of the automatic reverse feature in the owner’s
manual is accompanied by an illustration of a teddy bear caught
between a window and window frame. A separate text box on the
same page labeled “WARNING” indicates that “[o]bects[ ] which
are less than 0.16 in. (4 mm) in diameter and caught between the
window and the upper window frame[ ] may not be detected by
the automatic reverse sensor. Thus, the window operation will
not automatically stop and be reversed.”
2
At the time of plaintiff’s injury, plaintiff’s son Coleman
Shelton (Coleman) was in the driver’s seat. Plaintiff was
entering the front passenger door. In deposition testimony,
Coleman explained that he “went to lower the window to ask [his]
dad a question,” but when he saw “the door was already open,” he
“just rolled the window up . . . .” When asked whether he rolled
the window up “in the way that it would automatically raise to
the top or . . . kept [his] finger on it till it got to the top position,”
Coleman testified he “had done it to where it went automatically
to the top.” Four fingers on plaintiff’s right hand were crushed in
the window.
Plaintiff went to the emergency room, where he was
diagnosed with a “fully severed right ring finger and a severe
degloving avulsion injury to the other fingers of his right hand.”
He required surgery to repair the damage to his ring and middle
fingers.
B. The Operative Complaint
As pertinent to this appeal, plaintiff’s first amended
complaint asserted three causes of action against defendant:
negligence, strict products liability based on a design defect, and
strict products liability based on a manufacturing defect.1 The
complaint focused on the Equus’s alleged non-compliance with
1
Plaintiff also asserted causes of action for breach of express
warranty and breach of the implied warranty of merchantability.
Plaintiff does not challenge the trial court’s summary
adjudication of these causes of action.
3
certain provisions of the Federal Motor Vehicle Safety Standards
(FMVSS).2
FMVSS No. 118 “specifies requirements for power operated
window, partition, and roof panel systems to minimize the
likelihood of death or injury from their accidental operation.” (49
C.F.R. § 571.118, S1.) Generally described, FMVSS No. 118,
subdivision S4 (hereafter Subdivision S4) provides that, “[e]xcept
as provided in S5,” power windows may operate only in specified
circumstances in which the operator will likely be aware of
anything in a window’s path and/or able to stop and reverse the
window in the event of contact. (49 C.F.R. § 571.118, S4.) Also
generally described, FMVSS No. 118, subdivision S5 (hereafter
Subdivision S5) requires that power windows that may be closed
“under any circumstances other than those specified in S4”
automatically stop and reverse when they encounter certain
obstacles. (49 C.F.R. § 571.118, S5.)
In his cause of action for negligence, plaintiff alleged
defendant “had a duty to use reasonable care in marketing,
advertising, and distribut[ing] . . . the 2016 Hyundai Equus, such
that the vehicle would function[ ] safely in foreseeable
circumstances.” Plaintiff alleged defendant breached this duty
“by distributing and placing into the stream of commerce the
2016 Hyundai Equus with a defective automatic power window
system in violation of FMVSS No. 118.”
Plaintiff’s strict products liability causes of action included
allegations that the Equus did not perform as safely as an
2
The FMVSS are promulgated by the National Highway
Traffic Safety Administration pursuant to the National Traffic
and Motor Vehicle Safety Act of 1966. (49 C.F.R. § 571.1.)
4
ordinary consumer would have expected and that it suffered from
a manufacturing defect when it left defendant’s possession. He
elaborated on these theories in his responses to defendant’s
interrogatories. In his summary of the facts supporting both the
design defect and manufacturing defect theories, plaintiff
emphasized statements in the owner’s manual describing the
automatic reverse feature and plaintiff took the position that
FMVSS No. 118 requires the Equus to incorporate this feature.
C. Summary Judgment Proceedings
1. Defendant’s motion
Defendant moved for summary judgment or, in the
alternative, summary adjudication as to each cause of action. As
to the negligence cause of action, defendant argued it had no duty
as a distributor to duplicate the manufacturer’s safety testing
(Hyundai Motor Company is the manufacturer and was not
named as a defendant) in the absence of any reason to believe the
Equus was defective.
