After the jury found for defendants in this products liability case, the trial court granted plaintiff's motion for judgment notwithstanding the verdict. (Code Civ. Proc., § 629.) Defendants appeal, claiming that substantial evidence supports the jury's verdict.
We discuss below each theory of liability: plaintiff's first cause of action for misrepresentation, their second cause of action for breach of express and implied warranties, and their third cause of action for strict liability in tort based on the defective design of defendants' product. We have concluded that plaintiffs are entitled to recover as a matter of law under each theory and, therefore, we affirm the trial court's order of judgment notwithstanding the verdict.
1. The facts.
The Gizmo is a simple device consisting of two metal pegs, two cords — one elastic, one cotton — and a regulation golf ball. After the pegs are driven into the ground approximately 25 inches apart, the elastic cord is looped over them. The cotton cord, measuring 21 feet in length, ties to the middle of the elastic cord. The ball is attached to the end of
The user stands by the ball in order to hit his practice shots. The instructions state that when hit correctly, the ball will fly out and spring back near the point of impact; if the ball returns to the left, it indicates a right-hander's "slice"; a shot returning to the right indicates a right-hander's "hook." If the ball is "topped," it does not return and must be retrieved by the player. The label on the shipping carton and the cover of the instruction booklet urge players to "drive the ball with full power" and further state: "COMPLETELY SAFE BALL WILL NOT HIT PLAYER."
On July 14, 1967, Fred Hauter was seriously injured while using defendants' product. Thereafter, plaintiffs filed the instant suit on his behalf, claiming false representation, breach of express and implied warranties and strict liability in tort.
Fred Hauter testified at trial that prior to his injury, he had practiced golf 10 to 20 times at driving ranges and had played several rounds of golf. His father instructed him in the correct use of the Gizmo. Fred had read the printed instructions that accompany the product and had used the Gizmo about a dozen times. Before the accident, Fred set up the Gizmo in his front yard according to the printed instructions. The area was free of objects that might have caused the ball to ricochet, and no other persons were nearby. Fred then took his normal swing with a seven-iron. The last thing he remembers was extreme pain and dizziness. After a period of unconsciousness, he staggered into the house and told his mother that he had been hit on the head by the ball. He suffered brain damage and, in one doctor's opinion, is currently an epileptic.
George Peters, a safety engineer and an expert on the analysis and reconstruction of accidents, testified for plaintiffs. In Peters' opinion, Fred Hauter had hit underneath the ball and had caught the cord with his golf club, thus drawing the cord upwards and toward him on his follow-through. The ball looped over the club producing a "bolo" effect and struck Fred on the left temple. Peters, an expert on the cause of accidents, concluded that the Gizmo is a "major hazard."
Ray Catan, a professional golfer, also testified for plaintiffs. He added that even if the club had hit the lower part of the ball, the same result probably would have occurred. He personally tested the Gizmo, intentionally hitting low shots, and found that his club became entangled
Defendants did not dispute plaintiffs' version of the accident. The manufacturer merely stated that he bought the rights to manufacture and distribute the Gizmo from a former professional golfer in 1962 and that the product had been on the market since that time.
Following a unanimous jury verdict for defendants on each cause of action, the trial judge granted plaintiffs' motion for judgment notwithstanding the verdict and plaintiffs' alternative motion for a new trial.
2. A judgment notwithstanding the verdict is proper only when no substantial evidence and no reasonable inference therefrom support the jury's verdict.
3. As a matter of law, plaintiffs should recover on their cause of action for false representation.
Plaintiffs' claim of false representation relies on common law tort principles reflected in section 402B of the Restatement Second of Torts.
If defendants' assertion of safety is merely a statement of opinion — mere "puffing" — they cannot be held liable for its falsity. (Cf. Willson v. Municipal Bond Co. (1936) 7 Cal.2d 144, 150 [59 P.2d 974]; Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 211-212 [85 Cal.Rptr. 39].)
These decisions evidence the trend toward narrowing the scope of "puffing" and expanding the liability that flows from broad statements of manufacturers as to the quality of their products.
Moreover, the materiality of defendants' representation can hardly be questioned; anyone learning to play golf naturally searches for a product that enables him to learn safely. Fred Hauter's testimony that he was impressed with the safety of the item demonstrates the importance of defendants' statement. That Fred's injury occurred while he used the Gizmo as instructed proves the inaccuracy of the assertion on the carton.
Defendants, however, maintain that plaintiffs' reliance upon the assurance of safety is not justifiable. (See Rest. 2d Torts, § 402B, com. j.) Alluding to the danger inherent to the sport, defendants argue that the Gizmo is a "completely safe" training device only when the ball is hit squarely. Defendants repeatedly state that an improperly hit golf shot exposes the player, as well as others nearby, to a serious risk of harm; they point to testimony recounting how an experienced player once hit a shot so poorly that the ball flew between his legs. As a result, contend defendants, plaintiffs cannot reasonably expect the Gizmo to be "completely safe" under all circumstances, particularly those in which the player hits beneath the ball.
Defendants' argument does not withstand analysis. Fred Hauter was not "playing golf." He was home on his front lawn learning to play the game with the aid of defendants' supposedly danger-free training device. By practicing in an open, isolated area apart from other golfers and free of objects off which a poorly hit shot could ricochet, Fred Hauter eliminated most of the dangers present during a normal round of play. Moreover, even though certain dangers are inherent in playing golf, the risk that the golfer's own ball will wrap itself around his club and strike the golfer on the follow-through is not among those dangers. Fred Hauter's injury stemmed from a risk inherent in defendants' product, not a risk inherent in the game of golf.
