Roach v. Kononen

Decision Date08 August 1974
Citation269 Or. 457,525 P.2d 125
PartiesLorna Faye ROACH, Appellant, v. Delores A. KONONEN and Robert V. Kononen, dba Bob's Highway Service, Defendants, and Ford Motor Company, a Delaware corporation, Respondent.
CourtOregon Supreme Court

Donald Winfree, Portland, argued the cause for appellant. With him on the briefs were Edwin J. Welsh, and Welsh, O'Donnell & Winfree, Portland, and James C. Walton, and Walton & Yokom, Pendleton.

Roland F. Banks, Jr., Portland, argued the cause for respondent. With him on the brief were Ridgway K. Foley, Jr., and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.


HOWELL, Justice.

This is an action for personal injuries sustained by plaintiff in an auto accident occurring on Highway 395 near the city of Pendleton. The action was tried by the court without a jury, and a judgment entered for defendants. Plaintiff appeals.

At the time of the accident, plaintiff was driving northerly on Highway 395. Mrs. Gertrude Hinen was driving a 1965 Ford in a southerly direction when the hood on the Ford suddenly flew up, and the Hinen vehicle crossed the center line and collided with plaintiff's vehicle.

Just prior to the collision, Mrs. Hinen had stopped for gas and oil at a service station operated by the defendants Kononen in Pendleton. In servicing the car, the station attendant had opened and closed the hood.

Plaintiff filed this action against the defendants Kononen and the Ford Motor Company. 1 The trial court found in favor of both defendants. Plaintiff appeals only from the judgment in favor of Ford Motor Company and does not appeal from the judgment in favor of the defendants Kononen.

The plaintiff alleged, Inter alia, that the Ford Motor Company negligently designed the latching mechanism for the hood, and, alternatively, that Ford should be strictly liable for such a defect in design. The issues of negligent design and strict liability for the latching mechanism of the hood were resolved against the plaintiff, and plaintiff does not appeal on any issue regarding the latching mechanism.

Additionally, plaintiff alleged that Ford was negligent in failing to design a hood that would provide 'sufficient visibility for a driver to safely guide the automobile should the hood fly up.' Alternatively, the plaintiff also alleged that Ford was strictly liable for such a defect in the design of the hood. Whether plaintiff is entitled to prevail as a matter of law on either of these two theories is the issue presented in this appeal. 2

In Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967), we adopted Restatement (Second) of Torts, § 402A, 3 as providing a strict liability cause of action for persons injured by products which are in a defective condition unreasonably dangerous to a user or consumer. We also held that 'unreasonable' means 'dangerous to an extent beyond that which would be contemplated by the ordinary purchaser.' Restatement (Second), supra, Comment i. Additionally, in Askew v. Howard-Cooper Corp., 263 Or. 184, 502 P.2d 210 (1972), we applied Restatement (Second) Torts, § 402A and § 398, 4 which describes the duty of a manufacturer to design products in a non-negligent manner, to a design defect case.

However, plaintiff contends that, in the context of a defectively designed product, strict liability and negligence are essentially the same, and therefore traditional negligence concepts should be utilized in evaluating the defendant's conduct. See Anderson v. Klix Chemical, 256 Or. 199, 472 P.2d 806 (1970).

We note that legal scholars and courts have had substantial difficulty with the theories of negligence and strict liability in defective design cases. The difficulty carries over not only to matters of evidence and proof 5 but also to the instructions to the jury. 6

Some courts have concluded that negligence and strict liability are essentially the same in a design defect case, and therefore only one cause of action arises from such a claim. Thus, in Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890 (1973), the California Court of Appeals for the Second District held that:

'* * * Strict liability for deficient design of a product (as differentiated from defective manufacture or defective composition) is premised on a finding that the product was unreasonably dangerous for its intended use, and in turn, the unreasonableness of the danger must necessarily be derived from the state of the art at the time of design. (Thompson v. Package Machinery Co., 22 Cal.App.3d 188, 191--192, 99 Cal.Rptr. 281) A danger is unreasonable when it is foreseeable, and the manufacturer's ability, actual, constructive, or potential, to forestall unreasonable danger is the measure of its duty in the design of its product. A manufacturer's failure to achieve its full potential in design and thereby forestall unreasonable danger forms the basis for its strict liability in tort. It is a liability whose essence parallels the lack of due care that is the essence of its liability for negligence. It may be seen, therefore that in cases involving deficient design, foreseeability is merely scienter under another name. Since the issue is whether Improved (defendant) designed and put into circulation a product unreasonably dangerous for use and since the unreasonableness of the danger must be determined by the potential available to the designer at the time of design, it is apparent that the strict liability and negligence claims merge. * * *' 105 Cal.Rptr. at 895.

Accord, Dorsey v. Yoder Company, 331 F.Supp. 753, 760 (E.D.Pa.1971).

However, other courts have found error in instructions to the jury which confuse negligence with the consumer expectation test of strict liability. Eshbach v. W. T. Grant's and Company, 481 F.2d 940 (3d Cir. 1973); Lunt v. Brady Manufacturing Corp., 13 Ariz.App. 305, 475 P.2d 964 (1970). And the California Supreme Court has treated each concept differently in Pike v. Frank G. Hough Company, 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970). There, the test under Section 398 of Restatement (Second) of Torts of reasonable care to make the product safe for its intended use was described as a 'balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.' (Citing 2 Harper and James, The Law of Torts 1542, § 28.4 (1956).) The court went on to hold that § 402A is applicable to design defects as well as to manufacturing defects, and that the concept of dangerous to an extent beyond that which would be contemplated by the ordinary consumer in § 402A has equal applicability in either situation. 7 See Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972).

The commentators also take somewhat divergent views on the subject. Dean Prosser, the reporter for the Restatement (Second), suggests that the consideration of a design defect 'rests primarily upon a departure from proper standards of care, so that the tort is essentially a matter of negligence,' and this involves a 'duty to use reasonable care to design a product that is reasonably safe for its intended use, and for other uses which are foreseeably probable.' Prosser, Law of Torts 641, 644--45, § 96 (4th ed. 1971).

Professor Wade in his articles, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5 (1965), and On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825 (1973), suggests that, at least in the context of an alleged defect in the design, a product can be defectively designed only if it is unreasonably dangerous. He posits the test that a manufacturer should be held strictly liable if the product is 'not duly safe'; or, stated in a test which looks to the manufacturer's conduct, the test would be, 'assuming that the defendant had knowledge of the condition of the product, would he then have been acting unreasonably in placing it on the market?' This test is characterized as similar to negligence, except that the element of scienter is missing. Factors which should be considered by the court in balancing the utility of the risk against the magnitude of the risk are:

'(1) The usefulness and desirability of the product--its utility to the user and to the public as a whole.

(2) The safety aspects of the product--the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user's ability to avoid danger by the exercise of care in the use of the product.

(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.'

44 Miss.L.J. at 837--38.

We agree that these factors should be considered by a court before submitting a design defect case to the jury. Also, proof of these factors bears on the jury's determination of whether or not a given design is defective.

However, be all this as it may, it is generally recognized that the basic difference between negligence on the one hand and strict liability for a design defect on the other, is that in strict liability we are talking about the condition (dangerousness) of an article which is designed in a particular way, while in negligence we are talking about the reasonableness of the manufacturer's actions...

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