With respect to the design defect cause of action, defendant
argued plaintiff misconstrued FMVSS No. 118. Plaintiff’s view
that FMVSS No. 118 requires compliance with Subdivisions S4
and S5—in effect, that all vehicles must incorporate the
automatic reverse feature described in Subdivision S5—conflicts
with the plain text of the standard, which makes clear that a
vehicle need only comply with either Subdivision S4 or S5.
Defendant submitted a declaration by Robert Lange, an
automotive engineer, endorsing its construction of FMVSS No.
118. Because there was no evidence that plaintiff’s Equus did not
conform to Subdivision S4 (restricting the circumstances under
which the power windows can be operated), defendant argued
5
non-conformity with Subdivision S5 (the window’s failure to
automatically stop and reverse) did not support plaintiff’s design
defect cause of action.
Finally, with respect to the manufacturing defect cause of
action, defendant argued statements in the owner’s manual
regarding the automatic reverse feature did not establish
plaintiff’s Equus differed from design specifications or typical
units of the same product line. Defendant contended the
statement in the owner’s manual that the automatic reverse
feature will engage “[w]hen a window sensor detects any
obstacle” did not support plaintiff’s claim because there was “no
evidence that the specific circumstances of this incident were
among those that the sensor was intended to detect.”
2. Plaintiff’s opposition
In his opposition, plaintiff did not substantially elaborate
on the nature of the duty he believes defendant owed him for
purposes of his negligence claim. He argued only that defendant
“was required to adhere to the standard of care that a reasonably
careful distributor would use under similar circumstances” and
suggested this included “ensuring that the Hyundai Equus’s
window’s ‘auto up’ feature was compliant with FMVSS 118.”
With respect to the design defect cause of action, plaintiff
maintained that vehicles must conform to Subdivisions S4 and S5
and his car’s lack of an effective automatic reverse feature
violated these standards. In the alternative, plaintiff emphasized
that compliance with FMVSS No. 118 does not preclude recovery
on a design defect theory. He did not, however, articulate an
alternative basis for finding the Equus’s design to be defective.
6
With respect to the manufacturing defect cause of action,
plaintiff argued the owner’s manual supports an inference that
the Equus’s power window system was designed to automatically
reverse when obstructed by a human hand.
3. The hearing and plaintiff’s supplemental
opposition
The trial court held a hearing on defendant’s motion in
December 2021. The appellate record does not include a
reporter’s transcript of the hearing, but the trial court’s minute
order indicated the court would “issue its final ruling . . . with no
further argument by the parties.”
Shortly after the hearing, however, plaintiff filed an ex
parte application to submit supplemental briefing. He contended
further briefing was warranted because his expert, David Bosch
(Bosch), did not inspect the vehicle until two days before the
summary judgment hearing and Bosch’s tests found the offending
window exerted an amount of force greater than that at which
automatic reverse is required to activate under Subdivision S5.
In discussing Bosch’s findings, plaintiff also reframed his legal
argument. Whereas plaintiff previously relied on FMVSS No.
118 to establish defendant’s liability, he now deemed it a “red
herring” and argued compliance with the standard did not shield
defendant from liability. Plaintiff suggested the design defect
cause of action should be analyzed under the consumer
expectations or risk-benefit tests described in products liability
case law.
Defendant opposed plaintiff’s ex parte application to submit
further briefing as untimely, and the trial court denied the
7
application on that basis. The trial court ruled “[n]o additional
briefing or new material [would] be considered.”
4. The order granting defendant’s motion for
summary judgment
The trial court granted summary judgment for defendant.
With respect to the negligence cause of action, the trial court
reasoned “[d]efendant . . . established that it is not
liable . . . because [p]laintiff . . . submitted no evidence of a
manufacturing defect or distribution of a defective product, and
therefore, no legal duty was owed to [p]laintiff.”
