Lakin v. Senco Products, Inc.
| Decision Date | 09 October 1996 |
| Citation | 144 Or.App. 52,925 P.2d 107 |
| Parties | , Prod.Liab.Rep. (CCH) P 14,780 John LAKIN and Ann Marie Lakin, husband and wife, Respondents--Cross-Appellants, v. SENCO PRODUCTS, INC., an Ohio corporation, Appellant--Cross-Respondent, and Western Supply Corporation, an Oregon corporation, dba Western Tool Supply, Defendant. 9211-07901; CA A83575. |
| Court | Oregon Court of Appeals |
William L. Hallmark and Lindsey H. Hughes, argued the cause for appellant--cross-respondent. With them on the briefs was Hallmark, Keating & Abbott, P.C.
Kathryn H. Clarke and William A. Gaylord, Portland, argued the cause for respondents--cross-appellants. With them on the briefs were Maureen Leonard, Portland and Larry Dawson, West Linn.
Before RIGGS, P.J., and De MUNIZ and HASELTON, JJ.
Defendant Senco Products, Inc. appeals from a judgment awarding plaintiffs John and Ann Marie Lakin compensatory and punitive damages, following a jury trial on product liability and loss of consortium claims. Those claims arose from an incident in which John Lakin was severely injured while using a nail gun that defendant manufactured and sold. Defendant raises 17 assignments of error pertaining, inter alia, to the trial court's denial of a directed verdict on liability, the sufficiency of plaintiffs' proof of entitlement to punitive damages, and the alleged excessiveness of the punitive damage award. Plaintiffs cross-appeal, challenging the trial court's application of the statutory "cap" on recovery of noneconomic damages, ORS 18.560, and the trial court's reduction of Ann Marie Lakin's recovery for loss of consortium, based on her husband's comparative fault in the underlying accident. We affirm on the appeal, and affirm in part and reverse in part on the cross-appeal.
Viewed most favorably to plaintiffs, Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984), the record discloses the following facts material to compensatory liability: 1 Senco manufactures and markets a variety of pneumatic nail guns and staplers, including the SN325 nail gun, which discharges 3.25-inch nails. The SN325 will discharge a nail only if two trigger mechanisms are concurrently activated; that is, the user must both (1) squeeze the nail gun's finger trigger and (2) press the nail gun's muzzle against a surface, activating the bottom trigger or safety. The SN325 may be used in either of two ways. In the first, called "bump fire" or On December 1, 1990, John Lakin was helping to build a new home for his mother-in-law. Lakin, who had previously used Senco nail guns, including the SN325, borrowed an SN325 from Reichow, another worker on the site. In attempting to nail two-by-fours under the eaves of the garage, Lakin stood on tiptoe on a makeshift platform mounted on two saw horses and raised a two-by-four over his head. Holding the board in position with his left hand and with the nail gun in his right hand, he pressed the nose of the SN325 up against the board, depressing the safety, and pulled the finger trigger so as to "place fire" a nail into the board.
"bounce fire," the operator drives nails in rapid succession--at a rate of up to nine nails per second--by keeping the finger trigger continuously depressed and bouncing the gun along the work surface, constantly reactivating the muzzle safety/trigger. In the second method, known as "place fire," the operator first presses the safety against the work surface, and then pulls the finger trigger to drive the nail.
The gun fired a first nail and then, in a phenomenon known as "double firing," immediately discharged an unintended second nail that struck the first nail. The gun then recoiled violently backward toward Lakin and, with Lakin's finger still on the trigger, the gun came into contact with his cheek. That contact activated the safety, causing the gun to "bump fire" a third nail through Lakin's cheek bone and into his brain.
The nail penetrated the frontal lobe of the right hemisphere of Lakin's brain, blocked a major artery, and caused extensive tissue damage. Lakin was unconscious for several days and, ultimately, underwent multiple surgeries. He suffers permanent brain damage, including a condition known as "left neglect syndrome" in which he is unable to perceive information from the left hemisphere of his brain and suffers partial paralysis of the left side of his body. Because of his cognitive impairment, which affects his short-term memory and ability to assess spatial relationships, Lakin is unable to obtain gainful employment. He has also undergone a radical personality change and is prone to violent outbursts. His previously warm and loving relationship with his wife and four children has been permanently altered. After a brief attempt to live with his family, plaintiff found that he was unable to do so and, at the time of trial, lived in a supervised group home for brain-injured persons. His treating doctors and counselors believe that he will never again be able to live independently.
