Sumaya v. Cequent Performance Products CA4/1 ( 2015 )

Filed 5/19/15 Sumaya v. Cequent Performance Products CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EMILY SUMAYA, a Minor, etc., D066880
Plaintiff and Appellant,
v. (Super. Ct. No. RIC1106382)
CEQUENT PERFORMANCE PRODUCTS,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Riverside County, Matthew C.
Perantoni, Judge. Affirmed.
The Homampour Law Firm, Arash Homampour and Wendi O. Wagner for
Plaintiff and Appellant.
Hewitt Wolensky & McNulty, Elizabeth V. McNulty and Jamison E. Power for
Defendant and Respondent.
Plaintiff Emily Sumaya (Sumaya), by and through her guardian ad litem, Eh
Sumaya, appeals from the trial court's summary judgment in favor of defendant Cequent
Performance Products, Inc. (Cequent) in Sumaya's lawsuit alleging strict product liability
and negligence against Cequent. We conclude that summary judgment was properly
granted in favor of Cequent because Sumaya is not able to establish the necessary
element of causation for either of her causes of action. Accordingly, we affirm the
judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The basic facts that gave rise to this case are undisputed. On the night of
March 20, 2010, five-year-old Sumaya was a backseat passenger in a Subaru Forester
driven by her uncle, Ning Yang. As Yang drove in the number three lane of Interstate 10
in Riverside County, a seven-pound metal draw bar, which is part of a tow hitch
assembly, crashed through the front windshield of the Subaru, hitting Sumaya in the head
and severely injuring her. Immediately prior to the incident, Yang saw a large truck in
front of him in the number four lane, with sparks coming from underneath it, but he saw
no debris on the freeway and did not notice any disabled or abandoned vehicles or
trailers. Neither Yang, nor any other witness, saw the draw bar before it struck the
Subaru or knew how it ended up on the freeway.
The draw bar that injured Sumaya was manufactured by Cequent and is used to
connect a tow vehicle to a trailer. As designed, the draw bar is attached to the tow
vehicle by inserting the draw bar into the tube-shaped receiver hitch installed on the tow
vehicle. To prevent the draw bar from disengaging from the receiver hitch, a metal pin is
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inserted through holes that line up on the receiver hitch and the draw bar, and a clip is
placed on the pin.
Sumaya filed a lawsuit against Cequent alleging two causes of action: strict
product liability and negligence. Sumaya alleges that the draw bar ended up on the
freeway because of a design defect in the tow hitch assembly or because Cequent failed
to warn consumers to prevent such an incident. Specifically, Sumaya contends that the
draw bar was designed so that, when not being used to tow a trailer, it could be inserted
into the receiver hitch on the tow vehicle without employing the pin and clip. According
to Sumaya, if the pin and clip are not employed, the draw bar initially remains attached to
the receiver hitch, but the vibrations caused by driving could eventually cause the draw
bar to come detached from the receiver hitch and end up on the roadway. Sumaya
contends that Cequent should have warned consumers not to use the draw bar without the
pin and clip or should have implemented a design feature that would have prevented the
draw bar from detaching from the tow vehicle when used without a pin and clip and when
not towing a trailer.1
After conducting discovery, Cequent filed a motion for summary judgment, in
which it argued that Sumaya could not establish the necessary element of causation for
1 Sumaya's complaint and discovery responses also set forth the theory that the tow
hitch assembly was defective because it was designed in a way that it could fail while
towing a trailer, resulting in the draw bar being deposited on the roadway. Sumaya has
clarified that her current theory of the case is that the tow hitch assembly is defective
because the draw bar can detach when inserted in a hitch receiver without the use of a pin
and clip when no trailer is being towed and that Cequent failed to warn of that problem
or design around it.
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either of her causes of action because there was no evidence of how the draw bar ended
up on the freeway and thus no evidence that any product defect caused Sumaya's injuries.