The trial court’s analysis of plaintiff’s design defect cause of
action focused on FMVSS No. 118. Because there was no genuine
dispute that the Equus was engineered to satisfy Subdivision S4,
it was not required to include the automatic reverse feature
described in Subdivision S5. The trial court held that plaintiff
“relie[d] upon an erroneous reading of FMVSS Number 118.”
With respect to the manufacturing defect cause of action,
the trial court determined the alleged violation of FMVSS No.
118 did not constitute a defect for the reasons we have already
mentioned. The trial court further found plaintiff did not “set
forth facts and evidence to conclude that the manufacturer
intended for [his car] to have the ‘automatic “stop-and-reverse”
feature’ or that [his car] differ[ed] from other 2016 Hyundai
Equus[es].”
II. DISCUSSION
Summary adjudication of plaintiff’s design defect and
negligence causes of action was proper. Plaintiff’s negligence
claim fails because a distributor has no duty to inspect a product
8
manufactured by a third party where, as here, there is no
evidence defendant knew or had reason to know it was defective.
As for the design defect cause of action, plaintiff would have been
entitled to have that claim analyzed under the consumer
expectations test or the risk-benefit test if he had provided
evidence or argument relevant to either, but he did not do so—
thereby forfeiting the issues. Instead, he relied solely on a flawed
understanding of FMVSS No. 118 that he himself later
characterized as a red herring. Plaintiff does not contest the
forfeiture, and we decline to exercise our discretion to attempt to
apply either of these other tests for the first time on appeal.
The trial court erred, however, in summarily adjudicating
plaintiff’s manufacturing defect cause of action because there is a
triable issue as to whether the window that caused plaintiff’s
injury performed as intended. The owner’s manual indicates that
when the auto-up feature is engaged—as Coleman testified it
was—the window should stop and reverse if it encounters an
object at least four millimeters in diameter. Defendant does not
dispute that plaintiff’s fingers satisfy this criterion, that plaintiff
was using the car in a reasonably foreseeable way, or that he
would not have been injured if the window functioned as
described in the owner’s manual.
A. Evidentiary Issues
Before we get to the merits of the causes of action at issue,
we must briefly discuss plaintiff’s contention that the trial court
abused its discretion in excluding certain evidence presented in
opposition to defendant’s motion. First, plaintiff contends the
trial court erred in sustaining a foundation objection to a
statement in his declaration suggesting Coleman closed the
9
window using the auto-up feature. Second, plaintiff contends the
trial court erred in sustaining a foundation objection to a
statement in his attorney’s declaration identifying selected pages
from the Equus’s owner’s manual.
Any error in excluding this evidence was harmless because
it was cumulative of other evidence in the record. (Robinson v. U-
Haul Co. of California (2016) 4 Cal.App.5th 304, 323.) The
circumstances of plaintiff’s injury, including Coleman’s use of the
auto-up feature, were described in Coleman’s deposition
testimony. The selected pages of the owner’s manual were
included in defendant’s exhibits submitted in support of the
motion for summary judgment.
B. No Trial Is Required to Decide the Negligence Claim
Because Defendant Had No Duty to Test the Equus’s
Power Windows
In contrast to plaintiff’s strict products liability causes of
action, which focus on the product itself, plaintiff’s negligence
cause of action focuses on the reasonableness of defendant’s
conduct. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413,
434 (Barker).) “The elements of any negligence cause of action
are duty, breach of duty, proximate cause, and damages.”
(Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680,
687.) Here, plaintiff’s negligence claim assumes defendant, in its
capacity as the Equus’s distributor, had a duty to inspect a
vehicle manufactured by a third party in the absence of any
indication that it was defective.3 The law is to the contrary.
