Ewen v. McLean Trucking Co.

• Decision Date: 29 October 1985
• Docket Number: No. A8004-01826,A8004-01826
• Citation: Ewen v. McLean Trucking Co., 300 Or. 24, 706 P.2d 929 (Or. 1985)
• Parties: , Prod.Liab.Rep. (CCH) P 10,836 Irving G. EWEN, as Guardian ad litem for Sophie S. Ewen, an incapacitated person, Respondent on Review, v. McLEAN TRUCKING COMPANY, a foreign corporation, James David Owens, Defendants, and International Harvester Company, a foreign corporation, Petitioner on Review. CA 25947; SC S31324
• Court: Oregon Supreme Court

Page 929

706 P.2d 929

300 Or. 24, Prod.Liab.Rep. (CCH) P 10,836

Irving G. EWEN, as Guardian ad litem for Sophie S. Ewen, an incapacitated person, Respondent on Review, v. McLEAN TRUCKING COMPANY, a foreign corporation, James David Owens, Defendants and International Harvester Company, a foreign corporation Petitioner on Review.

CA 25947; SC S31324; No. A8004-01826.

Supreme Court of Oregon In Banc.

Argued and Submitted March 5, 1985.

Decided Sept. 17, 1985.

Reconsideration Denied Oct. 29, 1985.

E. Joseph Dean, Portland, argued the cause for petitioner on review. With him on the petition were Charles F. Adams, Phillip D. Chadsey, and Stoel, Rives, Boley, Fraser & Wyse, Portland, and Seymour W. Croft, Chicago, Ill.

Charles J. Merten, Portland, argued the cause for respondent on review. With him on the response to the petition were Richard S. Yugler and Merten & Fink, Portland.

Arthur C. Johnson, Eugene, filed an amicus curiae brief. With him on the brief were Claudia F. Ingram and Johnson, Quinn, Clifton & Williams, Eugene.

LINDE, Justice.

Plaintiff is the guardian ad litem of Sophie S. Ewen, who was struck by a truck while crossing a street intersection. In addition to negligence actions against the trucking company and the driver, plaintiff brought a "product liability civil action," ORS 30.900, against International Harvester Company, the manufacturer of the truck, alleging that its defective design prevented the driver from seeing pedestrian traffic immediately in front and to the right of the truck. Plaintiff had judgment on a jury verdict against International Harvester, which was affirmed on appeal. Ewen v. McLean, 70 Or.App. 595, 689 P.2d 1309 (1984).

Defendant's petition for review brings before this court a single issue, whether the following instruction was reversible error:

"A product is dangerously defective when it is in a condition unreasonably dangerous to the user.

"Unreasonably dangerous in this context means dangerous to an extent beyond that which would be contemplated by the ordinary purchaser of this type of product in the community. Purchaser and users is [sic] anyone who may reasonably be expected to be affected by the product, such as a pedestrian."

Defendant objected at trial and argued on appeal that the expectations of a pedestrian are not a test of dangerousness to a "user or consumer" within the meaning of the product liability law. The Court of Appeals noted that in Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974), this court had treated the test of reasonable consumer expectation as equivalent to a test whether a reasonable seller, with knowledge of the dangerous characteristic in question, would market the product. From this, the Court of Appeals inferred that in effect the jury is to evaluate the allegedly defective product from the perspective of a "reasonable person," and that "whether the jury is instructed to view the product from the perspective of the 'reasonable manufacturer' or the 'reasonable consumer' or the 'reasonable pedestrian' is of little moment." 70 Or.App. at 604, 689 P.2d 1309 (footnote omitted). It therefore concluded that the quoted instruction was not erroneous. We reverse the decision of the Court of Appeals and remand the case to the circuit court.

ORS 30.920 provides:

"(1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm or damage to property caused by that condition, if:

"(a) The seller or lessor is engaged in the business of selling or leasing such a product; and

"(b) The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased.

"(2) The rule stated in subsection (1) of this section shall apply, even though:

"(a) The seller or lessor has exercised all possible care in the preparation and sale or lease of the product; and

"(b) The user, consumer or injured party has not purchased or leased the product from or entered into any contractual relations with the seller or lessor.

"(3) It is the intent of the Legislative Assembly that the rule stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965). All references in these comments to sale, sell, selling or seller shall be construed to include lease, leases, leasing and lessor.