In November 1992, plaintiffs filed this action, alleging claims for personal injury, sounding in strict liability and negligence, and loss of consortium. Plaintiffs' operative third amended complaint alleged that the SN325 was dangerously defective both because its design permitted "double fire" and inadvertent "bump fire" and because the warnings accompanying the product were inadequate, in that they failed, inter alia, to sufficiently warn of the potential risks of "double firing" and inadvertent "bump firing" and failed to inform users of the availability of a "restrictive trigger version" of the SN325, which would "eliminate the risks of unintended double fire and unintended firing on contact with a person." The complaint also alleged a negligence count, which generally tracked the allegations of the strict liability count, and which further pleaded that defendant was negligent in failing to test the SN325 adequately. 2 Finally, the complaint alleged, on Ann Marie Lakin's behalf, a claim for loss of consortium. John Lakin sought economic damages of approximately $4,200,000, and noneconomic damages of $4,000,000 for his injuries. Ann Marie Lakin sought noneconomic damages of $1,000,000 for loss of consortium. Both plaintiffs, jointly, sought punitive damages of $7.5 million.
Senco's answer alleged a variety of affirmative defenses, including, as material to this appeal: (1) John Lakin's injuries were the product of comparative fault, product misuse, and/or product alteration; (2) the noneconomic damages "cap" of ORS 18.560 limited plaintiffs' total recovery of such damages (including on the loss of consortium claim) to $500,000; and (3) any recovery of punitive damages would violate the United States and Oregon Constitutions.
After a 17-day trial, the court submitted plaintiffs' claims in their entirety to the jury, along with defendant's defenses of comparative fault, product misuse, product alteration, and assumption of the risk. The jury returned a special verdict, finding defendant liable both in strict liability and in negligence and fixing John Lakin's comparative fault at five percent. The jury awarded John Lakin $3,323,413 in economic damages, and $2,000,000 in noneconomic damages, and awarded Ann Marie Lakin $876,000 in noneconomic damages for loss of consortium. Finally, the jury found that defendant had acted with "wanton disregard for the health, safety, and welfare of others" in causing plaintiffs' injuries and awarded punitive damages of $4,000,000.
Thereafter, and over plaintiffs' objections, the trial court entered a judgment that reduced the jury's awards of noneconomic damages to conform to the $500,000 statutory "cap" and further reduced plaintiffs' compensatory damages, including Ann Marie Lakin's loss of consortium recovery, by John Lakin's five percent comparative fault. Thus, the judgment awarded:
Defendant subsequently moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, asserting, in part, that plaintiffs' proof was insufficient to establish entitlement to punitive damages; that any award of punitive damages was unconstitutional; and that, in all events, the jury's award was unconstitutionally excessive. The court denied those motions.
Defendants' appeal raises 17 assignments of error. Plaintiffs' cross-appeal, which pertains to the trial court's reduction of the jury's awards, raises three assignments of error. Despite that multiplicity, the parties' assignments fall into five general groups. For clarity, we group, and successively consider, assignments of error pertaining to: compensatory liability; entitlement to punitive damages; "excessiveness" of punitive damages; application of ORS 18.560; and loss of consortium/comparative fault.
Defendant's first seven assignments of error challenge rulings denying a directed verdict, admitting or excluding evidence, and giving or refusing to give instructions, all of which pertained to Senco's compensatory liability.
Defendant first assigns error to the denial of its motion for a directed verdict against plaintiffs' failure to warn allegations. 3 Defendant does not contend that the SN325's labeling or accompanying materials adequately warned of the danger of double firing or unintentional "bump fire" activation. Instead, defendant asserts that plaintiffs failed to prove that John Lakin actually read the product labeling or materials and that, without such proof, plaintiffs' proof of causation was insufficient as a matter of law:
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