To meet its initial burden on summary judgment, Cequent submitted, among other things,
discovery responses from Sumaya in which she admitted that she did not know how the
draw bar came to be located on the freeway.
In opposition to the motion for summary judgment, Sumaya relied, among other
things, on the declaration of her expert witness, mechanical engineer James William
Jones. As Jones opined, the "the only rational explanation" of how the draw bar ended up
on the freeway was that it vibrated out of a receiver hitch while being driven on the
freeway, but not being used to tow a trailer, because the pin and clip were either missing
or improperly inserted. Jones also opined that other theories of how the draw bar came to
be located on the freeway were not "scientifically probable." Specifically, Jones rejected
the theory that the draw bar could have (1) "fallen out of the back of a pick-up truck";
(2) "fallen out of the back of a moving van"; (3) "fallen out of a dump truck"; (4) "been
discarded intentionally by a reckless motorist"; or (5) "been a remnant of a prior accident
lying on the side of the road that got kicked up onto the freeway." (Underscoring
omitted.) Cequent filed evidentiary objections to portions of Jones's declaration.
The trial court granted Cequent's motion for summary judgment.
It also sustained Cequent's evidentiary objections to the portions of Jones's declaration in
which he opined that (1) the only rational explanation for the draw bar ending up on the
freeway was that it vibrated out of the receiver hitch because the pin and clip were
4
missing or improperly inserted; and (2) other theories of how the draw bar came to be
located on the freeway were not scientifically probable.
Sumaya appeals from the judgment, arguing that the trial court improperly granted
summary judgment in favor of Cequent and improperly sustained Cequent's objections to
Jones's declaration.
II
DISCUSSION
A. The Trial Court Properly Sustained Cequent's Evidentiary Objections
As an initial matter, we consider Sumaya's challenge to the trial court's ruling
sustaining Cequent's objections to portions of Jones's declaration.
It is well established that " 'proof of causation cannot be based on . . . an expert's
opinion based on inferences, speculation and conjecture.' " (Saelzler v. Advanced Group
400 (2001) 25 Cal. 4th 763, 777 (Saelzler).) Based on this principle, Cequent sought to
exclude Jones's opinion that the draw bar ended up on the freeway because it vibrated out
of a receiver hitch without the pin and clip being engaged, instead of other possible
causes, including falling off of a pickup truck, dump truck or moving van, being
intentionally discarded by a motorist, or ending up on the freeway as the remnant of an
earlier accident.
We apply an abuse of discretion standard of review when deciding whether the
trial court properly sustained Cequent's objections. Although the California Supreme
Court recently expressly declined to reach the issue in Reid v. Google, Inc. (2010) 50
Cal. 4th 512, 535, the weight of authority, both before and after Reid, holds that an
5
appellate court applies an abuse of discretion standard when reviewing a trial court's
rulings on evidentiary objections made in connection with a summary judgment motion.
(See, e.g., Serri v. Santa Clara University (2014) 226 Cal. App. 4th 830, 852; Ahn v.
Kumho Tire U.S.A., Inc. (2014) 223 Cal. App. 4th 133, 143-144; Kincaid v. Kincaid
(2011) 197 Cal. App. 4th 75, 82-83; Carnes v. Superior Court (2005) 126 Cal. App. 4th
688, 694.)2
According to Evidence Code section 801, subdivision (b), expert testimony may
be excluded if it is not "[b]ased on matter . . . perceived by or personally known to the
witness or made known to him at or before the hearing, whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates . . . ." (Ibid.) As our Supreme Court has explained,
"under Evidence Code section 801, the trial court acts as a gatekeeper to exclude
speculative or irrelevant expert opinion. . . . '[T]he expert's opinion may not be based "on
assumptions of fact without evidentiary support [citation], or on speculative or
conjectural factors. . . . [¶] Exclusion of expert opinions that rest on guess, surmise or
conjecture [citation] is an inherent corollary to the foundational predicate for admission
of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it
2 Even were we to apply a de novo standard of review to the trial court's evidentiary
ruling, we would still conclude that the trial court properly sustained the objections. (See
Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102, 1114 [explaining
that under any standard of review it would reach the same conclusion regarding the trial
court's ruling on evidentiary objections made in connection with a summary judgment
motion].)
