“The infinite variety of factual situations arising out of 2 corrective efforts highlights the factual nature of an inquiry as to whether the manufacturer has 3 done what it could reasonably be expected to do to correct an earlier design deficiency. Central 4 to the inquiry here is the question whether under the particular circumstances the manufacturer 5 could have reasonably foreseen that the neglect of third persons to respond to the manufacturer’s 6 warnings of danger would frustrate its corrective efforts.”
How later courts described this case
- “The infinite variety of factual situations arising out of 2 corrective efforts highlights the factual nature of an inquiry as to whether the manufacturer has 3 done what it could reasonably be expected to do to correct an earlier design deficiency. Central 4 to the inquiry here is the question whether under the particular circumstances the manufacturer 5 could have reasonably foreseen that the neglect of third persons to respond to the manufacturer’s 6 warnings of danger would frustrate its corrective efforts.”
- "one-time” sale of molding press
Written by the judges who cited it.
The opinion
COMPTON, J., Concurring and Dissenting.
I concur in affirming the judgment of nonsuit as to Paper Mate and Olympic. I would also affirm the judgment as to Improved.
*650 In my opinion the majority correctly concludes that the mere passage of time, by itself, is not sufficient to terminate Improved’s liability. On the other hand, the majority errs in its analysis of the effect of Olympic’s conduct on Improved’s continued liability.
At the outset it is clear that the injury was essentially the result of an industrial accident. As a consequence, plaintiff will be compensated for the injury according to the provisions of the workmen’s compensation law which presumably is structured to adequately redress the injury.
Workmen’s compensation awards may not be as lucrative as judgments obtained in regular tort actions because the former do not deal with that elusive and amorphous concept of “pain and suffering.” This difference, however, is more than adequately offset by the fact that industrial employees as a class benefit from liberal construction of the term “scope of employment” and from the elimination of contributory negligence as a defense to recovery.
If, in the instant case, the offending machine had been manufactured by Olympic itself for use in its own fabrication process, plaintiff would be limited to recovery under workmen’s compensation. To hold that Improved’s liability is an open question of fact is to make it possible for a jury to zero in on a “target” defendant and render a judgment which may be based on emotion rather than sound legal or equitable principles, an abdication of judicial responsibility.
It is to be assumed that plaintiff, in the court below has presented her case to the best of her ability. The facts are now before the court without dispute. Analysis of these facts in the light of applicable legal principles is a question of law. (Ford Motor Co. v. Robert J. Poeschl, Inc., 21 Cal. App.3d 694 [ 98 Cal.Rptr. 702 ].) Such analysis inescapably points to the correctness of the trial court’s judgment of nonsuit.
The principal factor relied upon by the trial court to support the non-suit was that Olympic’s continued use of the press after it had been warned of the press’ safety deficiencies constituted a superseding cause of the injury that cut off Improved’s liability. In familiar. legal terminology Improved’s deficient design ceased to be a proximate cause of Balido’s injury and became a remote cause of the injury. Olympic’s knowing disregard of the industrial safety order, the trial court said, introduced an unforeseeable element that amounted to a legally superseding cause of the accident.
In this second aspect of the case the basic question is whether as a matter of law the obligation of the original wrongdoer has been replaced by that of a third-party wrongdoer to another. Restatement Second Torts, sec *651 tion 452(2), comment f, cited by the majority has this to say: “It is apparently impossible, to state any comprehensive rule as to' when such a decision [shift of duty] will be made. . . . [WJhen . . . the court finds that full responsibility for control of the situation and prevention of the threatened harm has passed to the third person, his failure to act is then a superseding cause, which will relieve the original actor of liability.” (Italics added.)
Improved designed and manufactured its machine some 14 years prior to the injury and sold the machine some 12 years prior to the injury. Upon subsequently learning of the possible deficiency in the machine’s safety components, it notified Olympic, which was then in complete control of the machine. Olympic with full knowledge of the possible danger continued to use the machine. At that point in time Improved was in no position to prevent Olympic’s continued use of the machine. Improved could not physically take possession of the machine nor enter Olympic’s plant to make any physical changes in the machine.
Plaintiff contends that whether Improved had done everything it could to prevent the injury was a factual issue for the jury. But it is difficult to see what else Improved could have done other than to offer to install new safety devices free of charge instead of for $500. Whether Improved should have offered to make the change free or at a price less than $500 is irrelevant. No evidence was offered to indicate that Olympic would have permitted or effected the modification of the machinery even if Improved had offered to do it free. Such an offer on the part of Improved would only' have aggravated Olympic’s culpability — it would not have changed the basic situation. Olympic’s knowledge of the deficiency was clearly established and its continued use of the machine was tantamount to intentional misconduct.
