Filed 7/14/15 Golston v. Hertz Equipment Rental CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TAWANA GOLSTON et al.,

Plaintiffs and Appellants,

v.

HERTZ EQUIPMENT RENTAL 

CORPORATION,

Defendant and Respondent.

 D067431

 (Super. Ct. No. CIVVS907786)

APPEAL from a judgment of the Superior Court of San Bernardino County, 

Joseph R Brisco, Judge. Reversed.

Law Offices of Martin N. Buchanan, Martin N. Buchanan; Giradi Keese and 

David R. Lira for Plaintiffs and Appellants.

Lombardi, Loper & Conant, John W. Ranucci and Maria M. Lampasona for 

Defendant and Respondent.
2

INTRODUCTION

This is a product liability case in which plaintiffs Tawana Golston, Jamichael 

Weathers and Jacari Golston (collectively, plaintiffs) contend Hertz Equipment Rental 

Corporation (Hertz) provided a defectively designed water truck without adequate 

warnings to the employer of their husband and father, Marty Golston (Golston), and the 

truck caused Golston's death while he transported water for his employer on a highway

from one job site to another job site. When Golston made a left turn, the water in the 

truck's tank sloshed to the right, the center of mass shifted, and the truck rolled 360 

degrees. The roof of the truck's cab crushed during the roll and Golston suffered head 

and neck injuries, which resulted in his death. Appealing the judgment on a jury verdict, 

the plaintiffs contend: (1) the trial court erred in failing to instruct the jury regarding the 

consumer expectation theory of the design defect claim, (2) the trial court erred in 

instructing the jury regarding the sophisticated user defense to the failure to warn claim, 

and (3) the trial court erred in striking the testimony of their expert who testified 

regarding his testing of a nearly identical exemplar vehicle and his opinion the water 

truck with the water tank added by Hertz was defective because it failed to meet industry 

performance standards. We agree with each of these contentions and reverse the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Hertz Production and Rental of Water Trucks

At the request of Hertz, Valew Welding and Fabrication (Valew) fabricated water 

tanks and mounted them on chassis provided by Hertz. Over the years, Valew fabricated 
3

about 750 water tanks for Hertz. For the vehicle at issue in this case, Hertz ordered a 

2,000 gallon tank system to be installed on a cab and chassis provided by Hertz. Hertz 

requested one crosswise baffle to be welded into the middle of the tank with a manway 

opening, similar to an exemplar vehicle it asked Valew to inspect. A crosswise baffle 

slows the movement of water from front to back and mitigates the force when braking.

Hertz rents water tank trucks to construction sites or construction companies. 

When Valew delivered the water tank trucks to Hertz, it included an operation manual 

regarding the water tank in the cab of each truck intended for use by those who rented the 

truck. The manual stated, " 'Never transport water on highways.' " However, Hertz 

allows its customers to operate 2,000-gallon water trucks on highways. Hertz did not use 

the tank manual prepared by Valew or provide it to its customers. The manager at the 

Santa Maria Hertz branch who rented equipment testified he had never seen the operation 

manual for the water truck. 

Recon's Rental and use of Water Trucks

Golston's employer, Remedial Construction Services, L.P. (Recon), uses water 

trucks for dust control and compaction. It uses various sizes of trucks from some that 

hold 2,000-gallons of water to others holding 8,000- to 13,000-gallons. 

Recon rented water trucks from Hertz. No one at Hertz advised Recon to "never 

transport water on highways" and there was evidence Recon employees never saw an 

operation manual for the water tank in a water truck rented from Hertz. Many times they 

had to get water from somewhere off of the job site. 
4

Recon provides its employees with some driving school training, training for 

working with hazardous materials and job site-specific training. It also provides on-thejob training for certain vehicles. Operating a water truck is something one can do when 

one starts to drive.

Golston's Work with Recon 

Golston started working for Recon in Texas to earn more money and make a better 

life for his family. He started by digging trenches, working on the ground, building 

fences on construction sites and eventually driving water trucks. He was frequently 

called to work in California for six to eight months at a time.

Golston was known as a "laborator," which is a combination of a laborer and a 

low-level operator. This is a laborer who has shown incentive and ability to safely 

operate water trucks or other non-heavy equipment. Laborators were allowed to operate

certain equipment that do not take a lot of extra training to learn to operate safely.

