Reptile Within

Callaghan, a licensed concrete subcontractor, acted as owner-builder for his home improvement project, which included construction of a pool/spa. To minimize noise, the pool equipment was to be installed in an underground vault. The property did not have natural gas service so propane lines were run to the house and backyard. Callaghan did not know installing a propane fueled heater underground is dangerous.

Callaghan hired Dunn’s Designer Pools (Dunn’s) to build the pool/spa and to install the pool equipment in the vault. Neither Regalado, a Dunn’s employee, nor his supervisor, David Fleming, read the instruction manuals for the spa heater or propane conversion kit, those manuals warning of a risk of explosion if installed in a pit or low spot. After installation, Regalado commenced readying the pool equipment for final County inspection. After bleeding the propane line while in the vault, Regalado told Fleming he was ready to turn on the heater. Fleming told Regalado to proceed, so Regalado turned on the filter pump and heater. As Regalado climbed out of the vault, the propane bled into the vault ignited. The explosion propelled Regalado into the air, severely burning him, injuring his back, and causing other substantial injuries.

Regalado sued Callaghan for negligence and premises liability. The jury awarded Regalado a total of about $6,584,000.00, and assessed 40 percent of fault to Callaghan.

After a lengthy discussion concerning the basis of Callaghan’s liability, the appellate court directed its attention to the issue of the “reptile” arguments of Regalado’s counsel. By way of background, the “reptile” approach was developed by Don Keenan, a plaintiff’s attorney, and David Ball, a trial consultant to appeal to the reptilian part of the human brain and its instinct to protect and survive. The reptile approach is considered by many to be a hybrid of the improper “Golden Rule” argument. The “Golden Rule” argument is that no one on the jury would choose to trade places with the plaintiff, but if the juror was forced to do so, it would be a question of how much the jury member would personally want for compensation.

During closing argument, Regalado’s counsel quoted typical reptilian phrases and told the jury that its decision would impact the community. He continued, “Your voice really is going to have an impact. [¶] . . . You are the voice. You are the conscience of this community. You are going to speak on behalf of all the citizens in Riverside County and, in particular, Coachella Valley. [¶] You are going to make a decision what is right and what is wrong; what is acceptable, what is not acceptable; what is safe, and what is not safe. You are going to announce it in a loud, clear, public voice. And that is going to be the way it is.”

Regalado’s counsel went on to state that “[t]hese courtrooms, these courthouses, exist for one reason: It’s to keep the community safe. Period. That is the sole function of courtrooms, and it’s why the state spends so much money on courtrooms. [¶] In the criminal part of the system, the jury identifies criminals and gets rid of them. . . . It’s a matter of public policy, public safety. [¶] On the civil end of things, same function it’s all about keeping the community safe. You identify bad conduct, negligent conduct. You don’t send anybody to jail, but you announce what it is, and everybody is going to live by it. And in the civil end, you, the jury, tells the wrongdoer, ‘You are going to compensate the person you hurt.’ [¶] . . . And you are going to tell the wrongdoer, ‘If you do this stuff in our community, you are going to pay.’ ”

After a break and after Regalado’s counsel had continued through a significant portion of his closing argument, Callahan’s counsel objected, stating “[Regalado’s] counsel is making a reptile argument where he’s talking about the role of the jury verdict in enforcing the greater good for the general public.” The trial court found the objection was untimely.

Nonetheless, the appellate court opined that counsel’s remarks telling the jury that its verdict had an impact on the community and that it was acting to keep the community safe were improper.

The bottom line is that the courts now recognize the reptile approach as improper. Counsel should keep a keen eye out for any attempt by plaintiffs’ counsel to posture a case as a “reptile case”, and immediately fight any such attempt. Any references to the reptile approach must immediately be met with objection, including in responses to written discovery and deposition questions. And at the trial phase, and as the appellate court reiterated, there must be an immediate objection coupled with a request a curative admonition.