Jett v. Ford Motor Co.

• Decision Date: 14 August 2002
• Citation: 183 Or.App. 260,52 P.3d 441
• Parties: Trudy JETT and Ron Jett, Respondents, v. FORD MOTOR COMPANY, a Delaware corporation, Appellant, and Milligan Motors, Inc., an Oregon corporation, Defendant. Ford Motor Company, a Delaware corporation, and Milligan Motors, Inc., an Oregon corporation, Third-Party Plaintiffs, v. Tim Testerman, dba Advanced Auto Detailing, Third-Party Defendant.
• Court: Oregon Court of Appeals

52 P.3d 441

183 Or.App. 260

Trudy JETT and Ron Jett, Respondents, v. FORD MOTOR COMPANY, a Delaware corporation, Appellant, and Milligan Motors, Inc., an Oregon corporation, Defendant.

Ford Motor Company, a Delaware corporation, and Milligan Motors, Inc., an Oregon corporation, Third-Party Plaintiffs, v. Tim Testerman, dba Advanced Auto Detailing, Third-Party Defendant.

9801-00538; A111123.

Court of Appeals of Oregon.

Argued and Submitted January 3, 2002.

Decided August 14, 2002.

John McCauley, Baltimore, Maryland, appearing pro hac vice, argued the cause for appellant. On the briefs were Karen O'Kasey, Richard K. Hansen, and Schwabe, Williamson & Wyatt, P.C.

James C. Tait, Oregon City, argued the cause for respondents. With him on the brief were Tait & Associates, Mark Bocci, and Pippin & Bocci.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and SCHUMAN, Judge.

LANDAU, P.J.

Plaintiff Trudy Jett was injured in an accident as she loaded parcels on the job from a delivery truck that she drove for the United Parcel Service (UPS). She and her husband initiated this action for negligence and loss of consortium.¹ Named as defendants were Ford Motor Company (Ford), the manufacturer of the truck, and Milligan Motors, Inc., the company that serviced it. Defendants asserted that the injury was caused by plaintiff's own negligence in, among other things, failing to follow certain UPS safety rules that require drivers to put their trucks in "park," turn off the engine, and set the parking brake before getting out. The trial court, however, excluded evidence of the UPS safety rules. A jury found for plaintiff, assigning Ford 85 percent of the fault and plaintiff 15 percent. Ford appeals, raising a number of assignments of error, including that the trial court erred in excluding the evidence of the UPS safety rules and in delivering an erroneous instruction to the jury concerning comparative fault. We conclude that Ford is correct about the exclusion of the UPS safety rules and reverse and remand on that basis. We also conclude that Ford failed to preserve its objection to the contested jury instruction and therefore do not address that matter.

The facts relevant to the disposition of the appeal are not in contention. Plaintiff was a professional package delivery truck driver for UPS. On April 22, 1996, she reported that her regular truck was difficult to shift. Two days later, she again reported trouble with shifting. On April 29, the truck was taken in for servicing, and plaintiff was given a replacement truck. Plaintiff, however, reported that the replacement vehicle also was difficult to shift. On April 30, the individual responsible for truck maintenance and service spoke with plaintiff about the shifting problem with the replacement truck. He told plaintiff that the replacement truck was unsafe and that she should wait until later that morning to do her rounds, when her regular truck would be available.

Plaintiff declined to wait. She loaded the replacement truck with parcels, turned on the ignition, and pulled the truck forward approximately 10 feet. Immediately, however, she encountered difficulty with the gear shift. She moved the transmission shift lever to "neutral." She believes that she set the parking brake, because that was her usual practice. With the engine still running, she got out of the truck and walked behind it to retrieve some additional packages. While she was standing between the rear of the truck and the loading dock, the truck rolled back and pinned her against the dock, causing severe injuries.

Before trial, plaintiffs moved to exclude evidence of the UPS safety rules concerning the proper procedure for the disposition of delivery trucks before getting out of them. Initially, the trial court ruled that the rules are relevant to the issues of comparative negligence and denied plaintiffs' motion. The following day, however, the trial court reconsidered. The court drew a distinction between internal company safety rules and a safety-related law or regulation. Citing Jones v. Mitchell Bros., 266 Or. 513, 511 P.2d 347 (1973), and Jones v. Montgomery Ward, 49 Or.App. 231, 619 P.2d 907 (1980), the court held that the former are not relevant, while the latter are. Accordingly, the trial court decided to allow plaintiffs' motion to exclude evidence of UPS safety rules.

