Stanford Law School - Robert Crown Law Library

Filed 4/3/08

IN THE SUPREME COURT OF CALIFORNIA

WILLIAM KEITH JOHNSON,
Plaintiff and Appellant,
S139184
v.
Ct.App. 2/5 B179206
AMERICAN STANDARD, INC.,
Los Angeles County
Defendant and Respondent.
Super. Ct. No. BC 287442

This product liability action raises a question of first impression in
California; i.e., whether we should adopt the “sophisticated user” doctrine and
defense to negate a manufacturer’s duty to warn of a product’s potential danger
when the plaintiff has (or should have) advance knowledge of the product’s
inherent hazards. The defense is specifically applied to plaintiffs who knew or
should have known of the product’s hazards, and it acts as an exception to
manufacturers’ general duty to warn consumers. (See Rest.2d Torts, § 402A.)
The federal courts have adopted the doctrine as an affirmative defense in
diversity cases, and they predict that we will do the same. (In re Air Crash
Disaster (6th Cir. 1996) 86 F.3d 498, 522; In re Related Asbestos Cases (N.D.Cal.
1982) 543 F.Supp. 1142, 1151 (In re Asbestos).) For the reasons discussed below,
we conclude that the sophisticated user defense applies in California. We affirm
the Court of Appeal judgment and remand for further proceedings consistent with
this holding.
1

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FACTS AND PROCEDURAL HISTORY
Plaintiff William Keith Johnson is a trained and certified heating,
ventilation, and air conditioning (HVAC) technician. He began working in the
HVAC field in 1996 when he first received training at ITT Technical Institute,
where he completed a year-long course on HVAC systems. Plaintiff continued to
work as an HVAC technician until 2002. He received additional training and
certifications, both on and off the job, including an Environmental Protection
Agency (EPA) “universal” certification after he passed a five-part exam.
“Universal” certification is the highest certification an HVAC technician can obtain
from the EPA, and it allows those certified to work on, and purchase, refrigerant
for large commercial air conditioning systems. (40 C.F.R. §§ 82.154 (m), 82.161
(2007).) “Universally” certified technicians are trained professionals, and their
tasks include brazing (welding) and part replacement.
Large air conditioning systems commonly use R-22, a
hydrochlorofluorocarbon refrigerant. The refrigerant can decompose into
phosgene gas when exposed to flame or high heat, as could happen while a
technician is brazing air conditioner pipes containing residual refrigerant.
Exposure to phosgene gas may cause numerous health problems, and
manufacturers and HVAC technicians have generally known of the dangers this
exposure could cause since as early as 1931. The dangers and risks associated with
R-22 are noted on Material Safety Data Sheets (MSDS’s). (Cal. Code Regs., tit. 8,
§ 5194, subd. (g)(1), (2).)1 The purpose of MSDS’s is to inform those who may

1
In July of 2004, California Code of Regulations title 8, section 5194,
subdivision (g), was amended in several places. The changes, however added little
substance to what was required of employers, and so the current requirements
accurately indicate the obligations plaintiff’s employers had and the information
that plaintiff should have known about the product when he was exposed to it.
2

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come into contact with potentially hazardous chemicals about their dangers. (See
Cal.Code Regs., tit. 8, § 5194, subd. (g).) Employers are required to use the MSDS
to train and educate their employees about the chemicals and dangers to which they
may be exposed on the job. (See Cal. Code Regs., tit. 8, § 5194, subd. (h).)2
Among other things, employers are required to tell employees where they can find
the MSDS’s, how to read them, how to detect the presence of dangerous materials,
and how to protect against possible health hazards from those materials. (Cal.
Code Regs., tit. 8, § 5194, subd. (h)(2)(C), (D), (E), (F).) Beginning in 1997, every
time he purchased the refrigerant R-22, plaintiff received, and sometimes read, an
MSDS.
In June 2003, plaintiff filed his first amended complaint, suing various
chemical manufacturers, chemical suppliers, and manufacturers of air conditioning
equipment, including defendant American Standard, Inc.3 One of the systems on
which plaintiff worked in 2002 was located at the Bank of America Del Amo
branch. Plaintiff specifically alleged that he brazed refrigerant lines on an
evaporator defendant manufactured in 1965 that contained R-22 refrigerant,
creating and exposing him to phosgene gas. Plaintiff alleged that the maintenance
and repairs he performed on air conditioning units in the normal course of his job
created and exposed him to phosgene gas, causing him to develop pulmonary
fibrosis. The causes of action against defendant are based on its alleged failure to
warn of the potential hazards of R-22 exposure. They include negligence, strict

