Helms v. Halton Tractor Co.

• Decision Date: 30 March 1984
• Docket Number: No. A8010-05570,A8010-05570
• Parties: Carl M. HELMS, Appellant, v. HALTON TRACTOR CO., an Oregon corporation; and Willamette Valley Mobile Home Shows, Inc., an Oregon non-profit corporation, Respondents. ; CA A26805.
• Court: Oregon Court of Appeals

Page 347

676 P.2d 347

66 Or.App. 890

Carl M. HELMS, Appellant, v. HALTON TRACTOR CO., an Oregon corporation; and Willamette

Valley Mobile Home Shows, Inc., an Oregon

non-profit corporation, Respondents.

No. A8010-05570; CA A26805.

Court of Appeals of Oregon.

Argued and Submitted Nov. 9, 1983.

Decided Feb. 8, 1984.

Reconsideration Denied March 30, 1984.

Glenn H. Prohaska, Portland, argued the cause for appellant. With him on the briefs was Day & Prohaska, Portland.

Allan M. Muir, Portland, argued the cause for respondent Halton Tractor Co. With him on the brief was Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Hugh G. Grady, Portland, argued the cause for respondent Willamette Valley Mobile Home Shows, Inc. With him on the brief was McGill, Kapranos & Grady, Portland.

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

WARREN, Judge.

Plaintiff brought this personal injury action against defendant Willamette Valley Mobile Home Shows, Inc. (Willamette Valley), under the Employer's Liability Act (ELA), ORS 654.305 et seq, and against Halton Tractor (Halton), for product liability. Plaintiff appeals from separate judgments entered in favor of each defendant. We affirm as to Halton and reverse and remand for a new trial as to Willamette Valley.

In October, 1978, plaintiff, employed as a service manager by Forest Grove Mobile Homes, was dismantling Forest Grove's display in a mobile home show sponsored by defendant Willamette Valley. He suffered serious injuries when the mast of a forklift leased by Willamette Valley from Halton dropped on his arm.

In the subsequent action, plaintiff sought to recover against Halton, lessor of the forklift, on a design defect theory. His amended complaint alleged, in part:

"IV

"At the time the forklift truck was rented for the use of Plaintiff's employer, it was in a defective condition and unreasonably dangerous to those using it in one or more of the following particulars:

"1. The cross-members of the mast were so placed between the vertical beams of the mast supporting the forks that they could and did severely crush the arm of the Plaintiff in the manner described herein;

"2. There was no guard between the truck body and the upright members of the mast;

"3. No prominent or adequate warnings or signs were included as a part of the forklift to warn the operator of the dangers and hazards of operations, such as the Plaintiff was engaged in at the time of his injury.

"4. The mast fell suddenly and unexpectedly and in a manner not to be reasonably anticipated by the Plaintiff."

At trial, plaintiff sought further to amend the complaint by adding to paragraph IV the following particulars:

"1. The mast fell when it should not have.

"2. The mast was designed and manufactured in such a way that it could fall."

The trial judge denied the motion to amend, and plaintiff appeals from that decision.

Plaintiff's amendments seek to add to the specific allegations of a defect in the pleadings an indeterminate defect theory that we specifically disapproved in Weems v. CBS Imports, 46 Or.App. 539, 612 P.2d 323, rev.den. 289 Or. 659 (1980). Under that theory, the jury could infer a defect from general allegations that the forklift failed to perform as reasonably expected. In Weems, we held that it was reversible error for the trial court, on a design defect theory, to instruct the jury that a product may be shown to be defective because it failed to perform as reasonably expected when a specific defect is identified and there is no contention of a defect which the plaintiff was unable to identify. Because plaintiff in this case alleges a specific defect as a basis for the action and there is no indication of an undiscoverable defect, plaintiff would not be entitled to recover simply because the product failed to perform as reasonably expected. Although amendments to pleadings are to be liberally allowed under ORCP 23 B, the trial court did not err in refusing to allow the amendment. The judgment as to Halton is affirmed.

Plaintiff claims as a second assignment of error that the trial court erred in failing to find as a matter of law that Willamette Valley was an employer under the ELA, and in failing so to instruct the jury. ¹ Plaintiff claims that the control exercised by that defendant over use of the forklift brings that defendant within the purview of the ELA.

The facts here are undisputed. Willamette Valley is a non-profit corporation which exists for the sole purpose of presenting an annual mobile home show in which 12 to 15 dealers, including plaintiff's employer, Forest Grove Mobile Homes, display approximately 40 mobile homes. Each dealer uses its own employes to set up and take down its exhibits. Willamette Valley determined the times that the mobile home dealers could move their exhibits in and out, as well as the location where each dealer was to place its exhibit or move it if it were...