Pietrone

—Defendant American Honda Motor Company, Inc., appeals from the judgment entered pursuant to a jury verdict in favor of plaintiff Alison Pietrone. It contends: “I. Because there was no evidence from which the jury could infer that the motorcycle performed less safely than the reasonable consumer could expect and no evidence that the motorcycle’s design caused the injury, plaintiff failed to bear her burden of proving design defect under Barker v. Lull [.Engineering Co. (1978) 20 Cal.3d 413 ]. II. Plaintiff’s counsel impermissibly argued the existence of alternative motorcycle wheel designs in closing argument despite the absence of any evidence of such designs. This argument allowed the jury to assume, without supporting evidence, such designs would have prevented the injury and to consider the ‘benefits’ of such designs without their ‘risks.’ ”

Plaintiff presented evidence that she was a passenger on her husband’s 1974 Honda CB 450 motorcycle on the afternoon of April 26, 1979. As they entered the intersection of Towne Avenue and Arrow Highway in the City of Pomona the driver of an oncoming automobile began a U-tum. Her husband moved to the right in an unsuccessful…

I concur in the result solely under the compulsion of language in Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413 [ 143 Cal.Rptr. 225 , 573 P.2d 443 , 96 A.L.R.3d 1 ]. I must confess, however, that the result makes no practical sense to me. There is a fundamental flaw in the law governing product liability in California—a flaw which I am hopeful will be remedied by our newly constituted Supreme Court.

The flaw is that under the prevailing concept, no consideration is given to the voluntary choice by a plaintiff to use a product which by its very nature is dangerous but highly utilitarian.

There is on the market today a wide variety of products, for example, chainsaws, “weedeaters” and other power tools which when used in their ordinary and expected manner can produce serious injuries. They have exposed blades which, when they strike some object or bind on a particular item, “kick back” and cause injury.

People voluntarily use these items knowing of their danger because they are useful for a particular job. Why should not that voluntary choice be an ingredient in determining liability for an injury resulting from such use?

*1064 Here, plaintiffs husband purchased this…

—I respectfully dissent. The thrust of plaintiffs case is that defendant Honda, the distributor of the motorcycle, is strictly liable 1 to her based on her contention that the unenclosed spoked rear wheel of the motorcycle upon which she was a passenger was defectively designed (discussed infra). Her complete prima facie case consisted of evidence showing how the accident occurred (the injury to her leg) and the amputation of a portion thereof. Relying upon those bare bone facts and Barker v. Lull (1978) 20 Cal.3d 413 [ 143 Cal.Rptr. 225 , 573 P.2d 443 , 96 A.L.R.3d 1 ], she convinced the trial court she had completed a prima facie case of Honda’s liability so *1065 that a showing of nonliability had shifted to defendant Honda. Hence, the narrow question before this court, as set forth by the record and fortified by the plaintiff’s pretrial tactics, is when in the progress of a strict liability trial, such as the case at bench, does the burden of going forward shift?

Barker did not alter the well-settled rule that a defendant may not be ordered to proceed with the defense until after a full prima facie case has been made by the plaintiff. As the Barker court stated: “Because most…

Defendant American Honda Motor Company, Inc., appeals from the judgment entered pursuant to a jury verdict in favor of plaintiff Alison Pietrone. It contends: "I. Because there was no evidence from which the jury could infer that the motorcycle performed less safely than the reasonable consumer could expect and no evidence that the motorcycle's design caused the injury, plaintiff failed to bear her burden of proving design defect under Barker v. Lull [ Engineering Co . (1978) 20 Cal.3d 413 ]. II. Plaintiff's counsel impermissibly argued the existence of alternative motorcycle wheel designs in closing argument despite the absence of any evidence of such designs. This argument allowed the jury to assume, without supporting evidence, such designs would have prevented the injury and to consider the `benefits' of such designs without their `risks.'" [1]

Plaintiff presented evidence that she was a passenger on her husband's 1974 Honda CB 450 motorcycle on the afternoon of April 26, 1979. As they entered the intersection of Towne Avenue and Arrow Highway in the City of Pomona the driver of an oncoming automobile began a U-turn. Her husband moved to the right in an…