Whether Olympic or Improved should bear the cost of the modification of the machinery was a matter between those two parties, and Olympic should not be permitted to deliberately perpetuate Improved’s exposure to a liability it was seeking in an urgently reasonable fashion to avoid. In the final analysis plaintiff’s claim of negligence against Improved rests upon its obligation to have foreseen at the time of manufacture that plaintiff’s employers would continuously disregard the law and all offers to make the machine safe. Plaintiff does not claim negligence in Improved’s failure to take reasonable steps to prevent Olympic’s continued use of the machine after discovery of the defect.
An examination of the myriad of cases both in California and elsewhere which have, under varying factual situations dealt with the issue of whether the intervening conduct of third persons does or does not break the chain of causation, reveals a repetition of familiar legal phrases with vary *652 ing results from their application. Such examination produces the conclusion as quoted, supra, from the Restatement that “It is apparently impossible to state any comprehensive rule . . . .”
One of the most familiar and oft stated rules to be found in the cases is that the intervening act of a third party does not relieve the original wrongdoer of liability if the intervening act was reasonably foreseeable. (Rest. 2d Torts, § 447; Warner v. Santa Catalina Island Co., 44 Cal.2d 310 [ 282 P.2d 12 ].) Similarly, if the realizable likelihood that a third person may act in a particular manner is the hazard which makes the act negligent, such an act, whether innocent, negligent or intentionally tortuous, does not relieve the original actor from liability. (Barclay Kitchen, Inc. v. California Bank, 208 Cal.App.2d 347 [ 25 Cal.Rptr. 383 ].)
On the other hand it has been said that where an independent negligent act or defective condition sets into operation the circumstances which result in injury because of a prior defective condition, the subsequent independent act or condition is the “proximate cause” of the injury. (Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287 [ 91 P.2d 231 ].) Also, a prior or remote cause cannot be made the basis of an action if such remote cause merely furnished the condition by which the injury was made possible and there intervened a successive, distinct and efficient cause, notwithstanding that the injury would not have happened but for such prior condition. (Camp v. Peel, 33 Cal.App.2d 612 [ 92 P.2d 428 ].) “In general, when a third person becomes aware of danger, or should, if he acted reasonably, be aware of it, a defendant has a right to assume that he will act reasonably and will not be held liable for the intervening act. It is only where the intervening misconduct is to be anticipated, ‘and the risk of it was unreasonable, that liability will be imposed . . . .’ (Prosser, [Torts, 3d ed.] p. 323).” (Premo v. Grigg, 237 Cal.App.2d 192, at p. 195 [ 46 Cal.Rptr. 683 ].)
The diversity of human behavior makes it difficult at times to apply these familiar and sound principles with mathematical precision. A balancing process is inevitably involved. As the culpability of the intervening actor increases and the culpability of the original actor, in comparison, decreases, the balance shifts toward the determination that the former has become the efficient or superseding cause of the injury. Stated another way, the foreseeability required of the original actor decreases as the conduct of the intervening actor progresses from simple negligence to intentional misconduct.
In the case at bar the concept of foreseeability is difficult to apply to Olympic’s conduct, which under the circumstances as we have said *653 amounted to intentional misconduct. Even if Olympic’s negligent failure to install additional safety features could be said to have been foreseeable at the time Improved designed, manufactured and sold the machine, once Improved directly notified Olympic of the danger, it had taken the single significant action then available to it and thus should have a right to assume that Olympic would cease to use the machine in its dangerous configuration.
The principles of tort liability serve more than the single purpose of providing compensation to render the injured party whole. They serve to deter misconduct. A concomitant of the deterrent feature is to encourage, or at least riot to discourage, actions aimed at preventing injury.
At the time of the discovery of the defect Improved had two options reasonably available. It could have done nothing and stood by hoping for the best, while its liability continued inexorably and indefinitely, or it could have done as it did. To hold this latter course of conduct fruitless would discourage attempts at preventive action in the future.
The key factors in Olympic’s conduct that serve to relieve Improved from liability are (1) its knowledge of the defect, and (2) its continued use of the machinery with such knowledge.
Stultz v. Benson Lumber Co., 6 Cal.2d 688 [ 59 P.2d 100 ], appears to be controlling. There the defendant negligently furnished defective lumber to plaintiff’s employer, who used it to build a scaffolding, knowing that the lumber was defective and unsafe for the use to which it was put. This conduct by the employer was held a superseding cause of plaintiff’s injury, which terminated defendant’s liability.
