2. Defendant and Appellant.
Plaintiff Juan Jose Salinas' leg was torn off above the knee after he fell into a screw conveyor in the
packhouse tunnel of the Lone Star Cement Plant. Defendant Westinghouse Electric Corporation
(Westinghouse) was the designer, manufacturer and supplier of the motor control center which
started and stopped the motor that drove the screw conveyor. Salinas filed suit against
Westinghouse and, after a jury trial, was awarded $800,000 in damages.
Westinghouse filed a motion for a new trial, which the trial court granted, on the grounds that a juror
committed misconduct. Salinas brings this appeal.
In addition to the motion for a new trial, Westinghouse moved for judgment notwithstanding the
verdict. The motion was denied. Westinghouse has cross-appealed from the denial of that motion
and has also appealed from the judgment entered upon the special verdict.
For reasons we will state, we reverse the trial court's order granting Westinghouse's motion for a
new trial. We affirm the judgment entered upon the special verdict and also affirm the trial court's
order denying Westinghouse's motion for judgment notwithstanding the verdict.
FACTS AND PROCEDURAL BACKGROUND
The Lone Star Cement Plant, located in Davenport, California,is a cement processing plant which was
constructed in the early 1900's. The plant crushes rock, grinds it up in the raw mills, fires it in a kiln
and then sends it to the finish mill to be re-ground. Once the cement is in dry powdered form, it
is sent to the packing house to be packed in bags. The pack house contains a tunnel, through which
the cement flows. A screw conveyor, set in a trough on the floor of the tunnel, pushes the cement
down the trough to the end of the tunnel. The screw conveyor is approximately 250 feet long and 16
inches wide.
Next to the screw conveyor are a series of storage bins covered by small vertical doors. The bins
contain various grades of cement. In order to pack a certain grade of cement, the tunnel worker lifts
the door in front of the bin containing that grade to permit the cement to flow into a "draw point" in
the trough of the screw conveyor.
Most of the draw points have a triangular chute which acts as a guard. These chutes have holes in the
center which lead directly to the screw conveyor. Thus, the finer grades of cement flow through the
hole into the screw conveyor. However, six of the storage bins contain chunks of cement which are
3. too large to flow through the triangular chute. These bins are not serviced by the triangular chutes;
rather the draw point is open to permit the chunky cement to pass into the screw conveyor.
The screw conveyor is powered by a motor which is connected to a motor control center (MCC). The
MCC is defined as a "device, or group of devices, which serves to govern, in some predetermined
manner, the electric power delivered to the apparatus to which it is connected." Westinghouse, the
manufacturer and designer of the MCC, sold the unit to the LoneStar Cement Plant in 1955.
A start-stop switch is located at the end of the tunnel. This switch is part of a control circuit that
sends an electrical impulse along a wire connected to the MCC, which is located two stories above
the pack house tunnel. Once activated, the MCC allows electrical current to flow into the motor
which turns the screw conveyor. Although the MCC has the capability to accept emergency cut-off
switches or safety lines, none were installed. Thus, the only way to cut-off the power from the
MCCwas by resorting to the stop-start switch.
On July 31, 1980, Salinas was working in the tunnel. He opened the door at the west draw point,
which did not have triangular chute to act as a guard. After the cement stopped flowing from the bin,
appellant started to draw cement from the east draw point. Suddenly a surge of cement from the
chute at the east draw point flew up and struck appellant in the chest. Salinas stumbled back into the
open west draw point, lost his balance and fell into a sitting position. His right foot fell into the
opening to the screw conveyor and although he tried to escape, the conveyor continued to turn,
ultimately tearing off his right leg above the knee. Salinas filed suit against Westinghouse alleging
causes of action for strict liability and negligence. The crux of Salinas' claim was that Westinghouse
had a duty to determine that the MCC would be used to power the screw conveyor and inform the
cement plant that the MCC was equipped with electrical devices which would permit an emergency
cut-off device or safety lines to be installed along the length of the screw conveyor.
On the third day of jury deliberations, the jury requested dictionary or a definition of the word
"apparatus." The trial judge denied this request. The jury Foreman, Richard Hart, then advised the
jury that he had previously consulted a dictionary for the definition of the term "apparatus”. Hart told
the jury his recollection of what the definition was. After approximately two more days of
deliberation, the jury returned a verdict in Salinas' favour and awarded him $800,000 in damages.
