Benjamin v. Wal-Mart Stores, Inc.

• Decision Date: 26 December 2002
• Citation: Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444, 61 P3d 257 (Or. App. 2002)
• Parties: Jennifer Danielle BENJAMIN, Personal Representative of the Estate of Charles Schoggins, Respondent, v. WAL-MART STORES, INC., an Active Delaware Corporation; Coleman Outdoor Products, Inc., aka Coleman Company, Inc., aka New Coleman Holding, Inc.; and G.I. Joes, Inc., an Active Oregon Corporation, Defendants, and The Coleman Company, Inc., Appellant.
• Court: Oregon Court of Appeals

61 P.3d 257

185 Or. App. 444

Jennifer Danielle BENJAMIN, Personal Representative of the Estate of Charles Schoggins, Respondent, v. WAL-MART STORES, INC., an Active Delaware Corporation; Coleman Outdoor Products, Inc., aka Coleman Company, Inc., aka New Coleman Holding, Inc.; and G.I. Joes, Inc., an Active Oregon Corporation, Defendants, and The Coleman Company, Inc., Appellant.

16-98-19033; A109788.

Court of Appeals of Oregon.

Argued and submitted June 5, 2002.

Decided December 26, 2002.

Jonathan M. Hoffman, Portland, argued the cause for appellant. With him on the briefs was Martin, Bischoff, Templeton, Langslet & Hoffman LLP.

Kathryn H. Clarke, Portland, argued the cause for respondent. With her on the brief was Mustafa Kasubhai.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

LANDAU, P.J.

Charles Schoggins died while sleeping in a closed tent that was heated by a Coleman Focus 15 propane heater. Plaintiff, Schoggins's daughter and the personal representative of his estate, initiated this wrongful death action against defendant The Coleman Company, Inc. (Coleman), asserting claims for product liability and negligence.¹ The jury returned a verdict in favor of plaintiff on both claims, awarding $336,000 in economic damages and $433,000 in noneconomic damages. Coleman appeals, asserting nine assignments of error. We affirm.

I. FACTUAL BACKGROUND

We begin with a general description of the relevant facts and leave to our discussion of each assignment of error the recitation of any additional facts that are relevant to those assignments. We take the facts from the record, viewing the evidence and reasonable inferences to be drawn therefrom in the light most favorable to plaintiff, the party in whose favor the jury returned its verdict. McCathern v. Toyota Motor Corp., 332 Or. 59, 62, 23 P.3d 320 (2001).

Schoggins was a carpenter who lived in Bend. In October 1996, he was hired to work on a project in Philomath. For the first few days that he was at the work site, Schoggins slept in his car. A contractor on the job, David Anaya, slept in a nearby tent, which he intermittently warmed with a Coleman Focus 15 propane heater. Affixed to an upper portion of the heater was a decal approximately two and one-fourth inches wide and three inches high. The decal stated in part: "WARNING: FOR OUTDOOR USE ONLY.

Never use inside house, camper, tent, vehicle or other unventilated or enclosed areas."

On the night of October 15, Anaya, his wife, and their two young daughters fell asleep in their tent while the Focus 15 heater was operating. Anaya woke about an hour later and discovered that his daughters were convulsing. He turned the heater off, opened the tent's windows, and carried the girls out of the tent. Neither he nor his wife was affected. At that time, Anaya assumed that the girls' symptoms were caused by carbon monoxide produced by the heater.

The next morning, as Anaya was preparing to return to Bend, Schoggins asked him to leave his tent and heater at the work site for Schoggins to use. Anaya agreed to do so. Anaya told Schoggins that, the previous night, his children had had convulsions and that he thought the heater might have had something to do with that reaction. Anaya told Schoggins to take care of the heater and said, "don't die in my tent." He said it "jokingly," and Schoggins replied with a chuckle. Anaya later recalled that, if he actually had had concerns about Schoggins's safety, he would not have let Schoggins use the heater.

That same day, Schoggins and a framer on the project, Dooms, received and cashed their paychecks. Schoggins, Dooms, and a third person, Falk, then went to a tavern where they ate lunch and drank "at least three or four pitchers" of beer between them. Around 4:00 p.m., Falk bought a case of beer; Schoggins drank "at least" one can on the way back to the work site. Around 9:30 p.m., Dooms went to his tent with Anaya's propane heater, which he lit and set on "high." Around 11:00 or 11:30 p.m., Schoggins came to Dooms's tent and got the heater. Schoggins took the heater to his tent, zipped himself and the heater inside, and apparently fell asleep. The next morning, he was found dead from carbon monoxide poisoning.

