Daily Blast December 20, 2013

The California Court of Appeal, Fifth Appellate District (Fresno) issued an opinion in Buckner v. Milwaukee Electric Tool Corporation (Dec. 20, 2013, F065140) __ Cal.App.4th ___, analyzing the sophisticated user defense and how to define the relevant risk and the scope of knowledge of the risk the group of users must possess in order to be considered sophisticated users. (Slip opn., p. 11.) The court held that “[the] sophisticated user must know or be deemed to know not only the bare hazard posed by the product, but also the severity of the potential consequences, and any mitigation techniques of which the manufacturer is aware.” (Id. at p. 14.)

The case arose out of injuries sustained by the plaintiff while he was operating a Milwaukee power drill. (Slip opn., p. 2.) Plaintiff was using the power drill to drill a hole in a piece of angle iron when the drill bit and the drill counter rotated, twisting his arm and causing serious injuries. Plaintiff sued the manufacturer of the drill alleging causes of action for negligence and strict products liability. At trial, plaintiff alleged that the drill could not safely be used without a side handle and that defendant failed to warn of the dangers in using the drill. (Ibid.) Defendant asserted that no warning was required because the plaintiff was a sophisticated user. (Id. at p. 3.) The plaintiff was not a licensed contractor, but had been using power tools and doing handyman work since high school. (Ibid.) The jury found that the drill was not negligently or defectively designed. (Id. at p. 4.) The jury did not determine whether there was a failure to warn or inadequate warning because it resolved the failure to warn issue by finding the plaintiff was a sophisticated user. (Id. at pp. 4-5.) Plaintiff moved for a new trial on the ground of insufficiency of the evidence, asserting there was insufficient evidence to support the jury’s finding that plaintiff was a sophisticated user. (Id. at p. 5.) The trial court granted plaintiff’s motion for new trial. Defendant appealed. (Ibid.)

The Court of Appeal affirmed the court’s order granting a new trial. (Slip opn., p. 14.) The court noted that California cases have not defined the danger that needs to be generally known in a trade, profession, or other group in order for members of that group to be considered sophisticated users who require no warning of the danger. (Id. at p. 12.) According to the court, “the sophisticated user’s knowledge is essentially a substitute for a warning from the supplier of the product, in order for the defense to apply, the scope of knowledge of the sophisticated user must parallel the scope of the warning that would otherwise be required.” (Ibid.) In this case, it was not enough that the user be aware of the danger that the drill may bind and counter rotate when it is used improperly or when the drill bit strikes an obstacle. (Id. at p. 13.) Rather, 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. (Ibid.) Thus, “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.” (Ibid.)

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