3
Plaintiff cites no evidence that defendant played any role in
the design or manufacture of the Equus. His suggestion that
10
The Restatement Second of Torts explains “[a] seller of a
chattel manufactured by a third person, who neither knows nor
has reason to know that it is, or is likely to be, dangerous, is not
liable in an action for negligence for harm caused by the
dangerous character or condition of the chattel because of his
failure to discover the danger by an inspection or test of the
chattel before selling it.” (Rest.2d Torts, § 402; Canfield v.
Security-First Nat. Bank (1939) 13 Cal.2d 1, 30-31 [although the
Restatement “does not constitute a binding authority, considering
the circumstances under which it has been drafted, and its
purposes, in the absence of a contrary statute or decision in this
state, it is entitled to great consideration as an argumentative
authority”].) At least one California court has endorsed similar
principles. (Tourte v. Horton Manufacturing Co. (1930) 108
Cal.App. 22, 23 [adopting statements that “‘[a] dealer who
purchases and sells an article in common and general use in the
usual course of trade and business, without knowledge of its
dangerous qualities, is not under a duty to exercise ordinary care
to discover whether it is dangerous or not’” and “[a] dealer is
under no duty or obligation to examine the articles which he sells
to ascertain whether there are defects therein, and . . . is not
liable for an injury arising from such defects where he had no
actual knowledge thereof’”], superseded by statute on other
grounds as stated in Tremeroli v. Austin Trailer Equipment Co.
(1951) 102 Cal.App.2d 464, 476-477.)
defendant may be characterized as a manufacturer under federal
law (49 U.S.C. § 30102(a)(6)(B)) does not alter the scope of the
conduct that may give rise to liability for negligence.
11
In addition, the factors set forth in Rowland v. Christian
(1968) 69 Cal.2d 108 (Rowland) confirm defendant had no duty to
inspect the Equus’s power windows. The Rowland factors include
“foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.” (Id. at 113.)
The Rowland factors are not accorded equal weight. Our
Supreme Court has repeatedly emphasized that foreseeability of
harm is the most important factor. (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 166; Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1145.) Indeed, “‘[i]f the
court concludes the injury was not foreseeable, there was no duty
[and t]here is no need to discuss the remaining considerations.’
[Citation.]” (Tucker v. CBS Radio Stations, Inc. (2011) 194
Cal.App.4th 1246, 1253.) Here, there is no evidence defendant
had reason to believe the Equus’s power window safety features
might not function as designed in plaintiff’s car. Under these
circumstances, the injury plaintiff suffered was not foreseeable
and defendant had no duty to inspect the window to ensure it was
working properly.
Plaintiff alternatively argues the alleged violation of
FMVSS No. 118 constitutes negligence per se. “Evidence Code
section 669 allows proof of a statutory violation to create a
presumption of negligence in specified circumstances. It codifies
12
the common law doctrine of negligence per se, pursuant to which
statutes and regulations may be used to establish duties and
standards of care in negligence actions.” (Elsner v. Uveges (2004)
34 Cal.4th 915, 927, footnotes omitted; Evid. Code, § 669, subd.
(a)(1) [a person’s failure to exercise due care “may be presumed”
if, among other things, they “violated a statute, ordinance, or
regulation of a public entity”].)
Plaintiff’s negligence per se theory is forfeited because he
failed to raise it in the trial court, but his reading of FMVSS No.
118 lacks merit in any case. The plain text of Subdivisions S4
and S5 indicates they are alternatives: Subdivision S4 limits the
circumstances under which power windows may operate “[e]xcept
as provided in S5,” and Subdivision S5 requires an automatic
reverse feature if the windows may be operated “under any
circumstances other than those specified in S4.” Contrary to
plaintiff’s suggestion that the Equus is subject to Subdivision S5
because Subdivision S4 does not expressly mention an auto-up
feature, Subdivision S4 does impose restrictions on auto-up
features, albeit restrictions that do not call for an automatic
reverse mechanism. The only restrictions in Subdivision S4 on
operation of a window from a switch in the vehicle’s interior
(regardless of whether the switch requires continuous pressure)
are those set forth in S4(a) and S4(e): so long as the switch is
operable only when the ignition is in the “on,” “start,” or
“accessory” position (S4(a)) or “[d]uring the interval between the
time the locking device which controls the activation of the
vehicle’s engine is turned off and the opening of either of a two-
door vehicle’s doors or, in the case of a vehicle with more than
two doors, the opening of either of its front doors” (S4(e)), the
13
standard is satisfied. Nothing in the appellate record indicates
plaintiff’s vehicle did not meet these conditions.
