Opinion
GATES, J.
—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-tum. Her husband moved to the right in an unsuccessful attempt to avoid the vehicle. The auto’s bumper struck the lower portion of plaintiff’s left leg, breaking it.
This impact was so slight it merely created a “wobbling sensation” in the motorcycle rather than causing it to overturn. Nonetheless, plaintiff’s now unstable leg came into contact with the exposed spokes of its rear wheel behind the shock absorber, but “[n]ot very long, because it came out, and while it was coming out it was rotating.” As it rotated two full revolutions, [1060]*1060it “was also moving out and forward.” As it did so her foot “caught the shock absorber, which brought it back in again,” lodging it tightly into the equally open area located in front of the shock absorber and above the chain guard.
So powerful were the forces that had been exerted upon plaintiffs foot, she was required to sit, helplessly trapped, for many agonizing minutes. In fact, she was freed only after firemen arrived armed with an instrument known as the “jaws of life” with which they were able to cut away the shock absorber. As a result of her experience, it was necessary for this 21-year-old plaintiff to undergo a below-the-knee amputation of her leg.
After presenting the foregoing evidence, but before formally resting, counsel for plaintiff advised the court it was his “understanding of the law, as it exists now in product liability cases, that it is the responsibility of a plaintiff to meet her burden of proof that she present a prima facie case. [K] That... a design feature, and in this case that would be the open, exposed, rotating wheel of this motorcycle, was a proximate cause of her injury, [f] Having established a prima facie case to that extent,... the burden of proof then shifts to the defendant” who “must now prove and produce evidence that the benefit of this design feature outweighs the risk of injury, as has been presented by the plaintiff.” Counsel expressed his belief that plaintiff had met this burden and sought the court’s concurrence. He also informed the court that he had additional witnesses, specifically engineers, who could be called to defend “against whatever evidence the defendants present on their burden of proof.”
The court declined to make an “anticipatory” ruling, but did indicate that in considering motions the defense might make, it “would see no prejudice to the defense to reopen in the event that [plaintiff] left something out which [the court] deemfed] critical.” Plaintiff responded, “And I will rest, based upon that.”
When proceedings commenced following a four-day recess, Honda’s counsel opined that in his view plaintiff had failed to prove her case. He announced that “rather than making a motion for a non-suit at this point in time, the defendant will rest at this point of time without producing any additional evidence, other than that which has been produced on cross-examination of the witnesses called by plaintiff and will move this court for a directed verdict.” He additionally advised the court, “one of the reasons that we have decided to rest, rather than move for non-suit, was the fact that there has been no expert testimony that would indicate any way, any method, that this motorcycle could have been designed, in order to prevent the unusual type of injury that occurred in this particular case.”
[1061]*1061Plaintiff’s counsel then requested permission to reopen in the event the court granted defendant’s motion, reiterating “for the record” that he had “additional evidence” in the form of admissions by Honda’s own expert “as to the alternative designs that are available____” This evidence was never produced since the trial court determined plaintiff had presented sufficient evidence to submit the design issue to the jury. Even after this adverse ruling, Honda made no effort to present a defense.
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], our highest court established that “a product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. 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. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors [e.g., “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design” {id. at p. 431)], that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.” {Id. at p. 432.)
In the instant case the evidence conclusively established that a design feature of Honda’s product—the open, exposed, rotating rear wheel in close proximity to the passenger’s foot pegs—was a proximate cause of plaintiff’s injury. Without more, the burden then shifted to Honda to justify its adoption and utilization of that particular design. (See BAJI No. 2.60 as modified in accordance with BAJI No. 9.00.5 (7th ed. 1986).) Further, even were it to be assumed that plaintiff’s burden under Barker exceeded such a showing and required that she demonstrate the existence of some alternative design which would have prevented or lessened her injury, this burden was met by the jury’s mere inspection of the photographs introduced into evidence. That is to say, no more than a cursory examination of this machine’s configuration makes apparent both the danger of its design and potential solutions thereto.2
Given that such alternative designs were so self-evident as to obviate the need to present express testimony, expert or otherwise, on the subject, [1062]
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Opinion
GATES, J.
