492 P.3d 99
Or. Ct. App.2021Background
- A Deere rider mower had a Reverse Implement Option (RIO) dash button that allowed blades to keep running in reverse; Norton (father) pressed it, reversed, and accidentally ran over his daughter.
- Plaintiff (conservator for the child) sued Deere under ORS 30.920 for a design “visibility” defect and for inadequate warnings; Norton was later joined and a negligence claim against him was tried.
- After an earlier appeal addressing jury instructions, a second trial resulted in a jury verdict finding both Deere and Norton liable and awarding damages.
- Deere appealed, challenging several jury instructions: (1) instructions that could be read to authorize a risk/utility test as an alternative to the consumer-expectation test; (2) instructions on when warnings are required and the meaning of an “adequate” warning; and (3) an apportionment instruction excluding certain user negligence from Norton’s assessed fault.
- The Court of Appeals reversed and remanded for a new trial because the risk/utility instructional language likely allowed the jury to apply an improper theory of liability; it also held the warnings instruction was incomplete and that the trial court erred in refusing to define “adequate” warning, but it upheld the apportionment instruction excluding user failure-to-discover fault from Norton’s percentage of fault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury may be instructed that it "may also consider" risk v. utility (and safer alternative evidence) as a basis for finding a product unreasonably dangerous | Purdy: risk/utility evidence is admissible to show what consumers expect (McCathern); the instruction merely allowed consideration of such evidence | Deere: language presented risk/utility as an alternative/supplemental theory of liability, contrary to McCathern (consumer-expectations is sole test); the alternative-design phrasing was an improper comment on evidence | Reversed: instruction was legally erroneous and likely affected the verdict; consumer-expectation is the only theory of liability; trial must be retried with proper instructions |
| Whether a manufacturer’s duty to warn requires that the manufacturer knew or reasonably should have known of the risk | Purdy: invoking foreseeability standards in Restatement comments h/j conflicts with ORS 30.920(2) strict liability, so knowledge requirement is unnecessary | Deere: ORS 30.920(3) requires construing subsections with Restatement comments a–m; comments h/j impose a foreseeability/knowledge requirement for warnings | Held for Deere: the court must instruct that a duty to warn arises only if manufacturer knew or reasonably should have known of the danger; omission was error |
| Whether the court should define what counts as an "adequate" warning for the jury | Purdy: “adequate” is common usage and needs no definition to jury | Deere: Supreme Court precedent supplies an objective two-part test (form and content) that the jury should be instructed on | Held: trial court erred in refusing Deere’s requested definition; adequacy should be explained (reasonably likely to catch attention; comprehensible and convey nature/extent of danger) |
| Whether jury may apportion to Norton fault for inadvertent/inattentive failure to discover or guard against the defect | Purdy (and prior holdings): user’s incidental failure-to-discover is not a defense to manufacturer; jury should be told not to attribute that kind of negligence to user when apportioning fault | Deere: instruction inappropriately lets a negligent tortfeasor avoid responsibility for his own negligence; apportionment should assign each tortfeasor all of their contributing fault | Held: instruction was proper—user’s inadvertent/inattentive failure to discover or guard against a product defect should not be used to assess that user’s percentage of fault; such fault is attributable to the manufacturer |
Key Cases Cited
- McCathern v. Toyota Motor Corp., 332 Or 59 (2001) (establishes that ORS 30.920 requires the consumer-expectations test as the sole design-defect theory; risk/utility evidence only to inform consumer expectations)
- Heaton v. Ford Motor Co., 248 Or 467 (1967) (early adoption of consumer-expectation test)
- Phillips v. Kimwood Machine Co., 269 Or 485 (1974) (announced reasonable-manufacturer test and limited jury instruction on Roach factors)
- Roach v. Kononen/ Ford Motor Co., 269 Or 457 (1974) (lists factors for court to consider in risk-utility balancing)
- Ewen v. McLean Trucking Co., 300 Or 24 (1985) (interprets ORS 30.920(3) to require consumer-expectation focus)
- Griffith v. Blatt, 334 Or 456 (2002) (recognizes applicability of Restatement comments h and j to failure-to-warn claims under ORS 30.920)
- Hernandez v. Barbo Mach. Co., 327 Or 99 (1998) (user’s incidental failure to discover a defect is not a defense to strict products liability)
- Sandford v. Chevrolet Div. of Gen. Motors, 292 Or 590 (1982) (comparative-fault principles concerning defense of mishandling)
- Schmeiser v. Trus Joist, 273 Or 120 (1975) (warning must give fair/adequate notice of possible consequences, including misuse)
- Anderson v. Klix Chemical, 256 Or 199 (1970) (warning adequacy standard: likely to catch attention and be comprehensible to reasonably prudent user)