C. Plaintiff Raised No Triable Issues as to Design Defect
“The existence of a design defect may be established
according to one of two alternative tests. [Citation.] First, under
the so-called consumer expectations test, a design is defective ‘if
the plaintiff demonstrates that the product failed to perform as
safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner.’ [Citation.] Second,
under the risk-benefit test articulated in Barker[, supra, 20
Cal.3d 413], a design is defective ‘if through hindsight the jury
determines that the product’s design embodies “excessive
preventable danger,” or, in other words, if the jury finds that the
risk of danger inherent in the challenged design outweighs the
benefits of such design.’ [Citation.]” (Kim v. Toyota Motor Corp.
(2018) 6 Cal.5th 21, 30 (Kim).)
Plaintiff contends the trial court erred in failing to analyze
his design defect claim under either the consumer expectations or
risk-benefit test, instead focusing on the “ancillary” issue of
whether the Equus’s power windows conform to FMVSS No. 118.
Plaintiff is correct that FMVSS compliance is not dispositive of
his design defect claim (see 49 U.S.C. § 30103(e) [““Compliance
with a motor vehicle safety standard prescribed under this
chapter does not exempt a person from liability at common law”],
but the trial court’s focus on FMVSS compliance was the result of
plaintiff’s framing of the issue. Although the operative complaint
included a boilerplate allegation that the Equus “did not perform
as safely as an ordinary consumer would have expected,” plaintiff
did not so much as mention either the consumer expectations test
14
or the risk-benefit test in his opposition to defendant’s summary
judgment motion. Instead, he relied exclusively on the Equus’s
alleged violation of FMVSS No. 118 to establish a design defect.
Plaintiff did discuss the consumer expectations and risk-benefit
tests in his supplemental opposition (for the first time), but he
mounts no serious challenge to the trial court’s decision not to
permit supplemental briefing.4
Under these circumstances, the issue of whether defendant
might be liable on a design defect theory under the consumer
expectations or risk-benefit tests is forfeited.5 (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 698
[“[the] [a]ppellants’ summary judgment opposition brief raised no
dispute regarding” forfeited issue]; Jimenez v. 24 Hour Fitness
USA, Inc. (2015) 237 Cal.App.4th 546, 567 [declining to consider
an argument the appellants “did not pursue . . . below in either
their opposition to the summary judgment motion or during oral
argument on the motion”].) The fact that plaintiff alluded to the
consumer expectations test in his complaint is immaterial.
(Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873 [the
party opposing summary judgment has the “duty . . . to direct the
4
Plaintiff only suggests the trial court should have
permitted supplemental briefing to consider Bosch’s data
concerning the force exerted by the Equus’s power windows in
relation to FMVSS No. 118. Any error on this point was
harmless because, as we have already explained, plaintiff
misunderstands FMVSS No. 118.
5
Plaintiff does not address forfeiture in his appellate briefs
despite defendant’s argument that he should not be permitted to
raise a new theory on appeal.
15
court’s attention to any different factual basis of liability on
which he could rely”].)
We do have discretion to consider a question of law when
the facts are undisputed (Wisner v. Dignity Health (2022) 85
Cal.App.5th 35, 44-45; Souza v. Westlands Water Dist. (2006) 135
Cal.App.4th 879, 898-899), but such an exercise of discretion
would be inappropriate here. This appeal does not raise broadly
significant legal issues, and the factual record developed in the
motion for summary judgment was based on plaintiff’s position—
implied in the complaint and confirmed in his interrogatory
responses—that his design defect claim rested on FMVSS No.