2
In July 2004, California Code of Regulations title 8, section 5194,
subdivision (h), was amended. Like those amendments made to subdivision (g),
the effects of the amendment on subdivision (h) in this case are minimal.
3
Plaintiff has settled or dismissed all of his claims against other defendants,
except for a claim against one refrigerant manufacturer, and one supplier of
refrigerant. Those parties are not involved in the present appeal.
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liability failure to warn, strict liability design defect, and breach of implied
warranties.
In each cause of action, plaintiff’s theory was that defendant knew that
servicing the evaporator would create harmful phosgene gas, but defendant failed
to provide plaintiff with an adequate warning. (See Anderson v. Owens-Corning
Fiberglas Corp. (1991) 53 Cal.3d 987, 1002 (Anderson).) As the Court of Appeal
observed, plaintiff contended that “a warning would be adequate if it informed
users that brazing refrigerant lines can result in creation of phosgene, that phosgene
inhalation can result in potentially fatal lung disease, that phosgene can be detected
through its fresh-cut-grass smell, changes in flame color during brazing, or
physical symptoms like burning eyes or shortness of breath, and that users should
wear respiratory protection while brazing and stop brazing on detection of
phosgene.”
In May 2004, defendant moved for summary judgment on two grounds.
First, the company claimed it had no duty to warn about the potential hazards of R-
22 because it did not manufacture that refrigerant; it only manufactured the
evaporator that contained the refrigerant. Defendant also claimed it had no duty to
warn about the risks of R-22 exposure because it could assume that the group of
trained professionals to which plaintiff belonged, and plaintiff himself, were aware
of those risks. As the Court of Appeal observed, “the undisputed facts were that
under federal law, HVAC technicians who work on commercial equipment must be
certified by the EPA with ‘universal’ certification, which is granted after an exam.
They are ‘trained professionals.’ Most HVAC technicians also have some kind of
trade or professional training. [Plaintiff] had universal certification and had
completed a one-year course of study in HVAC systems at ITT Technical
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Institute.”4 In September 2004, the trial court granted defendant’s motion for
summary judgment and entered judgment in its favor on both grounds. The Court
of Appeal affirmed the trial court’s judgment on the sole ground that the
sophisticated user defense applies in California. The court held that “a
manufacturer cannot be liable to a sophisticated user of its product for failure to
warn of a risk, if a sophisticated user should reasonably know of that risk.” The
Court of Appeal held that because plaintiff’s theory was the same in all causes of
action, i.e., product liability through the failure to warn, the sophisticated user
defense should apply to plaintiff’s complaint in its entirety.
The Court of Appeal next addressed whether defendant was entitled to
summary judgment “on the theory that there was no duty to warn because the
danger at issue was one generally known to members of the profession, one which
[plaintiff] ‘could reasonably have been expected to know’ [citation] or . . . [that
defendant] had ‘reason to expect’ that HVAC technicians would know of the risk.”
The court observed that there was “undisputed evidence that HVAC
technicians could reasonably be expected to know of the hazard of brazing
refrigerant lines.” Despite plaintiff’s testimony that he had read the MSDS for R-
22, but did not understand that he should avoid heating it, the Court of Appeal
concluded that there was undisputed evidence from the relevant declarations and
depositions of HVAC technicians that the EPA requires those professionals “to