The answers to the special verdict questions rejected Salinas' strict liability cause of action but found
for Salinas on the negligence claim.
4. DISCUSSION
I. JUROR MISCONDUCT: DICTIONARY USE
Salinas argues that the trial court abused its discretion in granting Westinghouse's motion for a new
trial on the grounds of juror misconduct. We agree. "The right to unbiased and unprejudiced jurors is
an 'inseparable and inalienable part' of the right to jury trial.[Citations ommitted.] The guarantee is
the right to 12 impartial jurors. [Citations ommitted.]" (Andrews v. County Of Orange (1982) 130
Cal.App.3d 944, 953.) To insure that impartiality, "[j]urors cannot, without violation of their oath,
receive or communicate to fellow jurors information from sources outside the evidence in the case."
(Smith v. Covell (1980) 100 Cal.App.3d 947, 952; citing people v. Lessard (1962) 58 Ca1.2d 447, 454.)
As our Supreme Court recently declared, "Jurors are not allowed to obtain information from outside
sources either as to factual matters or for guidance on the law." (people v. "axis (1988) 46 Ca1.3d
612, 642.)
Juror misconduct raises a presumption of prejudice. (people v. Soneycutt (1977) 20 Ca1.3d 150, 156;
people v. Miranda (1987) 44 Ca1.3d 57, 117.) However, if the prevailing party demonstrates that the
misconduct was harmless, the verdict will not be invalidated. (Kritzer v. Citron (1950) 101
Cal.App.2d 33, 36; Smith v. Covell, supra, 100 Cal.App.3d atp. 953.) Misconduct is harmless when it is
"of such trifling nature that it could not, in the nature of things, have been prejudicial to the moving
party." (Siemsen v. Oakland. S.L.
H. Electric Ry. (1901) 134 Cal. 494, 498; See also Hasson
v. Ford Motor Co. (1982) 32 Ca1.3d 388, 415.)
In this case, juror Hart consulted a dictionary for the definition of the word "apparatus." The term
was used during trial because both parties adopted the definition of a MCC
contained
in the
5. Those standards stated that a MCC was a "device or group of devices which serves to govern in some
predetermined manner the electric power delivered to the Apparatus to which it is connected."
(Emphasis added.) Although both parties agreed to this definition, the parties did not agree on what
"apparatus" meant. Westinghouse experts/1 stated that "apparatus" meant only the motor. Salinas,
on the other hand, argued that the term "apparatus" embraced both the motor, and the equipment
which the motor powered--the screw conveyor.
During jury deliberations, the jurors sent a note to the trial judge asking for the definition of
"product" as compared to the definition of "apparatus." The trial judge denied the request. The jurors
also requested a dictionary or a definition of "apparatus." This request was also denied. Two days
later, the jurors completed their deliberations and returned a special verdict which rejected
appellant's strict
Firstly, Apparatus was variously defined by Westinghouse experts as: "the motor along with
whatever else is associated with it," "Apparatus includes a motor, certainly, but it could be a
transformer; whatever it is that the motor starter or controller starter is feeding power to," and "The
apparatus in this case is a motor."
Liability claim but found that Westinghouse was negligent. Westinghouse, upon discovering that Hart
had consulted a dictionary to define "apparatus," immediately moved for a new trial, offering the
affidavits of five jurors to support its position. The trial court granted the motion, noting that a
pivotal issue was "what did the motor controller control?" We conclude that juror misconduct
occurred when Hart consulted a dictionary for the definition of the term "apparatus." (Cf. people v.
Wail, supra, 46 Cal.3d 612, 642-643) However, we believe that the misconduct was harmless. There
are three reasons for our conclusion. First, Hart did not bring the dictionary into the jury room or
quote the definition verbatim. Moreover, the affidavits of the jurors do not agree on precisely how
Hart defined "apparatus." The affidavits are consistent in stating that Hart explained the meaning of
the term by using a car engine as an example: "He [Hart] said that an engine is an apparatus which is
made up of many components and one component of the engine is not an apparatus." Because Hart
paraphrased the definition and used an example to explain it, his statements are more easily cast as
an opinion rather than a statement of fact. (Cf. Mars v. Kelley Co. (1985) 173 Cal.App.3d 633, 659.) In
other words, the other jurors could not be certain that what Hart said was true and therefore were
less likely to give Hart's statement's much credence. Certainly this weighs in favour of finding Hart's
misconduct harmless.
