Hernandez v. Barbo Machinery Co.

• Decision Date: 24 April 1998
• Citation: 327 Or. 99,957 P.2d 147
• Court: Oregon Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 15,229 Heriberto M. HERNANDEZ, Respondent on Review, v. BARBO MACHINERY CO., an Oregon Corporation, and Buckner-Weatherby Co., Inc., a wholly-owned subsidiary of C.B. Tool & Supply, Inc., a foreign corporation, Petitioners on Review. CC 9310-06393; CA A85962; SC S43476.

Page 147

957 P.2d 147

327 Or. 99, Prod.Liab.Rep. (CCH) P 15,229

Heriberto M. HERNANDEZ, Respondent on Review, v. BARBO MACHINERY CO., an Oregon Corporation, and Buckner-Weatherby Co., Inc., a wholly-owned

subsidiary of C.B. Tool & Supply, Inc.,

a foreign corporation,

Petitioners on Review.

CC 9310-06393; CA A85962; SC S43476.

Supreme Court of Oregon.

Argued and Submitted March 4, 1997.

Decided April 24, 1998.

Lisa E. Lear, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, argued the cause on behalf of petitioners on review. With her on the briefs was Stephen F. English.

Ridgway K. Foley, Jr., of Greene & Markley, P.C., Portland, argued the cause on behalf of respondent on review. With him on the brief was James G. Breathouwer, of Breathouwer & Gilman, Portland.

Maureen Leonard, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM and KULONGOSKI, JJ. ^**

KULONGOSKI, Justice.

The issue in this products liability case is whether the trial court committed reversible error in refusing to give plaintiff's requested jury instruction. The Court of Appeals concluded that it did. Hernandez v. Barbo Machinery Co., 141 Or.App. 34, 917 P.2d 30 (1996). We affirm the decision of the Court of Appeals.

We take the following facts from the opinion of the Court of Appeals: ¹

"Plaintiff is a maintenance mechanic who serviced Westwood Manufacturing Company's (Westwood) machinery. On June 25, 1993, plaintiff discovered a new saw at the Westwood work site, which he had never seen before, and with which he was unfamiliar. The saw, called a Belsaw, is sold by defendants. It consists of a cabinet, in which the saw blade is encased, with a work area on top where the wood is cut. The blade is not visible when the cabinet door is closed.

"Plaintiff decided to investigate the saw more closely to see if it needed maintenance. He looked for the on/off switch to determine whether the saw was turned off, but because the area was dark and because the switch was not located in any of the customary positions, plaintiff could not find the switch. He also placed his hand on the top of the cabinet, but could not feel a vibration from the saw, nor could he hear any sound emanating from the cabinet. However, unbeknownst to plaintiff, the saw was operating.

"Plaintiff then opened the cabinet door and squatted on the floor to get a closer look at the inside of the cabinet. Using a flashlight, he looked inside the cabinet. While he was looking, he slipped on sawdust, causing his right hand to go inside the cabinet and into the moving saw blade. The accident resulted in the partial amputation of plaintiff's right hand." 141 Or.App. at 36, 917 P.2d 30.

Defendant Buckner-Weatherby Company, Inc., a wholly-owned subsidiary of C.B. Tool & Supply, Inc., sold the subject saw to defendant Barbo Machinery Company. Barbo then sold the saw to Westwood.

Plaintiff sued defendants under the theory of strict products liability. He alleged that defendants' machine was dangerously defective in four respects:

"A. It was not equipped with a readily observable on/off switch which clearly showed what mode the saw was in at all times;

"B. It was not equipped with a limit switch on, or in conjunction with, its access door which would terminate the power to the blade in the event the door was opened;

"C. It was not equipped with a decal or similar device warning its users of the risk of opening the access door without first making certain that the saw was in the 'off' mode; and

"D. It was not equipped with a guard sufficient to prevent a user from coming into contact with the saw's revolving blade."

Defendants raised the affirmative defense of comparative fault, setting forth the following ten allegations of plaintiff's negligence:

"1. Plaintiff, as an experienced maintenance person, knew that machines contain on-off switches and further knew that with respect to this specific machine he had not yet located the on-off switch when he opened the door to the interior of the machine, thereby knowingly encountering the risk that the saw blade might be turning.

"2. Plaintiff knowingly encountered the risk that the machine might be running by opening the door to the interior of the Belsaw when he heard or should have been able to hear the sound of the saw blade running.