4
Plaintiff has asked this court to take judicial notice of several regulations
and regulatory interpretations of the federal Hazard Communication Standard by
the United States Department of Labor, Occupational Safety and Health
Administration, and has included in his request several exhibits detailing the
problems that exposure to hazardous chemicals may cause and the labeling
requirements for shipped containers that house the chemicals. Defendant does not
oppose the request, and we grant it. (Evid. Code, §§ 452, 453.)
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understand the decomposition products of refrigerants at high temperatures.” The
court noted that “ ‘the study guide informed users that refrigerant in contact with
high heat can form dangerous substances, and the Material Safety Data Sheet for
R-22 informed technicians that the product can decompose when in contact with
heat, releasing toxic gases.’ ” The court affirmed the summary judgment in
defendant’s favor. As noted, we granted review to determine whether the
sophisticated user defense should apply in California.
DISCUSSION
A. Procedural Background; Summary Judgment
Because plaintiff appealed from the trial court’s order granting defendant
summary judgment, we independently examine the record in order to determine
whether triable issues of fact exist to reinstate the action. (Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 767.) In this action, therefore, we must
determine whether defendant has shown that plaintiff has not established a prima
facie case of negligence or strict liability, “a showing that would forecast the
inevitability of a nonsuit” in defendant’s favor. (Id. at p. 768.) “If so, then under
such circumstances the trial court was well justified in awarding summary
judgment to avoid a useless trial.” (Ibid.) In performing our de novo review, we
view the evidence in the light most favorable to plaintiff as the losing party. (Ibid.)
In this case, we liberally construe plaintiff’s evidentiary submissions and strictly
scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiff’s favor. (Ibid.)
B. Development of the Sophisticated User Defense
1.
Background
Generally speaking, manufacturers have a duty to warn consumers about the
hazards inherent in their products. (Anderson, supra, 53 Cal.3d at p. 1003.) The
requirement’s purpose is to inform consumers about a product’s hazards and faults
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of which they are unaware, so that they can refrain from using the product
altogether or evade the danger by careful use. (Ibid.) Typically, under California
law, we hold manufacturers strictly liable for injuries caused by their failure to warn
of dangers that were known to the scientific community at the time they
manufactured and distributed their product. (Ibid.; see also Carlin v. Superior
Court (1996) 13 Cal.4th 1104, 1108 (Carlin).) Anderson made it clear that
“[w]hatever 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.” (Anderson, supra,
53 Cal.3d at p. 1003.) Anderson explained that the rule of strict liability imposed on
all manufacturers for their failure to warn of known or reasonably scientifically
knowable risks was one that we had previously required of drug manufacturers. (Id.
at p. 1000; Carlin, supra, 13 Cal.4th at p. 1109.) Conversely, when a sufficient
warning is given, “the seller may reasonably assume that it will be read and heeded;
and a product bearing such a warning, which is safe for use if it is followed, is not in
defective condition, nor is it unreasonably dangerous.” (Rest.2d Torts, § 402A,
com. j, p. 353.)
The sophisticated user defense exempts manufacturers from their typical
obligation to provide product users with warnings about the products’ potential
hazards. (In re Asbestos, supra, 543 F.Supp. at p. 1151.) The defense is
considered an exception to the manufacturer’s general duty to warn consumers, and
therefore, in most jurisdictions, if successfully argued, acts as an affirmative
defense to negate the manufacturer’s duty to warn. (Ibid.)
Under the sophisticated user defense, sophisticated users need not be
warned about dangers of which they are already aware or should be aware. (See 4
Shearman & Redfield, Negligence (rev. ed. 1041) Manufacturers and Vendors,
§ 656, p. 1576.) Because these sophisticated users are charged with knowing the
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particular product’s dangers, the failure to warn about those dangers is not the legal
cause of any harm that product may cause. (Owen, Products Liability Law (2005)
§ 9.5, p. 599.) The rationale supporting the defense is that “the failure to provide
warnings about risks already known to a sophisticated purchaser usually is not a
proximate cause of harm resulting from those risks suffered by the buyer’s
employees or downstream purchasers.” (Ibid.) This is because the user’s
knowledge of the dangers is the equivalent of prior notice. (Billiar v. Minnesota
Mining and Mfg. Co. (2nd Cir. 1980) 623 F.2d 240, 243 [“[N]o one needs notice of
that which he already knows”].)
As we explain further below, the sophisticated user defense evolved out of
the Restatement Second of Torts, section 388 (section 388) and the obvious danger
rule, an accepted principle and defense in California. (Stevens v. Parke, Davis &
Co. (1973) 9 Cal.3d 51, 64; Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d
930, 933-934 (Bojorquez).) In addition, as we explain, the defense applies equally
to strict liability and negligent failure to warn cases. The duty to warn is measured
by what is generally known or should have been known to the class of
sophisticated users, rather than by the individual plaintiff’s subjective knowledge.
(See, e.g., Humble Sand & Gravel, Inc. v. Gomez (Tex. 2004) 146 S.W.3d 170,
183.)
2. Section 388 and the Obvious Danger Rule
Section 388 provides that a supplier of goods is liable for physical harm the
goods cause if the supplier knows, or should know, the items are likely to be
dangerous, fails to reasonably warn of the danger, and “has no reason to believe
that those for whose use the chattel is supplied will realize its dangerous
condition.” Comment k to section 388, subdivision (b), is entitled “When warning
of defects unnecessary,” and it emphasizes this point. It declares that although the
condition may be one that only specialists would perceive, the supplier is only
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required to inform the users of the risk if the manufacturer has “no reason to
believe that those who use it will have such special experience as will enable them
to perceive the danger[.]” (§ 388, subd. (b), com. k, p. 307.)
Courts have interpreted section 388, subdivision (b), to mean that if the
manufacturer reasonably believes the user will know or should know about a given
product’s risk, the manufacturer need not warn that user of that risk. (Martinez v.
Dixie Carriers, Inc. (5th Cir. 1976) 529 F.2d 457, 464-465; Lockett v. General
Electric Company (E.D.Pa. 1974) 376 F.Supp. 1201, 1208-1209, affd. (3d Cir.
1975) 511 F.2d 1394; Bryant v. Hercules Incorporated (W.D.Ky. 1970) 325
F.Supp. 241, 247.) This is “especially [true] when the user is a professional who
should be aware of the characteristics of the product.” (Strong v. E. I. Du Pont de
Nemours Co., Inc. (8th Cir. 1981) 667 F.2d 682, 687.)
Other jurisdictions that have adopted the sophisticated user defense have
cited section 388 and the obvious danger rule as a basis for doing so. (E.g., Akin v.
Ashland Chemical (10th Cir. 1998) 156 F.3d 1030, 1037 [no need to warn a
knowledgeable purchaser like the United States Air Force about the dangers of
low-level chemical exposure]; Strong v. E. I. Du Pont de Nemours Co., Inc., supra,
667 F.2d at pp. 686-687 [natural gas pipe manufacturer had no duty to warn a
natural gas utility, or the utility’s employee, of well known gas line dangers].)
Other courts have employed the same principle to justify the sophisticated user
defense without specifically citing the Restatement Second of Torts. (E.g., Antcliff
v. State Employees Credit Union (Mich. 1982) 327 N.W.2d 814, 818-819, 821
[scaffolding manufacturer had no duty to give information and instruction about
safe rigging procedure to a professional painter experienced in rigging procedure].)
While this court has not expressly adopted a sophisticated user defense, it has
adopted section 388 as law in California. (See Stevens v. Parke, Davis & Co.,
supra, 9 Cal.3d at p. 64.)
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California law also recognizes the obvious danger rule, which provides that
there is no need to warn of known risks under either a negligence or strict liability
theory. (Bojorquez, supra, 62 Cal.App.3d at pp. 933-934; Holmes v. J. C. Penney
Co. (1982) 133 Cal.App.3d 216, 220.) In Bojorquez, a child bought a slingshot
from a 7-Eleven store and used it to shoot a projectile at the plaintiff, injuring one
of her eyes. (Bojorquez, supra, 62 Cal.App.3d at p. 932.) The plaintiff sued the
slingshot’s retailer and wholesaler, claiming several causes of action, including
strict liability for failing to warn about a slingshot’s dangers. (Ibid.) The trial
court dismissed her claim, and the Court of Appeal affirmed the judgment,
observing that “the seller does not need to add a warning when ‘the danger, or
potentiality of danger[,] is generally known and recognized.’ . . . There is no need
to include a warning; the product is not defective because it lacked a warning; there
is no cause of action in strict liability.” (Id. at pp. 933-934, quoting Restatement 2d
Torts, § 402A, com. j.) Similarly, Holmes v. J. C. Penney Co., supra, 133
Cal.App.3d at page 220, relying on Bojorquez, held that the dangers and potential
harms associated with firing a pellet gun were obvious and did not require the
seller to warn about them. (See also Plenger v. Alza Corp. (1992) 11 Cal.App.4th
349, 362 [manufacturer of intrauterine device not strictly liable to patient who died
after doctors implanted manufacturer’s product: “We are aware of no authority
which requires a manufacturer to warn of a risk which is readily known and
apparent to the consumer, in this case the physician. Further, if the risk . . . is
universally known in the medical profession, the failure to warn the physician of
that risk cannot be the legal cause of the decedent’s death”].)
Although the Court of Appeal was aware that “no California court has
squarely adopted the [sophisticated user] doctrine,” the court observed that “it is a
natural outgrowth of the rule that there is no duty to warn of known risks or
obvious dangers.” As the Court of Appeal reasoned, the sophisticated user defense
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simply recognizes the exception to the principle that consumers generally lack
knowledge about certain products, for example, heavy industrial equipment, and
hence the dangers associated with them are not obvious. For those individuals or
members of professions who do know or should know about the product’s potential
dangers, that is, sophisticated users, the dangers should be obvious, and the defense
should apply. Just as a manufacturer need not warn ordinary consumers about
generally known dangers, a manufacturer need not warn members of a trade or
profession (sophisticated users) about dangers generally known to that trade or
profession.
3. Fierro v. International Harvester Co.
One California court has, in dictum, addressed the sophisticated user
defense in the strict liability context, and the court’s decision has been the focus of
federal jurisprudence discussed further below. (Fierro v. International Harvester
Co. (1982) 127 Cal.App.3d 862 (Fierro).) The plaintiff, Fierro, sued International
Harvester Company (International), because it manufactured the truck her husband
was driving when he crashed and died. (Id. at p. 865.) International manufactured
skeleton trucks that came with only an engine, cab and chassis, which allowed
purchasers to complete or add to the truck as they saw fit. (Ibid.) Luer Packaging
Company (Luer) purchased one of these trucks from International and installed a
refrigeration unit on the chassis. (Ibid.) Five years later, the plaintiff’s husband
was driving the truck in the course and scope of his job with Luer. The truck
overturned after blowing a tire, crashed, skidded for a distance, spilled fuel, and
caught fire. (Ibid.)
The plaintiff and Luer’s worker’s compensation insurance carrier brought a
wrongful death action seeking to impose liability on International for negligence
and manufacturer’s strict liability. (Fierro, supra, 127 Cal.App.3d at p. 865.) The
evidence at trial focused on “the location of the fuel tank and filler necks and their
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exposure to damage when the truck struck the guard rail and turned over.” (Ibid.)
During trial, the plaintiff alleged that International had to warn Luer that attaching
power cables from the refrigerator unit to the truck’s battery could create a fire
hazard. (Id. at p. 866.) Even though these were not dangers an average consumer
would perceive, the trial court refused to instruct the jury on the issue of failure to
warn. (Ibid.) The Court of Appeal affirmed the trial court’s judgment after
concluding that the court was justified in not instructing the jury on the failure to
warn because the plaintiff had not properly raised that issue at trial. (Ibid.)
In dictum, the Court of Appeal explained that International, as the defendant
manufacturer, need not warn the purchaser Luer because “[a] sophisticated
organization like Luer does not have to be told that gasoline is volatile and that
sparks from an electrical connection or friction can cause ignition.” (Fierro, supra,
127 Cal.App.3d at p. 866.) The court observed that “[t]here was no evidence that
any feature of the skeleton unit was unique or contained any component or
capability which was known to International and which was not known to or
readily observable by Luer. The fuel tanks and the filler spouts were patently
exposed, and they were obviously designed to hold gasoline. The properties and
propensities of that volatile liquid are a matter of common knowledge. Nor did
Luer need to be advised of the necessity to cover and protect the exposed fuel tanks
before operating the unit under circumstances which could subject them to
damage.” (Ibid.) In other words, the lack of a warning “to Luer did not
substantially or unreasonably increase any danger that may have existed in using
the [truck].” (Ibid.) The Court of Appeal impliedly adopted the sophisticated user
defense in rationalizing its affirmance of the trial court’s judgment.
4. Federal Decisions
The federal courts took notice of Fierro and predicted that this court would
eventually adopt the sophisticated user defense. In an important products liability
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action filed in the Northern District of California, the plaintiffs “were insulators
and shipyard workers employed by the United States Navy during varying periods.
In the course of their employment with the Navy, plaintiffs were allegedly exposed
to asbestos products manufactured by defendants. Plaintiffs claim[ed] that
defendants’ asbestos products caused injury to them.” (In re Asbestos, supra, 543
F.Supp. at p. 1150.) The defendants claimed “that the Navy was negligent in
failing to provide plaintiffs with a safe work place and that this negligence
constituted a superseding cause sufficient to relieve defendants of liability.” (Ibid.)
The court agreed that the sophisticated user defense applied to strict liability claims
and refused to grant the plaintiffs’ motion to strike the defense. (Ibid.) The court
believed the highest California court would permit the defense. The federal court
recognized, however, that under California law the plaintiffs could undercut the
application of the sophisticated user defense by demonstrating that the defendants
might have foreseen the Navy’s alleged negligence, and so it should not absolve
them of liability. (Id. at pp. 1150-1151.)5
In re Asbestos, supra, 543 F.Supp. at page 1151, pointed out that the
defendants also asserted “that the Navy was a ‘sophisticated user’ of asbestos
products — that is, that the Navy, as an employer, was as aware of the dangers of
asbestos as were defendants and that the Navy nonetheless misused the products,
thereby absolving the defendants of liability for failure to warn the Navy’s
employees of the products’ dangers.” Various federal courts that have applied state

