Bostick

INTRODUCTION

Harold L. Bostick suffered severe, disabling injuries while working out at Gold’s Gym, Inc. (Gold’s Gym), on weight-lifting equipment manufactured *84 by Flex Equipment Company, Inc. (Flex). Bostick sued both Flex and Gold’s Gym. Gold’s Gym cross-complained against Flex for equitable indemnity. The cross-complaint was severed for separate trial. Prior to the conclusion of the trial on the complaint, Bostick entered into a settlement with Gold’s Gym for $7.3 million. The jury returned a verdict awarding Bostick nearly $3.3 million in economic damages and $13 million in noneconomic damages, and later awarded $1 in punitive damages. The jury apportioned 90 percent of the fault to Flex, 10 percent to Bostick, and 0 percent fault to “other entities.” The trial court reduced Bostick’s award against Flex by the full amount of the $7.3 million settlement and entered a judgment in favor of Bostick. Thereafter, the trial court entered judgment in favor of Gold’s Gym on its cross-complaint against Flex for equitable indemnity in the full amount of the $7.3 million settlement.

Both Flex and Bostick appeal from the judgment. In its appeal, Flex challenges the $13…

I concur in the decision affirming the judgment on the complaint, but for reasons different from those stated in the majority opinion. In my view, Proposition 51 applies to a strict products liability action involving a single indivisible injury, and Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 [ 65 Cal.Rptr.2d 532 ] (Wimberly) was wrongly decided. Wimberly held that Proposition 51 did not modify the common law rule that the defendants in an action for strict products liability *100 who were in the same chain of distribution of a defective product are jointly and severally liable for all of the plaintiff’s economic and noneconomic damages. Wimberly , improperly in my view, relied on the rationale that strict products liability is similar to vicarious liability in that it is not based on “fault,” and therefore concluded that Proposition 51 did not apply. Wimberly also concluded that the public policy considerations underlying strict products liabihty favor complete joint and several liability among all defendants. In my view, neither of these reasons can justify the failure to apply the statutory mandate of Proposition 51 in a strict products liabihty action.

I conclude…