California Adopts Sophisticated User Doctrine

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Subject to certain exceptions, manufacturers, distributors and sellers of defective products are strictly liable for physical injuries resulting from product defects.  A product may be defective because of a design or manufacturing flaw, or because the defendant failed to provide adequate warnings about the product’s dangers.  An important exception to the general rule of strict liability, however, is that there is no duty to warn of risks that should be known or obvious to the consumer.

In a recent case of first impression, the California Court of Appeals broadened this exception by adopting the so-called Sophisticated User Doctrine.  See Johnson v. American Standard, Inc. (October 17, 2005) 2005 Cal. App. LEXIS 1615.  As articulated by a unanimous panel from the Second Appellate District, the doctrine provides that there is no duty to warn a member of a particular trade or profession against dangers which should be known in that particular field of expertise. 

The Johnson decision has significant implications.  Although the Sophisticated User Doctrine is rooted in existing California law, Johnson now immunizes potential defendants by imputing on the plaintiff knowledge of a product’s danger based on membership in a specialized trade or profession.  This holds true irrespective of the consumer’s actual knowledge of the danger.  Moreover, the decision also provides guidance regarding the type of evidence that may suffice to preclude strict products liability in analogous cases.

Mr. Johnson was a certified heating, ventilation, and air conditioning (HVAC) technician injured by phosgene gas secreted during his repair of refrigerant lines manufactured by the defendant.  He brought suit claiming that the manufacturers should have warned him that: (1) brazing (a form of welding) of refrigerant lines can produce phosgene if refrigeration fluid remains in the lines; (2) phosgene inhalation can result in potentially fatal lung disease; (3) phosgene can be detected through certain characteristics and physical symptoms; and (4) that repair technicians should wear respiratory protection while brazing.

The manufacturer moved for summary judgment on the ground that it had no duty to warn because the risk was within the professional knowledge of HVAC installers and repairers.  The trial court granted summary judgment concluding that, as an HVAC installer, Johnson should have known of the danger.

On appeal, the court considered whether the Sophisticated User Doctrine was, or should be, part of California law.  Noting that no California court had squarely adopted the doctrine, the court nevertheless reasoned that it was a natural outgrowth of the rule that there is no duty to warn of known risks or obvious dangers.  The Court pointed to Fierro v. Int’l Harvester Co. (1982) (127 Cal. App. 3d 862 (stating that it was not necessary to warn a corporate defendant that gasoline is volatile and that sparks from an electrical connection or friction can cause ignition); and Bojorquez v. House of Toys, Inc. (1976) 62 Cal. App. 3d 930 (holding that neither the retailer or wholesaler of slingshots had a duty to warn of the known fact that a slingshot can be dangerous).

In adopting the doctrine, the Johnson Court also relied on an array of cases from other jurisdictions interpreting section 388 of the Restatement Second of Torts, which provides that suppliers of chattels can be liable to users of those chattels if the supplier (a) knows or has reason to know that the chattel is or is likely dangerous for its intended use, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition. 

These cases have interpreted Subsection (b) to mean that there is no duty to warn if the user knows or should know of the potential danger, especially where the user is a professional who should be aware of the characteristics of the product.  See e.g. Strong v. E.I. DuPont de Nemours Co., Inc. (8th Cir.1981) 667 F.2d 682 (under Nebraska law, manufacturers of a natural gas pipe and pipe connectors had no duty to warn a natural gas utility or its employee of well-known gas line dangers); see also Antcliff v. State Employees Credit Union (1982) 414 Mich. 624 (scaffolding manufacturer had no duty to give safe rigging directions to a professional painter experienced in rigging techniques).

After adopting the Sophisticated User Doctrine, the Court upheld summary judgment in favor of the manufacturer.  It found that the evidence was undisputed that HVAC technicians have constructive notice of the danger created by phosgene gas when brazing is performed on air conditioning units.  Given this objective standard, Johnson’s testimony that he did not recognize the danger or presence of phosgene, and that he would have insisted on safety equipment if he had and walked off the job if it was refused was insufficient to defeat summary judgment. 

In the wake of Johnson, defendants may rely on a broad range of evidence to establish that the plaintiff is a member of a trade or profession that reasonably should have known of the particular danger at issue.  For example, the defendant in Johnson successfully relied on a California Code of Regulations provision that employers are required to provide information to their employees about the hazardous substances to which they may be exposed.  See 8 Cal. Code Regs. § 5194 (b)(1)).  Arguably, statutory provisions requiring employers to put employees on notice of particular hazards may be sufficient to establish constructive notice.

Moreover, testimony from experts in the particular trade or profession that the danger is generally known may also suffice.  In Johnson, the court approved testimony by the defendant’s manager that “the notion that phosgene gas can be produced when brazing is performed … is widely known among HVAC technicians.”  Such testimony, if uncontroverted, may be sufficient to support summary judgment.

Further, to the extent that the particular profession is regulated by federal or state authorities, literature from those organizations relevant to certification programs is also relevant.  Indeed, the defendant in Johnson successfully relied on a web page from the Environmental Protection Agency entitled “Overview of Issues on EPA Certification Tests,” which discussed the dangers associated with the decomposition of refrigerants at high temperatures.

Documents such as training jackets, certification study guides and course curriculum for members of the profession as well as the claimant are also relevant because they may tend to show not just constructive notice, but also actual knowledge of the danger. 

Finally, evidence that warnings were provided by other manufacturers or government agencies regarding related products also may have a tendency to prove constructive notice in a particular field.  Here again, the defendant in Johnson submitted evidence of a “Material Safety Data Sheet” for R-22, which was the refrigerant running through the refrigerant lines.  Although the document was not generated by the defendant and did not relate to the product at issue, the court concluded it was relevant in that it generally outlined the dangers associated with decomposition of the refrigerant.    

In short, Johnson provides a blueprint for the type of discovery and evidence that will allow manufacturers to defeat a strict products liability claim under the Sophisticated User Doctrine.

However, the Johnson decision arguably lacks solid footing.  Initially, it appears to conflict with the Fifth Appellate District’s decision in Selma Pressure Treating Co. v. Osmose Wood Preserving Co. (1990) 221 Cal. App. 3d. 1601, which the Johnson Court unceremoniously rejected.  There, a claimant subject to an environmental clean up order sought indemnity from its chemical suppliers under a failure to warn theory.  On demurrer, the court allowed the cause of action, finding that the mere fact that the plaintiff used the chemicals in a business enterprise, as opposed to being a citizen consumer, did not relieve the chemical suppliers of the duty to warn. 

Further, the California cases on which Johnson relied do not altogether support adoption of the Sophisticated User Doctrine.  For example, the dangers at issue in Fierro (that gasoline is flammable and may be ignited by electrical sparks); and Bojorquez (that slingshots are dangerous) are matters generally and commonly known to the public at large and do not require specialized knowledge or sophistication.  Yet the Johnson Court significantly expanded the “known danger” exception to liability by immunizing defendants based on the imputed sophisticated knowledge of claimants in any number of trades or professions.

Moreover, the decision is contrary to the policies underlying the law of products liability as articulated by the California Supreme Court, to wit, protecting consumers, promoting product safety and spreading the loss.  See Jimenez v. Superior Court (2002) 29 Cal. 4th 473 (holding that manufacturer of component parts are subject to strict liability and stating that, as a matter of social policy, California courts have taken a leading role in expanding the scope of products liability law to hold those in the distribution chain liable for physical injuries resulting from a product defect). 

For these reasons, it appears that the Johnson decision may be ripe for Supreme Court review.  In the interim, however, Johnson provides a guide to narrow liability and broaden immunity from strict products liability.