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Joint and Several Liability
  • 1 Summers v. Tice--"The Simultaneously Negligent Shooters"

    If several defendants act negligently and one among them must have caused the harm, but the plaintiff is unable to prove which defendant did so, should courts hold the defendants liable?

    1
    33 Cal.2d 80 (1948)
    2
    CHARLES A. SUMMERS, Respondent,
    v.
    HAROLD W. TICE et al., Appellants.
    3
    L. A. Nos. 20650, 20651.
    4

    Supreme Court of California.

    5
    Nov. 17, 1948.
    6

    Gale & Purciel, Joseph D. Taylor and Wm. A. Wittman for Appellants.

    7

    Werner O. Graf for Respondent.

    8
    CARTER, J.
    9

    Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated.

    10

    Plaintiff's action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff's direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as [83] the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent.

    11

    First, on the subject of negligence, defendant Simonson contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. (See, Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A.N.S. 134].)

    12

    Defendant Tice states in his opening brief, "we have decided not to argue the insufficiency of negligence on the part of defendant Tice." It is true he states in his answer to plaintiff's petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject.

    13

    Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. It is true that plaintiff suggested that they all "stay in line," presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff's position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826]; Rudd v. Byrnes, supra.) None of the cases cited by Simonson are in point.

    14

    The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries--the shooting by Tice or that by Simonson. Tice argues that there is [84] evidence to show that the shot which struck plaintiff came from Simonson's gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff's allegation in his complaint that he did not know which one was at fault--did not find which defendant was guilty of the negligence which caused the injuries to plaintiff.

    15

    Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and "That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused to and did lodge in plaintiff's upper lip." In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injury--or that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff's eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only.

    16

    It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. (Moore v. Foster, 182 Miss. 15 [180 So. 73]; Oliver v. Miles, 144 Miss. 852 [110 So. 666; 50 A.L.R. 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. 1120, 114 Am.St.Rep. 675].) The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to a third person (Saisa v. Lilja, 76 F.2d 380). These cases speak of the action of defendants as being in concert as the ground [85] of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated: "We think that ... each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." [Emphasis added.] (P. 668 [110 So.].) It is said in the Restatement: "For harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." (Rest., Torts, 876(b) (c).) Under subsection (b) the example is given: "A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B's bullet strikes C, a traveler on the road. A is liable to C." (Rest., Torts, 876 (b), com., illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: "If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be held by the jury to be a substantial factor in bringing it about." (Rest., Torts, 432.) Dean Wigmore has this to say: "When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. (b) ... The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how [86] much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. ..." (Wigmore, Select Cases on the Law of Torts, 153.) Similarly Professor Carpenter has said: "[Suppose] the case where A and B independently shoot at C and but one bullet touches C's body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff ... where the injury occurs as the result of one where more than one independent force is operating, and it is impossible to determine that the force set in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause." (20 Cal.L.Rev. 406.)

    17

    When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers--both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) There the court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to [87] defendants to explain the cause of the injury. It was there said: "If the doctrine is to continue to serve a useful purpose, we should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' " (P. 490.) Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury.

    18

    The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. There was an entire lack of such connection in the Hernandez case and there were not several negligent defendants, one of whom must have caused the injury.

    19

    Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. (See, Mosley v. Arden Farms Co., 26 Cal. 2d 213 [157 P.2d 372, 158 A.L.R. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 366 [274 P. 544]; 2 Cal.Jur. 10-Yr. Supp. Automobiles, 349; 19 Cal.Jur. 570-572.)

    20

    Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; [88] City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].) In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tort feasors, and hence the last-cited cases are distinguishable inasmuch as they involve independent tort feasors.

    21

    In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can--relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.)

    22

    It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the case under either theory. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.

    23

    The judgment is affirmed.

    24

    Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

  • 2 Garcia v. Joseph Vince Co.--"Two Manufacturers, One Sabre"

    When the wrongful act must have been committed by one defendant in a group of defendants, but there is no evidence proving that all members of the group acted negligently, should courts refuse to hold the group liable?

    1
    148 Cal.Rptr. 843
    2
    84 Cal.App.3d 868
    3
    Jose Domingo GARCIA, Plaintiff and Appellant,
    v.
    JOSEPH VINCE COMPANY, Junice T. Mori, and American Fencers Supply Co., Defendants and Respondents.
    4
    Civ. 51614.
    5
    Court of Appeal, Second District, Division 2, California.
    6
    Sept. 15, 1978.
    Hearing Denied Nov. 9, 1978.
    7

    [84 Cal.App.3d 871] [148 Cal.Rptr. 845] Floyd H. King, Long Beach, and Richard E. Ashbran, for plaintiff and appellant.