6
must decide?" ' " (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal. 4th 747, 770 (Sargon).) "[A]n expert's opinion that something could be true if
certain assumed facts are true, without any foundation for concluding those assumed facts
exist in the case before the jury, does not provide assistance to the jury . . . ." (Jennings
v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117.)
Here, the trial court was well within its discretion to determine that Jones's opinion
about how the draw bar came to be located on the freeway was based on " ' "assumptions
of fact without evidentiary support . . . , or on speculative or conjectural factors." ' "
(Sargon, supra, 55 Cal.4th at p. 770.)
First, with respect to Jones's conclusion that the draw bar could not have fallen off
of a pickup truck or a moving van, those conclusions are speculative and based on
conjecture and are not within any area of expertise claimed by Jones. Jones asserts that
pickup trucks and moving vans are not normally driven with their tailgates or doors open,
and that the draw bar could not have fallen out of a closed truck. However, in his
declaration Jones identified no background that would make him an expert on the way in
which trucks are driven. Further, Jones cites no reason for concluding that this was not
one of the instances in which a truck was driven with its doors or tailgate open, in which
a flatbed pickup truck was used, or one in which the draw bar was inadvertently left on an
unenclosed area of a truck, such as a bumper or roof. In those instances, the heavy draw
bar would not have to "bounce out" as Jones describes.
Jones's opinion that the draw bar could not have fallen out of a dump truck is also
too speculative and conjectural to be admissible. Jones bases his opinion on the
7
purported fact that "dump trucks are made in such a way that items do not just 'fall' out
unless they are very, very light." However, Jones cites no factual basis for this
assumption or any expertise in the design of dump trucks or the instances in which dump
trucks might be incorrectly loaded to allow even heavy items to fall off.
Next, Jones also engages in pure speculation and conjecture when concluding that
the draw bar could not have been left on the freeway as the remnant of an earlier
accident. Jones did not review records of previous accidents, and he bases his opinion
solely on the fact that witnesses observed no other debris on the freeway. However,
Jones provides no factual basis for the assumption that accident debris, other than the
draw bar, would still have been on the freeway after an accident that could have occurred
a substantial amount of time earlier, and he provides no basis for his assumption that the
witnesses to the accident or the responding officers conducted an adequate search for any
other debris on the freeway on the night of the accident.
Jones also cites no sound factual basis for his assumption that the draw bar could
not have been intentionally thrown onto the freeway. As Jones explained, his conclusion
is based on the assumption that no one would commit such an act because it would
presuppose an intent to cause random injury or damage. However, Jones has no basis for
reaching the conclusion that no one could possibly commit a willfully malicious act, and
he has no expertise that would allow him to opine on human behavior. Further, Jones
assumes that someone could not have discarded the drawbar on the freeway because there
were no eyewitnesses to such an act, but he cites no reason to believe that such an act
8
would have an eyewitness or that any eyewitness would have been located if such an
incident had occurred.
Finally, the trial court properly sustained the objection to Jones's statement that
"the only rational explanation" for the draw bar being located on the freeway was that it
vibrated loose and fell onto the freeway because it was inserted in a hitch receiver but the
pin and clip were missing or were improperly engaged. Although Jones cites no specific
factual basis for his conclusion, we infer that he reached his conclusion by the process of
elimination, namely by rejecting the other possible ways that the draw bar could have
ended up on the freeway. However, as we have explained, Jones provides no sound basis
for eliminating the other theories of how the draw bar ended up on the freeway, and thus
he also fails to provide a sound factual basis for reasoning by the process of elimination.
In sum, we conclude that the trial court properly sustained Cequent's objections to
Jones's declaration on the basis that Jones's opinions as to how the draw bar ended up on
the freeway were speculative and based on conjecture.
