Purdy v. Deere & Co.

• Decision Date: 17 April 2014
• Docket Number: SC S060993).,CA A144265,(CC 160800466
• Court: Oregon Supreme Court
• Parties: Dwight G. PURDY, Conservator for Isabelle Eve Norton, a Minor, Petitioner on Review, v. DEERE AND COMPANY, a foreign corporation; and Ramsey–Waite Co., a corporation, Respondents on Review.

355 Or. 204

324 P.3d 455

Dwight G. PURDY, Conservator for Isabelle Eve Norton, a Minor, Petitioner on Review,

v.DEERE AND COMPANY, a foreign corporation; and Ramsey–Waite Co., a corporation, Respondents on Review.

(CC 160800466; CA A144265; SC S060993).

Supreme Court of Oregon,

En Banc.

Argued and Submitted Sept. 20, 2013.

Decided April 17, 2014.

On review from the Court of Appeals.^*

Kathryn H. Clarke, Portland, argued the cause and filed the briefs for petitioner on review. With her on the briefs were Don Corson and Travis Eiva.

Michael T. Garone, Schwabe, Williamson & Wyatt, PC, Portland, argued the cause and filed the brief for respondents on review.

Meagan A. Flynn, Preston, Burnell & Flynn, Portland, and James S. Coon, Swanson, Thomas, Coon & Newton, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

BREWER, J.

In this product liability action, plaintiff appealed a judgment for defendants following a jury trial. The Court of Appeals affirmed without considering the merits of nine of plaintiff's ten assignments of instructional and evidentiary error. Purdy v. Deere and Company, 252 Or.App. 635, 287 P.3d 1281 (2012). The Court of Appeals explained that consideration of those assignments of error would be futile because, even if it determined that the trial court had erred in one or more of the ways that plaintiff asserted, the court could not reverse the trial court's judgment because of the prohibition in ORS 19.415(2) that “[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party.” Id. at 639–44, 287 P.3d 1281. Plaintiff contends that, in so holding, the Court of Appeals misconstrued the standard for reversal in ORS 19.415(2) as it applies to claims of instructional and evidentiary error like those that the court declined to consider. For the reasons that follow, we reverse and remand to the Court of Appeals to address plaintiff's assignments of error.

THE FACTUAL BACKGROUND

This action arose out of an accident involving a young child, Isabelle Norton, who was seriously injured when her father, Kirk Norton, accidentally backed his riding lawnmower into her. The lawnmower, which had been manufactured by defendant Deere and Company, had been designed so that the cutting blades shut off automatically when the lawnmower was driven in reverse. However, by design, the driver could override that safety feature by pressing a button located on the lawnmower's dashboard. Norton had engaged that override feature when, unbeknownst to him, Isabelle had approached the mower from behind. As a consequence, the cutting blades were operating when Norton backed the lawnmower into his daughter.

Plaintiff, Isabelle's conservator, brought this action on the child's behalf against Deere, along with the business that sold the lawnmower to Norton, defendant Ramsey–Waite Company. The complaint—which included claims for strict liability and negligence—alleged that the mower was defective and unreasonably dangerous or had been negligently designed or marketed, in three respects: (1) it provided a mechanism for overriding the automatic shutoff feature, thus allowing the cutting blades to operate when the lawnmower was being driven in reverse; (2) the button for overriding the automatic shutoff feature had been placed on the mower's dashboard, allowing the driver to mow in reverse without turning around to ascertain whether the path is clear; and (3) it included no warnings or instructions that addressed the safe and proper operation of the lawnmower in reverse.

In their pleadings and at trial, defendants defended on the theory that the mower was not dangerously defective and that defendants had not been negligent in any of the ways that plaintiff had alleged, and that Isabelle's injuries had been caused by her father's failure to (1) use the lawnmower in the intended manner and as instructed, (2) keep a proper lookout, and (3) ensure that his daughter was properly supervised. Defendants also asserted at trial that any defect or negligence in providing an override feature did not cause Isabelle's injuries because, even if Norton had not used that feature, the blades still would have been rotating at a high rate of speed when the mower and the child came into contact.

At the close of trial, the court submitted a verdict form to the jury that asked the following three questions:

“1. Was Defendant Deere & Company's lawn mower/tractor defective and unreasonably dangerous in one or more of the ways alleged by Plaintiff and, if so, was that a cause of injury or damage to Isabelle Norton?

