|OPINION BY PANELLI.
In this case we consider the issue "whether a defendant in a products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution." As will appear, resolution of this evidentiary issue requires an examination of the failure-to-warn theory as an alternate and independent basis for imposing strict liability and a determination of whether knowledge, actual or constructive, is a component of strict liability on the failure-to-warn theory. It is manifest that, if knowledge or knowability is a component, state-of-the-art evidence is relevant and, subject to the normal rules of evidence, admissible.
We granted review to resolve a conflict between decisions of the Court of Appeal. The Second District held that state-of-the-art evidence is not admissible in this case, a strict liability case based on the manufacturer's failure to warn. The First District, in Vermeulen v. Superior Court reached a contrary result. The court in each case recognized that resolution of the issue was dependent on the nature of the failure-to-warn theory and that a conflict existed among the jurisdictions as to whether knowledge or knowability was a necessary factor in the imposition of liability.
We conclude that Vermeulen v. Superior Court, states the correct rule. The California courts, either expressly or by implication, have to date required knowledge, actual or constructive, of potential risk or danger before imposing strict liability for a failure to warn. The state of the art may be relevant to the question of knowability and, for that reason, should be admissible in that context. Exclusion of state-of-the-art evidence, when the basis of liability is a failure to warn, would make a manufacturer the virtual insurer of its product's safe use, a result that is not consonant with established principles underlying strict liability.
Defendants are or were manufacturers of products containing asbestos. Plaintiff Carl Anderson filed suit in 1984, alleging that he contracted asbestosis and other lung ailments through exposure to asbestos and asbestos products (i.e., preformed blocks, cloth and cloth tape, cement, and floor tiles) while working as an electrician at the Long Beach Naval Shipyard from 1941 to 1976. Plaintiff allegedly encountered asbestos while working in the vicinity of others who were removing and installing insulation products aboard ships. The complaint stated causes of action for negligence, breach of warranty, and strict liability and prayed for punitive damages. Pursuant to stipulation entered at the time of trial, plaintiff proceeded only on his cause of action for strict liability and did not seek punitive damages.
Plaintiff's amended complaint alleged a cause of action in strict liability for the manufacture and distribution of "asbestos, and other products containing said substance, which substance contained design and manufacturing defects" which caused injury to users and consumers, including plaintiff, while being used in a reasonably foreseeable manner. A fourth cause of action, entitled "Strict Liability Punitive Damages," focused on punitive damages but also included allegations of failure to warn: Plaintiff alleged that defendants marketed their products with specific prior knowledge, from scientific studies and medical data, that there was a high risk of injury and death from exposure to asbestos or asbestos-containing products; that defendants knew consumers and members of the general public had no knowledge of the potentially injurious nature of asbestos; and that defendants failed to warn users of the risk of danger. Defendants' pleadings raised the state-of-the-art defense, i.e., that even those at the vanguard of scientific knowledge at the time the products were sold could not have known that asbestos was dangerous to users in the concentrations associated with defendants' products.
Plaintiff moved before trial to prevent defendants from presenting state-of-the-art evidence. By that time, plaintiff had indicated that he was proceeding, as to defective design, only on the "consumer expectation" prong of the design defect test set out in Barker v. Lull Engineering Co. Accordingly, the argument on plaintiff's motion was directed primarily to the applicability of the state-of-the-art defense to that theory of strict liability. The trial court granted the motion, citing the "Hawaii cases," which held that state-of-the-art evidence is irrelevant to any theory of strict liability. The defendants then moved to prevent plaintiff from proceeding on the failure-to-warn theory on grounds of waiver and fairness. After a four-week trial, the jury returned a verdict for defendants, finding in a special verdict that defendants' products had no design defects.
Defendants contend that, if knowledge or knowability is irrelevant in a failure-to-warn case, then a manufacturer's potential liability is absolute, rendering it the virtual insurer of the product's safe use. Plaintiff, on the other hand, argues that to impose the requirement of knowledge or knowability improperly infuses a negligence standard into strict liability in contravention of the principles set out in our decisions from Greenman v. Yuba Power Products, Inc. to Brown v. Superior Court Plaintiff also urges that, although some courts have assumed that knowledge or knowability is a condition of strict liability for failure to warn, the issue has not been definitively resolved in this court.
Greenman v. Yuba Power Products, Inc., established the doctrine of strict liability in California: "a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." "The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." The strict liability doctrine achieves its goals by "reliev[ing] an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action."
Strict liability, however, was never intended to make the manufacturer or distributor of a product its insurer. "From its inception, strict liability has never been, and is not now, absolute liability. Under strict liability the manufacturer does not thereby become the insurer of the safety of the product's user. We expressed the same concern in Barker, noting that Barker's test for defective design subjected a manufacturer to liability "while stopping short of making the manufacturer an insurer for all injuries which may result from the use of its product."
Strict liability has been invoked for three types of defects -- manufacturing defects, design defects, and "warning defects," i.e., inadequate warnings or failures to warn. In Barker,. . . we set out two alternative tests for identifying a design defect: first, whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner and, second, whether on balance the benefits of the challenged design outweighed the risk of danger inherent in the design. In Barker we also noted the third type of defect, inadequacy of warning, but did not address the issue since it was not relevant to the issues on appeal.
