CACI 1248 Affirmative Defense—Inherently Unsafe Consumer Product (Civ. Code, § 1714.45)
California Civil Jury Instructions CACI
1248 Affirmative Defense—Inherently Unsafe Consumer Product (Civ. Code, § 1714.45)
[Name of defendant] claims that it is not responsible for [name of plaintiff]’s claimed harm because [specify product] is an inherently unsafe consumer product. To succeed on this defense, [name of defendant] must prove all of the following:
1.That [product] is a common consumer product intended for personal consumption; and
2.That [product] is inherently unsafe;
3.But [product] is no more dangerous than what an ordinary consumer of the product with knowledge common to the community would expect.
Directions for Use
This instruction sets forth an immunity defense to product liability for a product that is clearly recognizable as inherently dangerous. (See Civ. Code, § 1714.45(a).) The statute requires that the product be “a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts.” (Civ. Code, § 1714.45(a)(2).) This reference is perhaps somewhat confusing because the Restatement comment makes it clear that sugar, castor oil, alcohol, and butter are not unreasonably dangerous. The implication from the statutory references is that although they are not unreasonably dangerous, they are inherently unsafe and thus within the protection provided to the manufacturer by the statute.
Sources and Authority
•Nonliability for Inherently Unsafe Consumer Product. Civil Code section 1714.45.
•Comment i to Section 402A of the Restatement (Second) of Torts provides: “Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.”
•“Additional limitations on the scope of the immunity may be deduced from the history and purpose of the Immunity Statute … .The statute’s express premise … was ‘that suppliers of certain products which are “inherently unsafe,” but which the public wishes to have available despite awareness of their dangers, should not be responsible in tort for resulting harm to those who voluntarily consumed the products despite such knowledge.’ … [T]he Immunity Statute [is] based on the principle that ‘if a product is pure and unadulterated, its inherent or unavoidable danger, commonly known to the community which consumes it anyway, does not expose the seller to liability for resulting harm to a voluntary user.’ ” (Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 862 [123 Cal.Rptr.2d 61, 50 P.3d 769], internal citations omitted.)
•“The law should not ignore interactive effects that might render a product more dangerous than is contemplated by the ordinary consumer who purchases it and possesses the ordinary knowledge common to the community as to the product’s characteristics. Therefore, when a court addresses whether a multi-ingredient product is a common consumer product for purposes of Civil Code section 1714.45 and the ingredients have an interactive effect, the product and its inherent dangers must be considered as a whole so that the interactive effects of its ingredients are not overlooked or trivialized.” (Fiorini v. City Brewing Co., LLC (2014) 231 Cal.App.4th 306, 325 [179 Cal.Rptr.3d 827].)
•“The foregoing inferences preclude us from finding, as a matter of law, that [product] was a common consumer product for purposes of Civil Code section 1714.45, subdivision (a). As a result, that factual question should be presented to the trier of fact.” (Fiorini, supra, 231 Cal.App.4th at p. 326, footnote omitted.)