B. Summary Judgment Was Properly Granted in Favor of Cequent
1. Standard of Review
Code of Civil Procedure section 437c, subdivision (c) provides that summary
judgment is to be granted when there is no triable issue of material fact and the moving
party is entitled to judgment as a matter of law. A defendant "moving for summary
judgment bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826, 850 (Aguilar).) A defendant may meet this burden either by
9
showing that one or more elements of a cause of action cannot be established or by
showing that there is a complete defense. (Ibid.) "[T]he defendant may show through
factually devoid discovery responses that the plaintiff does not possess and cannot
reasonably obtain needed evidence." (Collin v. CalPortland Company (2014) 228
Cal. App. 4th 582, 587.)
If the defendant's prima facie case is met, the burden shifts to the plaintiff to show
the existence of a triable issue of material fact with respect to that cause of action or
defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65
Cal. App. 4th 256, 261.) Ultimately, the moving party "bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to judgment as a matter of
law." (Aguilar, at p. 850.)
We review a summary judgment ruling de novo to determine whether there is a
triable issue as to any material fact and whether the moving party is entitled to judgment
as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001)
24 Cal. 4th 945, 972.) " 'Since defendant[] obtained summary judgment in [its] favor, "we
review the record de novo to determine whether [it has] conclusively negated a necessary
element of the plaintiff's case or demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial." ' " (Saelzler, supra, 25 Cal.4th at p. 767.)
"In practical effect, we assume the role of a trial court and apply the same rules and
standards which govern a trial court's determination of a motion for summary judgment."
(Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal. App. 4th 1073, 1079.)
"[W]e are not bound by the trial court's stated reasons for its ruling on the motion; we
10
review only the trial court's ruling and not its rationale." (Gafcon, Inc. v. Ponsor &
Associates (2002) 98 Cal. App. 4th 1388, 1402.)
2. Legal Standards for Causation
To prevail on either of her causes of action at trial, Sumaya was required to
establish the element of legal causation. "[U]nder either a negligence or a strict liability
theory of products liability, to recover from a manufacturer, a plaintiff must prove that a
defect caused injury." (Merrill v. Navegar, Inc. (2001) 26 Cal. 4th 465, 479.) "Liability
must be predicated upon a showing that a defect in the product was a proximate cause of
plaintiff's injury." (Thomas v. Lusk (1994) 27 Cal. App. 4th 1709, 1716, fn. 3.)
Case law explains the type of causation that must be established in a product
liability action and to establish negligence. "A manufacturer is liable only when a defect
in its product was a legal cause of injury. [Citation.] A tort is a legal cause of injury only
when it is a substantial factor in producing the injury." (Soule v. General Motors Corp.
(1994) 8 Cal. 4th 548, 572.)
Consistent with this principle, in any type of tort action a plaintiff establishes
causation only if it can show that it is more likely than not that the alleged tortious
conduct caused the injury. Specifically, to establish causation in fact, " '[t]he plaintiff
must introduce evidence which affords a reasonable basis for the conclusion that it is
more likely than not that the conduct of the defendant was a cause in fact of the result. A
mere possibility of such causation is not enough; and when the matter remains one of
pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes
11
the duty of the court to direct a verdict for the defendant.' " (Ortega v. Kmart Corp.
(2001) 26 Cal. 4th 1200, 1205-1206, italics added (Ortega).)
Because the plaintiff must establish that it is more likely than not that the alleged
tortious conduct caused the injuries, "[a] plaintiff cannot recover damages based upon
speculation or even a mere possibility that the wrongful conduct of the defendant caused
the harm." (Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 133, italics added.)
"[E]vidence of causation 'must rise to the level of a reasonable probability based upon
competent testimony. [Citations.] "A possible cause only becomes 'probable' when, in
the absence of other reasonable causal explanations, it becomes more likely than not that
the injury was a result of its action." [Citation.] The defendant's conduct is not the cause
in fact of harm " 'where the evidence indicates that there is less than a probability, i.e., a
50-50 possibility or a mere chance,' " that the harm would have ensued.' " (Bowman v.