Golston operated water trucks for a couple of years before the accident. The 

service project manager, Danny Watts, never saw Golston operate a water truck in an 

improper or unsafe manner. However, he never observed Golston operate a water truck 

on a highway. Golston did not have specialized training and testing in the operation of 

water tank trucks.

The Accident

On the morning of June 24, 2008, Golston was initially working at a job site in 

Santa Maria known as Wiley, but was selected to drive the water truck for another project 

at the Battles Gas Plant (Battles) job site where they were building a temporary parking 
5

lot. Golston's superiors at Recon considered him to be experienced, thoughtful, and a 

slow and safe driver. 

Stanley Bailey, the superintendent of the Battles site, picked up Golston from the 

Wiley site and drove approximately five miles to the Battles site. Since there was no 

source of water at the Battles site, they planned to obtain water from the Wiley site. They 

drove the route to establish a journey management plan to make sure Golston knew 

which way to turn and to identify hazards. Bailey pointed out the unprotected left turn 

from Betteravia Road on to Rosemary Road and advised Golston to be careful about the 

traffic in the area. 

Lance Reed, another superintendent with Recon, testified Golston told him on the 

morning of the incident he did not want to work with equipment that day and preferred to 

work with a shovel. He mentioned his diabetes. However, Golston ended up operating 

the water truck that day. No one issued a stop work authority due to any concerns about 

Golston's ability to operate the truck.1 

Golston drove to the Wiley site, obtained water, and returned to the Battles site at 

least once without incident. He was seen spraying water where the gravel was to be laid. 

 

1 Recon has a "stop work" program in which any employee could tell a supervisor 

he or she did not feel safe doing a particular job and could unilaterally stop work. This 

applies to anything that would make an employee unsafe, which could include illness or 

lack of communication or understanding about an assigned task. If any employee sees 

something that appears unsafe, including assignment of another employee to a particular 

task, the employee can invoke a stop work. 
6

On one trip to the Wiley site, another employee who was a lead equipment 

operator, helped Golston fill the water tank. While the tank was filling, Golston 

mentioned he was unhappy and did not want to be at work or to operate equipment that 

day. He said he would prefer to be on the ground doing labor work. When the other 

employee suggested Golston speak to a superintendent, Golston said he had done so and 

he was told he had to drive the water truck. They did not allow him to go home. Golston 

said he missed his family in Texas and he wanted to sweat that day by doing physical 

labor. The employee understood Golston had been away from his family for quite a 

while and wanted to be home with them. The employee helped Golston fill the water 

tank three-quarters full to avoid being overweight. 

On what would be his final trip back to the Battles site, Golston slowly entered 

Betteravia Road and increased his speed along with other traffic as he traveled eastbound 

on Betteravia. When Golston approached Rosemary Road, he turned on the left turn 

signal. As he made the left turn, he cut the corner, meaning the vehicle moved into the 

southbound lane of Rosemary Road and crossed the stop line. Water came out of the top 

of the tank, the truck skidded, rolled, and came to rest in a drainage ditch. 

Witnesses estimated Golston was traveling between 30 and 35 miles per hour as 

he began the turn. While one witness said Golston did not slow down as he made the 

turn, another witness testified he did slow down before he turned. 

When a paramedic arrived, Golston was communicative, but he was pinned in the 

truck's cab. He reported he felt the water shift as he made the left turn onto Rosemary 

Road from Betteravia Road and he lost control of the vehicle. Golston said he was 
7

traveling about 35 miles per hour. The paramedic suspected a severe spinal cord injury 

because Golston had no sensation or movement in his body below the nipple line.

Golston suffered a head injury and a crushed vertebra in his neck. He was 

paralyzed from the shock to the spinal cord. He underwent surgery for removal of the 

crushed vertebra and fusion with a titanium cage. However, he developed complications. 

Despite all efforts to save him, Golston died as a result of the injuries he sustained in the 

accident and the subsequent complications.

Plaintiffs' Accident Reconstruction

According to the plaintiffs' accident reconstruction expert, Seth Bayer, as Golston 

turned left the vehicle crossed the stop line for southbound traffic entering the 

intersection from Rosemary Road. There was evidence of light braking, but no evidence 

of an emergency maneuver. The vehicle rolled to the right one full 360-degree 

revolution, from its wheels to its wheels.

