276 Cal. App. 2d 680, 81 Cal. Rptr. 519 (1969)
On March 30, 1966, the plaintiff purchased a pair of shoes at a retail store owned and operated by defendant Akron.1 The shoes had been imported and distributed to Akron by defendant Victor B. Handal & Bros., Inc.2 The shoes were defective in manufacture and design.3 They had a low co-efficient of friction on vinyl and other floor coverings commonly used in this area and were slippery and unsafe when worn on such floor coverings.4 The plaintiff was unaware of the defect.5 In wearing the shoes on the same day she purchased them, she stepped on the vinyl floor of her kitchen, slipped, fell and sustained severe personal injuries.6
The plaintiff had frequently read Good Housekeeping Magazine published by defendant Hearst Corporation. She believed the products bearing the seal had been examined, tested and inspected by defendant and were good and safe for the use intended.7 Prior to purchasing the shoes she had seen an advertisement of them, either in Good Housekeeping Magazine or in a newspaper ad placed by defendant Handal which incorporated the contents of the Good Housekeeping indorsement.8 The Good Housekeeping seal was affixed to the shoes and the container for the shoes with Hearst’s consent.9 Hearst was paid for the advertising of the shoes which appeared in its magazine and for the use of its seal.10 The plaintiff relied upon respondent’s representation and seal and purchased the shoes because of them.11
Hearst made no examination, test or investigation of the shoes, or a sample thereof.12 If such tests were made they were done in a careless and negligent manner.13 Hearst’s issuance of its seal and certification as to the shoes was not warranted by the information it possessed.14
The complaint is in eight causes of action, only four of which involve respondent Hearst Corporation, (second, third, seventh and eighth).15 The trial court sustained Hearst’s general demurrer to each of these causes of action without leave to amend and entered its judgment of dismissal.16 The appeal is from that judgment.17 The two other named defendants, Akron and Victor B. Handal & Bros., Inc., have answered the complaint and are not parties to the appeal.18
Whether a magazine publisher that endorses consumer products with its seal for economic gain may be held liable to a purchaser injured by a defective product who relied on the endorsement?19
A publisher who endorses a product for economic gain by issuing a seal and certification may be subject to liability for negligent misrepresentation if it fails to exercise ordinary care in examining the product, as public policy imposes a duty when the endorser voluntarily involves itself in the marketing process and induces consumer reliance, determined by balancing factors including the extent to which the transaction was intended to affect the plaintiff, foreseeability of harm, and the policy of preventing future harm.20
Yes. Hearst Corporation published Good Housekeeping Magazine and issued its Consumers’ Guaranty Seal for the shoes in exchange for payment, permitting the seal to be affixed to the shoes and used in advertisements.21 The plaintiff relied on the seal believing the shoes had been examined and tested.22 She purchased them on March 30, 1966.23 She was injured when she slipped on her kitchen vinyl floor due to the shoes' defective low coefficient of friction.24 Hearst made no examination or did so negligently.25
This satisfies the duty arising from the voluntary assumption of a relationship with the consuming public under the Biakanja factors.26
A magazine publisher that endorses consumer products with its seal for economic gain may be held liable to a purchaser injured by a defective product who relied on the endorsement.27
Whether the plaintiff stated a cause of action against the endorser for negligent misrepresentation?28
Yes. The second and eighth causes of action alleged that Hearst extended its certification and permitted use of its seal without test, inspection or examination of the shoes or a sample, or if tested did so carelessly, which did not reveal the dangerous defective condition.31 The plaintiff relied on the representation and purchased the shoes because of the seal.32 She then suffered severe personal injuries from slipping.33
This states a claim for negligent misrepresentation under the duty of ordinary care.34
The plaintiff stated a cause of action against the endorser for negligent misrepresentation.35
Whether the plaintiff may recover against the endorser on the basis of express or implied warranty?36
No. The seventh cause of action sought recovery on express or implied warranty.39 Hearst was not the manufacturer, distributor or retailer of the shoes.40 Hearst made no representation that it examined or tested the particular pair involved, only that samples were satisfactory at most.41 Extending warranty would subject the endorser to liability even if the general design was good but the particular pair became defective through a manufacturing mishap.42
The plaintiff may not recover against the endorser on the basis of express or implied warranty.43
Whether the plaintiff stated a cause of action against the endorser for conspiracy to sell the shoes through false representations?44
No. The third cause of action attempted to allege a civil conspiracy between Hearst and the other defendants to market and sell the shoes under false representations.47 The plaintiff did not attempt in her brief to urge its validity or explain why the general demurrer to it should not have been sustained.48 The court therefore deemed the assignment waived or abandoned.49
The plaintiff did not state a cause of action against the endorser for conspiracy to sell the shoes through false representations that was preserved for appeal.50