5
The federal court’s prediction that this court would adopt the sophisticated
user defense on the condition that a plaintiff could negate it by showing that the
sophisticated user’s misuse of the product was foreseeable is not at issue here, and
we do not address it at this time. (See In re Asbestos, supra, 543 F.Supp. at p.
1151.)
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law under diversity jurisdiction have allowed the sophisticated user defense. (See,
e.g., In re Air Crash Disaster, supra, 86 F.3d at pp. 521-522 [applying
sophisticated user defense in finding no negligence for manufacturer’s failure to
warn of danger in aircraft warning system]; Bradco Oil & Gas Co. v. Youngstown
Sheet & Tube Co. (5th Cir. 1976) 532 F.2d 501, cert. den. (1977) 429 U.S. 1095
[97 S.Ct. 1111, 51 L.Ed. 542] [sophisticated user defense applied in a strict liability
case]; In re Asbestos, supra, 543 F.Supp. at p. 1151.) Although federal circuit and
district court decisions interpreting state law are not binding on our court, we find
their reasoning persuasive in adopting the sophisticated user defense in our
jurisdiction. (See People v. Bradley (1969) 1 Cal.3d 80, 86.)
5. The Selma Decision
Plaintiff asserts that we should adopt the reasoning of Selma Pressure
Treating Co. v. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, which
rejected the sophisticated user defense. But a close reading of Selma indicates that
the court did not reject the defense at all. The issue in Selma was whether a
manufacturer had to warn the general public of the risks of damage its chemicals
caused that the ordinary user could not reasonably be expected to know. Selma
acknowledged the sophisticated user defense through its pronouncement that the
existence of unknown dangers gives rise to the duty to warn. (Id. at p. 1623.)
Selma recognizes that a defendant may introduce evidence demonstrating that “a
user has sufficient expertise to be charged with the knowledge of risks associated
with a particular product.” (Ibid.) Selma’s holding, therefore, is consistent with
the sophisticated user defense and the other case law discussed thus far. Nothing in
Selma’s reasoning persuades us not to adopt the sophisticated user defense, and to
the extent that it might cause confusion, we would disapprove of its reasoning.
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C.
Public Policy

