14 Cal.3d at pp. 115-116, 120 Cal.Rptr. 681, 534 P.2d 377.
Louise Hauter purchased the Golfing Gizmo from defendants' catalogue in 1966 as a Christmas present for her 13 1/2-year-old son Fred.1
Defendants Rudy C. Zogarts doing business as House of Zog and Miles Kimball Company manufactured and sold the device.2 The Gizmo consisted of two metal pegs, an elastic cord, a cotton cord measuring 21 feet, and a regulation golf ball. The label on the shipping carton and the cover of the instruction booklet stated that the ball was completely safe and would not hit the player.3
On July 14, 1967, Fred Hauter was seriously injured while using the Gizmo in his front yard.4 Fred had practiced golf 10 to 20 times at driving ranges and had played several rounds of golf prior to the accident.5 Fred set up the Gizmo according to the printed instructions in an area free of objects and other persons nearby.6 Fred took his normal swing with a seven-iron and the last thing he remembered was extreme pain and dizziness.7 After a period of unconsciousness Fred staggered into the house and told his mother that he had been hit on the head by the ball.8 Fred suffered brain damage and is currently an epileptic.9
Safety engineer George Peters testified that Fred had hit underneath the ball and caught the cord with his golf club producing a bolo effect that struck him on the left temple.10 Peters concluded that the Gizmo is a major hazard.11 Professional golfer Ray Catan testified that even if the club had hit the lower part of the ball the same result probably would have occurred.12 Catan personally tested the Gizmo by intentionally hitting low shots and found that his club became entangled in the cord bringing the ball back toward him.13 Catan stated that a beginner's swing usually is very erratic and he rarely hits the ball solidly.14
Defendants did not dispute plaintiffs' version of the accident.15 Following a unanimous jury verdict for defendants on each cause of action the trial court granted plaintiffs' motion for judgment notwithstanding the verdict.16 Defendants appealed from the order granting judgment notwithstanding the verdict.17
Whether defendants' assertion that the Golfing Gizmo is completely safe constitutes a misrepresentation of material fact upon which plaintiffs justifiably relied?18
Section 402B of the Restatement Second of Torts imposes liability on one engaged in the business of selling chattels who makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him for physical harm to a consumer caused by justifiable reliance upon the misrepresentation, even though the misrepresentation is not made fraudulently or negligently and the consumer has not bought the chattel from the seller.19
Yes. Defendants' statement on the shipping carton and instruction booklet that the ball is completely safe and will not hit the player constitutes a representation of material fact because it factually describes an important characteristic of the Golfing Gizmo rather than a subjective opinion about its merits. Louise Hauter purchased the device from the catalogue and Fred Hauter read the printed instructions and was impressed with the safety of the item, establishing justifiable reliance on the statement.20 The accident occurred when Fred, using the Gizmo as instructed in his front yard free of obstacles and other persons nearby, swung his seven-iron and was struck on the head by the ball after it looped over the club, demonstrating that the representation was false.21
The danger of the ball wrapping around the club and striking the player on the follow-through is a risk created by the product itself and not one inherent in the game of golf, making plaintiffs' reliance reasonable under the circumstances.22
Plaintiffs established all elements of the cause of action for misrepresentation as a matter of law.23
Whether defendants breached their express warranty and the implied warranty of merchantability?24
Under California Uniform Commercial Code section 2313, express warranties are created by 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; under section 2314 an implied warranty of merchantability arises by operation of law requiring that the goods conform to the promises or affirmations of fact made on the container or label and be fit for the ordinary purposes for which such goods are used; and under section 2316 disclaimers or modifications must be clear and conspicuous to be effective.25
Yes. Defendants' statement that the ball was completely safe and would not hit the player became part of the basis of the bargain because Fred Hauter read and relied upon the representation regarding safety and defendants presented no evidence to remove the assurance from the basis of the bargain.26 The Gizmo does not conform to that affirmation because it failed to prevent the ball from hitting the player when used as directed by a beginner.27 The product is not fit for the ordinary purposes for which it is used because it is marketed to duffers whose erratic swings frequently cause the club to entangle the cord, and the safety expert testified that the Gizmo is a major hazard while the golf professional confirmed that beginners rarely hit the ball solidly.28
Defendants failed to limit their warranties with any clear language as required by the code, rendering any attempted limitation ineffective.29
Defendants breached both their express warranty and the implied warranty of merchantability.30
Related opinions on this issue
Justice Clark concurred with the majority that the record establishes breach of express warranty as a matter of law requiring affirmance of the judgment and disposing of the appeal. However, beyond this first issue, the majority's discussion is both unnecessary and unpersuasive.31
Whether the Golfing Gizmo was defectively designed?32
Under the doctrine of strict liability in tort, a manufacturer is liable for injuries proximately caused by a product that is defective in design, and plaintiffs need only prove that the product is defective without showing that the user was unaware of the defect.33
Yes. The Golfing Gizmo is defectively designed because a person using the device under normal conditions is likely to injure himself by entangling his club in the cord attached to the ball, a significant danger not inherent in the game of golf.34 The evidence shows that the risk of harm built into the Gizmo is greatest when the product is being used by its intended user, a player of limited ability, as demonstrated by the safety engineer's conclusion that the Gizmo is a major hazard and the professional golfer's testimony that even low shots cause the club to become entangled in the cord.35 Defendants introduced no evidence to rebut this showing that the defect was the proximate cause of Fred Hauter's injuries.36
The Golfing Gizmo was defectively designed as a matter of law.37