According to Bayer, the maximum speed the truck could have been traveling when 

it started the turn was 25 to 28 miles per hour for the friction marks to be made. It could 

not have stayed within the documented path of travel if it made the turn at 35 miles per 

hour. The vehicle was traveling between 20 and 23 miles per hour when its wheels came 

off the pavement and 19 miles per hour when it began to tip over.

Bayer testified the center of mass changes as the water truck travels because the 

water moves around. It moves left and right as well as forward and back to some extent, 

although the baffle in the center of the tank limits the "fore and aft slosh somewhat." The 

crosswise baffle does not mitigate the movement of water from left to right in turns. 
8

Bayer opined the use of two vertical partitions on either side of the tank would 

limit not only the center of mass, but also the forces associated with the movement and 

would increase the stability of the vehicle. He presented a simulation using the same data 

from the accident reconstruction except with the use of longitudinal baffles. He 

determined the water would have moved less and with less velocity. In his opinion, the 

truck would not have rolled if baffles had been in place. The National Fire Protection 

Association standards refer to the use of such longitudinal baffles in fire trucks.

Hooker Testimony and Exclusion

Prior to trial, Hertz filed a motion in limine to exclude the testimony of plaintiffs'

expert Robert Hooker. The court denied the motion without prejudice, but stated it would 

hold a hearing pursuant to Evidence Code2 section 402 (402 hearing). 

In the 402 hearing, Hooker explained he is an automotive consultant and a chief of 

police in a Michigan town. In his consultation work, he tests vehicles for safety 

compliance and handling. Although he is not an automotive engineer, he is a retired drag 

racer and has worked with professional engineers to perform vehicle testing. In addition, 

he has performed accident reconstruction work as a police officer. The court determined 

Hooker was qualified to provide opinions regarding handling and stability of a vehicle. 

After hearing the foundation for Hooker's testimony, the court allowed Hooker to 

testify regarding stability and handling as well as the minimum national standards. The 

 

2 All further statutory references are to the Evidence Code unless otherwise 

specified.
9

court concluded Hertz's objections to the foundation for his testimony went to weight 

rather than admissibility.

Hooker then testified before the jury. He stated manufacturers perform testing to 

understand or replicate the vehicle using different maneuvers. One such maneuver is a 

National Highway Traffic Safety Administration "J-turn" test, which inputs a specified

degree of steering on the steering wheel once it reaches a target speed, then holds the 

steer while the gas pedal is released until "the vehicle scrubs off speed, and then it either 

follows the course or tips up." He understood the manufacturer of the cab and chassis 

involved in Golston's accident had performed a J-turn test of the cab and chassis, but 

without a water tank attached and without a liquid load.3

Hooker inspected the vehicle to determine its characteristics so he could obtain an 

exemplar for testing. He obtained an exemplar cab and chassis of the same year and 

model, along with a 2,000-gallon water tank from the same manufacturer that 

manufactured the subject Hertz truck. The exemplar vehicle was about 5,000 pounds 

lighter than the Hertz vehicle, but he stated this did not impact the testing. The only other 

difference was he used a vehicle with an automatic transmission rather than a manual 

transmission because he needed to instrument the exemplar vehicle to run unmanned tests

by remote control. 

Hooker performed a J-turn test because it puts the least amount of stress on the 

vehicle. Hooker explained he was not attempting to replicate the accident or Golston's 

 

3 The cab manufacturer tested vehicles with a static load of bales and sandbags. 

Hooker testified this does not compare to testing with a liquid or "live" load. 
10

maneuver. Instead, he was performing a standard industry test to evaluate the rollover 

performance of the vehicle in a controlled situation. He performed the test with the tank 

empty and with the tank full of water.

Hooker played a film clip of the J-turn testing with the tank empty showing the 

left rear wheels lift off the ground about three inches. The maximum speed the exemplar 

vehicle reached was 23.05 miles per hour. After an unreported side bar, the court 

precluded Hooker from showing the film clip of the testing with the tank full, which 

showed the truck rolling part way into the turn.

Hooker testified he saw no documentation by Hertz of an attempt to analyze or 

study the impact of the water load on the vehicle. In his opinion, the Hertz vehicle was 

defective in its design with the tank included. This opinion was based on tire friction, 

steering input and speed during a clearly foreseeable maneuver, i.e. a J-turn.