Not all warnings, however, promote user safety. Requiring manufacturers
to warn their products’ users in all instances would place an onerous burden on
them and would “ ‘invite mass consumer disregard and ultimate contempt for the
warning process.’ ” (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d. 691, 701,
quoting Twerski et al., The Use and Abuse of Warnings in Products Liability —
Design Defect Litigation Comes of Age (1976) 61 Cornell L. Rev. 495, 521]; see
also Rest.3d Torts, Products Liability, § 2, com. j, p. 31 [“[R]equiring warnings of
obvious or generally known risks could reduce the efficacy of warnings
generally”].) The sophisticated user defense fits into this understanding of the role
of warnings; it helps ensure that warnings will be heeded.

In addition, numerous generally safe products exist that can become
hazardous when the proper precautions are not followed. Although manufacturers
are responsible for products that contain dangers of which the public is unaware,
they are not insurers, even under strict liability, for the mistakes or carelessness of
consumers who should know of the dangers involved. (Anderson, supra, 53 Cal.3d
at p. 994.) Accordingly, we adopt the defense in California. We now examine the
defense’s exact contours.
D.
How the Defense Operates in California

1. A “Should Have Known” Standard
A manufacturer is not liable to a sophisticated user of its product for failure
to warn of a risk, harm, or danger, if the sophisticated user knew or should have
known of that risk, harm, or danger. It would be nearly impossible for a
manufacturer to predict or determine whether a given user or member of the
sophisticated group actually has knowledge of the dangers because of the infinite
number of user idiosyncrasies. For example, given users may have misread their
training manuals, failed to study the information in those manuals, or simply
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forgotten what they were taught. However, individuals who represent that they are
trained or are members of a sophisticated group of users are saying to the world
that they possess the level of knowledge and skill associated with that class. If they
do not actually possess that knowledge and skill, that fact should not give rise to
liability on the part of the manufacturer.
Under the “should have known” standard there will be some users who were
actually unaware of the dangers. However, the same could be said of the currently
accepted obvious danger rule; obvious dangers are obvious to most, but are not
obvious to absolutely everyone. The obvious danger rule is an objective test, and
the courts do not inquire into the user’s subjective knowledge in such a case. In
other words, even if a user was truly unaware of a product’s hazards, that fact is
irrelevant if the danger was objectively obvious. (3 American Law of Products
Liability (3d ed. 1993) Warnings, § 32.66, p. 113-114; Bowersfield v. Suzuki Motor
Corp. (E.D.Pa. 2000) 111 F.Supp.2d 612, 622; see Solen v. Singer (1949) 89
Cal.App.2d 708, 714 [there is no obligation “ ‘to give warning of an obvious
danger or one which should have been perceived by the invitee’ ” (italics added)];
see also Simmons v. Rhodes & Jamieson, Ltd. (1956) 46 Cal.2d 190,194.) Thus,
under the sophisticated user defense, the inquiry focuses on whether the plaintiff
knew, or should have known, of the particular risk of harm from the product giving
rise to the injury.
2.
Applicability to Negligence and Strict Liability Causes of Action
As noted above, although California law recognizes the differences between
negligence and strict liability causes of action (Anderson, supra, 53 Cal. 3d at p.
987), the sophisticated user defense is applicable to both. As amicus curiae
Chamber of Commerce of the United States of America et al. observe, our
Anderson holding recognizes there is little functional difference between the two
theories in the failure to warn context. (See, e.g., Cupp & Polage, The Rhetoric of
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Strict Products Liability Versus Negligence: An Empirical Analysis (2002) 77
N.Y.U. L.Rev. 874 [noting there is little substantive distinction between negligence
and strict liability causes of action in the failure to warn context].)
In addition, as noted, Fierro, without discussing the issue in dictum, applied
the sophisticated user defense to a strict liability cause of action. (Fierro, supra,
127 Cal.App.3d at pp. 865, 866.) Likewise, California courts have applied the
obvious danger rule to strict liability causes of action. (See Bojorquez, supra, 62
Cal.App.3d at pp. 933-934; Holmes v. J. C. Penney Co., supra, 133 Cal.App.3d at
p. 220.)
Plaintiff asserts that applying the “should have known” prong of the
sophisticated user defense incorrectly converts his strict liability cause of action
into a negligence cause of action. He claims that if we adopt the sophisticated user
defense, we should limit its applicability to strict liability failure to warn claims in
which a plaintiff had actual knowledge of the danger in question. Anything less,
plaintiff claims, would convert his strict liability failure to warn cause of action
“into nothing more than a cause of action for negligence.” We disagree.
As plaintiff observes, some states recognize the sophisticated user defense
in negligence actions, but reject it in strict products liability cases. (See, e.g.,
Russo v. Abex Corp. (E.D.Mich. 1987) 670 F.Supp. 206, 207 [sophisticated user
defense used in negligence cases does not exist under strict liability principles
because “seller is duty-bound to warn all foreseeable users,” even sophisticated
ones]; accord, Menna v. Johns-Manville Corp. (D.N.J. 1984) 585 F.Supp. 1178,
1184 [sophisticated user defense applicable to negligence claims only; duty to warn
cannot depend on plaintiff’s knowledge level or sophistication].) As defendant
observes, however, the use of a “should have known” standard does not conflict
with principles of strict liability. Strict liability requires “ ‘a plaintiff to prove only
that the defendant did not adequately warn of a particular risk . . . .’ ” (Carlin,
17