"(4) Nothing in this section shall be construed to limit the rights and liabilities of sellers and lessors under principles of common law negligence or under ORS chapter 72."

As subsection (3) expressly states, the substantive formulas codified in subsections (1) and (2) are to be "construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965)." The present issue concerns Comment i, which reads in part:

"The article sold must be 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."

This is the standard for defects sometimes called the "consumer contemplation test." Defendant argues that even though a pedestrian may recover damages for injuries caused by a defective truck, the scope of the rule does not bring the pedestrian into the class of consumers who have purchased a product with ordinary knowledge of its characteristics and whose expectations determine whether the product is dangerously defective. Neither plaintiff nor the Court of Appeals squarely maintains the contrary, that a pedestrian is a "consumer" of trucks. Rather, plaintiff takes issue with some of the theoretical reasons defendant offers for the consumer expectations test, and the Court of Appeals, as quoted above, concluded that it was immaterial whether the jury was told to assume the perspective of a manufacturer, a consumer, or an injured pedestrian, because by the objective calculus employed by a hypothetical reasonable person, each should arrive at the same measure of an alleged defect.

As a prediction of jury behavior, that may or may not be true. Trial by jury rests on the assumption that jurors will do their best to follow the law as explained by the court and that accurate instructions matter. Cf. Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 603-04, 642 P.2d 624 (1982). Certainly counsel's battles over the supplemental instruction in this case suggest that trial lawyers thought it would matter to the jurors from which perspective they should evaluate the alleged defect. The question, in any event, is not what lawyers or judges may think on that subject, but what the legislators who proposed and enacted ORS 30.920 thought.

ORS 30.920 was enacted in 1979. Its legislative history is reviewed at length in Vetri, Legislative Codification of Strict Products Liability Law in Oregon, 59 Or.L.Rev. 363 (1981). In brief summary, the initiative for codifying civil liability for injuries from defective products came from business groups who were concerned about rising costs of liability insurance, which they attributed to the unpredictability of potential exposure in what was then a rapidly evolving branch of the law. In part, their sense of uncertainty concerned cases decided in other states which this court might or might not follow. Both they and their insurers desired to stabilize the rules of liability. Other witnesses and legislators, in turn, were concerned that legislation not reduce the financial protection under existing Oregon law for persons injured by dangerous products.

Both sides agreed that, if there was to be legislation at all, the starting point was the law stated in section 402A of the American Law Institute's Restatement, Second, Torts with its interpretive Comments, although certain changes were necessary. Subsection 2(b), which eliminates any requirement of contractual privity between a plaintiff and a defendant, was expanded to refer expressly to an "injured party" other than a "user" or "consumer," and Comment n, concerning contributory negligence and assumption of risk, was removed from the list of Comments incorporated by reference.

The question that concerns us in the present case is what significance the legislators attached to the consumer contemplation test stated in the Restatement's Comment i, quoted above. Although Comment i, like the others, was not set out in the bill but was only incorporated by reference, its substance did not go unnoticed. In the Senate, the chief proponent of the proposal to codify Comments a to m spoke of the confusion created by courts in "moving away from the provisions of 402A." Senate Floor Debates on S.B. 422, 60th Or.Legis.Ass'y (May 29, 1979), tape 22, side 1, at 809 (Sen. M. Ragsdale). Opponents warned that the bill would reverse or overrule any prior decisions that were contrary to Comments a through m. Witnesses before the House Judiciary Committee were more specific. A witness for the Portland Chamber of Commerce stated:

"The Oregon Supreme Court eroded away the rules when it refused to accept the consumer oriented rule anymore. Instead, it substituted what is called a seller oriented rule for the definition of unreasonably dangerous. The Supreme Court stated it is not what the consumer expects that is important; it is what a reasonably prudent manufacturer would do, knowing of the potential danger. Some people think that is a much more liberal rule. Some consumers think it is a much more restrictive rule, and not the rule they would like."

Minutes, House Committee on The Judiciary 9 (June 19, 1979--Statement of Roland E. Banks, Jr.). Another witness, whom Professor Vetri characterizes as a plaintiffs' attorney, thought that adoption of Comment i would make no great change in Oregon law because this court had treated the expectations of a reasonable consumer as equivalent to the standard...