“2. Was Defendant Deere & Company negligent in one or more of the ways alleged by Plaintiff, and, if so, was that a cause of injury or damage to Isabelle Norton?

“3. Was Defendant Ramsey–Waite negligent in one or more of the ways alleged by Plaintiff, and, if so, was that a cause of injury or damage to Isabelle Norton?”

The jury answered “No” to each of the three questions, and the trial court entered judgment for defendants.

Plaintiff appealed, raising 10 assignments of error. Four of the assignments of error asserted that the trial court had erred by excluding testimony from several witnesses about instances in which other children had been injured by Deere riding mowers being driven in reverse. Plaintiff asserted that the testimony of those witnesses was relevant either to show that Deere had notice of the defect that plaintiff had alleged or to show that the mower was defective and dangerous. A fifth assignment of error challenged the trial court's refusal to admit evidence that Deere marketed small toy riding lawnmowers. In plaintiff's view, that evidence was relevant to show that Deere had advertised its riding lawnmowers as being safe around children, and had affected consumer expectations accordingly. Four more assignments of error challenged jury instructions concerning what constitutes a product defect; those instructions either were given to the jury over plaintiff's objection or were requested by plaintiff but rejected by the trial court. A tenth and final assignment of error concerned the trial court's ruling that one of defendants' witnesses—a retired Deere engineer—was qualified to testify as an expert about how long the mower blades would have continued to rotate by sheer momentum, and how far the mower would have travelled in reverse, if the automatic shutoff feature had not been overridden. That testimony was proffered to show that the alleged defect in the mower's design was not the cause of Isabelle's injuries because, even if the automatic shut off feature had not been overridden, the mower's blades still would have been rotating at a high rate of speed when they came into contact with the child.

Confronted with those assignments of error, the Court of Appeals concluded that the last one was the only assignment of error that pertained to the element of causation, as opposed to defendants' culpability. Purdy, 252 Or.App. at 648, 287 P.3d 1281. The Court of Appeals considered and rejected that assignment of error on its merits. Id. at 645–48, 287 P.3d 1281. The court declined to consider plaintiff's remaining assignments of error. The court explained that each question in the verdict form included both the issue of culpability—either the existence of a defective and unreasonably dangerous product (in the strict liability claims) or a breach of the applicable standard of care (in the negligence claims)—and the issue of causation. Id. at 642–44, 287 P.3d 1281. The court reasoned that it therefore could not tell from the verdict form whether the jury had answered “no” to each question because it found that plaintiff had failed to prove that the mower was dangerously defective or that the relevant defendant was negligent, or because it found that plaintiff had failed to prove that the relevant defendant's conduct had caused Isabelle's injuries. Id. at 644–45, 287 P.3d 1281. Because it could not tell whether the asserted errors had affected the jury's verdict, the Court of Appeals concludedthat it was required to affirm. Id. at 648, 287 P.3d 1281.

In so concluding, the Court of Appeals relied on Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or. 319, 96 P.3d 1215 (2004), where this court had undertaken to apply the standard for reversal in ORS 19.415(2). Expanding on this court's construction and application of that standard in an earlier case, Shoup v. Wal–Mart Stores, Inc., 335 Or. 164, 61 P.3d 928 (2003), this court in Lyons reiterated that a party seeking reversal of a judgment bears the burden of showing from the trial court record that the asserted error substantially affected his or her rights. Lyons, 337 Or. at 326, 96 P.3d 1215. The court further held that, where a compound question on a verdict form asks whether a defendant's conduct failed to meet the relevant standard of care and, if so, whether that failure was the cause of the plaintiff's damages, a single answer of “no” does not reveal whether the jury's answer means no failure to meet the standard of care, or failure to meet the standard of care, but no causation. Id. at 325, 96 P.3d 1215. In such a situation, the court concluded, if the assignment of error challenges the jury's determination that there was no failure to meet the standard of care, the plaintiff cannot prevail because, even if the assignment is well taken, it is irrelevant (and the error, therefore, harmless) if that failure did not cause injury. Id. at 325–26, 96 P.3d 1215. Likewise, if the assignment of error challenges causation, that argument may be well taken, but it is irrelevant (and the error, therefore, harmless) if there was no failure in the first place. Id.

The Court of Appeals concluded that Lyons controls the present case because here, as in Lyons, the jury answered “no” to questions that combined two different elements—culpability and causation—of plaintiff's claims. That is, the format of the...