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supra, 13 Cal.4th at p. 1112.) In the context of sophisticated user defense, because
the intended users are deemed to know of the risks, manufacturers have no
obligation to warn, and providing no warning is appropriate. The focus of the
defense, therefore, is whether the danger in question was so generally known
within the trade or profession that a manufacturer should not have been expected to
provide a warning specific to the group to which plaintiff belonged. Consequently,
there is no reason why the sophisticated user defense should not be as available
against strict liability causes of action as it is for negligence causes of action. In
both instances, the sophisticated user’s knowledge eliminates the manufacturer’s
need for a warning.
This approach is consistent with the Restatement Second of Torts, section
402A, which addresses strict liability. Comment j instructs that even in cases of
strict liability “a seller is not required to warn . . . when the danger, or potentiality
for danger, is generally known and recognized.” (Restatement 2d Torts, supra,
§ 402A, com. j, p. 353.) In addition, even if the “should have known” standard is
considered more closely aligned with a negligence concept, we have repeatedly
held that strict liability products liability law in California may incorporate
negligence concepts without undermining the principles fundamental to a strict
liability claim. (See, e.g., Anderson, supra, 53 Cal.3d at pp. 1002-1003 [requiring
manufacturers to warn of dangers that are known or reasonably knowable]; Daly v.
General Motors Corp. (1978) 20 Cal.3d 725, 734 [holding that principles of
comparative fault apply in strict products liability actions]; Barker v. Lull
Engineering Co. (1978) 20 Cal.3d 413, 433 [adopting risk-benefit test for design
defect claims and rejecting claim that test improperly introduces an element that
“ ‘rings of negligence’ ”].)
In
Anderson, this court stated that “the claim that a particular component
‘rings of’ or ‘sounds in’ negligence has not precluded its acceptance in the context
18

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of strict liability. . . . [¶] . . . [¶] . . . [T]he strict liability defense has incorporated
some well-settled rules from the law of negligence and has survived judicial
challenges asserting that such incorporation violates fundamental principles of the
defense.” (Anderson, supra, 53 Cal.3d at pp. 1001-1004.) Anderson agreed that
failure to warn claims involve some consideration of the defendant’s conduct and
do not necessarily focus exclusively on the product’s condition. The court
recognized that “[i]t 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 [citation], the giving of a warning cannot. The
latter necessarily requires the communicating of something to someone.” (Id. at p.
1002.)
3. Determining User Sophistication
The relevant time for determining user sophistication for purposes of this
exception to a manufacturer’s duty to warn is when the sophisticated user is injured
and knew or should have known of the risk. (See Crook v. Kaneb Pipe Line
Operating Partnership (8th Cir. 2000) 231 F.3d 1098, 1102.) As amicus curiae
Product Liability Advisory Counsel observe, the Court of Appeal “correctly
understood the defense to eliminate any duty to warn when the expected user
population is generally aware of the risk at issue, and correctly rejected the
argument that a manufacturer’s duty to warn should turn on the individual
plaintiff’s actual understanding of the risk. Legal duties must be based on
objective general predictions of the anticipated user population’s knowledge, not
case-by-case hindsight examinations of the particular plaintiff’s subjective state of
mind.” As the Court of Appeal pointed out, “[t]he sophisticated user defense will
always be employed when a sophisticated user should have, but did not, know of
19

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the risk. Otherwise, the issue would be actual knowledge and causation.”
Therefore, the sophisticated user’s knowledge of the risk is measured from the time
of the plaintiff’s injury, rather than from the date the product was manufactured.
The timeline focuses on the general population of sophisticated users and conforms
to the defense’s purpose to eliminate any duty to warn when the expected user
population is generally aware of the risk at issue.
DISPOSITION
For the reasons explained above, we conclude that the sophisticated user
defense applies in California. Like the Court of Appeal, we also conclude that the
defense should apply in this case to defeat all causes of action for defendant’s
alleged failure to warn. As the Court of Appeal observed, defendant presented
undisputed evidence that HVAC technicians could reasonably be expected to know
of the hazard of brazing refrigerant lines. Plaintiff’s expert testified that HVAC
technicians knew or should have known of the risk of phosgene at the time
defendant manufactured the product in 1965. Defendant’s expert testified that
throughout his 28 years as an HVAC technician, it was “widely known among
HVAC technicians” that when R-22 is heated it can decompose into toxic by-
products that include phosgene. Thus, the danger created by exposing refrigerant
to high heat and flame was well known within the community of HVAC
technicians to which plaintiff belonged.
Plaintiff’s claim that he had read the MSDS for R-22 but did not understand
that he should avoid heating R-22 is also without merit. The expert testimony at
trial showed that the EPA requires HVAC professionals “to understand the
decomposition products of refrigerants at high temperatures.” In addition,
plaintiff’s excuse that he had never heard of phosgene gas and that when he
smelled the fresh-cut-grass odor he did not stop or take any precaution, also does
not support his claim. As noted above, the study guide informed HVAC
20

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technicians that R-22 can form dangerous substances when in contact with high
heat, and the MSDS for R-22 informed technicians that the product can decompose
and release toxic gases when in contact with heat. The evidence is clear that
HVAC technicians knew or should have known of the dangers of R-22 heat
exposure.
For all these reasons, we conclude that there is no triable issue of fact
regarding applicability of the sophisticated user defense in this case. We therefore
affirm the Court of Appeal’s judgment.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
LEVY, J.P.T.*

________________________
*
Associate Justice, Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
21

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Johnson v. American Standard, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 133 Cal.App.4th 496
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S139184
Date Filed: April 3, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Susan Bryant-Deason

__________________________________________________________________________________

Attorneys for Appellant:

Metzger Law Group, Raphael Metzger, Gregory A. Coolidge and Peter F. Klein for Plaintiff and Appellant.

