Treatise: Motorcycle Helmet Product Liability in California
Product liability lawsuits frequently arise as a result of motorcycle accidents, and a common product at issue is the rider’s motorcycle helmet. In California, manufacturers, distributers, and retailers of motorcycle head gear can be held liable for injuries and damages that occur as a result of defective protective gear.
I. STRICT LIABILITY: In California, Product Liability Cases do not Require Proof of Negligence.
In California, lawsuits brought under the theory of products liability are considered strict liability cases, meaning the injured plaintiff does not have to show negligence on the part of the manufacturer or seller in order to prevail on a claim of defective product. The basis for strict products liability is grounded on the public policy considerations that parties involved in the commercial enterprise who make a profit by placing defective products into the marketplace should bear the responsibility of the injuries caused to consumers by those products. Vandermark v. Ford Motor Co., 61 C.2d 256 (Ca. 1964).
In order for a plaintiff to prevail and be awarded damages under the theory of products liability the plaintiff must show: (1) there was a defect in the manufacture or design of the helmet or the helmet’s product warning was defective or did not exist; (2) the defect was the cause of the plaintiff’s injury; and (3) injury did in fact occur. County of Santa Clara v. Atlantic Richfield Co., 137 Cal.App.4th 292, (Ca. Ct. App. 2006).
A. Product Defect
Product defects can be established by: (1) manufacturing defect; (2) design defect; or (3) warning defect. The mere fact that a plaintiff suffered an injury from the normal use of a product does not itself establish that the product was defective. Hennigan v. White, 199 Ca.App.4th 395 (Ca. Ct. App. 2011). For example, a plaintiff who suffers a head injury while wearing a motorcycle helmet in its normal use is not, by itself, sufficient to establish a claim for products liability. Rather, there has to be some kind of legal defect in the motorcycle helmet.
(i) Manufacturing Defect
Manufacturing defects are most common. Strict products liability for a manufacturing defect can be found in two scenarios: (1) when the product left the manufacturer’s control, it differed from the manufacturer’s intended result or (2) when the product left the manufacturer’s control, it differed from apparently identical products of the same manufacturer. Barker v. Lull Engineering Co., Inc., 20 Ca.3d 413 (Ca. 1978). Additionally, the defective product must have been used in a manner reasonably foreseeable by the manufacturer and yet still caused the plaintiff’s injury. Id. The following scenario highlights the “reasonably foreseeable use” element of a manufacturing defect claim:
Plaintiff wears her motorcycle helmet on backwards and shortly thereafter has a wreck because her vision is obstructed. A defect in the face shield of the helmet causes injury to the back of her head. Plaintiff would not be able to maintain a products liability case against a motorcycle helmet manufacturer because, even though the face shield was defective, she was not using the helmet in a manner that would be reasonably foreseeable by the manufacturer.
The above scenario would also present a common defense to products liability – misuse or misapplication. It is an affirmative defense to an action for products liability if the plaintiff was injured as a result of using the produce in an inappropriate manner.
California’s Civil Jury Instructions require that in order for a plaintiff to establish a
claim for manufacturing defect, all of the following must be proven: (1) that the defendant manufactured or sold the product at issue; (2) that the product contained a manufacturing defect when it left the defendant’s possession; (3) that the plaintiff was harmed; and (4) that the product defect was a substantial factor in causing the plaintiff’s harm. CACI No. 1201. “A product will be considered as containing a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product.” CACI No. 1202.
(ii) Design Defect
Although a product may be excellently manufactured, it may still be defective due to a flaw in design. Barker. California courts utilize two tests when analyzing whether or not a design defect exists. Id. The first test plays on the same factors utilized in determining a manufacturer defect – “whether the product performed as safely as the ordinary consumer would expect when used in an intended and reasonably foreseeable manner…” Brown v. Superior Court, 44 Cal.3d 1049 (1988) (citing Id.). The first test is often referred to as the “consumer expectation” test. The second test (referred to as the “risk-benefit” test often attributed to Learned Hand and the “Hand Formula”) asks, whether on balance, the benefits of the disputed design outweigh the risks of danger inherent in the design. Id.
