Robbie D. Bispo v. Gsw, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBBIE D. BISPO,
Plaintiff - Appellant,
v.
GSW, INC.; AMERICAN WATER
HEATER COMPANY, doing business as
US Craftmaster; LOWE’S HIW INC;
BLUE STAR GAS SERVICE, LTD dba
Blue Star Gas Service; CHEVRON U.S.A.
INC.,
Defendants,
and
ROBERTSHAW CONTROLS
COMPANY, dba Invensys Appliance
Controls dba as Invensys Controls,
Defendant - Appellee.
No. 08-36052
D.C. No. 3:05-cv-01223-PK
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
FILED
JAN 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 5 --

2
Argued and Submitted December 11, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
Plaintiff Robbie D. Bispo (“Bispo”) appeals the district court’s award of
summary judgment to defendant Robertshaw Controls Company (“Robertshaw”)
on Bispo’s claims of strict products liability and failure to warn. Bispo was
severely injured when he unwittingly ignited a large quantity of propane gas that
collected in his basement after the rubber seal on a valve in his hot water heater
became displaced. Robertshaw manufactured the valve.
(1) Bispo first argues that the district court erred in concluding that a
reasonable jury would necessarily find that the benefits of Robertshaw’s valve
design outweighed the risks. In a strict products liability claim in California, a
prima facie showing that the product’s design caused the injury shifts the burdens
of production and proof to the defendant regarding risk-benefit. Barker v. Lull
Engineering Co., 20 Cal.3d 413, 431-32 (Cal. 1978).

-- 2 of 5 --

Some of the experts deposed by the parties refer to the rubber part of the1
valve as a “seat,” others as a “seal.” We adopt the latter term.
3
Here, there was undisputed evidence that Robertshaw’s valve included a
rubber seal ; that the rubber seal on Bispo’s water heater was designed in a manner1
that allowed it to become displaced under high pressure; and that the displacement
of the rubber seal allowed gas to flow through the valve and into Bispo’s basement.
The design of the valve, therefore, was a “substantial factor” in causing Bispo’s
injury. See Campbell v. General Motors Corp., 32 Cal.3d 112, 125 (Cal. 1982).
Bispo also made a sufficient showing that the injury was foreseeable, because
several Robertshaw valves had failed in the past and Robertshaw should have
known that propane tanks can supply far more pressure than its valves were
designed to withstand.
In granting summary judgment because Bispo failed to produce evidence of
risk, the district court misapplied California law. Even where a plaintiff never so
much as mentions “risk-benefit,” a prima facie showing of injury and causation
shifts the burden to the defendant. McCabe v. American Honda Motor Co., 100
Cal. App. 4th 1111, 1127 (Cal. Ct. App. 2002). In any event, the district court’s
determination that Bispo produced no evidence of risk was clearly incorrect. The

-- 3 of 5 --

4
accident itself, caused by the failure of the rubber seal and resulting in severe
injury, is evidence of risk.
Moreover, Robertshaw did not show any benefits of its valve design. See
Bernal v. Richard Wolf Medical Instruments Corp., 221 Cal. App. 3d 1326, 1335
(Cal. Ct. App. 1990) (holding that the defendant, not the plaintiff, bears the burden
with regard to feasible alternative designs). Robertshaw cannot carry its burden of
showing that risk is outweighed without presenting some evidence of a benefit that
the risk is outweighed by. Entry of summary judgment on Bispo’s risk-benefit
theory of strict liability was improper.
(2) Bispo next challenges the entry of summary judgment on his consumer
expectations theory of strict liability. Strict products liability, however, may not be
premised on the consumer expectations theory when “the question of how safely
the product should have performed cannot be answered by the common experience
of its users.” Soule v. General Motors Corporation, 8 Cal. 4th 548, 556 (Cal.
1994). A product’s complexity is not controlling. Rather, “[t]he critical question
is whether the ‘circumstances of the product’s failure permit an inference that the
product’s design performed below the legitimate, commonly accepted minimum
safety assumptions of ordinary consumers.’” McCabe, 100 Cal. App. 4th at 1122-
23 (quoting Soule, 8 Cal. 4th at 568-69). We see no reason to disturb the district

-- 4 of 5 --

5
court’s conclusion that ordinary consumers have no firm expectations regarding
the gas pressure that safety valves should withstand.
(3) Bispo challenges the district court’s entry of summary judgment on the
claim of failure to warn on the ground that the risk posed by Robertshaw’s valve
was unknown and unknowable. For the reasons we have mentioned, it was error
for the district court to conclude that the risk of failure of Robertshaw’s valve was
unknowable as a matter of law. However, Bispo has presented no facts — or even
any specific argument — tending to show that additional warnings would have
effectively averted any risk, especially in light of the fact that the component valve
was ultimately sold to consumers by a sophisticated intermediate user. See
Johnson v. American Standard, Inc., 43 Cal.4th 56, 65 (“[The sophisticated user]
defense applies equally to strict liability and negligent failure to warn cases.”). For
that reason, entry of summary judgment on Bispo’s failure to warn claim was
proper.
The district court’s entry of summary judgment is REVERSED and the case
REMANDED for further proceedings.

-- 5 of 5 --