    8

    Buck, Molony, Nimmo & Ammirato, by Mark D. Rutter, Long Beach, for defendants and respondents Joseph Vince Company and Junice T. Mori.

    9

    Haight, Dickson, Brown, Bonesteel & Rigg, by Elliott D. Olson and Roy G. Weatherup, Los Angeles, for defendant and respondent American Fencers Supply Co.

    10
    BEACH, Associate Justice.
    11

    NATURE OF APPEAL:

    12

    Plaintiff appeals from judgment of non-suit in a personal injury action. Appellant's eye was injured when an opponent's sabre broke through a fencing mask worn by appellant during a fencing bout. He sued American Fencer Supply (American) as the alleged manufacturer of the sabre and Joseph Vince Co. and Junice T. Mori (Vince) as the manufacturer-supplier of the mask. The causes of action are founded upon products liability.

    13
    [84 CAL.APP.3D 872] FACTS:
    14

    The general facts are as follows: Appellant was participating in a fencing meet as a member of his college team. His opponent (Croddy) was using a sabre that was purchased either from American or Vince. During this and other meets, some of the team members including Croddy would sometimes use their own blades and sometimes use those of the school. Both Croddy and the school had purchased blades from both Vince and American. Immediately after the accident the blade used was examined by the coach of each team. One coach found the tip to be much thinner than a proper fencing regulation tip. The other coach found that it complied with the regulations then in effect. After the accident the blades were all placed back in the team bag of Croddy's school. The identity of the particular blade in question was thereby lost. It was not produced at trial, apparently being lost or mixed up with the others in the shuffle.

    15

    The face mask worn by appellant was produced at trial. It was tested and photographed and the test results and photographs were also produced. It had been purchased from Vince about one month before the accident. Judgment of non-suit was granted in favor of both defendants, the alleged blade manufacturer American and the admitted mask manufacturer-supplier Vince. Other significant specific facts will be related in appropriate parts of the discussion below.

    16
    ISSUES:
    17

    There is a significant difference between the case against the alleged blade manufacturer, American, and the case against the mask manufacturer, Vince. Each presents a different issue. They are (1) as to American: where a plaintiff's evidence establishes that one, but not both, of two defendants produced a defective product, but the evidence does not disclose which one, is that sufficient evidence to permit a jury to determine liability of either defendant? And (2) as to Vince: does evidence of an injury, received while engaged in an inherently dangerous sporting event which protective equipment was intended to guard against, establish a prima facie case of strict liability for improper design against the manufacturer of the equipment?

    18
    [84 CAL.APP.3D 873] OUR HOLDING:
    19

    We answer "no" to both questions, and we affirm the judgments as to both defendants.

    20
    DISCUSSION:
    21
    A
    22
    THE BLADE
    23
    1. The general rule on non-suits.
    24

    A non-suit may be granted only where, disregarding conflicting evidence on [148 Cal.Rptr. 846] behalf of defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. (Meyer v. Blackman, 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 381 P.2d 916; Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 646, 55 Cal.Rptr. 94.)

    25
    2. Defectiveness of the blade.
    26

    One witness who saw the actual blade at the time of the accident testified that the blade was narrower than regulations then permitted. Presumably this would then support an inference that the blade was sharp enough to pierce the mask.[1] For the purposes of our discussion here we may accept that testimony as sufficient to establish substantial evidence to permit a jury to find liability for a defective product against the manufacturer. A blade so improperly thin and sharp that it could pierce the protective mask could be found to be a defective product under the rules of fencing. It is not the type of weapon intended to be used or expected to be encountered during a fencing contest.

    27
    3. Identity of the maker or supplier.
    28

    Irrespective of proving the defectiveness of the blade causing the injury to him, appellant further established only that the blade was made [84 Cal.App.3d 874] and supplied by either (a) American or by (b) Vince, not by both; but which one of the two was unknown. There was no evidence that the blade was in fact known to have been manufactured by American or to have been manufactured by Vince. Croddy the user could not recall whether at the time he used his own or a school blade, and both he and school purchased from both defendants. Croddy's coach was also unable to say from which source the blade came. This is insufficient evidence to permit the issue of liability to be presented to a jury. The jury on the basis of such evidence would be purely speculating as to who should be liable. There was not contradictory or conflicting evidence to be resolved that either defendant manufactured or produced the blade. The evidence was evenly divided as to who possibly could have been the supplier of the blade.

