Purdy v. Deere & Co.

• Decision Date: 10 October 2012
• Docket Number: 160800466,A144265.
• Citation: 252 Or.App. 635,287 P.3d 1281
• Parties: Dwight G. PURDY, Conservator for Isabelle Eve Norton, a Minor, Plaintiff–Appellant, v. DEERE AND COMPANY, a foreign corporation; and Ramsey–Waite Co., a corporation, Defendants–Respondents.
• Court: Oregon Court of Appeals

252 Or.App. 635

287 P.3d 1281

Dwight G. PURDY, Conservator for Isabelle Eve Norton, a Minor, Plaintiff–Appellant,

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

160800466; A144265.

Court of Appeals of Oregon.

Argued and Submitted April 4, 2012.

Decided Oct. 10, 2012.

Kathryn H. Clarke argued the cause for appellant. With her on the briefs was Don Corson.

Michael T. Garone, Portland, argued the cause for respondents. On the briefs were Jeffrey S. Eden, Schwabe, Williamson & Wyatt, P.C., Emilie Edling, and Bullivant Houser Bailey.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

A young child was severely injured when a riding lawnmower driven by her father backed into her. Plaintiff, the child's conservator, brought this product liability action against the lawnmower's manufacturer, Deere and Company, and the company that sold the girl's father the lawnmower, Ramsey–Waite Company. A jury returned a verdict for the defense. Plaintiff appeals, raising assignments of error regarding several of the court's evidentiary rulings and several of its jury instructions. We affirm.¹

The following basic historical and procedural facts are undisputed. In May 2006, while mowing his lawn with a Deere riding lawnmower purchased from Ramsey–Waite, Kirk Norton came to a spot where he wanted to drive the mower in reverse. The mower was equipped with a “Reverse Implement Option,” or “RIO” feature, that cuts power to the spinning blade, causing it to slow and stop. However, the mower also had a small button on the dashboard that, when pressed, would override RIO, allowing the operator to move in reverse while the blades are engaged. Norton pressed the override button; at approximately the same time, he also looked over his right shoulder and did not see any hazards. Tragically, his two-year-old daughter had approached the tractor from the left, in Norton's “blind spot.” Moving in reverse with the cutting blades engaged, Norton backed into her. She sustained serious injuries resulting in the amputation of one of her legs.

Plaintiff brought this product liability action, ultimately alleging negligence as to both defendants and strict liability against Deere. As developed at trial, plaintiff's theory of the case was that Deere designed and marketed a defective and unreasonably dangerous mower, and both Deere and Ramsey–Waite failed to provide Norton with adequate warnings and instructions. In particular, plaintiff alleged that the mower was defective in three respects: because it “had mowing blades that could be engaged and rotating while driving in reverse” by virtue of the RIO override button; because that button was located in front of the operator on the mower's dashboard, instead of behind the seat, so that the operator could choose to keep the blades fully powered without turning completely around to look to the rear; and because defendants provided inadequate instructions “in the safe operation of a lawnmowing machine that had mowing blades that could be engaged and rotating while driving in reverse.” Defendants' theory was that the mower was not defective or unreasonably dangerous because ordinary consumers know that all riding lawnmowers inherently present certain dangers, and Deere had taken all reasonable steps to ensure that, when delivered to Norton, the product was as safe as a riding mower possibly could be. Defendants also argued that the child's injuries would have occurred even if Norton had not engaged the RIO button, because, even though the mower's power to the blades would automatically have shut down when he put the mower in reverse, the blades would have continued to move by momentum for several seconds, during which time the accident would have occurred. After a 13–day trial, the jury returned a defense verdict.

On appeal, plaintiff raises 10 assignments of error. Four concern trial court rulings that disallowed evidence of “other similar incidents” involving Deere riding mowers, in particular, testimony from parents of other children injured in back-over incidents both before and after the incident in this case, as well as documents from Deere's files (but not generated by Deere) containing evidence of other back-over injuries before the injury in this case. According to plaintiff, the testimony and documents regarding incidents before the one in this case were relevant to show that Deere had notice of the mower's potential to inflict injury in backup accidents, and the evidence regarding incidents after the one in this case were relevant to show “continuingdefect.” One assignment of error concerns the court's ruling that plaintiff could not introduce evidence showing that Deere marketed small toy riding lawnmowers; plaintiff's theory was that the toys created consumer expectations that the mowers were safe to operate around children. One assignment challenges the court's decision to allow one of defendants' witnesses to testify as an expert. The four remaining assignments deal with jury instructions; three concern instructions that the court gave over plaintiff's objections, and one concerns the court's refusal to give an instruction that the plaintiff requested.

