386 P.3d 2
Or. Ct. App.2016Background
- Isabelle Norton (age 2) was run over and suffered an amputation by a Deere L120D riding mower when her father reversed with the mower blades engaged via a "RIO" (Reverse Implement Option) button.
- Plaintiff (conservator) sued Deere (manufacturer) and Ramsey-Waite (seller) for strict products liability and negligence, alleging (1) blades could be engaged while reversing, (2) the RIO button was on the dashboard (creating a visibility defect), and (3) inadequate warnings/instructions.
- Deere defended by blaming the Norton parents' negligence and arguing causation could be due to blade momentum; Deere also relied on warnings on the mower and in the manual.
- Trial lasted 13 days; the jury returned general "no" verdicts on product defect and negligence claims (9–3), and the trial court entered judgment for defendants.
- On appeal, after Supreme Court guidance in Purdy II (requiring whole-record prejudice review), the Court of Appeals found three instructional errors (mishandling, ORS 30.910 presumption, and risk-utility wording) and reversed as to the products liability claim against Deere; negligence judgments were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mishandling instruction (told jury product-makers not liable if product was delivered in a "safe condition" and mishandling made it harmful) | Instruction was incomplete and misleading; court should also have instructed that "incidental carelessness or negligent failure to discover or guard against a product defect" is not a defense (Hernandez principle) | Instruction tracked Restatement/402A comment g and Wulff; Hernandez instruction was unnecessary absent a comparative-fault defense and evidence did not support Hernandez-type negligence | Court held the mishandling instruction was legally correct but incomplete given the evidence; omission of the Hernandez principle created risk jurors treated ordinary user carelessness as a defense, so error required reversal of products liability claim |
| ORS 30.910 disputable presumption instruction (court told jury "the law assumes" product was reasonably safe) | Jury already told plaintiff bears burden; additional presumption wording risked giving undue weight to the statutory presumption and conflicts with OEC 308 legislative intent | Deere argued parties are entitled to instruction on statutory presumptions and the wording correctly stated ORS 30.910 | Court held giving a presumption-style instruction violated OEC 308 and Riley Hill; judge should have framed effect via burden-of-proof instruction rather than telling jury a presumption/assumption |
| Risk-utility instruction (jury told to consider whether an alternative design "would have increased the overall safety and utility" not just safety related to this injury) | Instruction was an improper use of Phillips/Wilson factors and misstates law by suggesting plaintiff had to prove an increase in overall safety | Deere argued Phillips/Wilson gatekeeping factors no longer preclude instructing jury post-McCathern and that instruction correctly stated law | Court held Phillips and Wilson remain authoritative that risk-utility factors are for the court's gatekeeping, not jury instruction; further, instruction misstated Wilson by implying practicability required proof of increased overall safety; error required reversal |
| Evidentiary rulings and cross-assignments (admission of risk-utility evidence and expert testimony; directed verdict denial) | Plaintiff defended admissibility of risk-utility evidence to show practicable safer alternatives under McCathern; objected to some exclusions | Deere challenged admission of risk-utility evidence and experts and sought directed verdict | Court upheld admission of risk-utility evidence (trial court did not abuse discretion) and rejected directed-verdict challenge; some evidentiary issues not addressed because facts may change on remand |
Key Cases Cited
- Purdy v. Deere & Co., 355 Or. 204, 324 P.3d 455 (Or. 2014) (Supreme Court: Lyons overruled; whole-record assessment for prejudice required)
- McCathern v. Toyota Motor Corp., 332 Or. 59, 23 P.3d 320 (Or. 2001) (consumer-expectations test and admissibility of risk-utility evidence to show practicable, feasible safer alternative)
- Hernandez v. Barbo Mach. Co., 327 Or. 99, 957 P.2d 147 (Or. 1998) (user's incidental carelessness/failure to discover defect is not a defense in products liability)
- Riley Hill Gen. Contractor v. Tandy Corp., 303 Or. 390, 737 P.2d 595 (Or. 1987) (OEC 308 requires courts to frame presumptions as burden-of-proof instruction; juries should not hear the term "presumption")
- Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (Or. 1974) (risk-utility factors enumerated for court gatekeeping under the former reasonable-manufacturer test)
- Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 322 (Or. 1978) (alternative-design practicality requires proof of technical feasibility and practicability without impairing utility; risk-utility factors guide court's admissibility decision)
- Wulff v. Sprouse-Reitz Co., 262 Or. 293, 498 P.2d 766 (Or. 1972) (cited by defendants for mishandling language; court did not resolve completeness issue)
- Lyons v. Walsh & Sons Trucking Co., 337 Or. 319, 96 P.3d 1215 (Or. 2004) (previously relied-on precedent that was overruled in Purdy II regarding verdict-form significance)