    29

    Thus, appellant failed to clear the first hurdle in establishing respondent American's liability for any defect in the subject sabre. He did not sufficiently identify the sabre as being a product of American.

    30

    In an annotation in 51 A.L.R.3d 1344, 1349, on product liability the applicable rule is stated as follows:

    31

    "Regardless of the theory which liability is predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product . . . ." (Footnotes omitted.)

    32

    No California cases have specifically considered this single issue but agreement with the above rule of law is implied in the holding of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, that a manufacturer is liable when He places a defective product in the hands of a consumer. Here, the sabre could have originated with either of two different sources of supply. This evidence is not sufficient to link American with Mr. Croddy's sabre by anything more than a chain of conjecture.

    33

    Appellant argues that when the evidence is equally balanced as to who supplied the alleged defective product, under the rule of Summers v. Tice,33 Cal.2d 80, 199 P.2d 1, the burden of proof should shift to respondent to establish who sold the product. [148 Cal.Rptr. 847] This argument has no merit. In Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, the plaintiff established that both defendants had acted negligently by shooting in his direction and thus both violated a legal duty to him. The burden of proof then shifted to the defendants to prove which one's birdshot caused the injury. [84 Cal.App.3d 875] Here, the appellant has not shown that either respondent has violated a duty to him (i. e., produced the defective product) and seeks wrongly to place on them the burden of proving his case which he himself has found too heavy to bear.

    34

    In the case of Wetzel v. Eaton Corporation (D.C.Minn.1973) 62 F.R.D. 22, the plaintiff was injured as the result of an accident caused by a faulty tractor part. The part was supplied to the tractor manufacturer by one of two component manufacturers. After the tractor was repaired, the adapter was either discarded or destroyed and so it was unavailable for inspection. Inspection was the only means by which the manufacturer of the part could be identified. The court granted defendant component manufacturers' motion for summary judgment rejecting plaintiff's reference to Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, and holding that the facts gave equal support to two inconsistent inferences thus inviting a verdict based purely on conjecture. We find that Wetzel v. Eaton Corporation, supra, correctly states the appropriate rule applicable to the case at bench. (See also Miller v. Schlitz Brewing Co., 142 Cal.App.2d 109, 297 P.2d 1024, holding non-suit and dismissal appropriate where evidence fails to identify the supplier of the defective product.) The non-suit in favor of American as alleged supplier of the blade was proper.

    35
    B
    36
    THE FACE MASK
    37
    1. The rule applicable to non-suit.
    38

    The same rule described in part A of this opinion applies here. We therefore view appellant's evidence in the light most favorable to him.

    39
    2. Evidence relative to the face mask.
    40

    The mask worn by plaintiff at the time of his accident was a three-weapon mask (a mask which may be utilized for foil, epee or sabre fencing). The interior of a three-weapon mask has a bar extending vertically and medially from the top to bottom and two bars extending horizontally, one across the top and the other across the bottom of the mask. The interior of a sabre mask has no such protection inside of it other than the wire mesh which, of course, protects the face on the three-weapon mask as well.

    41

    [84 Cal.App.3d 876] The three-weapon mask worn by plaintiff complied with the specifications for international as well as lesser competitions in 1970 and 1971; the mask not only met, but exceeded the specifications in terms of strength and durability. The vast bulk of the masks manufactured in Europe contain re-enforcing bars to give the mask added strength.

    42

    Two experts testified that based upon their independent examinations there was no defect in the wire mesh metal material forming the protective face of the mask. Both experts agreed that the wire mesh had been penetrated by an object with a sharp, cutting-type edge or tip. Daniel Dechaine, armorer for the U.S. Olympic Team of the 1976 Summer Olympic Games and inventor of machines utilized throughout the world by fencing organizations for testing purposes, also testified that it was inconceivable how a legal, standard weapon could have penetrated the mask. One of plaintiff's experts testified that the presence of re-enforcing bars in plaintiff's mask in no way contributed to the sabre's penetration of the mask. Another expert further testified that a sabre with sharp corners, given the proper force and direction, could penetrate any standard fencing mask.