—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-tum. Her husband moved to the right in an unsuccessful attempt to avoid the vehicle. The auto’s bumper struck the lower portion of plaintiff’s left leg, breaking it.
This impact was so slight it merely created a “wobbling sensation” in the motorcycle rather than causing it to overturn. Nonetheless, plaintiff’s now unstable leg came into contact with the exposed spokes of its rear wheel behind the shock absorber, but “[n]ot very long, because it came out, and while it was coming out it was rotating.” As it rotated two full revolutions, [1060]*1060it “was also moving out and forward.” As it did so her foot “caught the shock absorber, which brought it back in again,” lodging it tightly into the equally open area located in front of the shock absorber and above the chain guard.
So powerful were the forces that had been exerted upon plaintiffs foot, she was required to sit, helplessly trapped, for many agonizing minutes. In fact, she was freed only after firemen arrived armed with an instrument known as the “jaws of life” with which they were able to cut away the shock absorber. As a result of her experience, it was necessary for this 21-year-old plaintiff to undergo a below-the-knee amputation of her leg.
After presenting the foregoing evidence, but before formally resting, counsel for plaintiff advised the court it was his “understanding of the law, as it exists now in product liability cases, that it is the responsibility of a plaintiff to meet her burden of proof that she present a prima facie case. [K] That... a design feature, and in this case that would be the open, exposed, rotating wheel of this motorcycle, was a proximate cause of her injury, [f] Having established a prima facie case to that extent,... the burden of proof then shifts to the defendant” who “must now prove and produce evidence that the benefit of this design feature outweighs the risk of injury, as has been presented by the plaintiff.” Counsel expressed his belief that plaintiff had met this burden and sought the court’s concurrence. He also informed the court that he had additional witnesses, specifically engineers, who could be called to defend “against whatever evidence the defendants present on their burden of proof.”
The court declined to make an “anticipatory” ruling, but did indicate that in considering motions the defense might make, it “would see no prejudice to the defense to reopen in the event that [plaintiff] left something out which [the court] deemfed] critical.” Plaintiff responded, “And I will rest, based upon that.”
When proceedings commenced following a four-day recess, Honda’s counsel opined that in his view plaintiff had failed to prove her case. He announced that “rather than making a motion for a non-suit at this point in time, the defendant will rest at this point of time without producing any additional evidence, other than that which has been produced on cross-examination of the witnesses called by plaintiff and will move this court for a directed verdict.” He additionally advised the court, “one of the reasons that we have decided to rest, rather than move for non-suit, was the fact that there has been no expert testimony that would indicate any way, any method, that this motorcycle could have been designed, in order to prevent the unusual type of injury that occurred in this particular case.”
[1061]*1061Plaintiff’s counsel then requested permission to reopen in the event the court granted defendant’s motion, reiterating “for the record” that he had “additional evidence” in the form of admissions by Honda’s own expert “as to the alternative designs that are available____” This evidence was never produced since the trial court determined plaintiff had presented sufficient evidence to submit the design issue to the jury. Even after this adverse ruling, Honda made no effort to present a defense.
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], our highest court established that “a product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. 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. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors [e.g., “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design” {id. at p. 431)], that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.” {Id. at p. 432.)