On cross-examination, Hooker admitted other factors such as brake application, 

radius of turn, tire friction and speed could influence a rollover even if a vehicle satisfied 

a J-turn test and he did not know whether these variables caused Golston's accident. He 

could not say the failure of the exemplar vehicle to complete the J-turn was the cause of 

Golston's accident.

After the conclusion of Hooker's testimony, Hertz moved to strike his testimony 

on the basis it had no probative value and was prejudicial because he did not establish a 

causal connection between the defect related to a J-turn test and the accident. Plaintiffs'

counsel argued Hooker did industry testing of the vehicle to determine rollover 

propensity and his testing was probative in a products liability case regarding what a 
11

manufacturer does or should do to evaluate such potential. The court struck Hooker's 

testimony and the film segment pursuant to section 352 stating the probative value of the 

evidence was "substantially outweighed by the likelihood that it will confuse and mislead 

the jury." The court instructed the jury not to consider the testimony of Hooker and the 

video in deliberation.

Defense Experts

Hertz presented testimony from Norris Hoover, a truck operations expert who 

taught truck driving courses. Hoover assumed Golston's truck was traveling at 35 miles 

per hour as he entered the turn. In his opinion, Golston was driving the water truck too 

fast for a 90-degree corner. He opined a safe speed to execute the turn would have been 

between 10 and 15 miles per hour. Hoover also opined Golston's employer did not 

properly train him for operation of the water tank truck.

The defense mechanical engineering expert, Geoffrey Germane, testified regarding 

his reconstruction of the accident. Germane opined the truck speed at the beginning of 

the turn was 33 to 38 miles per hour and decreased due to braking and sliding to 

approximately 21 to 24 miles per hour at the time it rolled over. Germane disagreed with 

Bayer's simulation and analysis regarding speed. He opined the simulation with an initial 

speed of 27 miles per hour would only rollover a quarter revolution and would fall short 

of the actual rest position of the truck by 30 feet.

Similarly, the defense reconstruction expert, Thomas Gillespie, testified Golston's 

truck was traveling about 35 miles per hour when the truck began to make tire marks on 

the turn. According to Gillespie, if the water was frozen in place or if baffles were 
12

keeping the water from moving, the truck still would have rolled over. The truck was not 

capable of cornering at such a speed. Gillespie agreed the truck should turn at a speed no 

greater than 15 miles per hour. He also agreed there was no evidence Hertz made efforts 

to understand the impact of 2,000 gallons of water on the chassis.

Verdict

The jury determined, by a vote of 9 to 3, the water truck's design was not a 

substantial factor in causing harm to Golston. With respect to failure to warn, the jury 

unanimously determined (1) the water truck had potential risks that were "known or 

knowable" at the time of manufacture, distribution or rental and (2) the potential risks 

presented a "substantial danger to persons using or misusing the water truck in an 

intended or reasonably foreseeable way." However, it determined, by a vote of 10 to 2, 

ordinary users of a water truck would have recognized the potential risks.

DISCUSSION

I

Jury Instructions

A

Standard of Review

"A party is entitled upon request to correct, nonargumentative instructions on 

every theory of the case advanced ... which is supported by substantial evidence." (Soule 

v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) We independently review 

contentions the court erred in instructing the jury. (Mansur v. Ford Motor Co. (2011) 

197 Cal.App.4th 1365, 1373.) In doing so, and in evaluating any prejudicial impact of
13

the allegedly erroneous instruction, we view the evidence in the light most favorable to 

the losing party because "we must assume the jury might have believed the evidence 

upon which the proposed instruction was predicated and might have rendered a verdict in 

favor of the losing party had a proper instruction been given." (Bourgi v. West Covina 

Motors, Inc. (2008) 166 Cal.App.4th 1649, 1664.) When deciding whether an 

instructional error was prejudicial, we must consider "insofar as relevant, '(1) the degree 

of conflict in the evidence on critical issues [citations]; (2) whether respondent's 

argument to the jury may have contributed to the instruction's misleading effect 

[citation]; (3) whether the jury requested a rereading of the erroneous instruction 

[citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation]; 

and (5) the effect of other instructions in remedying the error [citations].' " (Soule, supra, 

8 Cal.4th at p. 570-571.)

B

Consumer Expectation Instruction

"A manufacturer, distributor, or retailer is liable in tort if a defect in the . . . design 

of its product causes injury while the product is being used in a reasonably foreseeable 

way." (Soule, supra, 8 Cal.4th at p. 560.) There are two alternative tests for design 

defect. "First, a product may be found defective in design if the plaintiff establishes that 

the product failed to perform as safely as an ordinary consumer would expect when used 

in an intended or reasonably foreseeable manner." (Barker v. Lull Engineering Co. 

