Green v. Denney

• Citation: 742 P.2d 639,87 Or.App. 298
• Parties: , Prod.Liab.Rep. (CCH) P 11,593 Steven GREEN, Personal Representative of the Estate of Kelly Sue Green, Respondent, v. Clemens L. DENNEY, dba J.C. Quarter Horse Ranch, Respondent, and Ford Motor Company, a Delaware corporation, Appellant. A8304-02482; CA A37066.
• Decision Date: 09 September 1987
• Court: Court of Appeals of Oregon

Page 639

742 P.2d 639

87 Or.App. 298, Prod.Liab.Rep. (CCH) P 11,593

Steven GREEN, Personal Representative of the Estate of Kelly

Sue Green, Respondent, v. Clemens L. DENNEY, dba J.C. Quarter Horse Ranch, Respondent, and Ford Motor Company, a Delaware corporation, Appellant.

A8304-02482; CA A37066.

Court of Appeals of Oregon.

Argued and Submitted June 16, 1987.

Decided Sept. 9, 1987.

John R. Faust, Jr., Portland, argued the cause for appellant. On the briefs were Ridgway K. Foley, Jr., P.C., Mildred J. Carmack, Roland F. Banks, and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent Steven Green. With him on the brief were Jan Thomas Baisch and Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

Robert E. Maloney, Jr., Portland, waived appearance for respondent Clemens L. Denney dba J.C. Quarter Horse Ranch.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

This is a product liability action arising out of a collision between a 1980 Ford Pinto automobile and a horse. Defendant Ford Motor Company (defendant) appeals the judgment in favor of plaintiff. We affirm.

On the evening of March 29, 1982, plaintiff was driving his 1980 Pinto at about 45-50 miles per hour on Highway 224 near Estacada. His wife, Kelly Sue, was in the front passenger seat. A horse suddenly appeared in front of the car, and plaintiff had no time to swerve or turn. The car's front bumper hit the horse's lower front legs, throwing the horse up over the car's hood, breaking the windshield and collapsing the roof rail (called the "header") above the windshield on the passenger side of the car. The roof collapsed, killing plaintiff's wife instantly. The horse slid over the top of the car and fell to the ground behind it. Plaintiff and his son, who was sitting in the back seat, were unhurt. Plaintiff's young daughter, who was sitting on her mother's lap, sustained minor cuts and bruises.

Plaintiff brought this action for the death of his wife against the owner of the horse, Denney, and defendant. Plaintiff settled with Denney before trial. In his action against defendant, plaintiff alleged that the faulty design of the Pinto roof structure caused the fatal injury.

Defendant assigns error to the court's denial of its motion for directed verdict. We consider the evidence in the light most favorable to plaintiff and must affirm unless we can say that there is no evidence from which the jury could have found the facts necessary to establish the elements of plaintiff's claim. Brown v. J.C. Penney, 297 Or. 695, 705, 688 P.2d 811 (1984). In deciding whether the evidence of defective design is sufficient to make a jury question, a trial court must balance the utility of the risk created by the unsafe feature of the product against the magnitude of the risk. Roach v. Kononen/Ford Motor Co., 269 Or. 457, 464, 525 P.2d 125 (1974). In doing so, it should consider certain factors, inter alia, the product's usefulness, its safety and the feasibility of alternatives. ¹

The parties' primary disagreement is about the safety factor, i.e., the likelihood that the product will cause injury. Defendant argues that the accident was freak and bizarre in that it involved an unusual concentration of forces and an abnormal load on the header, which resulted in the failure of the roof structure. It argues that the support structure is designed to work as a whole but that the horse hit the header at a point where the other roof components could not contribute to its support. According to defendant, plaintiff produced no evidence that would allow the jury to determine that a reasonable manufacturer, with knowledge of the risk that a load would fall on the roof in the particular manner that it did, would have designed the header differently. In sum, defendant contends that the design was not defective, because the force and impact of the accident were so unusual that it could not have reasonably been anticipated.

Product liability for defective design does not extend to cases where the risk of injury from the product's failure is so remote that a reasonable manufacturer would not consider it in design decisions. See Wilson v. Piper Aircraft Corporation, 282 Or. 61, 66, 68, 577 P.2d 1322 (1978). Plaintiff offered evidence that collisions with large animals, including horses, are common and foreseeable. Defendant countered that it was not foreseeable that such a collision would produce an impact on the roof concentrated at a particular point rather than being more evenly distributed. The problem with that argument is that its converse is equally true: It was just as unpredictable that the impact from a collision would fall evenly on the entire roof rather than land with greater force on its weakest part. That the horse landed with its full weight on the header did not make the accident any more a freak occurrence than if the weight had been distributed evenly.

There was evidence that the Pinto's "halo" roof design was unusual, because it eliminated numerous welds and the support beam across the roof, reduced the thickness of the metal and interrupted its integrity with a "lighting" hole in the center panel. Plaintiff's expert testified that reinforcement of the roof was technically and economically feasible and would have prevented its deformation so that it would not come into contact with a passenger's head. Plaintiff also introduced expert testimony that the amount of energy generated by the fall of the horse on the roof did not exceed the amount that it was required to sustain to pass a federal safety test. Other evidence was presented that defendant had experienced difficulties in testing the Pinto roof design. ² We conclude that the accident and the manner of injury were not unforeseeable, as a matter of law, and that plaintiff presented sufficient evidence of defective design to justify submission of the case to the jury.

Defendant next assigns as error the admission of expert testimony by a former employe who had worked for defendant in a design division during the early 1970's, when Pinto cars were first manufactured. ³ He testified that defendant had a practice of concealing unfavorable test results, repeating tests until one car finally passed the federal standards and then publishing only the passing result. He further testified about technical aspects of the roof design and the feasibility of safer alternatives. Defendant objected to the entire testimony on the basis of relevancy and prejudice. ⁴

Defendant's irrelevancy argument is based on the supposition that the expert could not testify about the 1980 Pinto because he had left defendant's employ at least two years before the 1980 Pinto was produced. Although it is true that the witness had no personal knowledge of the 1980 Pinto testing, he had first hand knowledge of the unsuccessful tests performed on the Pinto roof between 1971 and 1978. He further testified that the "halo" roof panel, as it existed while he worked for defendant, was basically unchanged throughout the 1980's. Accordingly, the evidence was relevant to prove that the alleged design defects of which he did have personal knowledge continued to exist in plaintiff's car. It was also relevant to the feasibility and cost of design alternatives. See Wilson v. Piper Aircraft Corporation, supra, 282 Or. at 67-68, 577 P.2d 1322. The evidence that defendant had concealed unfavorable test results was relevant to prove defendant's actual knowledge of weakness in the roof design. Although in product design defect cases, the manufacturer is "assumed" to know the...