118.
D. Plaintiff Has Raised a Triable Issue as to
Manufacturing Defect
“In tort law, a manufacturer is liable ‘if a defect in the
manufacture or design of its product causes injury while the
product is being used in a reasonably foreseeable way.’” (Kim,
supra, 6 Cal.5th at 30, quoting Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 560.) “The manufacturer may be held
strictly liable for such injuries without regard to whether the
manufacturer acted negligently in designing or manufacturing
the product. The doctrine of strict products liability ‘focusses not
on the conduct of the manufacturer but on the product itself, and
holds the manufacturer liable if the product was defective.’
[Citation.]” (Ibid.) Our Supreme Court has held that product
distributors, not just the actual product manufacturer, can be
held liable for manufacturing defects in a products liability case.
(Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263
[“Strict liability on the manufacturer and retailer alike affords
16
maximum protection to the injured plaintiff and works no
injustice to the defendants, for they can adjust the costs of such
protection between them in the course of their continuing
business relationship. Accordingly, as a retailer engaged in the
business of distributing goods to the public, [the car dealership] is
strictly liable in tort for personal injuries caused by defects in
cars sold by it”].)
A product suffering from a manufacturing defect “differs
either from what the manufacturer intended or from the
standard items in the manufacturer’s same product line.” (Gall
v. Smith & Nephew, Inc. (2021) 71 Cal.App.5th 117, 124, citing
Barker, supra, 20 Cal.3d at 429; Webb v. Special Electric Co., Inc.
(2016) 63 Cal.4th 167, 180 [“Manufacturing defects can arise, for
example, when a flaw in the manufacturing process creates a
product that differs from what the manufacturer intended”].)
Here, the Equus owner’s manual supports the inference that the
automatic reverse feature failed to function as intended in
plaintiff’s car.6 Automatic reverse is supposed to activate when
the window sensor “detects any obstacle while automatically
closing the window,” and Coleman testified that he closed the
window using the function “where it went automatically to the
top.” The only potentially material exception indicated in the
owner’s manual is that the sensor may not detect “[o]bjects less
than 0.16 in. (4 mm) in diameter.”
6
Although the trial court understood plaintiff to take the
position that the alleged violation of FMVSS No. 118 constituted
a manufacturing defect, plaintiff expressly argued that “[i]t can
be inferred from the [o]wner’s [m]anual that the Hyundai Equus’s
automatic power . . . window system was created to ‘stop-and-
reverse’ when obstructed by objects such as a human hand.”
17
The foregoing suggests the manufacturer intended for the
window to stop and reverse when the auto-up feature is engaged
and the window is obstructed by any object at least four
millimeters in diameter. Defendant’s contention that “[t]here is
no evidence of what the intended design or specification for the
subject vehicle even are” cannot be squared with this record.
Even if defendant is later able to marshal evidence for trial that
qualifies or contradicts the statements in the owner’s manual, the
evidence at this stage is still sufficient to preclude summary
adjudication. Defendant does not suggest plaintiff’s ring finger—
let alone his ring finger plus the other digits initially caught in
the window—is less than four millimeters in diameter. Nor does
defendant offer any reason to infer that fingers generally are not
included in the class of “any obstacle” that the window’s sensor is
designed to detect.
The only element of plaintiff’s manufacturing defect cause
of action defendant challenged in its motion is the existence of a
defect. Defendant does not dispute that plaintiff held the door in
a reasonably foreseeable manner or that the automatic reverse
feature described in the owner’s manual would have prevented
his injuries. Under these circumstances, summary adjudication
should have been denied.
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DISPOSITION
The judgment is reversed. The cause is remanded with
directions to vacate the order granting summary judgment and
enter a new order (1) granting summary adjudication of plaintiff’s
causes of action for negligence, design defect, breach of express
warranty, and breach of the implied warranty of merchantability
and (2) denying summary adjudication of plaintiff’s
manufacturing defect cause of action. Plaintiff is awarded costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
19