Second, in people v. Harper (1986) 186 Cal.App.3d 1420, the jurors used a dictionary definition of the
word "murder" during their deliberations. On appeal, the court concluded that the trial court's
admonition to the jurors was sufficient to remove any possible prejudice. (Id. at p. 1428.) By contrast,
the term defined here, "apparatus," was not a legal term, unlike the term "murder" in Harper.
6. Moreover, although the trial court was unaware that Hart defined "apparatus" and thus did not
admonish the jury to disregard his statements, as was done in Harper, it did refuse to provide the jury
with a definition when requested to do so. This refusal suggested to the jury, at least implicitly, that
Hart's conduct was improper. Indeed, juror Richard Smith, in his affidavit, states "I told him [Hart]
that it was illegal for him to get information from the outside." The fact that the trial court refused to
provide a dictionary and other jurors knew Hart's conduct was improper suggests that Hart's
statements were less likely to effect the impartiality of the jurors.
Third, we do not think Hart's actions prejudiced the negligence cause of action, upon which liability
was based. The negligence claim focused upon the reasonableness of Westinghouse's conduct. (See
e.g. Linn v. G.D. Searle & Co.(1984) 35 Ca1.3d 691, 700.) Specifically, the issue was whether
Westinghouse had a duty to determine how the MCC would be used and, upon discovering it would
be used to power the screw conveyor, then inform the plant of the advisability of emergency cut-off
switches. Whether the "apparatus" included the motor or the motor and the screw conveyor, does
not, to us,appear pivotal in determining whether Westinghouse's conduct was reasonable. The
meaning of the term "apparatus" was more closely connected to the strict liability claim, which the
jury rejected, because the term impacted on how the product was defined.
Finally, we set out these words from Justice Mosk's concurring opinion in Ballard v. Llribe (1986) 41
Ca1.3d 564, 575, with which we fully agree: "I must express my apprehension at an incipient trend,
that of losing parties attempting to impeach jury verdicts. We see this in numerous appeals and
petitions for review based on juror affidavits. Giving such appeals and petitions any credence
prevents the finality of judgments, places additional burdens on the judicial process, and contributes
to disenchantment with the tort system."
In this case, we have a word, which is not a technical or legal term, which was only briefly defined
during trial, which was not pivotal to the negligence claim, upon which liability was ultimately based,
and which was apparently defined, in paraphrase form by juror Hart, during jury deliberations. In
these circumstances, "it appears that the fairness of the trial has been in no way affected by such
impropriety, .
(Biemsen v. Qakiand. & _Electric Ry., supra, 134 Cal.at p. 498.) we conclude that the misconduct was
harmless. (Cf. Hasson v. fiord Motor Co., supra, 32 Cal.3d at pp. 416-418.)
II. JUROR MISCONDUCT: SAFETY PRACTICES
The trial court also granted Westinghouse's motion for a new trial on the grounds that Hart
committed misconduct by telling the other jurors about the safety practices of Hart's employer, IBM.
7. As we shall explain below, we believe that these statements were also harmless. "Murors are
competent witnesses to prove objective facts to impeach a verdict under section 1150 of the
Evidence Code." (people v. Hutchinson (1969) 71 Ca1.2d 342, 351, [emphasis added].) An affidavit
which purports to prove the subjective reasoning process of a juror may not be used to impeach the
verdict. (Andrews v. County Of Orange, supra, 130 Cal.App.3d at p. 953.) Moreover, "'[i]n determining
what is proper and what is improper discussion among jurors, regard must be had for the fact that
the jury are supposedly men [and women] of different walks of life, avocations, and necessarily views
that would be affected by their past experiences and situations. They could hardly arrive at a solution
of their differences without discussion of the facts before them, and each man's discussion would
necessarily be tinged or affected by his own viewpoint and experience.'" (Wagner v. poulton
(1980) 112 Cal.App.3d 945, 950; quoting Frazer v. State (1924) 99 Tex. Crim. 89 [268 S.W. 164, 166];
See also AXers v. Kelley Co., supra, 173 Cal.App.3d at p. 659.)