Wyatt (2010) 186 Cal. App. 4th 286, 312 (Bowman).)
"Where there is evidence that the harm could have occurred even in the absence of
the defendant's negligence, 'proof of causation cannot be based on mere speculation,
conjecture and inferences drawn from other inferences to reach a conclusion unsupported
by any real evidence.' " (Padilla v. Rodas (2008) 160 Cal. App. 4th 742, 752 (Padilla).)
Although "[t]he plaintiff . . . 'need not prove causation with absolute certainty[,]' "
it must at least " ' " 'introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a cause in
fact of the result.' " ' " (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal. App. 4th 1563,
1569.) " '[P]roof that raises mere speculation, suspicion, surmise, guess or conjecture is
12
not enough to sustain [the plaintiff's] burden' of persuasion." (Izell v. Union Carbide
Corporation (2014) 231 Cal. App. 4th 962, 969.)
Although there is no question that a plaintiff may establish causation by relying
solely on circumstantial evidence, a plaintiff attempting to do so must still satisfy the
standards set forth above. "In deciding whether a plaintiff has met her burden of proof,
we consider both direct and circumstantial evidence, and all reasonable inferences to be
drawn from both kinds of evidence, giving full consideration to the negative and
affirmative inferences to be drawn from all of the evidence, including that which has
been produced by the defendant. . . . [¶] We will not, however, draw inferences from
thin air. Where . . . the plaintiff seeks to prove an essential element of her case by
circumstantial evidence, she cannot recover merely by showing that the inferences she
draws from those circumstances are consistent with her theory. Instead, she must show
that the inferences favorable to her are more reasonable or probable than those against
her." (Leslie G. v. Perry & Associates (1996) 43 Cal. App. 4th 472, 483, citations omitted
(Leslie G.).)
3. Cequent Showed That Sumaya Could Not Establish a Reasonable
Probability That a Defect in the Tow Hitch Assembly Was a Substantial
Cause of Her Injuries, as Sumaya's Theory of How the Draw Bar Ended Up
on the Freeway Was Based Purely on Speculation
Based on the standards for legal causation that we have discussed above, Sumaya
would have been required at trial to prove a reasonable probability that the draw bar
ended up on the freeway because of a design defect or failure to warn, and, as a result,
was present on freeway lanes and crashed through Yang's windshield, injuring Sumaya.
13
(Bowman, supra, 186 Cal.App.4th at p. 312.) To do so, Sumaya would, of course, have
to establish a reasonable probability that the draw bar was inserted into a receiver hitch
installed on a vehicle that was driving on the freeway and that it became disengaged from
the receiver hitch and ended up on the freeway. As we have discussed, Sumaya cannot
carry her burden of proof by establishing a mere possibility that the draw bar disengaged
from a receiver hitch on the freeway (Ortega, supra, 26 Cal.4th at p. 1205), and it is not
sufficient for Sumaya to rely on speculation or conjecture that the draw bar ended up on
the freeway in that manner. (Padilla, supra, 160 Cal.App.4th at p. 752.) She must
establish it is more likely than not that the draw bar was located on the freeway because it
disengaged from a receiver hitch. (Ortega, at p. 1205.)
Cequent met its initial burden on summary judgment to show Sumaya's inability to
establish causation by relying on Sumaya's discovery responses. (See Aguilar, supra, 25
Cal.4th at p. 855 [To meet its initial burden, "[t]he defendant may . . . present evidence
that the plaintiff does not possess, and cannot reasonably obtain, needed evidence — as
through admissions by the plaintiff following extensive discovery to the effect that he has
discovered nothing."].) In those discovery responses, Sumaya admitted that she did not
know how the draw bar ended up on the freeway but stated that she believed it was
attached to a tow vehicle and disengaged on the freeway. When asked to set forth the
evidence that supported her belief, Sumaya's discovery responses pointed to documents,
such as the traffic collision report, photographs of the draw bar, and Sumaya's medical
records, that contain no information indicating where the draw bar came from. Based on
these discovery responses, the trial court properly determined that Cequent met its initial
14
burden to establish that Sumaya could not establish causation. Sumaya's responses to
discovery show that any finding as to how the draw bar ended up on the freeway would
be completely speculative and not meet the standard of establishing causation by a
reasonable probability.