(1978) 20 Cal.3d 413, 432 (Barker).) "Second, a product may alternatively be found 

defective in design if the plaintiff demonstrates that the product's design proximately 
14

caused his injury and the defendant fails to establish, in light of the relevant factors, that, 

on balance, the benefits of the challenged design outweigh the risk of danger inherent in 

such design." (Ibid.) "The jury should be instructed solely on the risk-benefit theory 

where, as a matter of law, the evidence would not support a jury verdict on the consumer 

expectation theory. (Haning, et al., Cal. Practice Guide: Personal Injury (The Rutter 

Group 2014) ¶ 2:1245, p. 2(II)-118.) In other words, a jury should be instructed on the 

risk-benefit theory of design defect alone only if the facts of the case do not permit "an 

inference that the product's performance did not meet the minimum safety expectations of 

its ordinary users." (Soule, at p. 568.)

In this case, plaintiffs do not contend it was inappropriate to give an instruction on 

the risk-benefit theory. Instead, they contend the court should have also given the 

alternative instruction regarding the ordinary consumer expectation test and the jury 

should have decided which test to apply. We agree.

"[T]he trial court must initially determine, as a question of foundation and in the 

context of the facts and circumstances of the particular case, whether the product is one 

about which the ordinary consumer can form reasonable minimum safety expectations. 

[Citation.] If the court concludes it is not, no consumer expectation instruction should be 

given. [Citation.] If, on the other hand, the trial court finds there is sufficient evidence to 

support a finding that the ordinary consumer can form reasonable minimum safety 

expectations, the court should instruct the jury, consistent with Evidence Code section 

403, subdivision (c), to determine whether the consumer expectation test applies to the 

product at issue in the circumstances of the case and to disregard the evidence about 
15

consumer expectations unless the jury finds that the test is applicable. If it finds the test 

applicable, the jury then must decide whether the product failed to perform as safely as an 

ordinary consumer would expect when the product is used in an intended or reasonably 

foreseeable manner." (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 

1111, 1125, fn. 7 (McCabe).)

The consumer expectations test "involves the jurors' own sense of whether the 

product meets ordinary expectations as to its safety under the circumstances presented by 

the evidence." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126.) The 

question for the jury in determining if the consumer expectation test is applicable "is not 

whether the product, when considered in isolation, is beyond the ordinary knowledge of 

the consumer, but whether the product, in the context of the facts and circumstances of its 

failure, is one about which the ordinary consumers can form minimum safety 

expectations. [Citation.] If the facts permit such an inference, it is error to conclude the 

consumer expectation test is inapplicable as a matter of law." (McCabe, supra, 100 

Cal.App.4th at p. 1124.)

Courts have found the consumer expectation test applicable in cases involving 

construction equipment and vehicle performance. (Barker, supra, 20 Cal.3d at p. 435 

[design of high-lift loader may be evaluated under either consumer expectation or riskbenefit theory]; Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1004 

[consumer expectation test appropriate for seat back failure in rear-end collision because 

"[c]onsumers have expectations about whether a vehicle's driver's seat will collapse 

rearward in a rear-end collision, regardless of the speed of the collision"]; McCabe, 
16

supra, 100 Cal.App.4th at pp. 1123-1125 [error to conclude consumer expectation test 

inapplicable as a matter of law to air bag design where "there is sufficient evidence from 

which a jury could infer that the failure of an air bag to deploy under the facts and 

circumstances advanced by [plaintiff] violates commonly held minimum safety 

assumptions within the every day experience of ordinary consumers"]; Akers v. Kelley 

Co. (1985) 173 Cal.App.3d 633, 648-652, [consumer expectation test appropriate to 

evaluate adjustable dockboard which flew apart because an average juror "might 

reasonably think: 'Whatever the user may have expected from that contraption, it 

certainly wasn't that.' "], disapproved on other grounds in People v. Nesler (1997) 16 

Cal.4th 561, 582, fn. 5.)

