Purdy v. Deere & Co.

• Decision Date: 12 May 2021
• Docket Number: A168139
• Citation: 492 P.3d 99,311 Or.App. 244
• Court: Oregon Court of Appeals
• Parties: Dwight G. PURDY, Conservator for Isabelle Eve Norton, a minor, Plaintiff-Respondent, v. DEERE AND COMPANY, Defendant-Appellant. Dwight G. Purdy, Conservator for Isabelle Eve Norton, a minor, Plaintiff-Respondent, v. Kirk Douglas Norton, Defendant-Appellant.

311 Or.App. 244

492 P.3d 99

Dwight G. PURDY, Conservator for Isabelle Eve Norton, a minor, Plaintiff-Respondent,

v.DEERE AND COMPANY, Defendant-Appellant.

Dwight G. Purdy, Conservator for Isabelle Eve Norton, a minor, Plaintiff-Respondent,

v.Kirk Douglas Norton, Defendant-Appellant.

A168139

Court of Appeals of Oregon.

Argued and submitted February 14, 2020

May 12, 2021

Andrew J. Lee, Portland, argued the cause for appellant Deere and Company. Also on the briefs were Jeffrey S. Eden, Sara Kobak, and Schwabe, Williamson & Wyatt, P.C.; James M. Brogan, Pennsylvania, Nancy Shane Rappaport, Pennsylvania, and DLA Piper LLP (US).

Michael T. Stone filed the briefs for appellant Kirk Douglas Norton. Also on the opening brief was Brisbee & Stockton LLC.

Kathryn H. Clarke argued the cause for respondent. Also on the brief was Lisa T. Hunt.

Jonathan M. Hoffman and MB Law Group LLP filed the brief amicus curiae for Product Liability Advisory Council, Inc.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

ARMSTRONG, P. J.

Defendants Kurt Douglas Norton and Deere & Company appeal a judgment in this negligence and product liability personal injury action after a jury awarded plaintiff, as conservator for Isabelle Norton, a minor, damages for injuries that she sustained when defendant Norton, her father, accidentally backed over her with a rider lawn mower manufactured by Deere. Because we conclude that the trial court erred in instructing the jury and that the error likely affected the jury's verdict, we reverse the judgment and remand for a new trial.

INTRODUCTION

The facts have been described in one Supreme Court opinion and two Court of Appeals opinions on plaintiff's appeal of a judgment for defendant Deere after the first trial of plaintiff's claim. Purdy v. Deere & Co. , 252 Or. App. 635, 287 P.3d 1281 (2012) ( Purdy I ), rev'd , 355 Or. 204, 324 P.3d 455 (2014) ( Purdy II ), on remand , 281 Or. App. 407, 386 P.3d 2 (2016) ( Purdy III ). To summarize, plaintiff's product liability claim arises out of injuries that the child sustained, allegedly as a result of a design feature on a Deere rider mower that allowed the operator of the mower to press a Reverse Implement Option (RIO) button on the dashboard that would override the mower's automatic shut-down when the mower is moving in reverse. Norton was mowing his lawn and accidentally backed over and seriously injured the child while driving the mower in reverse after pressing the RIO button to prevent the mower from shutting down. Plaintiff brought this product liability claim under ORS 30.920 against Deere on the child's behalf. Plaintiff's complaint alleged that the RIO button caused a "visibility defect" that prevented Norton from seeing and avoiding danger to his daughter while driving in reverse,¹ and that Deere had failed to provide adequate instructions and warnings concerning the dangers of using the RIO button.

After the first trial in this case, which resulted in a defense verdict, we ultimately reversed the judgment based on jury instruction errors and remanded the case for a new trial. Purdy III . On remand, plaintiff added a negligence claim against Norton, asserting that Norton had failed to keep an adequate lookout and had failed to heed warnings about safe use of the mower. In the second trial, the jury found both Norton and Deere liable and awarded plaintiff damages. The assignments of error on this appeal by Deere pertain to jury instructions relating to product liability and to the apportionment of fault and to the trial court's rejection of Deere's request to reduce the jury's award of noneconomic damages under ORS 31.710.

DESIGN DEFECT PRODUCT LIABILITY LAW OVERVIEW

We begin with some legal background on the product liability claim. Under ORS 30.920,² the manufacturer of a product is liable for injuries caused to the product's user or to a third party if the plaintiff shows that the product is both defective and unreasonably dangerous. McCathern v. Toyota Motor Corp. , 332 Or. 59, 77, 23 P.3d 320 (2001). The court in McCathern set out the statutory elements of a product liability claim:

"[T]o prove that a product was in a ‘defective condition unreasonably dangerous to the user or consumer,’ ORS 30.920(1), the plaintiff must prove that: (1) ‘at the time it leaves the seller's hands, [the product is] in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him,’ see Restatement (Second) , § 402A, Comment g (so defining ‘defective’) [1965]; and (2) ‘[the product is] dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics,’ see Restatement (Second) , § 402A, Comment i (so defining ‘unreasonably dangerous’). Whether a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer is a factual question to be determined by the jury. [ Heaton v. Ford Motor Co. , 248 Or. 467, 472-73, 435 P.2d 806 (1967) ]. It is the trial court's role, however, to ensure that the evidence is sufficient for the jury to make an informed decision about what ordinary consumers expect. Id ."

