528 P.2d 1148 (Cal. 1974)
Plaintiff sustained serious injuries on November 8, 1964, when the Scout vehicle in which he was a passenger plunged 500 feet down Nine Mile Canyon Road near Mojave, California.1 The road was dry and twenty feet wide, and the vehicle had been traveling at only ten to fifteen miles per hour.2 The owner and driver had previously traversed the same road in the Scout without incident.3 Both the driver and plaintiff suffered retrograde amnesia following the accident and could not testify about its circumstances.4
Following the accident, it was discovered that the gear box of the Scout had broken.5 Plaintiff contended that the break occurred on the highway due to metal fatigue in the aluminum 380 material from which the gear box was manufactured, causing the vehicle to go out of control.6 Defendant asserted that the gear box broke upon impact as the vehicle fell into the canyon and that the accident resulted from driver negligence or collapse of the roadway.7
At trial, plaintiff presented expert testimony that aluminum 380 was unsuitable for the gear box, that malleable iron was a stronger material, and that defendant had changed to malleable iron in manufacturing the gear box three years after the accident in 1967.8 Experts also testified regarding two other accidents involving similar failures of aluminum 380 gear boxes in Scout vehicles.9 The jury returned a verdict awarding plaintiff $700,000.10
Defendant appealed the judgment, challenging the trial court's admission of evidence regarding the post-accident change in materials, testimony about other accidents, refusal to admit a superseded complaint from a prior trial between the parties, and denial of a motion for mistrial related to hearsay testimony read from the prior proceeding.11 The matter came before the California Supreme Court on this appeal.12
Whether Evidence Code section 1151 excludes evidence of a manufacturer's post-accident change from aluminum 380 to malleable iron in the gear box when the action proceeds on a strict products liability theory?13
Evidence Code section 1151 excludes evidence of subsequent remedial or precautionary measures only when offered to prove negligence or culpable conduct.14 The section codifies a public policy rule developed for negligence actions.15 It does not apply to strict products liability claims because the rationale of encouraging repairs lacks force against mass-producing manufacturers who face economic and reputational pressures to improve defective products.16
No. The established facts establish that plaintiff sued under strict liability alleging a defect in the aluminum 380 gear box of the Scout vehicle that caused the 1964 accident.17 The trial court admitted evidence of defendant's 1967 change to malleable iron.18 Applying the rule to these facts shows that because the claim rests on strict liability rather than negligence or culpable conduct, the exclusionary command of section 1151 does not reach the evidence.19 The trial court properly admitted it.20
Evidence Code section 1151 does not exclude the evidence of the post-accident material change in a strict products liability action.21
Related opinions on this issue
Justice Clark dissented.22 He concluded that culpable conduct encompasses breach of the legal duty not to place a defective product into the stream of commerce.23 Therefore section 1151 applies to product liability actions.24
The danger of jury misuse of the evidence as an admission of fault remains equally acute in defect cases.25 Feasibility could have been shown by other evidence such as prior use of malleable iron by the defendant or other manufacturers.26 Thus the evidence should have been excluded after proper balancing under Evidence Code section 352.27
Whether expert testimony describing two other accidents involving aluminum 380 gear box failures in Scout vehicles is admissible to prove a defective condition?28
Evidence of other accidents is admissible to prove a defective condition provided the circumstances of those accidents are similar and not too remote.29
Yes. The established facts show that plaintiff's experts testified about two prior and subsequent accidents in which aluminum 380 gear boxes in Scout vehicles failed from metal fatigue.30 The experts compared the physical properties of those boxes with the box in the present case and concluded they were similar.31 Applying the rule to these facts demonstrates that the similarity in material and failure mode rendered the testimony admissible to establish the defective condition of the gear box.32
The expert testimony regarding other accidents was admissible to prove a defective condition.33
Whether a superseded unverified complaint from a prior trial alleging driver intoxication is admissible for impeachment or as a prior inconsistent statement?34
A superseded unverified complaint is inadmissible for impeachment or as a prior inconsistent statement when the plaintiff did not verify the pleading or see it or furnish the information on which it was based and no inconsistent testimony appears at the current trial.
No. The established facts establish that defendant sought to introduce a prior unverified complaint alleging the driver was intoxicated.35 The trial court refused admission because plaintiff had not verified the pleading or supplied the information and no inconsistent testimony was given at trial. Applying the rule to these facts confirms that the trial court correctly excluded the superseded complaint.36
The superseded unverified complaint was not admissible for impeachment or as a prior inconsistent statement.37
Whether the trial court erred in denying a motion for mistrial after hearsay testimony regarding an inspection of other Scout vehicles was read into evidence but never cured by subsequent testimony?38
When evidence is admitted on the representation that it will be connected by later testimony a party waives any hearsay objection by failing to move to strike after the connection is not made.39 A mistrial is not required unless the evidence is so prejudicial that an admonition would be ineffective.40
No. The established facts show that plaintiff read prior-trial testimony containing a hearsay reference to Beckett's inspection opinion.41 Beckett later testified without repeating the opinion.42 Defendant never moved to strike and instead moved for mistrial after resting its case.43 The single hearsay statement was not so prejudicial among eight expert witnesses that an admonition could not cure it.44 Applying the rule to these facts establishes that the trial court properly denied the mistrial motion.45
The trial court did not err in denying the motion for mistrial.46