Steven G. Ingram and Sharon J. Arkin for Consumer Attorneys for California as Amicus Curiae on behalf of
Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Munger, Tolles & Olson, Jeffrey L. Bleich, Kathleen M. McDowell, Paul J. Watford, Blanca Fromm Young
and Aimee Feinberg for Defendant and Respondent.

Hugh F. Young, Jr.; Martin, Bischoff, Templeton, Langlset & Hoffman, Jonathan M. Hoffman; Drinker
Biddle & Reath and Alan Lazarus for Product Liability Advisory Council, Inc., as Amicus Curiae on behalf
of Defendant and Respondent.

Horvitz & Levy, David M. Axelrad, Mary-Christine Sungaila; National Chamber Litigation Center, Inc.,
and Robin S. Conrad for Chamber of Commerce of the United States Of America, American Chemistry
Council, American International Companies, ExxonMobil Corporation, The Farmers Insurance Group of
Companies and Honeywell International, Inc., as Amici Curiae on behalf of Defendant and Respondent.

Duane Morris, Robert L. Byer, Paul J. Killion and Kathryn K. Schutz for FLSMIDTH, Inc., as Amicus
Curiae on behalf of Defendant and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Gregory A. Coolidge
Metzger Law Group
401 E. Ocean Boulevard, Suite 800
Long Beach, CA 90802
(562) 437-4499

Sharon J. Arkin
Consumer Attorneys of California
770 L Street, Suite 1200
Sacramento, CA 95814
(916) 442-6902

Jeffrey L. Bleich
Munger, Tolles & Olson
560 Mission Street, 27th Floor
San Francisco, CA 94105
(415) 512-4000

---

Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case includes the following issues: (1) Does the "sophisticated user" doctrine, which precludes a manufacturer's liability for failure to warn of a product risk that a sophisticated user should have recognized, apply in California? (2) If the doctrine applies, does it apply to strict liability causes of action and is a certified HVAC (heating, ventilation and air conditioning) technician a "sophisticated user" who should have known that noxious gas is created during maintenance and repair of air conditioning systems?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 04/03/2008	43 Cal.4th 56 original opinion	S139184	Review - Civil Appeal	closed; remittitur issued