In our case, Improved furnished defectively designed machinery to the plaintiff’s employer, who intentionally continued to use the machinery after having been directly advised that the machinery did not comply with the industrial safety law. The difference between scaffolding and machinery is not such as to alter the legal principle. Both scaffolding and machinery are dangerous to life and limb when they are defectively designed or constructed.
Rae v. California Equipment Co., 12 Cal.2d 563 [ 86 P.2d 352 ], approved the holding in Stultz while distinguishing its facts. The holding in Stewart v. Cox, 55 Cal.2d 857 [ 13 Cal.Rptr. 521 , 362 P.2d 345 ], is to the same effect.
Applying this concept to the situation in which Improved found itself upon discovery of the defective design of its machine, compels the hold *654 ing that its action in notifying Olympic terminated its liability. Olympic's conduct became the superseding cause of the injury, and the trial court correctly granted a nonsuit in favor of Improved.
The petition' of respondent Improved Machinery, Inc. for a hearing by the Supreme Court was denied March 8, 1973.
Appendix “A"
“November 12. 1963
Olympic Plastics Company, Inc.
3471 So. La Cienega Boulevard
Los Angeles 16, California
Attention: Mr. David Rome
Subject: IMPCO Ref. SP63-831
Dear Mr. Rome:
In accordance with your recent discussion with Lyle Burford, we are pleased to quote on up-to-date safety measures for your IMPCO Model HA4-175 machine.
Sliding operating gate with electrical and hydraulic cut-off and with mechanical drop bar, rear gate guard, press guards for IMPCO Model HA4-175
Price...................................................$500.00
Prices quoted are FOB Nashua, N.H., are firm for prompt acceptance and are exclusive of any existing or future sales or excise taxes. All quotations are subject to the further terms and conditions as set forth on the reverse side of the attached proposal sheet.
Installation no charge.
Terms: Not [.vzr] thirty days.
Shipment: One week from receipt of order.
If you have any questions, please do not hesitate to call Lyle Burford, or upon us at Nashua.
Please refer to IMPCO SP63-831 in any future correspondence pertaining to this quotation.
Very truly yours,
Improved Machinery Inc.
Sales Manager Plastic Machinery Sales
FZB: rp
cc: Mr. L. V. Burford
Mr. R. P. Emerson"
Appendix “B”
“May 28. 1964
Olympic Plastics Co., Inc.
3471 So. La Cienega Blvd.
Los Angeles 16, California
Attention: Mr. John Totten
Dear Mr. Totten:
Our records show that the following machinery is still equipped with a lift type gate rather than the sliding type:
IMPCO Model HA4-175. Serial No. 73042 “ “ “ “ “ 73043
Our attention has been called to the ‘General Industry Safety Orders’, booklet issued by the State of California. Division of Industrial Safety. This is a quotation *655 from the General Industry Safety Orders promulgated by your State on the subject of equipment on injection molding machines, from which we quote as follows: ‘3759. Injection Molding Machine (Class A). Every injection molding machine shall be guarded by any one or more of the following methods: (a)
By a sliding gate guard so designed and installed that it interposes a barrier between the dies and the operator before the dies can close and shall be so arranged that if the gate can be opened during the die closing cycle the die motion will be immediately stopped or be reversed by the opening of the gate (emphasis supplied).
‘The sliding gate guard shall extend over the top and to each side of the dies such a distance as will make it impossible for the operator to place his hands between the dies while they are closing. The danger zone on the side of the machine opposite the operator’s working position shall also be guarded.
‘(b) By two-handed constant pressure devices or controls which require the simultaneous use of both the operator’s hands during the entire die closing cycle.’
To assist you in meeting the requirements of the law we renew the offer which we understand Mr. Burford has discussed with you under which you would be invoiced for $500.00 for parts involved and IMPCO would assume the cost of installation for the changeover to a sliding gate, work to be performed by one of IMPCO’s servicemen.
We felt that you would wish to have this matter brought to your attention again in the interest of complying with the State of California orders dealing with safety devices and trust that with this being brought to your attention again, that you will consider it worthy of immediate consideration and take action accordingly to correct the situation.
We enclose a stamped envelope hoping that you will take this opportunity to order the replacement necessary or communicate with us in this connection.
Very truly yours,
Improved Machinery Inc.
Vice President Plastic Machinery Sales
GWW:jf
Enclosure
cc: Mr. L. V. Burford"