332 Or. at 77-78, 23 P.3d 320.

In McCathern , the court described the evolution of Oregon's product liability law with respect to design defects and proof that a product is unreasonably dangerous and defective. To summarize, before the enactment of ORS 30.920 in 1979, the court, in Heaton , 248 Or. at 470-74, 435 P.2d 806, had adopted the "consumer expectation test" set out in Restatement (Second ) of Torts section 402A (1965), and its comments, as the standard for liability in design defect product liability cases.³

The court accepted the Restatement ’s formulation that a product "is dangerously defective when it is in a condition unreasonably dangerous to the user." Heaton , 248 Or. at 471, 435 P.2d 806. And again referring to the Restatement , the court said that a product is "unreasonably dangerous to the user" when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer." Id . at 471, 435 P.2d 806 ; Restatement comment i. In deciding what the reasonable consumer expects, the court said in Heaton , the jury

"is not permitted to decide how strong products should be, nor even what consumers should expect, for this would in effect be the same thing. The jury is supposed to determine the basically factual question of what reasonable consumers do expect from the product."

248 Or. at 474, 435 P.2d 806.

The court subsequently changed focus relating to the determination of "unreasonable danger." In Phillips v. Kimwood Machine Co ., 269 Or. 485, 525 P.2d 1033 (1974), the court deviated from Heaton ’s consumer-focused test and announced what became known as the "reasonable manufacturer test." Unlike the "consumer expectation test," which asks juries to focus on the actual expectations of the ordinary consumer about product safety, the "reasonable manufacturer test" focused on the manufacturer's motives for placing the product on the market and on the reasonableness, or lack thereof, of that conduct. Would a reasonably prudent manufacturer have so designed, marketed, and sold the product had it known of the risk involved that injured the plaintiff? Phillips , 269 Or. at 492, 525 P.2d 1033. The court reasoned that the two tests were actually equivalent: "[A] manufacturer who would be negligent in marketing a given product, considering its risks, would necessarily be marketing a product which fell below the reasonable expectations of consumers who purchase it." Id. at 493, 525 P.2d 1033

In a companion case to Phillips , Roach v. Kononen/Ford Motor Co ., 269 Or. 457, 525 P.2d 125 (1974), the court had described seven factors that bear on a court's inquiry as to the sufficiency of the evidence of liability under the reasonable-manufacturer test, which the court said required a balancing of the utility of the product's risk against the magnitude of the risk.⁴ In Phillips , the court noted those factors and emphasized that they were for the court's use in assessing whether the record was sufficient to allow the jury to determine whether there was liability under the reasonable- manufacturer test, but were not bases for jury instructions.⁵

In 1979, the legislature adopted ORS 30.900⁶ and ORS 30.920, codifying Oregon's product liability law and tracking the wording of the section 402A. In McCathern , 332 Or. at 75, 23 P.3d 320, the court explained that, in Ewen v. McLean Trucking Co ., 300 Or. 24, 32, 706 P.2d 929 (1985), the court had construed ORS 30.920(3), requiring that subsections (1) and (2) be construed "in accordance with the Restatement (Second ) of Torts [section] 402A, Comments a to m (1965)," as an enactment of the "consumer expectation test." The court held in Ewen that, under ORS 30.920, a jury in a design-defect case "should receive some instruction phrased so as to focus on what extent of risk an ordinary consumer would contemplate when purchasing a product with the knowledge of its characteristics common to the relevant community." 300 Or. at 32, 706 P.2d 929.

In McCathern , the question before the court was the sufficiency of the evidence to satisfy the consumer-expectation test. In our opinion in that case, McCathern , 160 Or. App. 201, 985 P.2d 804 (1999), aff'd , 332 Or. 59, 23 P.3d 320 (2001), we attempted to construct a template for a plaintiff's proof of consumer expectations. We analyzed the Supreme Court's case law and the law of other jurisdictions relating to product liability and concluded that a product liability plaintiff may satisfy the consumer-expectation test through either of two approaches: a "representational" approach, which we said was derived from the "reasonable manufacturer test" and which concerned solely the manufacturer's representations and consumers’ consequent expectations, or a "consumer risk-utility"...