We again liberally quote from Justice Mosk in his concurring opinion in Ballard v. Uribe, supra, 41
Ca1.3d 564: "A jury has also been frequently described as 'the conscience of the community.'
[Citation ommitted] . . . The very purpose of the right to trial by a jury drawn from a representative
cross-section of the community 'is to achieve an overall impartiality by allowing the interaction of the
diverse beliefs and values the jurors bring from their group experiences.' [Citation omitted.]" (Id. at p.
577.)
In this case, the juror affidavits stated that Hart informed fellow jurors of the safety practices of his
employer, IBM. Illustrative of Hart's alleged comments is this excerpt from juror Hooper's affidavit:
"[Hart] said he was an engineer from IBM, that IBM is a safety conscious company, that his job
requires him to check for safety not only in IBM's products but also hazardous defects in plugs sold by
others and that Westinghouse's conduct regarding safety should have been like IBM's."
We believe that Hart's statements regarding the safety practices of IBM were harmless. The
statements simply reflect Hart's experience as an IBM inspector, which was disclosed fully during voir
dire, and his opinion regarding the safety practices of Westinghouse. (Akers v. Kelley Co., supra, 173
Cal.App.3d at p. 659; Wagner v. Doulton, supra, 112 Cal.App.3d at p. 950.) The fact that each juror's
experiences color the juror's opinions about the case does not, in our view, constitute reversible
error.
In sum, we conclude the trial court abused its discretion in granting the motion for a new trial on the
grounds of juror misconduct./2. a Westinghouse's motion for a new trial raised several additional
grounds as a basis for upholding the new trial order. (Code Civ. Proc., S 657.) (Continued on next
page.)
8. III. WESTINGHOUSE'S CROSS-APPEAL
Westinghouse cross-appeals from the judgment entered upon the special verdict and the order
denying its motion for judgment notwithstanding the verdict. For reasons we shall state, we
affirm the trial court's order denying Westinghouse's motion for judgment notwithstanding the
verdict and also affirm the judgment entered on the special verdict. Before we address
Westinghouse's arguments, we first set out our duty as a reviewing court. "In resolving the issue of
the sufficiency of the evidence, we are bound by the established rules of appellate review that all
factual matters will be viewed most favorably to the prevailing party [Citations omitted] and in
support of the judgment. . . (Nestle v. City of Santa Monica (1972) 6 Ca1.3d 920, 925-926.)
To determine whether substantial evidence supports the judgment, we look only at the evidence
supporting the prevailing party and disregard the contrary showing. (Chodos v. Insurance Co. of
North America (1981) 126 Cal.App.3d 86, 97.) Finally, we note that jury "verdicts are entitled to a
great deal of respect from this court, particularly when they have been approved by the trial judge by
virtue of his denial of a motion for a new trial." ('layte v. Rollins International. Inc, (1985) 169
Cal.App.3d 1, 21.)
A. DUTY TO DETERMINE USE
Westinghouse contends it had no duty to ascertain the use a Because these arguments are also
raised in Westinghouse's cross-appeal, we merely note them here. of the MCC or warn about dangers
associated with that use. Specifically, Westinghouse argues that a manufacturer of a component part
does not have a duty to warn unless the manufacturer has responsibility for designing the system
into which the part was placed. For reasons we shall explain below, we conclude that this contention
is without merit. An indispensable requirement for negligence liability is a duty of care owed by the
alleged wrongdoer to the person injured. (Routh v. Quinn (1942) 20 Ca1.2d 488, 491; Richards
v. Stanley (1954) 43 Ca1.2d 60, 63.) The existence of a duty is a question of law which must be
determined on a case by case basis. (Isaacs v. Huntington Memorial hospital (1985) 38 Cal.3d 112,
124; Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1073.) The concept of duty "'is not sacrosanct in
itself, but only an expression of the sum total of those considerations of policy which lead the law to
say that the particular plaintiff is entitled to protection.'" (Dillon v. Leag (1968) 68 Ca1.2d 728, 734.)
A duty of care may arise from the nature of certain relationships. For example, a product
manufacturer owes a duty of care to all persons within the range of potential danger from his
9. product. (pike v. Frank G. Hough Co. (1970) 2 Ca1.3d 465, 473.) Similarly, a manufacturer or supplier
must warn of any dangerous propensity or dangerous condition of an article produced or sold by him
of which he knows, or should know, and which the user of the article would not ordinarily discover.