Here, the facts permitted an inference ordinary consumers could form minimum 

safety expectations of a water truck operating on a public highway. There was evidence 

someone who has learned to drive an ordinary vehicle can operate a water truck. Hertz 

permitted its customers to transport water on highways. Although some witnesses stated 

Golston was traveling 35 miles per hour, a witness close behind him saw him turn on his 

left turn indicator and slow down before executing the turn. Plaintiffs' reconstruction 

expert testified Golston's maximum speed was between 25 and 28 miles per hour when 

the water truck began to make tire marks on the road and the water truck was traveling at 

19 miles per hour when it rolled over. Hertz's experts testified it was unsafe to negotiate 

a turn in the water truck at speeds in excess of 10 to 15 miles per hour. Based on 

everyday driving experiences, the jurors, as ordinary consumers, could have formed an 

opinion a truck rented for transporting water on highways should not roll over when 
17

making a left turn at speeds between 19 and 28 miles per hour without warning. 

Therefore, the trial court erred in concluding the consumer expectation test was 

inapplicable as a matter of law. The jury should have been given an opportunity to 

decide the question.

The failure to give the consumer expectation instruction was prejudicial error. 

The first question on the verdict form was: "Was the water truck's design a substantial 

factor in causing harm to [Golston]?" The jury's response was a close call, answering

"no" by a vote of 9 to 3. Had the jury been instructed on the consumer expectation test, it 

would have been asked to decide if the water truck "fail[ed] to perform as safely as an 

ordinary consumer would have expected when used or misused in an intended or 

reasonably foreseeable way." There is a reasonable probability the outcome may have 

been more favorable to the plaintiffs if the jury had been given the consumer expectation 

instruction and asked this question. No other instruction or argument of counsel 

mitigated the prejudicial impact. (Soule, supra, 8 Cal.4th at pp. 570-571; Whiteley v. 

Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655-656, 665 [nine-to-three and 10-to-2

verdicts "strongly suggest[] the instructional error was prejudicial."].)

C

Sophisticated User Instruction

Although manufacturers generally have a duty to warn consumers about hazards 

inherent in their products (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64), 

under the sophisticated user affirmative defense, "a manufacturer need not warn members 

of a trade or profession (sophisticated users) about dangers generally known to that trade 
18

or profession." (Id. at p. 67.) "In order to establish the defense, a manufacturer must 

demonstrate that sophisticated users of the product know what the risks are, including the 

degree of danger involved (i.e., the severity of the potential injury), and how to use the 

product to reduce or avoid the risks, to the extent that information is known to the 

manufacturer." (Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 

536.) 

In this case, there was no substantial evidence to support the sophisticated user 

instruction. There was evidence anyone with a driver's license could operate a water 

truck. Although there was evidence Golston took some basic driving courses through 

Recon, these were in a passenger van, not a water truck. Hertz obtained testimony from 

John Perlas, Recon Regional Safety Director, who approved Golston for operation of a 

water truck on specific job sites and talked to Golston about the impact of water slosh in 

starting and stopping. However, Perlas testified Golston was not qualified to operate the 

vehicle on a highway and Perlas was not qualified to provide such training. There was 

some evidence someone with a valid license to drive should know to slow down when 

making a turn. However, there was no evidence it was generally known among water 

truck operators that a water truck could only safely turn at speeds of 10 to 15 miles per 

hour or that there was a likelihood a water truck would tip over at speeds between 19 and 

30 miles per hour.4

 

4 We do not consider the evidence submitted by Hertz regarding information about 

commercial driver licenses because the court excluded evidence of Golston's lack of a 
19

Under these circumstances, we conclude there was no substantial evidence to 

support the sophisticated user instruction and giving the instruction was prejudicial. 

(Pittman v. Boiven (1967) 249 Cal.App.2d 207, 218.) Hertz's counsel argued the 

sophisticated user defense to the jury advising them it was a complete defense to the 

failure to warn claim. The jury sent a note during deliberation asking to define the term 

"potential risk" in connection with the failure to warn questions. Although the jury 

unanimously found the water truck had potential risks that were known or knowable and 

those risks posed a substantial danger to persons using or misusing the truck in an 

intended or reasonably foreseeable way, it found by a vote of 10 to 2 that ordinary users 

of water trucks should have recognized the potential risk. This close verdict indicates the 

jury likely "factored in" the sophisticated user instruction in their deliberation. Therefore, 

we cannot say the error was harmless.