Although defendants claim they did not intend their statement to cover situations such as the one at bar, subjective intent is irrelevant. The question is not what a seller intended, but what the consumer reasonably believed. The rule "is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently." (Rest. 2d Torts, § 402B, com. a.)
4. Defendants breached their express warranty that the Golfing Gizmo ball was "completely safe" and would "not hit player," as well as their implied warranty of merchantability.
We first treat the claim for breach of express warranty, which is governed by California Commercial Code section 2313.
The commentators have disagreed as to the impact of this new development. (See generally, Note, "Basis of the Bargain" — What Role Reliance? (1972) 34 U.Pitt.L.Rev. 145, 149-150.) Some have said that the basis of the bargain requirement merely shifts the burden of proving non-reliance to the seller. (See 1 Carroll, Cal. Commercial Law, supra, § 6.7, p. 210; Boyd, Representing Consumers — The Uniform Commercial Code and Beyond (1968) 9 Ariz.L.Rev. 372, 385.) Indeed, the comments to section 2313 seem to bear out this analysis; they declare that "all of the statements of the seller [become part of the basis of the bargain]
Other writers, however, find that the code eliminates the concept of reliance altogether. (See Note, supra, 34 U.Pitt.L.Rev. at p. 150; Nordstrom, Sales (1970) §§ 66-68.) Support can be found in the comments to the code for this view also; they declare that "[i]n view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller's obligation. Thus, a contract is normally a contract for a sale of something describable and described." (Cal. U. Com. Code, § 2313, com. 4 (italics added).) To these observers, the focus of the warranty shifts from the buyer, who formerly had to rely upon specific statements in order to recover, to the seller, who now must stand behind his words if he has failed adequately to disclaim them. "[T]he seller must show by clear affirmative proof either that the statement was retracted by him before the deal was closed or that the parties understood that the goods would not conform to the affirmation or description. Under such an interpretation, the affirmation, once made, is a part of the agreement, and lack of reliance by the buyer is not a fact which would take the affirmation out of the agreement." (Note, supra, 34 U.Pitt.L.Rev. at p. 151.)
We are not called upon in this case to resolve the reliance issue.
Merchantability has several meanings (see Cal. U. Com. Code, § 2314, subd. (2)(a-f)), two of which are relevant to the instant case: the product must "[c]onform to the promises or affirmations of fact made on the container or label" (Cal. U. Com. Code, § 2314, subd. (2)(f)), and must
The Gizmo is designed and marketed for a particular class of golfers — "duffers" — who desire to improve their technique. Such players rarely hit the ball solidly. When they do, testified the golf pro, "It would be sort of a mistake, really." The safety expert classed the Gizmo as a major safety hazard. Furthermore, defendants admit that when a person using the Gizmo hits beneath the ball as Fred Hauter apparently did, he stands a substantial chance of seriously injuring himself. Defense counsel stated to the jury: "It is obvious if you miss the ball and you come along, you touch the cord, that you could possibly get [the ball] either in the head or some other part of your person, and there is no way in the world that I am going to be able to show that couldn't happen to any of us here...."
Defendants nevertheless seek to avoid liability by limiting the scope of their warranties. They claim that the box containing the Gizmo and the instructions pertaining to its use clarified that the product was "completely safe" only when its user hit the ball properly. They point to no language expressing such a limitation but instead claim that a drawing in the instructions depicting a golfer "correctly" using their product implies the limitation.
As we explained above in discussing the false representation claim, defendants' argument is wholly without merit. Furthermore, they fail to meet the stern requirements of California Uniform Commercial Code section 2316
5. Plaintiffs are entitled to recover as a matter of law on the cause of action based upon strict liability.
Plaintiff's final cause of action is based upon the doctrine of strict liability. They claim that the Gizmo is defectively designed, a fact which, if proven, renders defendants strictly liable in tort for Fred's injuries.
We affirm the order of the trial court granting judgment notwithstanding the verdict and remand the case to the trial court for the purpose of ascertaining damages.
Wright, C.J., McComb, J., Mosk, J., Sullivan, J., and Burke, J.,
I concur with the majority that the record here establishes breach of express warranty as a matter of law — requiring affirmance of the judgment and disposing of this appeal. However, beyond this first issue, the majority's discussion is both unnecessary and unpersuasive.
"(a) it is not made fraudulently or negligently, and
"(b) the consumer has not bought the chattel from or entered into any contractual relation with the seller." (See also Civ. Code, § 1572.)
In the instant case, for example, defendant seller appears to "puff" when he says in his catalogue, "[y]ou may be a duffer and divot digger but just give yourself a few hours with this and you'll be challenging Jack Nicklaus! ... Practice with [the Gizmo] and you'll have even your golf pro watching admiringly."
Although courts traditionally have allowed the seller considerable latitude in which to "puff" the virtues of his product, "[t]he tendency of the modern cases is to construe liberally in favor of the buyer language used by the seller in making affirmations respecting the quality of his goods and to enlarge the responsibility of the seller to construe every affirmation by him to be a warranty when such construction is at all reasonable." (Lane v. C.A. Swanson & Sons, supra, at pp. 214-215.)
This expansion of sellers' liability has been necessary to counteract the shrewd technique of those sellers who, instead of making broad factual assertions about their products, seek to couch their representations in opinion form.
"(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
"(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description...."
"(1) Unless excluded or modified (Section 2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind ...
"(2) Goods to be merchantable must be at least such as
"(a) Pass without objection in the trade under the contract description; and
"(b) In the case of fungible goods, are of fair average quality within the description; and
"(c) Are fit for the ordinary purposes for which such goods are used; and
"(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
"(e) Are adequately contained, packaged, and labeled as the agreement may require; and
"(f) Conform to the promises or affirmations of fact made on the container or label if any...."
"... (3) [T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous...."