The two tests are not mutually exclusive and depending on the particular set of facts, both tests may be used by the plaintiff to prove a design defect. Demara v. Raymond Corp., 13 Cal.5th 545 (Cal. Ct. App. 2017). However, while one or both tests may be utilized by the plaintiff to establish a claim based on design defect, the burden of proof varies depending on the theory asserted. A plaintiff pleading under the consumer expectation test must demonstrate that on the face of the facts asserted, the defect caused the plaintiff’s injury and must also produce evidence that the product failed to meet reasonable consumer expectations in regard to the product’s safety. Soule v. General Motors Corp., 8 Cal.4th 548 (Ca. Ct. App. 1994). On the other hand, when asserting a claim based on the risk-benefit test, the plaintiff need only present evidence that would allow the trier of fact to find that the design defect was the cause of plaintiff’s injuries. The plaintiff does not have to present alternative designs that could have prevented the injury. Rather, upon the plaintiff’s showing of causation, the burden then shifts to the defendant to introduce evidence that the benefit associated with the design defect outweighs the risks. Kim v. Toyota Motor Corp., 6 Cal.5th 21 (2018) (citing Barker). The purpose of this distinction in burden of proof standards is grounded in public policy. California courts have determined that the shift in burden of proof in the risk-benefit tests is necessary to ease the burden on plaintiffs in regard to knowledge of industry standards and practice – a subject much more appropriate for the defendant to address. Id. (citing Barker).
In terms of analyzing a plaintiff’s claim under the consumer expectation test, a jury will be instructed that the following elements must be proven before judgment can be awarded in favor of the plaintiff: (1) that the defendant manufactured or sold the product (2) that the product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way; (3) that the plaintiff was harmed and; (4) that the product’s failure to perform safely was a substantial factor in causing the plaintiff’s harm. CACI No. 1203.
Alternatively, when reviewing a claim for design defect under the risk-benefit test, a plaintiff must prove: (1) that the defendant manufactured or sold the product; (2) that the plaintiff was harmed and; (3) that the product’s design was a substantial factor in causing the plaintiff’s harm. CACI No. 1204. If a plaintiff can prove these three facts, then the jury is instructed to decide in favor of the plaintiff unless the defendant can prove that the benefits of the product’s design outweigh the risks of the design. Id. In deciding whether the benefits outweigh the risks, the jury is instructed to consider the following factors:
(1) The gravity of the potential harm resulting from the use of the product;
(2) The likelihood that the harm would occur;
(3) The feasibility of an alternative design at the time of manufacture;
(4) The cost of an alternative design;
(5) The disadvantages of an alternative design; and
(6) Any other relevant factors.
(iii) Warning Defect
The last form of defect comes not in regard to the product’s physical shortcomings, but rather the deficiencies in the product’s warning label (or lack thereof). Generally, warning defects can be classified in two ways: (1) the warning inadequately instructs the consumer as to how the product should be used in order to eliminate or reduce the risk of harm or (2) the warning fails to inform the consumer of the risks and side effects of the product, which does not give the consumer the informed choice in whether to use the product or not. Finn v. G.D. Searle & Co., 35 Cal.3d 691 (Ca. 1984). The latter is most often used in cases of medicinal products, while the former would be the likely warning defect scenario in the context of a motorcycle helmet products liability case.
When analyzing a claim of defective warning, courts will often look to the state or federal warning label requirements. In 2013, the National Highway Traffic Safety Administration (NHTSA) amended the Federal motor vehicle safety standard as it relates to the requirements for motorcycle helmets in an effort to reduce traumatic brain injury and other types of head injury. Specifically, the amended federal regulation requires that each motorcycle helmet be permanently and legibly labeled in a manner such that can be easily read with the manufacturer’s name, the helmet size, the month and year of manufacture, and instructions to the consumer specified as follows:
“Helmet can be seriously damaged by some common substances without damage being visible to the user. Apply only the following: (Recommended cleaning agents, paints, adhesives, etc., as appropriate)”; and
“Make no modifications. Fasten helmet securely. If helmet experiences a severe blow, return it to the manufacturer for inspection, or destroy it and replace it.” C.F.R. §571.218.
If a motorcycle helmet fails to have these mandated warnings and the plaintiff is injured as a result, a products liability claim for defective warning can be applied. However, a plaintiff should note that she cannot claim defective warning if the plaintiff never bothered to read the warning label. Ramirez v. Plough, Inc., 6 Cal.4th 539 (Ca. 1993) (Holding that Spanish-speaking plaintiff could not prevail on defective warning claim when she did not read or obtain translation of the English product labeling as there was “no conceivable causal connection between the representations or omissions that accompanied the product and plaintiff’s injury.”)