After the burden shifted to her to establish a triable issue of material fact, Sumaya
did not identify admissible evidence creating a triable issue regarding causation. Sumaya
attempted to rely on statements in Jones's declaration opining that the only rational
explanation for the draw bar's presence on the freeway was that it vibrated out of a
receiver hitch, but as we have explained, the trial court properly sustained Cequent's
evidentiary objections to those portions of Jones's declaration.
In her appellate argument, relying on little more than the fact that the draw bar was
located on the freeway with no clear indication of how it got there, Sumaya argues that
the circumstantial evidence supports a finding that it is more likely than not that the draw
bar ended up on the freeway because it disengaged from a receiver hitch. As Sumaya
phrases the argument, she believes that, under the circumstances, there is more than an
"equal probability" that the draw bar disengaged from a receiver hitch. We disagree.
There are a myriad of possible ways that the draw bar could have ended up on the
freeway. Using common sense, one very plausible explanation — which is not even
acknowledged in Jones's declaration — is that the draw bar was inadvertently left on an
unprotected area of a vehicle, such as a bumper, a roof or the edge of flatbed truck, and
the driver inadvertently drove onto the freeway where the draw bar eventually fell off.
Other possibilities, as Jones discusses and fails to persuasively discount, are that the draw
15
bar could have been intentionally thrown onto the freeway, could have been poorly
packed into a truck that was transporting it, or could have ended up on the freeway
shoulder during a serious accident and was eventually kicked up by someone driving on
the shoulder.3 With a complete absence of any indication of where the draw bar came
from, Sumaya is simply unable to identify circumstantial evidence that makes any one of
these scenarios more plausible than another.
"Although proof of causation may be by direct or circumstantial evidence, it must
be by 'substantial' evidence, and evidence 'which leaves the determination of these
essential facts in the realm of mere speculation and conjecture is insufficient.' "
(Leslie G., supra, 43 Cal.App.4th at p. 484.) The circumstances of Sumaya's injury are
undeniably tragic, but because there is no evidence of how the draw bar ended up on the
freeway, it would be complete speculation and conjecture for any trier of fact to conclude
3 In support of her argument that circumstantial evidence supports a finding that it is
reasonably probable that the draw bar ended up on the freeway after disengaging from a
receiver hitch, Sumaya lists several purported facts that are not supported by any
evidence in the record other than that they appear in the portions of Jones's declaration to
which the trial court sustained Cequent's objections. Moreover, some of those purported
facts are contradicted by common sense or are completely speculative. For example,
relying on the portions of Jones's declaration to which objections were sustained, Sumaya
states that "the draw bar was too heavy to throw from the side of the road" and "[t]he
draw bar is too heavy to have been kicked up from the side of the road because vehicles
do not travel fast enough in the shoulder to allow for the occurrence." Sumaya also states
that "[t]he draw bar is too heavy to bounce out of a vehicle[,]" but overlooks the
possibility that the draw bar could have been placed on an unprotected part of a vehicle,
such as a bumper, a roof or the edge of a flatbed truck or on top of a precariously-stacked
load, and could have fallen off through subsequent freeway vibrations and bumps.
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that, because of a product defect, the draw bar disengaged from a receiver hitch on the
freeway and injured Sumaya.
To support her causation argument Sumaya cites several cases, but none of them
are applicable because, in each, the plaintiff presented evidence from which a finder of
fact could determine that it was reasonably probable that the defendant's alleged tortious
conduct caused the plaintiff's injury, and was not just — as here — merely possible based
on speculation.