"3. Plaintiff knowingly encountered the risk that the machine might be running by ignoring the fact that when the door to the Belsaw was opened the noise from the blade was louder than when the door was closed, thereby indicating that the machine was running and the blade was turning.

"4. Plaintiff negligently set his feet in sawdust in an area in which the floor was obviously covered with sawdust which he could slip on.

"5. Plaintiff knowingly encountered a risk of injury when he, having possession of a flashlight, failed to use it first on the exterior of the machine to locate the on-off switch and turn the machine off, before attempting to use the flashlight to see the interior of the machine.

"6. Plaintiff knowingly encountered a risk of injury when he failed to follow standard and generally recognized safety rules of first unplugging the Belsaw before he attempted to inspect its interior.

"7. Plaintiff knowingly encountered the risk of injury when he failed to ask any Westwood employee for a manual or for instructions as to how to turn the Belsaw off before he began his inspection.

"8. Plaintiff knowingly encountered the risk of injuring himself on a machine whose blade was still moving by failing to follow a safe shutdown procedure prior to performing inspection or maintenance on the machine.

"9. Plaintiff knowingly encountered the risk of injury to himself by placing his hand into the cabinet of the saw when the presence of the blade was open, obvious and constituted an observable danger.

"10. Plaintiff knowingly encountered the risk of injuring himself on a machine when he saw the on-off switch on the Belsaw and failed to push the off button to shut the machine down."

Defendants' fourth allegation of plaintiff's comparative fault is the only one that does not allege that plaintiff knowingly encountered the risk of injury created by the alleged defects in the saw.

At trial, plaintiff requested the following jury instruction:

"Defendants have charged plaintiff with comparative fault; that is, they have alleged that the subject accident and any injuries that plaintiff may have sustained as a result thereof, were caused, at least in part, by plaintiff's own fault in certain particulars. In that connection, I instruct you that an injured person's conduct which in fact was a cause of his or her injury, and which constitutes 'fault,' including negligence, may be considered in a products liability action, unless that person's alleged negligence consists in the kind of unobservant, inattentive, ignorant, or awkward failure to discover or to guard against the defect that goes toward making the product dangerously defective in the first place. In other words, contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence."

Plaintiff's requested jury instruction relied on this court's treatment of comparative fault in a products liability action in Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 610, 642 P.2d 624 (1982).

The trial court refused to give plaintiff's requested jury instruction because the court believed that the substance of the instruction was a legal question for the court, not a question of fact for the jury. In instructing the jury, the trial court first reviewed the defects in the saw as alleged by plaintiff. The trial court then noted that, for their "affirmative defense," defendants "alleged that at the time of the accident the plaintiff himself was negligent in one or more of the following particulars," and then read to the jury defendants' ten allegations of plaintiff's alleged comparative fault. ² The trial court then proceeded to instruct the jury. With respect to comparative fault, the trial court instructed the jury in part as follows:

"In order for the defendant[s] to establish comparative fault on the plaintiff's part, the defendant[s] must prove by a preponderance of the evidence that the plaintiff was at fault in at least one of the ways alleged, as I just read to you from the answer, which was a cause of injury or damage to the plaintiff.

" * * * * *

"The plaintiff and the defendant have each alleged that the injury was caused by the other's fault. This requires instructing you on the law of comparative fault.

"If you find that both the defendant and the plaintiff were at fault in any respect alleged which was a cause of the damage complained of, then you should compare the fault of the plaintiff to the fault of the defendant. In making this comparison, you are to measure the fault of the parties and not the mere physical causation of the injury.

"If the plaintiff's fault was greater than the defendants' fault, then the plaintiff is not entitled to a verdict in his favor. However, if the plaintiff's fault was equal to or less than the defendants' fault, then the plaintiff is entitled to a verdict in the plaintiff's favor.

"In other words, if the plaintiff's fault was more than 50 percent, then the plaintiff is not entitled to a verdict in the plaintiff's favor. On the other hand, if the plaintiff's fault is 50 percent or less, then the plaintiff is entitled to a verdict in his favor." ³

The jury returned a verdict, finding that defendants were at fault in one or more of the ways alleged in the complaint and that plaintiff was at fault in one or more of the ways alleged in defendants' answer. The jury further found plaintiff's fault to be 50.5 percent and defendants' fault to be 49.5 percent. Because plainti...