Plaintiff initiated this action. As pertinent here, in her second amended complaint, she alleged that Coleman engaged in the manufacture, distribution, and sale of Coleman heaters, that the Anayas purchased a Coleman Focus 15 propane heater, that Schoggins "installed and utilized" the heater in the tent in which he was sleeping, and that the heater caused a depletion of oxygen and an excessive production of carbon monoxide that caused Schoggins's death by asphyxiation. In her product liability claim, plaintiff further alleged that Coleman caused the heater to be sold with "limited instructions and notification as to its proper and safe use," that the heater was dangerously defective because it was not fit for its reasonably foreseeable use, and that Coleman failed to warn consumers that the heater could cause asphyxiation. In her negligence claim, plaintiff further alleged that Coleman failed properly to manufacture or test the heater, failed to provide a safe heater for consumer use, and failed to warn Schoggins that the heater could cause asphyxiating conditions. Plaintiff sought $503,000 in economic damages and $500,000 in noneconomic damages.

Before trial, Coleman moved to exclude evidence or argument relating to the design and testing of, or incidents involving, dissimilar Coleman and non-Coleman heaters. Coleman also sought to exclude evidence of any incident involving a similar Coleman heater, to the extent that the incident was not substantially similar to the incident at issue here or Coleman was not aware of the incident at the time that the heater in this case was sold to Anaya. The trial court ruled that evidence of incidents involving Coleman's entire line of Focus heaters was admissible, because there was

"a substantial similarity of the dangerous condition of this line of products which reduces the oxygen supply, releases carbon dioxide to a dangerous level when operated in a poorly ventilated or enclosed area, and it is the nature of the dangerous condition that is substantially similar, which is the allegation of the defect and the design defect in this matter."

The court ruled that the relevant date for purposes of notice to Coleman of such incidents was "the date that the defendant Coleman Company loses control of the product." The trial court later granted Coleman a continuing objection to the admission of such evidence.

Coleman separately moved to exclude all references to certain specified sources of economic damages that, according to Coleman, lacked evidentiary support, including, as pertinent here, any alleged loss of Schoggins's financial support of his son Dallas Schoggins, any alleged pecuniary loss to Schoggins's estate, and any alleged lost future income of Schoggins. The trial court denied Coleman's motion, stating that "[o]bjections can be made at the appropriate time."

At trial, plaintiff elicited the testimony of an economist, Michael Haynes, pertaining to plaintiff's economic damages arising from Schoggins's death. At three points during and after Haynes's testimony, Coleman objected to and moved to strike the testimony. The trial court denied the motions. Plaintiff also elicited the testimony of Coleman's director of engineering, Randy May, regarding the design of Coleman's heaters; May testified regarding incidents involving Coleman heaters that had occurred before the heater in this case was sold, that is, before October 1994. Coleman moved to strike that testimony on the ground that May's testimony failed to demonstrate that Coleman knew about the incidents before October 1994. The trial court denied the motion.

Also during trial, Coleman moved for directed verdicts on plaintiff's product liability and negligence claims, arguing that plaintiff had failed to offer sufficient evidence of certain elements of each of those claims. By oral motion, Coleman also moved for a directed verdict on plaintiff's claim for economic damages. Coleman renewed its motions at the close of the evidence. The trial court denied the motions.

As noted above, the jury returned a verdict in favor of plaintiff on her product liability and negligence claims. The jury determined that Schoggins was not negligent. The jury awarded economic damages in the amount of $336,000 and noneconomic damages in the amount of $433,000. After judgment was entered, Coleman moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied those motions as well.

II. ANALYSIS OF ASSIGNMENTS OF ERROR

On appeal, Coleman advances nine separate assignments of error: (1) the trial court erred in denying Coleman's motion for a directed verdict on plaintiff's product liability and negligence claims; (2) the court erred in permitting plaintiff's counsel to "display stacks of notebooks allegedly containing other incident information"; (3) the court erred by allowing other incident evidence; (4) the court erred in improperly instructing the jury regarding comparative fault; (5) the court erred in denying Coleman's motion in limine regarding improper evidence of economic damages; (6) the court erred in admitting the testimony of plaintiff's economist, Haynes; (7) the court erred in denying Coleman's motion to strike Haynes's testimony; (8) the court erred in denying its renewed objection to Haynes's testimony; and (9) the court erred in denying Coleman's renewed motion for a directed verdict on the ground that there was an absence of evidence of economic damages. We address each assignment in turn.

A. Denial of Motions for Directed Verdict

We begin with Coleman's first assignment, in which it argues that the trial court erred in denying its motions for directed verdict on plaintiff's product liability and...