Litigation

More From DRI's Product Liability Conference: The Sophisticated User Defense

By Bruce Nye

     I surprised several non-Californians attending here last night by saying that I consider the California Supreme Court to be a fairly conservative court.  Of course, non-Californians all read about the Court?s same sex marriage decision, and many assumed that the Court was making social policy to fit its own beliefs.  Without getting into the same sex marriage issue, which is way, way off topic for CalBizLit, the current Supreme Court nearly always does what most conservatives ask of courts and judges in general:  it applies traditional rules of statutory and Constitutional construction to the facts and laws that come before it.  Whether I agree with the Court's rulings or not, I don't often find a pre-existing agenda. 

 This morning, we heard from Ming Chin, Associate Justice of California?s Supreme Court, and the author of Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.  CalBizLit blogged on this decision, which established the sophisticated user defense in California, here.  The case is a pretty good example of how a conservative court nonetheless moves  the law. 

    Unlike the other speakers, Justice Chin began with some stand-up at the dais, making jokes at the expense of fellow speaker Saul Alinsky and rolling out an old Johnny Carson chestnut.  Then, on to the sophisticated user defense.

    The sophisticated user defense holds as follows:  the manufacturer of a product has no obligation to provide warning to a sophisticated user if the sophisticated user knew, or should have known, of the risk.  It makes no difference whether the case is based on negligence or strict liability.  Nor does it matter what the individual user actually knows:  the question is what a sophisticated user knew or should have known.

    According to Justice Chin, the idea of the duty to warn is to provide users with educated choices.  But the sophisticated user defense posits that not every risk requires a warning, that excess warnings are themselves pose risk, and that manufacturers are not insurers of the safety of those who should know the risks.

    In his follow-up presentation, Saul Alinsky argued that in a sense, the sophisticated user defense is very much related to the rule that there is no duty to warn of open and obvious risks, because the user will be able to recognize those risks without the warning.  He also notes that in New York and other jurisdictions, the sophisticated user defense is going to be fact driven, and present a jury question. 

    But Johnson was a summary judgment case.  And a legal duty case.  And generally in California, issues of duty are decided by the court, not by juries.

    Saul also discussed the recent California Court of Appeals decision of Taylor v. Elliott Turbomachinery (February 25, 2009) ____Cal.App.4th ___ (First Dist., ) No. A116816, which was unusual, and defense-oriented, in two respects:  first, in holding that there is no duty to warn of another?s products, and second, in looking at the social utility of the defendant?s activity (in this case, contributing to the winning of World War II).

Full post as published by CalBizLit on April 16, 2009 (boomark / email).