At trial, Ford offered the testimony of Isfeld, a UPS driver trainer with 27 years of experience in the package delivery business. When Ford asked him about the standards that he uses in training UPS drivers, plaintiffs objected on the basis of the trial court's earlier ruling about internal UPS safety rules. An offer of proof followed, during which Isfeld testified about UPS rules concerning shifting the vehicle into park, setting the parking brake, and turning off the vehicle before getting out. The trial court ruled that Isfeld could not refer to any internal UPS safety rules because they were not relevant.

Following the close of the evidence, the trial court instructed the jury that:

"A special rule of comparative negligence applies only to a products liability case.

"When considering the negligence, if any, of the plaintiff, carelessness or negligent failure to discover or guard against the product defect is not an appropriate defense and may not be considered by the jury.

"Other forms of negligent conduct by plaintiff, if any, such as unreasonableness, misuse of the product, or unreasonable use despite knowledge of the dangerous defect in the product and awareness of the risk posed by that defect may be considered by the jury."

The exception is known as a Sandford instruction in that it is based on Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 598, 642 P.2d 624 (1982). Ford took exception to the instruction in the following terms:

"I do except to the exception given, the Sandford instruction that was crafted during the lunch hour that the court read dealing with the inadvertent and what plaintiffs—what's the jury can and cannot consider concerning plaintiff's own comparative fault.

"We would take exception to that instruction, your Honor. That will be it."

During deliberations, the jury sent a note to the court asking for "the legal definition of careless and negligence and the differences between [them]." Without objection, the court referred the jury to its previous instructions.

The jury returned a verdict in favor of plaintiff Trudy Jett and against Ford in the amount of $3,038,317 and in favor of plaintiff Ron Jett and against Ford in the amount of $42,500.

We begin with Ford's contention that the trial court erred in excluding evidence of the UPS safety rules. According to Ford, the distinction on which the trial court relied between internal company safety rules and safety-related laws and regulations is not recognized by the Oregon appellate courts. Plaintiffs respond that the trial court correctly excluded the evidence of the UPS safety rules because they are merely internal company rules, which are not admissible.

Whether evidence is relevant is a question of law. State v. Titus, 328 Or. 475, 481, 982 P.2d 1133 (1999); Blume v. Fred Meyer, Inc., 155 Or.App. 102, 108, 963 P.2d 700 (1998). Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401; see also State v. Hampton, 317 Or. 251, 255, 855 P.2d 621 (1993)

.

In holding that the internal company safety rules are not relevant, the trial court expressly relied on Mitchell Bros. and Montgomery Ward. In the first, an automobile accident case, the plaintiff offered into evidence a "driver's manual" published by the employer of one of the defendant truck drivers, the foreword to which cautioned drivers to be aware that other motorists sometimes make mistakes or act recklessly or absentmindedly. The trial court excluded any references to the contents of the foreword of the driver's manual, and the Supreme Court affirmed, holding that the trial court "properly excluded statements from the safety manual itself which might have created doubt in the minds of the jury as to which standard of care was applicable" to the case. Mitchell Bros.,266 Or. at 524,511 P.2d 347.

The second case was an action for false arrest and assault and battery that arose out of an incident in which the defendant retail store's security officer stopped the plaintiff for shoplifting. The plaintiff sought to introduce a manual that set forth guidelines that the defendant required its security personnel to follow when dealing with shoplifters. The trial court admitted the evidence. On appeal, the defendant argued that the manual was inadmissible, and this court agreed, reasoning that evidence that the defendant violated the guidelines set forth in its manual "would tend to confuse the jury as to the applicable standard, even though the statutory standard was instructed on." Montgomery Ward, 49 Or.App. at 236, 619 P.2d 907.

In neither of those cases is there a statement that nongovernmental safety rules are never relevant, only that, on the facts of those particular cases, admission of safety manuals would be confusing to the jury. The case law, in fact, is to the contrary.

In Hansen v. Abrasive Engineering and Manufacturing, 317 Or. 378, 856 P.2d 625 (1993), the plaintiff brought a product liability action against the defendant for injuries sustained while cleaning a sanding machine that the defendant designed and manufactured. The plaintiff sought to introduce evidence of, among other things, advisory standards promulgated by the American National Standards Institute (ANSI) concerning certain safety features that he contended should have been incorporated into the...