One of the cases on which Sumaya focuses most heavily is Chavez v. Glock, Inc.
(2012) 207 Cal. App. 4th 1283, 1292 (Chavez). In Chavez, the plaintiff was accidently
shot by his three-year-old son with a gun, and he alleged — among other things — that
one cause of the accident was that the manufacturer did not design the gun with a trigger
that required the application of more pressure than a small child would be able to apply.
Chavez concluded that the issue of causation should be tried to a jury rather than resolved
on summary judgment because it was not unduly speculative whether the accident could
have been prevented by a different trigger design. Chavez explained that although direct
evidence was not available about how the child fired the gun, "it is neither impossible to
prove causation nor is proof on this issue necessarily speculative" because "[t]he hand
size and grip strength of children are readily measurable[,]" and "a child's ability to pull a
trigger of various trigger pull strengths is measurable." (Id. at p. 1307.) As Chavez
pointed out, based on that evidence "[a] jury could reasonably infer from this information
whether a heavier trigger would have reduced or avoided the risk of harm in this case."
(Ibid.) Here, in contrast, because of the complete absence of evidence regarding how the
17
draw bar ended up on the freeway, it is it impossible for Sumaya to prove whether her
injury could have been prevented had Cequent designed the tow hitch assembly
differently or provided a warning. Unlike in Chavez, this is a case in which "it is . . .
impossible to prove causation" and "proof on this issue [is] necessarily speculative"
(Ibid.)
Similarly, Sumaya relies on Campbell v. General Motors Corp. (1982) 32 Cal. 3d
112 (Campbell) for its statement that " '[i]t is not incumbent upon a plaintiff to show that
an inference in his favor is the only one that may be reasonably drawn from the evidence;
he need only show that the material fact to be proved may logically and reasonably be
inferred from the circumstantial evidence' " (id. at p. 121, italics added), and that "[t]o
take the case from the jury simply because the plaintiff could not prove to a certainty that
the device would have prevented the accident" is improper (ibid., italics added).
However, Sumaya overlooks the crucial difference between this case and Campbell,
namely the presence of circumstantial evidence relating to the cause of plaintiff's injury.
In Campbell the issue was whether the plaintiff, who was injured when riding a bus,
could establish that her injury could have been prevented had the manufacturer installed
handrails inside the bus. There was ample evidence of the details of the accident.
"Plaintiff testified that she was injured when thrown from her seat to the floor on the
opposite side of the bus. She further testified that before falling she reached out with
both arms for something to hold on to, but nothing was there. Given plaintiff's position at
the time the bus turned, a jury could reasonably infer from the evidence that a handrail or
guardrail within her reach would have prevented the accident. Although this fact may not
18
be capable of mathematical proof, it is nevertheless a reasonable inference that may be
drawn from the evidence." (Id. at p. 122.) In Sumaya's case, in contrast, the crucial
details of how the draw bar ended up on the freeway are not known. Therefore, the issue
is not simply whether Sumaya has to prove to a certainty or with mathematical proof that
her injury was caused by a product defect in the tow hitch assembly. Instead, unlike in
Campbell, the issue is whether, without any evidence at all of how the draw bar ended up
on the freeway, a jury can be allowed to speculate as to causation. As we have explained,
case law is clear that to establish causation a plaintiff must rely on more than speculation,
conjecture or mere possibility. (See Bowman, supra, 186 Cal.App.4th at p. 314
[concluding that the plaintiff did not establish that a reasonable jury could have
concluded that allegedly defective brakes were "the probable cause of the accident"
because "although proof of causation may be by circumstantial evidence, it must be by
' "substantial" evidence, and evidence "which leaves the determination of these essential
facts in the realm of mere speculation and conjecture is insufficient" ' "].)