In the instant case the evidence conclusively established that a design feature of Honda’s product—the open, exposed, rotating rear wheel in close proximity to the passenger’s foot pegs—was a proximate cause of plaintiff’s injury. Without more, the burden then shifted to Honda to justify its adoption and utilization of that particular design. (See BAJI No. 2.60 as modified in accordance with BAJI No. 9.00.5 (7th ed. 1986).) Further, even were it to be assumed that plaintiff’s burden under Barker exceeded such a showing and required that she demonstrate the existence of some alternative design which would have prevented or lessened her injury, this burden was met by the jury’s mere inspection of the photographs introduced into evidence. That is to say, no more than a cursory examination of this machine’s configuration makes apparent both the danger of its design and potential solutions thereto.2
Given that such alternative designs were so self-evident as to obviate the need to present express testimony, expert or otherwise, on the subject, [1062]*1062it is equally clear counsel for plaintiff did not commit misconduct by mentioning during argument that items which “would avoid contact” such as saddlebags, luggage racks, fairings, shields, etc., could be so placed as to partially enclose the motorcycle’s rotating rear wheel. The existence of such devices on other models is a matter of general knowledge and their potential effectiveness in preventing the sort of accident which occurred here is patent.
Since Honda, apparently for unknown tactical reasons it regarded as sound, elected to make absolutely no effort “to establish that because of the complexity of, and trade-offs implicit in, the design process” (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 432), the risk of danger inherent in the particular design it selected for this model machine was outweighed by the benefits of that design, it failed to meet its burden of proof. (See the Use Note to BAJI No. 9.00.5 (7th ed. 1986).) Of course, had it sought to do so its efforts might well have proven successful for one can readily postulate potential economic, aesthetic and engineering reasons for the design selected. Nonetheless, in the complete absence of any evidence regarding such “beneficial” considerations, the jury’s verdict was both understandable and proper.
In fact, and rather ironically, the jury still found in plaintiff’s favor even though Honda’s counsel was able to convince the trial court, over plaintiff’s stout and correct objections, to insert among the issues as to which she bore the burden of proof when proceeding under Barker v. Lull’s second prong, an issue that properly should arise only under its first prong. As proposed by Honda, and given by the court, this modified instruction read: “In this case, plaintiff seeks to establish liability on the part of defendant under the theory of design defect. [11] A. On a design defect theory, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues: [II] 1. Defendant’s status as a distributor of the subject vehicle; [If] 2. That the product failed to perform as safely as an ordinary consumer of that product would expect, [If] 3. That the defect in the design existed at the time the product left defendant’s possession; [11] 4. That the design of the product was a proximate cause of plaintiff’s injuries in the accident; [If] 5. That the product was used in a manner reasonably foreseeable by the defendant; [If] 6. The nature and extent of plaintiff’s injuries and damages. [If] If plaintiff has met his burden of proof as outlined then the defendant has the burden of establishing, by a preponderance of the evidence, all facts necessary to prove the following issue: [If] 1. That the benefits of the design of the product as a whole outweigh the risk of danger inherent in such design.” (Italics added to reflect the issue improperly inserted.)
Such an amalgamated instruction was clearly erroneous under currently prevailing law for it required plaintiff to prove that this particular [1063]*1063model motorcycle had “failed to perform as safely as an ordinary consumer” would have expected {Barker’s first prong), before she could ask the jury to consider the entirely separate question of whether or not the “risk of danger inherent in the design [Honda had selected] outweigh[ed] its benefits” {Barker’s second prong). (See Use Note following BAJI No. 9.00.5 (7th ed. 1986).) Of even greater potential risk, this hermaphroditic advisement informed the jury that simply by introducing evidence of its benefits, a manufacturer might escape liability for injuries caused when its product failed to perform as safely as its ordinary user would expect. Of course, this latter danger never arose here since Honda elected to offer no evidence whatsoever regarding their machine’s design.
In any event, what Honda may not now be permitted to do is escape the consequences of its own conscious tactical decision by obtaining through this appeal a complete de novo retrial, wherein it may belatedly make the requisite full exposition of its case which, by its actions in the superior court, it deliberately waived.
Since we have determined, as did the trial court who actually heard the evidence and denied Honda’s motion for a new trial, that plaintiff met her burden under the risk-benefit test, we need not consider whether or not she also would have prevailed under the consumer expectations test alone.
The judgment is affirmed.