(Pedroli v. Russell (1958) 157 Cal.App.2d 281, 284; John Norton Farms. Inc. v. Todsaco (1981) 124
Cal.App.3d 149.) Six factors are used to determine a defendant's duty of due care in negligence
actions.
These are "(1) the forseeability of harm to the plaintiff; (2) the degree of certainty that plaintiff
suffered injury; (3) the closeness of connection between the defendant's act and the plaintiff's injury;
(4) the moral blame attached to defendant's conduct; (5) the policy of preventing future harm; and
(6) the extent of defendant's burden and the consequences to the community of imposing a duty and
liability." (Valdez v. J.D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 506; See also Rowland v. Christian
(1968) 69 Ca1.2d 108, 113.)
Applying these six factors to the present case convinces us that Westinghouse had a duty to
determine the use of the MCC and then inform the cement plant that the MCC had the capability to
accept emergency cut-off switches or safety lines. First, it was foreseeable that injury might result if
Westinghouse did not determine the use of the MCC and inform the plant of the advisability of cut-
off switches. The evidence demonstrates that the MCC was designed to accept cut-off switches. From
this fact, it may be inferred that Westinghouse was aware that such switches might be needed to
prevent injury when the MCC was used to power certain machinery.
Second, Salinas' injury was certain; his leg was amputated.
Third, the connection between Westinghouse's conduct and the injury was fairly close; if
Westinghouse had warned of the need for cut-off switches, the plant would have had them installed.
Fourth, Westinghouse could be found to be morally to blame. There was evidence that Westinghouse
violated industry practice and ignored its own standards in selling the MCC without determining how
it would be used.
Fifth, imposing a duty upon Westinghouse will prevent future harm in that manufacturers will be
provided with 'an incentive to insure that, in the future, they will give due consideration to the
personal safety of workers other than their own when they [sell] potentially dangerous industrial
equipment . . . ." (Valdez v. J.D. Diffenbaugh Co., supra, 51 Cal.App.3d at p. 507.) Finally, the burden
of imposing a duty upon Westinghouse is minimal. The MCC is already designed with the capability to
accept emergency cut-off switches. Had Westinghouse merely determined how the MCC would be
used, it could have informed the plant of the need for cut-off switches.
10. Westinghouse relies upon DeLeon v. Commercial Manufacturing k Supply Co. (1983) 148 Cal.App.3d
336 and Lee v. glectric Motor Division (1985) 169 Cal.App.3d 375 to argue that the maker of a
component part has no duty to warn of hazards associated with the use of the finished product or
system unless the manufacturer of the component part has a responsibility for the design of the
finished product or system. In other words, Westinghouse argues that it is liable only if it was hired to
design or redesign the screw conveyor which the MCC powered. In Lee v. glectric Motor Division,
supra, 169 Cal.App.3d 375, the plaintiff was injured when her hand was caught in a meat grinder. The
plaintiff filed suit against the manufacturer of the motor used as a component in the meat grinder.
(id. at p. 389.) Rejecting plaintiff's contention that the manufacturer was liable for not warning that
the motor did not stop immediately, the court concluded: "[T]here is nothing to indicate that the
motor in its use had unreasonably dangerous propensities not ordinarily discoverable by the user.
The uncontradicted evidence shows that all motors, even 'brake motors,' do not stop immediately.
[Footnote omitted.]
There is no danger in the motor which would not have been obvious to a person of ordinary
intelligence." (Id. at p. 388.) The situation in the present case is markedly different from that in Lee.
In Lee, the issue was whether the manufacturer had a duty to warn that the motor did not stop
immedately. Here, the problem was not that the screw conveyor did not stop quickly enough, but
that there was no way for appellant to stop it, despite the fact that the MCC was designed to accept
emergency cut-off switches or safety lines. In addition, the screw conveyor could not be stopped
because, unlike the situation in Lee, the MCC and start-stop switch were not readily accessible.