Disposition
Apr 3 2008	Opinion: Affirmed

Dockets
Nov 28 2005	Received oversized petition for review   appellant William Keith Johnson
Nov 28 2005	Application filed to:   to file oversize petition>>appellant William Keith Johnson
Nov 30 2005	Petition for review filed with permission   appellant William Keith Johnson
Dec 1 2005	Received Court of Appeal record
Dec 7 2005	Request for depublication (petition for review pending)   William Keith Johnson, appellant Attorney Greg Coolidge, retained counsel
Dec 12 2005	Received Court of Appeal record
Dec 16 2005	Answer to petition for review filed   American Standard, Inc. Respondent By Jeffrey L. Bleich, Counsel.
Dec 16 2005	Opposition filed   to Request for Depublucation. American Standard, Inc., Respondent
Jan 4 2006	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Jan 4 2006	Letter sent to:   Counsel re Certification of Interested Entities or Persons
Jan 17 2006	Certification of interested entities or persons filed   American Standard, Inc., Respondent by Jeffrey L. Bleich, counsel
Jan 19 2006	Request for extension of time filed   William Keith Johnson, appellant, request extension of time to file opening brief on the merits
Jan 23 2006	Extension of time granted   to March 3, 2006 to file Appellant's Opening Brief on the Merits.
Feb 24 2006	Request for extension of time filed   requesting a 30-day extension to and including April 3, 2006 to file appellant's opening brief. William Kenneth Johnson, Appellant by Gregory Coolidge, counsel
Feb 27 2006	Certification of interested entities or persons filed   William Keith Johnson, appellant Gregory Alan Coolidge, retained
Feb 28 2006	Extension of time granted   to April 3, 2006 to file opening brief on the merits.
Apr 3 2006	Application to file over-length brief filed   opening biref in excess of 14, 000 words William Keith Johnson, Appellant Gregory Coolidge, Counsel appln. & brief transmitted 4/4/06 o/n to sf attn: Jose
Apr 6 2006	Opening brief on the merits filed   in excess of 14, 000 words with permission. William Keith Johnson, Appellant Gregory Coolidge, Counsel
Apr 17 2006	Request for extension of time filed   to July 3, 2006 to file respondent's answer brief on the merits.
Apr 28 2006	Extension of time granted   to July 3, 2006 to file respondent's answer brief on the merits.
Jul 3 2006	Application filed to:   file answer brief on the merits in excess of 14,000. American Standard, Inc., respondent Jeffrey L. Bleich, Counsel
Jul 3 2006	Received:   Respondent's answer brief on the merits in excess of 14,000 words.
Jul 7 2006	Answer brief on the merits filed   with permission in excess of 14,000. American Standard, Inc., respondent Jeffrey L. Bleich, Counsel
Jul 19 2006	Request for extension of time filed   by appellant William Keith Johnson to extend time to August 10, 2006 to file answer brief on the merits Gregory Coolidge, counsel
Jul 25 2006	Extension of time granted   to August 10, 2006, appallent to file reply brief on the merits.
Aug 10 2006	Application to file over-length brief filed   William Keith Johnson, appellant received concurrent with Reply Brief/Merits.
Aug 15 2006	Reply brief filed (case fully briefed)   with permission. William K. Johnson, Appellant Gregory Coolidge, Counsel
Sep 13 2006	Request for extension of time filed   to September 22, 2006, to file amicus curiea in support of appellant. The Consumer Attorneys of California Steven G. Ingram, Counsel
Sep 14 2006	Received application to file Amicus Curiae Brief   The Product Liability Advisory Council, Inc. in support of respondent. Alan Lazarus, Counsel
Sep 15 2006	Received application to file Amicus Curiae Brief   Flsmidth, Inc. in support of respondent. (CRC 40.1b) Paul J. Killion, Counsel
Sep 15 2006	Application to appear as counsel pro hac vice (granted case)   Robert L. Byer
Sep 15 2006	Received application to file Amicus Curiae Brief   Chamber of Commerce of the United States of America, American Chemistry Council, American International Companies, ExxonMobil Corporation, The farmers Insurance Group of Companies and Honeywell International, Inc. to file amici curiae in support of respondent. Mary-Christine Sungaila, Counsel
Sep 15 2006	Application to appear as counsel pro hac vice (granted case)   Robin S. Conrad
Sep 22 2006	Extension of time granted   to September 22, 2006, to file amicus curiea in support of appellant. The Consumer Attorneys of California Steven G. Ingram, Counsel
Sep 22 2006	Permission to file amicus curiae brief granted   The Product Liability Advisory Council, Inc. in support of respondent. Alan Lazarus, Counsel
Sep 22 2006	Amicus curiae brief filed   The Product Liability Advisory Council, Inc. in support of respondent. Alan Lazarus, Counsel An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 22 2006	Permission to file amicus curiae brief granted   Flsmidth, Inc. in support of respondent. Paul J. Killion, Counsel
Sep 22 2006	Amicus curiae brief filed   Flsmidth, Inc. in support of respondent. Paul J. Killion, Counsel An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 22 2006	Application to appear as counsel pro hac vice granted   Robert L. Byer of the State of Pennsylvania for amicus curiae Flsmidth, Inc.
Sep 22 2006	Permission to file amicus curiae brief granted   Chamber of Commerce of the United States of America, American Chemistry Council, American International Companies, ExxonMobil Corporation, The farmers Insurance Group of Companies and Honeywell International, Inc. to file amici curiae in support of respondent. Mary-Christine Sungaila, Counsel
Sep 22 2006	Amicus curiae brief filed   Chamber of Commerce of the United States of America, American Chemistry Council, American International Companies, ExxonMobil Corporation, The farmers Insurance Group of Companies and Honeywell International, Inc. to file amici curiae in support of respondent. Mary-Christine Sungaila, Counsel An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 22 2006	Application to appear as counsel pro hac vice granted   Robin S. Conrad of the District of Columbia for amicus curiae the Chambers of Commerce of the United States.
Sep 27 2006	Received application to file Amicus Curiae Brief   The Consumer Attorneys of California to file amicus curiea in support of appellant. Steven G. Ingram, Counsel
Oct 11 2006	Request for extension of time filed   by William Keith Johnson, appellant, to file one reply to all amicus briefs faxed to sf attn Jose
Oct 12 2006	Permission to file amicus curiae brief granted   The Consumer Attorneys of California to file amicus curiea in support of appellant. Steven G. Ingram, Counsel
Oct 12 2006	Amicus curiae brief filed   The Consumer Attorneys of California to file amicus curiea in support of appellant. Steven G. Ingram, Counsel
Oct 13 2006	Extension of time granted   On application of plaintiff and appellant and good cause appearing, it is ordered that the time to serve and file the answer to all amicus briefs is extended to November 13, 2006.
Oct 19 2006	Request for extension of time filed   to November 13, 2006, to answer amicus curiea Consumer Attorneys of California. American Standard, Inc., Respondent Aimee Feinberg, Counsel
Oct 24 2006	Extension of time granted   to November 13, 2006, to answer amicus curiea Consumer Attorneys of California. American Standard, Inc., Respondent Aimee Feinberg, Counsel
Nov 13 2006	Response to amicus curiae brief filed   American Standard. Inc., respondent Aimee Feinberg, Counsel
Nov 14 2006	Response to amicus curiae brief filed   appellant William Keith Johnson to a.c. brief filed by Commerce of the United States of America, et al., The Product Liability Advisory Council, Inc., and Flsmidth, Inc.
Nov 14 2006	Filed:   motion for preference on the Court's calendar appellant William Keith Johnson
Jan 3 2007	Order filed   Plaintiff and appellant William Keith Johnson's motion, under Code of Civil Procedure section 36(e) (see California Rules of Court, rule 19) for "calendar preference" is granted as consistent with (1) attention to matters entitled to greater preference by law and (2) application of those provisions of the Internal Operating Practices and Procedures of the California Supreme Court that may necessarily affect scheduling of the case for oral argument (see Supreme Ct. Intern. Operating Practices & Procedures, ?? V, VI). Corrigan, J., was recused and did not participate.
Dec 4 2007	Case ordered on calendar   Wednesday, January 9, 2008, at 9:00 a.m., in San Francisco
Dec 19 2007	Application filed   Application to divide oral argument time. Appellant Johnson requesting to share 10 minutes with amicus curiae Consumer Attorneys of California.
Dec 26 2007	Order filed   The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae Consumer Attorneys of California 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Jan 9 2008	Cause argued and submitted
Apr 2 2008	Notice of forthcoming opinion posted
Apr 3 2008	Opinion filed: Judgment affirmed in full   Majority opinion by Chin, J ------------------------joined by George, C.J., Kennard, Baxter, Werdegar, Moreno, JJ., Levy, J.P.T.* *Associate Justice, 5th District Court of Appeal, assigned
May 14 2008	Remittitur issued (civil case)

Briefs
Apr 6 2006	Opening brief on the merits filed
Jul 7 2006	Answer brief on the merits filed
Aug 15 2006	Reply brief filed (case fully briefed)
Sep 22 2006	Amicus curiae brief filed
Sep 22 2006	Amicus curiae brief filed
Sep 22 2006	Amicus curiae brief filed
Oct 12 2006	Amicus curiae brief filed
Nov 13 2006	Response to amicus curiae brief filed
Nov 14 2006	Response to amicus curiae brief filed

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