Manufacturer's Liability for Unsafe Products In California Law

It is generally understood that former section 1714.45 was enacted as part of a hasty compromise between sharply divergent interests seeking and opposing comprehensive changes in California tort law. (See Richards v. Owens-Illinois, Inc. (1997) 14 Cal. 4th 985, 998-999, 928 P.2d 1181 (Richards); American Tobacco Co. v. Superior Court (1989) 208 Cal. App. 3d 480, 486-487 & fn. 3 (American Tobacco).) As originally enacted, the statute read as follows: "(a) In a product liability action, a manufacturer or seller shall not be liable if: "(1) the product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and "(2) the product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts. "(b) for purposes of this section, the term 'product liability action' means any action for injury or death caused by a product, except that the term does not include an action based on a manufacturing defect or breach of an express warranty. "(c) This section is intended to be declarative of and does not alter or amend existing California law, including Cronin v. J.B.E. Olson Corp. (1972), 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153, and shall apply to all product liability actions pending on, or commenced after, January 1, 1988." (Stats. 1987, ch. 1498, 3, pp. 5778-5779.) A decade after section 1714.45 was enacted, a dramatic turnabout occurred in this state as to the tort liability of tobacco manufacturers and sellers. As amended effective January 1, 1998, that statute no longer includes tobacco on its list of "inherently unsafe" consumer products that are immune from liability, and it states specifically that it does not exempt the manufacture or sale of tobacco products by tobacco manufacturers and their successors in interest from product liability actions. (Stats. 1997, ch. 570, 1.) The statute now provides in full: "(a) In a product liability action, a manufacturer or seller shall not be liable if both of the following apply: "(1) the product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community. "(2) the product is 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. "(b) This section does not exempt the manufacture or sale of tobacco products by tobacco manufacturers and their successors in interest from product liability actions, but does exempt the sale or distribution of tobacco products by any other person, including, but not limited to, retailers or distributors. "(c) for purposes of this section, the term 'product liability action' means any action for injury or death caused by a product, except that the term does not include an action based on a manufacturing defect or breach of an express warranty. "(d) This section is intended to be declarative of and does not alter or amend existing California law, including Cronin v. J.B.E. Olson Corp. (1972) 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153, and shall apply to all product liability actions pending on, or commenced after, January 1, 1988. "(e) This section does not apply to, and never applied to, an action brought by a public entity to recover the value of benefits provided to individuals injured by a tobacco-related illness caused by the tortious conduct of a tobacco company or its successor in interest, including, but not limited to, an action brought pursuant to Section 14124.71 of the Welfare and Institutions Code. In such an action brought by a public entity, the fact that the injured individual's claim against the defendant may be barred by a prior version of this section shall not be a defense. This subdivision does not constitute a change in, but is declaratory of, existing law relating to tobacco products. "(f) It is the intention of the Legislature in enacting the amendments to subdivisions (a) and (b) of this section adopted at the 1997-98 Regular Session to declare that there exists no statutory bar to tobacco-related personal injury, wrongful death, or other tort claims against tobacco manufacturers and their successors in interest by California smokers or others who have suffered or incurred injuries, damages, or costs arising from the promotion, marketing, sale, or consumption of tobacco products. It is also the intention of the Legislature to clarify that such claims which were or are brought shall be determined on their merits, without the imposition of any claim of statutory bar or categorical defense. "(g) This section shall not be construed to grant immunity to a tobacco industry research organization." (Stats. 1997, ch. 570, 1.) The substance of current subdivision (e), relating to actions by public entities, actually was added to section 1714.45 as urgency legislation a few months before the elimination of the immunity of tobacco manufacturers. (Stats. 1997, ch. 25, effective June 12, 1997.) Section 1714.45 was amended again in 1998, but the changes were not substantive. (Stats. 1998, ch. 485.)