In DeLeon v. Commercial Manufacturing Supply Co. (1983) 148 Cal.App.3d 336, the issue was: "[I]s
custom-made factory equipment which is safe to use in some locations 'defective' because in a
particular location its use may bring the operator in contact with an adjacent rotating line shaft built
and maintained by the plant owners?" (1 at p. 340.) The trial court had granted summary judgment in
favor of the manufacturer. The appellate court reversed, concluding that: "[W]e do not have a clear-
cut legal question of component part liability, but instead find a factual issue of involvement in
design which will permit variations in the applicable rules of law depending upon how the trier of fact
determines the extent of [the manufacturer's] design responsibility." (Id. at p. 343.)
We do not think the facts here fit neatly into Westinghouse's component part/system design theory.
The issue here, like the issue in DeLeon v. Commercial Manufacturing k Supply Co., supra, 148
Cal.App.3d 336, is not a clear-cut question of component part liability. Rather this case presented the
jury with factual issues regarding the reasonableness of Westinghouse's conduct in selling the MCC,
which was designed to accept cut-off switches, without determining that it would be used to power a
screw conveyor where such switches would be needed. In sum, we conclude that Wesinghouse had a
duty to determine the use of the MCC and inform the cement plant of the advisability of emergency
cut-off switches.
11. B. CAUSATION
Westinghouse contends that there was no evidence that Westinghouse's negligence was the cause of
Salinas' injury. We conclude that this argument is without merit. Proximate cause is generally held to
be a question of fact for the jury. (6 Witkin Torts; Summary of Cal. Law S 967, p. 356; pennessfty v.
pac. Gas & Elec. Co. (1942) 20 Cal.2d 141, 145; Biabee v. pacific Tel. & Tel. Co. (1983) 34 Ca1.3d 49,
56.) In Arthur v. Avon Inflatables Ltd. (1984) 156 Cal.App.3d 401, the court stressed that "the issue of
proximate cause on conflicting evidence is within the province of the factfinder." (M. at p. 408, fn. 7.)
Moreover, "[a] plaintiff may show that it is reasonably probable to infer that defendant's negligent
act proximately caused his injury by circumstantial and direct evidence . . . ." (Valdez v. J.D.
Diffenbaugh Company, supra, 51 Cal.App.3d at p. 509.) In this case, there was evidence that
Westinghouse's failure to determine how the MCC would be used and then warn that cut-off
switches were needed caused Salinas' injury. Arthur Rochelle, who worked for Lone Star, testified
that Lone Star would have installed emergency cut-off devices if Westinghouse had warned
that they should be used. Salinas' expert, Louis Barbee, testified that the absence of an emergency
cut-off device was a "substantial factor" in causing Salinas' injury. There was evidence that the MCC
and conditions in the tunnel were not altered from the time the MCC was sold in 1955 to the time of
Salinas' accident in 1980. There was also evidence that until the accident, no one at the plant realized
the absence of an emergency cord in the tunnel constituted a hazard. Finally, it was disclosed that
Lone Star installed an emergency pull cord, after Salinas' accident, which deactivated the screw
conveyor.
C. IRRECONCIABLE ANSWERS TO SPECIAL VERDICT
Respondent contends that the special verdict is contradictory and irreconcilable.
We address this issue below.
"Question #1: Was there a defect in the motor control center?
Answer "yes" or "no": YES
If your answer to Question No. 1 is "yes", then go to the next question. If your answer
is "no", then go to question No. 5.
Question No. 2: Did the defect exist at the time the Motor Control Centre left the possession
of the defendant?
Answer "yes" or "no": YES
12. If your answer is "yes", then go to question No. 3. If your answer is "no", then go to
question No. 5.
Question No. 3: Was this defect a legal cause of injury to the plaintiff?
Answer "yes" or "no": YES
If your answer is "yes", then go to the next question.If your answer is "no", then go to
question No. 5.
Question No. 4: Did plaintiff's injury result from a use of the Motor Control Center that was
reasonably forseeable by defendant?
Answer "yes" or "no": __HQ__
Now go to Question No. 5.
Question No. 5: Was the defendant WESTINGHOUSE ELECTRIC CORPORATION negligent?
Answer "yes" or "no": YES
If your answer is "yes", then go to question No. 6. If your answer is "no", and if you
also answered "no" to question No. 1, or "no" to any of the questions No. 2, No. 3, and
No. 4, then sign and return this verdict. If your answer to question No. 5 is "no" and
your answer to question No. 4 is "yes",then go to question No. 7.