Finally, Dimond v. Caterpillar Tractor Co. (1976) 65 Cal. App. 3d 173 (Dimond) is
another case that Sumaya relies on, but which is inapposite because the plaintiff in that
case — unlike here — was able to identify circumstantial evidence showing that
plaintiff's theory of how the accident occurred was not only possible, but the most
probable explanation of what occurred. Specifically, in Dimond the plaintiff worked in a
warehouse where heavy paper rolls fell onto him, and he was found on the ground next to
a forklift that he had been assigned to operate. (Id. at pp. 177-178.) Although the
plaintiff had amnesia due to his injuries and there were no other witnesses to the accident,
19
the plaintiff contended that the accident happened while he was operating a forklift
manufactured by the defendant, and that because of an ambiguous warning on the
forklift's protective cage that it would not withstand heavy loads, he bolted from the cage
rather than staying protected inside the cage when the paper rolls began to fall on him.
(Id. at p. 181.) The defendant argued that the plaintiff could not prove causation because
it was possible that the plaintiff was not operating the forklift when the paper rolls fell on
him, as he simply may have been standing near the forklift when the paper rolls began to
fall. Dimond concluded that "[t]here was sufficient circumstantial evidence from which
the jury could reasonably infer that plaintiff bolted [from the forklift] when he saw the
stack of paper falling and was struck as he was trying the flee the machine" (ibid.), and,
moreover, that plaintiff's theory was the most probable scenario.4 Based on the
circumstantial evidence, Dimond concluded that although "[t]here may be other possible,
though hardly probable, explanations why plaintiff was where he was when struck by the
stack of paper[,]" "[t]he known facts and circumstances most strongly suggest that
plaintiff was in the [forklift] but abruptly abandoned it when the rolls of paper began
falling." (Id. at p. 182, italics added.) In such a case, "[t]he mere fact that other
inferences adverse to plaintiff might be drawn does not render the inference favorable to
4 As Dimond explained the circumstantial evidence supporting its conclusion,
shortly before the accident the plaintiff had been instructed to transport some paper rolls;
the forklift was found near where such paper is stored; the forklift was in neutral gear
with the engine still running; plaintiff always turned off the engine when dismounting the
forklift; there was a dent in the forklift's protective cage after the accident which was not
present earlier; and plaintiff was found face down near the back of the forklift with his
feet closest to it. (Dimond, supra, 65 Cal.App.3d at p. 182.)
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plaintiff too conjectural or speculative for consideration." (Ibid.) Here, in contrast, the
circumstantial evidence does not point to a single explanation for the draw bar ending up
on the freeway that is more probable than other possible explanations, and thus any such
inference would be too speculative to support a causation finding. This is simply not a
case like Dimond, or the others cited by Sumaya, in which "[t]he known facts and
circumstances most strongly suggest" that Sumaya's theory of how the draw bar came to
be located on the freeway is the most probable explanation. (Ibid.)5
In sum, we conclude that because Sumaya was unable to identify any admissible
evidence that would allow a jury to reach a reasonable inference that the draw bar most
probably came to be located on the freeway after disengaging from a receiver hitch, or
due to any other failure of the tow hitch assembly, Sumaya failed to meet her burden of
showing that a triable issue of material fact existed on the element of causation for both
of her causes of action. Accordingly, the trial court properly granted summary judgment
in favor of Cequent.
5 Sumaya cites Vandermark v. Ford Motor Co. (1964) 61 Cal. 2d 256 and Elmore v.
American Motors Corp. (1969) 70 Cal. 2d 578 for the proposition that causation that a
product defect caused an injury may be proven by circumstantial evidence when direct
evidence is not available. However, those cases, just like Chavez, Campbell and Dimond,
do not advance Sumaya's argument because the problem here is not simply that direct
evidence is unavailable. Instead, in this case, even when the circumstantial evidence is
considered, there is simply no basis for an inference that it is more likely than not that the
draw bar ended up on the freeway because it disengaged from a receiver hitch.
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DISPOSITION
The judgment is affirmed. In the interests of the justice, the parties shall bear their
respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.
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