Buckner v. Milwaukee Electric Tool Corporation
Court of Appeal, Fifth Appellate District (December 20, 2013)
In Johnson v American Standard (2008) 43 Cal.4th 56, the California Supreme Court first recognized the “sophisticated user” affirmative defense in both negligence and strict liability products liability claims. Since then, the boundaries of the court’s ruling have been tested with many products. This case considered the defense in the context of a handyman using a power drill that kicked back on him.
Kevin Buckner was employed by Central California Tristeza Eradication Agency (Tristeza) to do maintenance work. On October 7, 2009, while using a power drill to drill a hole in a piece of angle iron, the drill bit bound and the drill counter rotated, twisting his arm and causing serious injuries. The drill belonged to his employer, and it was a Milwaukee Magnum one-half inch pistol grip drill manufactured by Milwaukee Electric Tool Corporation 17 years earlier.
Plaintiff sued Milwaukee for negligence and strict liability, alleging that the drill could not be used safely without a side handle, also known as an anti-torque bar. He also asserted defendant failed to adequately warn of the dangers of using the drill because there was no label on the drill advising that the side handle had to be used to avoid serious injury; and the warnings in the operator’s manual were insufficient to advise of the need to use the side handle and the potential for serious injury if it was not used. The drill originally came with a side handle, which could be screwed into either side of the drill, and the operator’s manual advised the user to “[a]lways use a side handle for best control.” A label on the drill itself read: “WARNING / HIGH ROTATING FORCE / HOLD OR BRACE SECURELY TO PREVENT PERSONAL INJURY OR DAMAGE TO TOOL / READ SAFETY INSTRUCTIONS BEFORE OPERATING.” By the time of plaintiff’s accident, Tristeza no longer possessed the owner’s manual or the handle.
At trial, evidence was presented of plaintiff’s employment history. Although he was not a licensed contractor, he had decades of work as a “handyman” and he had experience in maintenance and all kinds of construction work. He told his supervisor at Tristeza that he was a certified electrician and plumber. There was conflicting evidence regarding whether plaintiff had used the subject drill or one like it prior to the accident. There was evidence that plaintiff, like his co-employees, knew drills can bind and counter-rotate when not used properly, or when they hit obstacles. There was conflicting evidence regarding whether plaintiff knew about using a side handle in such situations. There was conflicting expert testimony on the dangers of using such a drill without a handle, and whether plaintiff should have known of this.
The jury found in favor of the defense. The jury found the drill was not negligent or defective in its design. They did not determine if there was a failure to warn, as they determined that plaintiff was a sophisticated user, and was thus on notice of the risk. Plaintiff moved for a new trial on the grounds of insufficiency of evidence on this issue. The trial court granted the motion, and defendant appealed.
The Court of Appeal affirmed the trial court’s granting of a new trial, holding that there was insufficient evidence presented at trial of plaintiff being a sophisticated user. The Court looked at what the Supreme Court said in the Johnson case about the sophisticated user defense. The defense is considered an exception to the manufacturer’s general duty to warn consumers, because a “sophisticated user” need not be warned about dangers of which they are already aware or should be aware. This is because the user’s knowledge of the dangers is the equivalent of prior notice. This is a natural outgrowth of California’s obvious danger rule – the rule that “there is no duty to warn of known risks or obvious dangers.”
In order to establish the defense, a manufacturer must demonstrate that sophisticated users of the product know what the risks are, including the degree of danger involved (i.e., the severity of the potential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer. Thus, in this case, defendant was required to prove sophisticated users know there is a danger the drill may bind and counter rotate, this may cause serious injury to the user, and the risk may be reduced or eliminated by proper use of a side handle.
The jury instruction used at trial stated that to succeed on the defense, Milwaukee had to show that Buckner, because of his “particular position, training, experience, knowledge, or skill knew or should have known of the [drill’s] risk, harm, or danger.” Unfortunately, the instructions did not define the relevant “risk, harm, or danger.” The defense argued that they only had to show Buckner was aware of the risk of the drill binding and counter-rotating, but the Court of Appeal affirmed that the proper test should have been that the sophisticated user “must also know that drills like the one in issue pose a danger of serious injury that may be mitigated by the use of a side handle.” With that test in mind, there was insufficient evidence to show that plaintiff was a sophisticated user. Not only was his own knowledge of whether a handle was necessary or could be used in question, but even the defense experts had testified that the drill could be operated safely without one.
The Court of Appeal affirmed the trial court’s ruling, sending the case back for re-trial on the issue of failure to warn.
In order to establish the sophisticated user defense, a defendant must identify the relevant risk, show that sophisticated users are already aware of the risk, and demonstrate that the plaintiff is a member of the group of sophisticated users. Unless all three of these criteria are met, the defense will not be allowed.
For a copy of the complete decision see: http://www.courts.ca.gov/opinions/documents/F065140.PDF