Question No. 6: Was the defendant's negligence a legal cause of JUAN Salinas' injury?
Answer "yes" or "no": YES
If your answer is "yes", then go to question No. 7. If your answer is "no" and you also
answered "no" to Question No. 1 or "no" to any of Questions No. 2, No. 3, and No. 4,
then sign and return this verdict. If your answer to Question No. 6 is "no" and your
answer to question No. 4 is "yes", then go to question No. 7.
Question No. 7: Without taking into consideration the reduction of damages due to
comparativce fault, if any, of JUAN SALINAS, what is the total amount of damages suffered by
JUAN SALINAS legally caused by the accident?
Answer: 1800.000.00
Question No. 4 of the special verdict stated: "Did plaintiff's injury result from a use of
the motor control center that was reasonably forseeable by defendant?" This question,
13. which referenced appellant's strict liability claim, was answered "no" by the jury.
However, the jury answered "yes" toQuestions No. 5 and No. 6, which referenced
appellant's negligence cause of action. Specifically, Question No. 5, which stated "Was
the defendant WESTINGHOUSE ELECTRIC CORPORATION negligent?" was answered
"yes." Question No. 6, which stated "Was the defendant's negligence a legal cause of
JUAN Salinas' injury?" was also answered "yes" by the jurors. Relying upon these
answers, Westinghouse argues that it cannot be negligent if the the use of the MCC
was not reasonably foreseeable. It is settled that objection to the form of special
interrogatories must be made when the questions are submitted to the jury. (Napa
Val. Pkkg. Co. v. S.F. etc. Funds (1911) 16 Cal.App. 461, 469; Cembrook v. sterling Drug
Inc. (1964) 231 Cal.App.2d 52, 63; Olson v. Arnett (1980) 113 Cal.App.3d 59,
66.) "The applicable rule is that in the absence of an objection to the form of the request for special
findings of fact at the time of submission of the questions to the jury, it will be presumed that there
was an assent to the questions as presented . . . .0 (Cembrook v. sterling Drug Inc., supra, 231
Cal.App.2d at p. 63.) "Where no exceptions to the phraseology of questions in a special verdict are
reserved, such exceptions cannot be considered on appeal. [Citations omitted.)" (Napa
Val. Pkg. Co. v. 5.F. etc. Funds, supra, 16 Cal.App. at p. 469-470.) Here, Westinghouse did not object
to the questions presented to the jury even though the questions clearly permitted the jury to find
the use of the product unforseeable and also find that Westinghouse was negligent. The questions
allowed the jury to answer Question No. 4 "no" but still find negligence under Questions No. 5 and 6.
The verdict form did state that if the jury answered "no" to question No. 5, but answered "yes" to
Question No. 4, then the jury should move to Question No. 7. However, it did not state the converse:
that the jury should sign and return the verdict if it answered "no" to Question No. 4 but answered
"yes" to question No. 5. Westinghouse did not object to the form of these questions. Had
Westinghouse objected, perhaps the questions would have been clarified or altered. (Bank of Santa
Ana v. Molina (1969) 1 Cal.App.3d 607, 624.) However, because no objection was lodged we conclude
that the issue is waived.
Even if the issue was not waived, we think the jury's findings can be reconciled. (Cf. Hasson v. Ford
Motor Co. (1977) 19 Ca1.3d 530, 544.) The jury could decide it was forseeable that someone would
be injured if Westinghouse did not determine the use of the MCC and inform the plant that it could
accept emergency cut-off switches when used to power hazardous equipment. Thus, although
Westinghouse did not forsee the exact use of the MCC to power the screw conveyor, it was
nonetheless negligent in not determining that use and then not disclosing an existing capability of its
product.
14. D. IMPROPER INSTRUCTION
Westinghouse contends that it was improper to instruct the jury on willful suppression of the
evidence./4 We conclude that this contention is without merit. Salinas' expert, Louis Barbee, testified
that he telephoned Edward Roland at Westinghouse, gave Roland the serial number of the MCC at
the cement plant and asked if Roland had the file. Roland checked, returned to the telephone and
told Barbee: "I got the file." Roland also told Barbee that the plans for the MCC were probably at
Westinghouse's offices in Pennsylvania and that they were the type of plans "you don't destroy."
When Roland asked Barbee why Barbee was asking about the MCC, Barbee told Roland about Salinas'
accident.