II

Striking of Hooker's Testimony

Plaintiffs also contend the court abused its discretion in striking the entirety of

Hooker's testimony after he testified. We agree.

The trial court struck Hooker's testimony pursuant to section 352, on the basis that 

it was more prejudicial than probative. Trial courts generally have broad discretion under 

section 352 to weigh the probative value of the evidence against the prejudicial impact. 

"Appellate courts will not disturb this determination on appeal unless one factor clearly 

 

commercial driver's license and evidence regarding the commercial driver's license 

handbook was never admitted or considered by the jury. 
20

outweighs the other." (Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147.) "The 

discretion granted to courts by section 352 is not absolute or unlimited but requires that 

the trial judge balance the probative value of the proffered evidence against its prejudicial 

effect in the context of the case before the court." (Burke v. Almaden Vineyards, Inc. 

(1978) 86 Cal.App.3d 768, 774.) "The more substantial the probative value the greater 

must be the prejudice in order to justify exclusion. Among factors which should be 

considered are its materiality; the strength of its relationship to the issue upon which it is 

offered; whether it goes to a main issue or merely to a collateral one; and, whether it is 

necessary to prove proponent's case or merely cumulative to other available and sufficient

proof." (Ibid.)

In this case, there was evidence Hertz ordered water trucks to be fitted with water 

tanks to rent to construction companies, such as Recon. However, Hertz did not test the 

performance of this vehicle with the water tank attached. Hooker testified regarding his 

use of an industry standard performance test, the J-turn test, which was performed by the 

manufacturer of the cab and chassis without the water tank attached. In his opinion, 

when the water truck was fitted with the tank, it failed to perform in accordance with 

industry standards. Hooker showed the jury a video clip depicting an empty water truck 

performing a standard J-turn test with its wheels lifting off the ground at approximately 

23 miles per hour. The court excluded the video clip showing a full water truck rolling 

three-quarters of a revolution during the J-turn test. This testimony was significant for 

the plaintiffs' case regarding design defect, under either a consumer expectation theory or 

a risk-benefit theory, and failure to warn. Based on this evidence, plaintiffs would have 
21

argued an ordinary consumer should expect a water tank truck should meet minimum 

performance standards for rollover or carry a warning. Additionally, Hooker's testimony 

was probative under the risk-benefit theory to demonstrate Hertz did not undertake the 

appropriate analysis of its product.

Hooker's testimony was not prejudicial or likely to confuse or mislead the jury. 

" ' "Prejudice" as contemplated by ... section 352 is not so sweeping as to include any 

evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is 

used in a section 352 context, merely because it undermines the opponent's position or 

shores up that of the proponent. The ability to do so is what makes evidence relevant. 

The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, 

confusion, or time consumption " 'substantially outweigh' " the probative value of 

relevant evidence, a section 352 objection should fail.' " (People v. Doolin (2009) 45 

Cal.4th 390, 438-439.) 

Unlike the case in Holling v. Chandler (1966) 241 Cal.App.2d 19, 22-24, Hooker 

made it clear in his testimony he did not attempt to reconstruct the accident, but was 

testifying regarding industry performance standards, which were relevant to the issue of 

product liability. Additionally, although he was not asked to opine about causation of the 

accident, other evidence was presented from which a jury could have made the causal 

connection. Under these circumstances, we conclude Hooker's testimony was not more 

prejudicial than probative and the trial court abused its discretion in striking his testimony 

and the video presentation.
22

On the other hand, the erroneous exclusion of Hooker's testimony after it was 

already presented to the jury was prejudicial to the plaintiffs. Had the jury been allowed 

to consider his testimony and the video clips of his testing, it is reasonably probable 

plaintiffs would have obtained a more favorable result. (Cassim v. Allstate Ins., Co. 

(2004) 33 Cal.4th 780, 800-802.)

DISPOSITION

The judgment is reversed. Plaintiffs shall recover their costs on appeal.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

NARES, J.