However, even if we are implying too much from the language in Brown the fact remains that we are now squarely faced with the issue of knowledge and knowability in strict liability for failure to warn in other than the drug context. Whatever the ambiguity of Brown, we hereby adopt the requirement, as propounded by the Restatement Second of Torts and acknowledged by the lower courts of this state and the majority of jurisdictions, that knowledge or knowability is a component of strict liability for failure to warn.
One of the guiding principles of the strict liability doctrine was to relieve a plaintiff of the evidentiary burdens inherent in a negligence cause of action. Indeed, it was the limitations of negligence theories that prompted the development and expansion of the doctrine. The proponents of the minority rule, including the Court of Appeal in this case, argue that the knowability requirement, and admission of state-of-the-art evidence, improperly infuse negligence concepts into strict liability cases by directing the trier of fact's attention to the conduct of the manufacturer or distributor rather than to the condition of the product. Similar claims have been made as to other aspects of strict liability, sometimes resulting in limitations on the doctrine and sometimes not. In Cronin, for example, we concluded that the "unreasonably dangerous" element, which the Restatement Second of Torts had introduced into the definition of a defective product, should not be incorporated into a plaintiff's burden of proof in a product liability action because it "rings of negligence". Another indication of the concern to eliminate negligence principles is the question raised by the Committee on Standard Jury Instructions regarding the phrase "in the exercise of reasonable care" in the standard instruction on strict liability for failure to warn.
However, the claim that a particular component "rings of" or "sounds in" negligence has not precluded its acceptance in the context of strict liability. On the same day that we decided Cronin, for example, we also held that, while ordinary contributory negligence does not bar recovery in strict liability, the plaintiff's negligence is a defense when it consists of assumption of the risk. We recognized that the doctrine of strict liability was a judicial creation and, in reaching our conclusion, we blended or accommodated the "theoretical and semantic distinctions between the twin principles of strict products liability and traditional negligence."
The strict liability doctrine has incorporated some well-settled rules from the law of negligence and has survived judicial challenges asserting that such incorporation violates the fundamental principles of the doctrine. It may also be true that the "warning defect" theory is "rooted in negligence" to a greater extent than are the manufacturing or design defect theories. The "warning defect" relates to a failure extraneous to the product itself. Thus, while a manufacturing or design defect can be evaluated without reference to the conduct of the manufacturer, the giving of a warning cannot. The latter necessarily requires the communicating of something to someone. How can one warn of something that is unknowable? If every product that has no warning were defective per se and for that reason subject to strict liability, the mere fact of injury by an unlabeled product would automatically permit recovery. That is not, and has never been, the purpose and goal of the failure-to-warn theory of strict liability. Further, if a warning automatically precluded liability in every case, a manufacturer or distributor could easily escape liability with overly broad, and thus practically useless, warnings.
We therefore reject the contention that every reference to a feature shared with theories of negligence can serve to defeat limitations on the doctrine of strict liability. Furthermore, despite its roots in negligence, failure to warn in strict liability differs markedly from failure to warn in the negligence context. Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about. Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer's conduct. The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. Thus, in strict liability, as opposed to negligence, the reasonableness of the defendant's failure to warn is immaterial.
Stated another way, a reasonably prudent manufacturer might reasonably decide that the risk of harm was such as not to require a warning as, for example, if the manufacturer's own testing showed a result contrary to that of others in the scientific community. Such a manufacturer might escape liability under negligence principles. In contrast, under strict liability principles the manufacturer has no such leeway; the manufacturer is liable if it failed to give warning of dangers that were known to the scientific community at the time it manufactured or distributed the product. Whatever may be reasonable from the point of view of the manufacturer, the user of the product must be given the option either to refrain from using the product at all or to use it in such a way as to minimize the degree of danger. Davis v. Wyeth Laboratories, Inc. described the need to warn in order to provide "true choice": "When, in a particular case, the risk qualitatively (e.g., of death or major disability) as well as quantitatively, on balance with the end sought to be achieved, is such as to call for a true choice judgment, medical or personal, the warning must be given. Thus, the fact that a manufacturer acted as a reasonably prudent manufacturer in deciding not to warn, while perhaps absolving the manufacturer of liability under the negligence theory, will not preclude liability under strict liability principles if the trier of fact concludes that, based on the information scientifically available to the manufacturer, the manufacturer's failure to warn rendered the product unsafe to its users.
The foregoing examination of the failure-to-warn theory of strict liability in California compels the conclusion that knowability is relevant to imposition of liability under that theory. Our conclusion not only accords with precedent but also with the considerations of policy that underlie the doctrine of strict liability.
We recognize that an important goal of strict liability is to spread the risks and costs of injury to those most able to bear them. However, it was never the intention of the drafters of the doctrine to make the manufacturer or distributor the insurer of the safety of their products. It was never their intention to impose absolute liability.
Therefore, in answer to the question raised in our order granting review, a defendant in a strict products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution. The judgment of the Court of Appeal is affirmed with directions that the matter be remanded to the trial court for proceedings in accord with our decision herein.