A plaintiff must prove all of the following to establish a claim for warning defect: (1) that the defendant manufactured or sold the product; (2) that the product has potential risks or side effects that were known or knowable in light of scientific or medical knowledge at the time of manufacture or sale; (3) that the potential risks or side effects presented a substantial danger when the product is used or misused in an intended or reasonably foreseeable way; (4) that ordinary consumers would not have recognized the potential risks or side effects; (5) that the defendant failed to adequately warn or instruct of the potential risks or side effects; (6) that the plaintiff was harmed and; (7) that the lack of sufficient instructions or warnings was a substantial factor in causing the plaintiff’s harm. CACI No. 1205.
The defective product must have actually caused the plaintiff’s resulting injury. Horn v. General Motors Corp., 17 Cal.3d 359 (Ca. 1976). It is not enough that the defect played some role in causing the injury, rather, the defect must have been a substantial factor that lead to the plaintiff’s injury. Soule at 572. In fact, a defect is considered legally and factually irrelevant if it played no part in bringing about the injury. Id. (Holding that if the external force of a vehicle accident was so severe that it would have caused identical injuries in spite of the defect in the vehicle’s collision safety, then the defect cannot be considered a substantial factor in bringing about the plaintiff’s injury.) Practically, in cases of motorcycle helmet product liability, this would mean that if a plaintiff suffered a head injury during a motorcycle crash such that was so severe the outcome would have been the same regardless of whether or not the plaintiff was wearing a helmet, then a claim cannot be made for products liability even if the helmet was found to be defective.
Injury must be sustained. In terms of products liability, a defendant can be strictly liable for physical injuries caused to persons or property. As the old saying goes, “No harm no foul.” However, it is important to note that a plaintiff cannot prevail on a claim of strict liability for purely economic loss. Absent a claim of personal injury or damage to other property, there is no strict liability for loss of value, cost of repair, or replacements of the defective product. Jimenez v. Superior Court, 29 Cal.4th 473 (Ca. 2002). Additionally, California courts have held that the injury suffered by plaintiff must have actually occurred, meaning it is insufficient to claim only the likely potential for injury. KB Home v. Superior Court, 112 Cal.App.4th (Ca. Ct. App. 2003).
A. Proper Plaintiffs – Who Can Bring Suit
A broad range of plaintiffs may recover under the theory of product liability. Recovery from injury is not limited to the first purchaser of the product, but rather to anyone whose injury was reasonably foreseeable. Elmore v. American Motors Corp., 70 C2d 578 (Ca. 1969). This can include innocent bystanders injured by defective automobiles or employees injured by defective equipment owned by their employers. See Elmore v. American Motors Corp., supra, 70 Ca.2d 586 (Ca. 1969). See Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413 (Ca. 1978). A practical example of this concept played out in a motorcycle helmet product liability case can be seen in the following scenario:
Biker Son purchases a motorcycle helmet for Biker Dad’s birthday. Biker Dad has a motorcycle accident while wearing the helmet and suffers a brain injury as the result of a design defect in the helmet. Although Biker Dad was not the direct purchaser of the helmet, he is a proper plaintiff who can bring suit against the helmet manufacturer.
B. Proper Defendants – Who Can Be Sued
In instances of product liability, the manufacturer is normally the most obvious defendant, but they are far from the only defendant available. Originally, the doctrine of strict liability only applied to the manufacturers of defective products. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 (Ca. 1963). However, over time, California courts have expanded the doctrine to reach parties involved in the commercial chain of distribution of the defective product. Peterson v. Superior Court, 10 Cal.4th 1185 (Ca. 1995). This means that not only the manufacturer of a defective motorcycle helmet can be held liable in a claim of products liability, but also the distributor and the retailer can be held liable as well.
(i) Service vs. Product
Although there are several potential defendants available to the plaintiff in a motorcycle helmet products liability action, not everyone can be sued under the doctrine. You will note that manufacturers, distributors, and retailers have one common theme that exists between them – they are all involved in the chain of custody of a product. One party that cannot be held liable under the doctrine of products liability is a party who provides a service. Strict products liability has always involved a tangible product that has been placed into the stream of commerce, so if the potential defendant is offering a service, rather than a product to the plaintiff, the plaintiff cannot bring suit against the service provider under the theory of products liability. Gagne v. Bertran, 43 Cal.2d 481 (Ca. 1954). For example, a plaintiff would most likely not be able to bring a products liability suit against a business that provides motorcycle riding lessons, even if the business provided the plaintiff with a defective helmet to use during the lesson. The plaintiff may be able to sue under another legal theory, but not products liability. In some cases there may be a dispute over whether the business is providing a product or services, and in those instances, the court must determine whether the dominant role of the defendant should be characterized as a service or a sale. Murphy v. E.R. Squibb & Sons, Inc., 40 Cal.3d 672 (Ca. 1985).