    43
    3. Insufficiency of the evidence to support a verdict for design defect by manufacturer.
    44

    A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without [148 Cal.Rptr. 848] inspection for defects, proves to have a defect that causes injury to a human being (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 62, 27 Cal.Rptr. 697, 377 P.2d 897). This rule applies as well to retailers (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168).

    45

    In the instant case, no evidence whatsoever was presented suggesting any defect in the manufacture of the product mask. The unrebutted testimony of both experts called by plaintiff indicated that there was no defect in the wire mesh metal that was penetrated by Croddy's sharp sabre tip. The unrebutted testimony established that the accident mask not only met, but exceeded the specifications of the recognized standards for masks in terms of strength and durability. Therefore plaintiff's case was, and is, that the mask was improperly designed. It was plaintiff's burden to prove that plaintiff was injured while using the mask in a way It was intended to be used and as a result of a defect in design. (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 64, 27 Cal.Rptr. 697, 377 P.2d 897; Erickson v. Sears, Roebuck & Co., 240 Cal.App.2d 793, 50 [84 Cal.App.3d 877] Cal.Rptr. 143.) In addition to the burden of proving a design defect, proper use and proximate cause, when a design defect is claimed Baker v. Chrysler Corp., 55 Cal.App.3d 710, 716, 127 Cal.Rptr. 745, held that plaintiff must further bear the burden of proof in demonstrating the reasonableness of alternative designs.

    46

    This holding was recently modified by Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443. But the decision of Barker, supra, does not assist appellant at bench. Barker reiterated the elements established in Greenman, supra, and reviewed in Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, necessary in a products liability case. The part of the Barker case significant here merely shifted to the defendant the burden of proof with respect to the "risk-benefit" standard applicable to alternative design. The plaintiff's initial burden of establishing a prima facie case still includes proof (1) that the product was used in an Intended or Reasonably foreseeable manner, and (2) that the product Design proximately caused the injury. (Barker, supra, 20 Cal.3d at p. 426, 143 Cal.Rptr. 225, 573 P.2d 443.)

    47

    It is in failing to prove that the mask was used as intended or in a reasonably foreseeable manner and in failing to prove that the presence of the bar proximately caused the injury that appellant failed to establish a prima facie case. The evidence is clear that the mask was not intended to be used against a sharp, pointed, or defective blade. A defectively sharp blade pierced the mask. Appellant asserts that it is a known fact that blades sometimes break during a match and therefore the use of a defective blade is a foreseeable risk. We do not agree. The second part of appellant's syllogism does not necessarily follow the first. It would enlarge the degree of reasonable foreseeability from that of a known risk, the extent of which, in terms of percentage is not disclosed by the evidence, to include the risk of the "one in a million" chance. One of appellant's own experts opined that the incident here was one in a million. We recognize that in this regard the evidence did not disclose nor are we using the term in the sense of strict mathematical probabilities. From the surrounding testimony it is clear that the term "one in a million" was not intended to express an accurate mathematical probability but was used to express in non-technical language the unreasonableness of expecting such an occurrence. It was a way of expressing the unlikelihood of this kind of accident if proper equipment is used.

    48

    Mere proof of possibility of injury is insufficient. A verdict cannot be permitted to be based upon guesswork or conjecture.

    49

    [84 Cal.App.3d 878] Plaintiff contends that the mask worn at the time of the accident was defective in that the center re-enforcing bar made it easier for a sharp edged sabre to penetrate the wire mesh of the mask. The sole testimony cited in support of this theory was from expert Herbert Fairfield, who stated [148 Cal.Rptr. 849] that in his opinion the bar acted as a die. However, he further testified that: (1) the wire mesh of the mask was penetrated by a sharp-edged or tipped sabre; (2) a sabre with sharp corners could penetrate any standard fencing mask; (3) the whole purpose of the subject mask's design was to have a round tipped and ended object slide off the mask; and (4) given a button or rounded tip sabre, the subject mask was comparable to other masks in perforation resistance. Moreover, there was no evidence that the die and punch effect would ever occur when proper blades were used.

    50

    There is no strict liability when the product is fit to be sold and reasonably safe for use but has inherent dangers that no human skill or knowledge has yet been able to eliminate (Prosser, The Fall of the Citadel (Strict Liability to the Consumer) 50 Minn.L.Rev. 791, 812 (1966)). Fencing is a form of combat, a dangerous sport. The fencing rules provide that fencers assume the risk of injury during a bout.[2]

    51

    Considering that a sabre with sharp corners can penetrate Any standard fencing mask; that a sharp-edged sabre penetrated plaintiff's mask; and that the rules required a rounded tip on a sabre, it is clear that plaintiff's mask was subjected to a use for which it was not intended. Indeed, although masks have been penetrated by broken blades which have sharp edges unrebutted testimony indicated masks are not necessarily supposed to withstand penetration by a broken blade.