Roland then refused to provide any additional information. When Salinas later asked Westinghouse
for its records, during discovery, Westinghouse stated that it did not have any records. At trial,
Barbee opined: "I am convinced here in this courtroom that Mr. Roland shredded all the
information so we wouldn't get it . . . . 0 From this evidence it could reasonably be concluded that
Westinghouse willfully suppressed evidence. (Sprague v. /4 The jury was instructed: "If you should
find that a party willfully suppressed evidence in order to prevent its being presented at trial, you
may consider such suppression in determining what inferences to draw from the evidence or
facts in the case against that party. In determining what inferences to draw from the evidence or
facts in the case against a party, you may consider, among other things, the party's failure to explain
or to deny such evidence or acts."
Equifax. Inc. (1985) 166 Cal.App.3d 1012, 1051.) Moreover,u[t]he instruction itself left to the jury the
question of whether [Westinghouse] had in fact intentionally suppressed material evidence." (West
v. Johnson & Johnson Products. Inc. (1985) 174 Cal.App.3d 831, 874.) We conclude that the giving of
this instruction was not error.
E. EXCLUSION OF EXPERT TESTIMONY
Westinghouse argues that the trial court erred because its expert, Kenneth Kannegaard, was
prevented from giving certain testimony. Kaanegaard, a Safety Training Instructor at Lone Star,
testified that the screw conveyor was not the type of system that could utilize a "stop device" and
also testified that an emergency pull-cord would not be "a solution to the problem that involved
[appellant's] accident." Westinghouse's counsel then asked Kaanegaard why a pull-cord
should not be placed in the pack house tunnel. Salinas objected on the grounds that the answer
called for inadmissible opinion testimony. The court sustained the objection. Whether a witness is
15. qualified to express an opinion is a matter largely within the discretion of the trial court. (people v.
Willis (1939) 30 Cal.App.2d 419, 423.) That discretion will not be reviewed unless it is clear that the
court's ruling worked injury. (Burke v. City & County of San Francisco (1952) 111 Cal.App.2d 314,
320.) In this case, Kaanegaard was not a safety engineer and was therefore not qualified to render an
expert opinion regarding the feasibility of a pull-cord. (Cf. Linn v. g.D. _Searle & Co. (1984) 35 Ca1.3d
691, 703-704.) The trial court did not abuse its discretion in excluding this testimony.
F. EXCLUSION OF EVIDENCE REGARDING INDUSTRY STANDARDS
Westinghouse contends that the trial court erred when it refused to permit Westinghouse experts to
testify about certain electrical engineering industry standards. The trial court has broad discretion in
admitting or excluding evidence. (Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952,
961.) To justify reversal based upon exclusion of evidence, Westinghouse must show that "a different
result would have occurred had asserted error not been made." (Ibid.) Westinghouse has failed to
argue, much less demonstrate, that a different result would have been reached had this testimony
been permitted. Accordingly, we conclude that no error occurred. (Sprague v. Equifax. Inc.,
supra, 166 Cal.App.3d at p. 1050; Troensegaard v. Silvercrest Industries. Inc. (1985) 175 Cal.App.3d
218, 228.)
G. INSTRUCTION ON DUTY TO WARN
Westinghouse next argues, in a one sentence statement, that the trial court erred by failing to
instruct the jury that "the supplier of a product has a duty to warn only of those hazards not known
or readily observable by the user of the product." Other than this bald assertion, Westinghouse
provides no argument to back up its claim. We therefore reject it. (Utz v. Aureguy (1952) 109
Cal.App.2d 803, 807; Woodcock v. The. Petrol Corp. (1941) 48 Cal.App.2d 652, 657.)
G. INSUFFICIENCY OF THE EVIDENCE
Westinghouse's final contention is that the evidence was insufficient to establish that it was
negligent. Westinghouse reiterates its previous arguments regarding its duty of care
and the evidence establishing causation. As we have previously discussed those issues, we need not
repeat them here.
16. IV. CONCLUSION
The trial court's order granting Westinghouse's motion for a new trial is reversed. The judgment
entered on the special verdict is affirmed as is the trial court's order denying Westinghouse's motion
for judgment notwithstanding the verdict. Salinas to recover costs on the appeal and cross-appeal.