(ii) Joint and Several Liability
Product liability among defendants is joint and several, meaning that any defendant established by the plaintiff as involved in the stream of commerce of the defective product is responsible for all of plaintiff’s damages.
III. Jury Verdicts/Settlements
Below is a list of various California jury verdicts and settlements for cases where product liability was alleged in connection to a defective motorcycle helmet:
• Esposto v. City and County of San Francisco; State of California; Shoei Helmet Corporation; Paulson Manufacturing Company; David Golden Motorcycles, Inc., JVR No. 43984 Superior Court, San Francisco County (1986).
A plaintiff in his mid-30s was involved in a motorcycle accident and, as a result, became a quadriplegic. The plaintiff sued the city of San Francisco and State of California arguing that poor road conditions contributed to his accident. The plaintiff also sued the motorcycle manufacturer and retailer and claimed that the bike, helmet and visor were defective. The manufacturer and retailer maintained that the products were not defective. The plaintiff eventually settled for a total amount of $865,000. The city and county paid the large bulk of the settlement.
• Sheryl Suglia v. Nexl Sports Products, LLC, Lifestyle Custom Cycles, Gilbert J. Williams and Mark Skolnick Jr., 2009 WL 3260089, Superior Court, Los Angeles County (2009).
Plaintiff and her husband were riding motorcycles one afternoon when they were hit head-on by a drunk driver. Plaintiff’s husband was killed and plaintiff sustained severe injuries. At the time of the crash, plaintiff and her husband were wearing “beanie” type helmets manufactured by Nexl Sports Products and sold by retailer Lifestyle Cycles. The particular “beanie” type helmets were recalled in 2003 for failing to pass Department of Transportation penetration and impact-absorption tests. The plaintiff sued the manufacturer and retailer under the theory of strict products liability and negligence, claiming that both defendants should have made her aware of the product recall. Plaintiff sought more than $2 million in economic damages. The jury found in favor of the defense, reasoning that the impact between the car and motorcycle was so major that no helmet could have prevented the resulting injuries.
• Sally Doe v. Daytona Helmets Inc.; Jeffrey McKinley; Big Dawg Custom Cycles & Rodney Chatwin, individually, 2006 WL 4589449, Superior Court, Alameda County (2006).
Plaintiff suffered severe head injuries after being involved in a motorcycle accident. One of the claims brought by plaintiff was for products liability against the motorcycle helmet manufacturer. The crux of plaintiff’s argument was that the helmet failed to meet DOT safety requirements, despite the fact that it displayed a DOT compliant sticker. The parties reached a settlement agreement and the plaintiff received approximately $1 million from the helmet manufacturer and an additional $1 million from the remaining defendants.
• Grant Thor and Sara Guerrero v. Kerr Leathers, Inc., Sunright International and Visalia Harley-Davidson, 2007 WL 2872337, Superior Court, Tulare County (2007).
Plaintiff’s father was involved in a motorcycle accident which resulted in severe head injuries and ultimately death. Plaintiff brought a products liability suit against the manufacturer and retailer of the helmet claiming that it was defective after it failed a “retention” test by the Federal Government. The defendants recalled the helmet, but there was no evidence of the plaintiff’s father ever receiving notice of the recall. Plaintiff settled for approximately $2 million.
• Riley v. Grandon, 5 Trials Digest 17th 7, Superior Court, Riverside County (2013).
Decedent was a passenger on a motorcycle when the bike struck a speedbump, lost control and crashed. Decedent fractured her skull and died as a result of her injuries. Decedent’s estate brought suit against the driver of the motorcycle under a theory of negligence and also alleged strict products liability against the manufacturer and retailer of the helmet decedent was wearing at the time of the accident. Plaintiff claimed that the helmet did not meet motorcycle safety standards. Plaintiff reached a $1 million settlement with the helmet retailer.
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