    52

    [84 Cal.App.3d 879] Even assuming here a Reasonably foreseeable use of the mask, because of the possibility of penetration by a broken blade as an example, nevertheless plaintiff has failed to present sufficient evidence of a design defect to go to the jury. No testimony was adduced by plaintiff that a fencing mask either exists or can be designed which will prevent penetration by a sharp-edged sabre. To the contrary the unrebutted testimony was that any mask can be penetrated by a sharp-edged sabre. Plaintiff failed to present any evidence that the state-of-the-art or existing technology is capable of perfecting a mask which cannot be penetrated by a sharp-edged sabre.

    53

    "Requiring an injured plaintiff who seeks damages against a manufacturer on the basis of strict liability in tort for a defective design to show that alternative designs for the product could reasonably have been developed does not enlarge plaintiff's burden of proof. An injured plaintiff has always had the burden to prove the existence of the defect. The reasonableness of alternative designs, where a design defect is claimed, is part of that burden. . . ." (Baker v. Chrysler Corp., supra, 55 Cal.App.3d 710, 716, 127 Cal.Rptr. 745, 749.)[3]

    54

    In the case at hand, no expert or anyone else opined that the accident was [148 Cal.Rptr. 850] proximately caused by the presence of the center re-enforcing bar. The other possible cause of the accident, penetration by a sharp edged blade, is applicable to any mask. However, this latter circumstance alone does not automatically render Vince liable for design defect simply because Vince manufactures fencing masks. Simply because fencing masks cannot be made absolutely safe against all risks does not make a manufacturer liable for placing them on the market. The dual test for design defect is not intended to make "the manufacturer an insurer for all injuries which may result from the use of its product." (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 432, 143 Cal.Rptr. at p. 238, 573 P.2d at p. 456.)

    55

    It is at this critical point that it is important to distinguish between the evidence present and the evidence which is not present. It is possible that the presence of the re-enforcing bar could have caused the penetration but that is speculation. There is no evidence that the accident and injury did in fact occur specifically because of the presence of the re-enforcing bar. The mere presence of the re-enforcing bar was the claimed but unproven design defect.

    56

    [84 Cal.App.3d 880] The testimony was unrebutted that the plaintiff's mask not only met, but exceeded established specifications. There was no opinion that the accident would not have occurred but for the center re-enforcing bar. To the contrary, the same witness who characterized the safety bar as a potential hazard testified that given proper direction and force a sharp edged sabre could penetrate any standard fencing mask. Also, there was unrebutted expert testimony that the penetration would have occurred even without the re-enforcing bar.

    57

    The judgment is affirmed.

    58

    ROTH, P. J., and FLEMING, J., concur.

    59

    [1] There was no testimony that the blade was pointed. The inference could reasonably be drawn that the sharpness was at the corners of the tip rectangle (when viewed on end) created when the blade was folded in manufacture to blunt the end.

    60

    [2] We are aware of the recent statement by our Supreme Court in Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (decided after this case was tried and appealed), that in strict products liability cases a comparative fault system will be applied and that "In such cases the separate defense of 'assumption of risk,' to the extent that it is a form of Contributory negligence, is abolished." (Emphasis added.) (Daly, supra at p. 742, 144 Cal.Rptr. at p. 390, 575 P.2d at p. 1172.) We read this opinion as inapplicable to the matter at bench. (1) The rule is expressly prospective only; (2) the risk to which we refer is not a form of contributory negligence but is conduct indicating an awareness that the available physical protection reasonably to be expected is much less than that to be expected from some other product. This view conforms with the public policy and the avowed purpose of products liability law, ". . . to insure that the costs of injuries resulting from defective products are borne by the manufacturer that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Daly v. General Motors Corp., supra, quoting Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63, 27 Cal.Rptr. (697), at 701, 377 P.2d (897) at 901.) It is difficult to perceive a person choosing to engage in the sport of sabre fencing as one powerless to protect himself.

    61

    [3] As noted previously Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, did not alter the need for demonstrating the availability of reasonable alternate design, but simply shifted to defendant the burden of proving the unreasonableness of requiring an alternative in terms of such items as cost of producing the alternative product.

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