At the outset, defendants raise an argument that, in many ways, preempts most of plaintiff's assignments of error. That argument derives ultimately from Shoup v. Wal–Mart Stores, Inc., 335 Or. 164, 61 P.3d 928 (2003), and more directly Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or. 319, 96 P.3d 1215 (2004), a case decided in the wake of Shoup.Shoup itself involved a defendant's appeal from a general jury verdict in favor of the plaintiff, who had alleged three specifications of negligence. 335 Or. at 166–67, 61 P.3d 928. This court held that one of the specifications did not state a claim under Oregon law, but that two did; we remanded the case for a new trial. Id. at 166–68, 61 P.3d 928. In doing so, we relied on a line of Supreme Court cases adopting the so-called “we can't tell” rule: If the lower court's judgment could have been based on an erroneous rationale, the appellant was entitled to a remand for a new trial. Id.

The Supreme Court allowed review, rejected its earlier line of cases, and adopted a new rule that, the court reasoned, more accurately captured the legislative mandate of ORS 19.415(2), under which an appellate court may reverse “except for error substantially affecting the rights of a party.” Id. at 166, 173–74, 61 P.3d 928. Where the former rule called for reversal or remand of a judgment if the record disclosed that the lower court's judgment might have been prejudicial—that is, might have derived from an erroneous argument or specification—the new version calls for reversal or modification only if the appellant can identify something in the record to demonstrate that the jury in fact did base its verdict on the erroneous argument or specification. Id. at 169–70, 177–79, 61 P.3d 928. Only then, the court reasoned, can it be said that “the error ‘substantially affect[ed] the rights of a party.’ ” Id. at 174, 61 P.3d 928 (quoting ORS 19.415(2)) (brackets in Shoup ). Further, the burden of showing that the error was harmful—that it did substantially affect the rights of a party because the disputed verdict could not have been based on a nonerroneous argument—falls on the appellant, who must prove not only error but prejudice. Id. at 173–74, 61 P.3d 928.

Shoup involved a general verdict that did not indicate which of several specifications of negligence the verdict was based on, where only one of them was erroneous. Id. at 166, 61 P.3d 928.Lyons applied the teaching of Shoup in somewhat different circumstances. The plaintiffs' son was killed when a car in which he was a passenger collided with a truck driven by the defendant's employee. Lyons, 337 Or. at 321–22, 96 P.3d 1215. The plaintiffs, in their capacity as the deceased's personal representatives, brought a wrongful death action. Id. at 321, 96 P.3d 1215. Over the plaintiffs' objection, the court allowed the defendant to introduce some evidence that the car's driver was at least partly responsible for the collision, and it refused to instruct the jury that it could not consider the driver's conduct unless that conduct was the “sole and exclusive” cause of the accident. Id. at 322–23, 96 P.3d 1215. The court gave the jury a special verdict form. Id. at 323, 96 P.3d 1215. The first question was:

“Was defendant WALSH & SONS TRUCKING CO., LTD. negligent in one or more ways claimed by the plaintiffs and, if so, was such negligence a cause of damage to the plaintiffs?”

Id. The jury answered that question in the negative and returned a defense verdict. Id. On appeal, the plaintiffs challenged the court's evidentiary ruling and jury instruction, arguing that the instruction and the evidence involving the alleged contributory fault of the driver misstated the law. Id. at 323–24, 96 P.3d 1215. This court disagreed and affirmed. Id. at 324, 96 P.3d 1215.

The Supreme Court allowed review, but it did not address the merits of the plaintiffs' assignment of error. Id. Rather, it explained that “we cannot reach that issue because of the nature of the verdict that the jury rendered.” Id. Pointing out that the question on the verdict form asked a compound question, the court stated,

“[T]he issue naturally arises: Did the jury decide that Walsh was not negligent or, instead, did the jury decide that Walsh, although negligent, did not cause damage to plaintiffs [because the driver did]? The answer is that we cannot tell; either decision would have been permissible on the evidence presented.

“Our inability to determine which ground led the jury to decide as it did is important, because plaintiffs have focused all their arguments in this court on the second part of the question. That is, plaintiffs assert that the instructions that the trial court gave and the evidence that it...