525 P.2d 125 (Or. 1974), Roach v. Kononen

• Citation: 525 P.2d 125, 269 Or. 457
• Opinion Judge: HOWELL, J.
• Party Name: Lorna Faye ROACH, Appellant, v. Delores A. KONONEN and Robert V. Kononen, dba Bob's Highway Service, Defendants, and Ford Motor Company, a Delaware corporation, Respondent.
• Attorney: Donald Winfree, Portland, argued the cause for appellant. With him on the briefs were Edwin J. Welsh, and Welsh, O'Donnell & Winfree, Portland; and James C. Walton, and Walton & Yokom, Pendleton. Roland F. Banks, Jr., Portland, argued the cause for respondent. With him on the brief were Ridgway K...
• Case Date: August 08, 1974
• Court: Supreme Court of Oregon

Page 125

525 P.2d 125 (Or. 1974)

269 Or. 457

Lorna Faye ROACH, Appellant,

v.

Delores A. KONONEN and Robert V. Kononen, dba Bob's Highway

Service, Defendants,

and

Ford Motor Company, a Delaware corporation, Respondent.

Supreme Court of Oregon.

August 8, 1974

Argued and Submitted July 11, 1973.

Page 126

[269 Or. 458] Donald Winfree, Portland, argued the cause for appellant. With him on the briefs were Edwin J. Welsh, and Welsh, O'Donnell & Winfree, Portland, and James C. Walton, and Walton & Yokom, Pendleton.

Roland F. Banks, Jr., Portland, argued the cause for respondent. With him on the brief were Ridgway K. Foley, Jr., and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOWELL, Justice.

This is an action for personal injuries sustained by plaintiff in an auto accident occurring on Highway 395 near the city of Pendleton. The action was tried [269 Or. 459] by the court without a jury, and a judgment entered for defendants. Plaintiff appeals.

At the time of the accident, plaintiff was driving northerly on Highway 395. Mrs. Gertrude Hinen was driving a 1965 Ford in a southerly direction when the hood on the Ford suddenly flew up, and the Hinen vehicle crossed the center line and collided with plaintiff's vehicle.

Just prior to the collision, Mrs. Hinen had stopped for gas and oil at a service station operated by the defendants Kononen in Pendleton. In servicing the car, the station attendant had opened and closed the hood.

Plaintiff filed this action against the defendants Kononen and the Ford Motor Company. ¹ The trial court found in favor of both defendants. Plaintiff appeals only from the judgment in favor of Ford Motor Company and does not appeal from the judgment in favor of the defendants Kononen.

The plaintiff alleged, Inter alia, that the Ford Motor Company negligently designed the latching mechanism for the hood, and, alternatively, that Ford should be strictly liable for such a defect in design. The issues of negligent design and strict liability for the latching mechanism of the hood were resolved against the plaintiff, and plaintiff does not appeal on any issue regarding the latching mechanism.

Additionally, plaintiff alleged that Ford was negligent in failing to design a hood that would provide 'sufficient visibility for a driver to safely guide the [269 Or. 460] automobile should the hood fly up.' Alternatively, the plaintiff also alleged that Ford was strictly liable for such a defect in the design of the hood. Whether plaintiff is entitled to prevail as a matter of law on either of these two theories is the issue presented in this appeal. ²

In Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967), we adopted Restatement

Page 127

(Second) of Torts, § 402A, ³ as providing a strict liability cause of action for persons injured by products which are in a defective condition unreasonably dangerous to a user or consumer. We also held that 'unreasonable' means 'dangerous to an extent beyond that which would be contemplated by the ordinary purchaser.' Restatement (Second), supra, Comment i. Additionally, in Askew v. Howard-Cooper Corp., 263 Or. 184, 502 P.2d 210 (1972), we applied Restatement (Second) Torts, § 402A and § 398, ⁴ which describes the duty of a manufacturer [269 Or. 461] to design products in a non-negligent manner, to a design defect case.

However, plaintiff contends that, in the context of a defectively designed product, strict liability and negligence are essentially the same, and therefore traditional negligence concepts should be utilized in evaluating the defendant's conduct. See Anderson v. Klix Chemical, 256 Or. 199, 472 P.2d 806 (1970).

We note that legal scholars and courts have had substantial difficulty with the theories of negligence and strict liability in defective design cases. The difficulty carries over not only to matters of evidence and proof ⁵ but also to the instructions to the jury. ⁶

Some courts have concluded that negligence and strict liability are essentially the same in a design defect case, and therefore only one cause of action arises from such a claim. Thus, in Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890 (1973), the California Court of Appeals for the Second District held that:

'* * * Strict liability for deficient design of a product (as differentiated from defective manufacture[269 Or. 462] or defective composition) is premised on a finding that the product was unreasonably dangerous for its intended use, and in turn, the unreasonableness of the danger must necessarily be derived from the state of the art at the time of design. (Thompson v. Package Machinery Co., 22...