Sandford v. Chevrolet Division of General Motors

• Citation: 52 Or.App. 579,629 P.2d 407
• Decision Date: 16 July 1981
• Docket Number: No. A7707-10270,A7707-10270
• Parties: Mildred SANDFORD, Appellant-Cross-Respondent, v. CHEVROLET DIVISION OF GENERAL MOTORS and Friendly Chevrolet Company, a corporation, Defendants. Uniroyal, Inc., a corporation, and The Tire Factory, an Oregon corporation, Respondents-Cross-Appellants. ; CA 15458.
• Court: Court of Appeals of Oregon

Page 407

629 P.2d 407

52 Or.App. 579

Mildred SANDFORD, Appellant-Cross-Respondent, v. CHEVROLET DIVISION OF GENERAL MOTORS and Friendly Chevrolet Company, a corporation, Defendants Uniroyal, Inc., a corporation, and The Tire Factory, an Oregon corporation, Respondents-Cross-Appellants.

No. A7707-10270; CA 15458.

Court of Appeals of Oregon.

Argued and Submitted Jan. 13, 1981.

Decided May 26, 1981.

Reconsideration Denied July 16, 1981.

Raymond J. Conboy, Portland, argued the cause for appellant-cross-respondent. With him on the briefs were Pozzi, Wilson, Atchison, Kahn & O'Leary, Dan O'Leary, and John S. Stone, Portland.

I. Franklin Hunsaker, Portland, argued the cause for respondents-cross-appellants. With him on the briefs were Howard F. Harrison, Newport Beach, California, Joss & Bosch, Darrel L. Johnson and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland.

Before GILLETTE, P.J., and ROBERTS and YOUNG, JJ.

YOUNG, Judge.

On October 1, 1975, plaintiff was driving a 1971 Chevrolet pickup truck with a cab-over camper when the truck went out of control, overturned and caught fire. Plaintiff suffered serious burns over 55 percent of her body and brought this products liability action to recover damages for her injuries. Her complaint was filed on July 21, 1977, naming General Motors Corporation, Friendly Chevrolet Company, Uniroyal, Inc. and The Tire Factory as defendants. Plaintiff, in her third amended complaint, alleged the pickup truck went out of control due to the failure of a defective tire manufactured by Uniroyal, which had been mounted on the front end of the pickup by The Tire Factory. She also alleged the fire was caused by the defective condition and design of the gas tank for which Chevrolet, as manufacturer, and Friendly Chevrolet Company, as retailer, were responsible. The action against all defendants was based solely on a strict products liability theory. There were no allegations of negligence.

During trial, General Motors and Friendly Chevrolet were granted summary judgments and left the case. They are not involved in this appeal.

The remaining defendants, Uniroyal, Inc. and The Tire Factory, filed answers charging the plaintiff with contributory fault. At the conclusion of the evidence, plaintiff moved to strike defendants' allegations of contributory fault on the ground that they were allegations of ordinary contributory negligence which could not be asserted as a defense to a claim based on strict liability. The trial judge ruled that ordinary contributory negligence is a defense to strict liability actions, although he withdrew certain of the defendants' allegations of contributory negligence because insufficient evidence had been introduced.

The court then instructed the jury, in accordance with the remaining allegations of the defendant Uniroyal, that the plaintiff might be found at fault "in operating the pickup and camper in a loaded condition when plaintiff was not familiar with the handling of the vehicle under such conditions" and in "failing to maintain proper control of the vehicle." The court similarly instructed the jury with regard to The Tire Factory's allegations, adding that plaintiff could be found at fault "in operating the vehicle at an excessive rate of speed." Plaintiff excepted to these instructions on the same grounds asserted in support of the motion to strike.

The jury, by special verdict, found that the tire which failed had been manufactured by Uniroyal and sold by The Tire Factory "in a dangerously defective condition which condition caused injury to plaintiff;" that plaintiff's own fault, as alleged by defendants, contributed 45 percent to cause the accident; and that her total money damages were $600,000.

After reducing plaintiff's damages by the percentage of her fault, judgment was entered in favor of plaintiff in the amount of $330,000 bearing interest at the rate of 6 percent per annum. Plaintiff thereafter filed a motion for judgment notwithstanding the verdict, requesting entry of a judgment in her favor for the sum of $600,000, without reduction for her contributory fault. The motion was denied.

Plaintiff appeals; defendants cross-appeal. We reverse for error in polling the jury, but first address plaintiff's contention that comparative fault should not have been submitted to the jury because it is central to our disposition of the case.

Comparative Fault

The principal issue presented by plaintiff's appeal is whether ordinary contributory negligence is a defense in strict liability actions under Oregon's comparative fault statute, ORS 18.470. ¹ We considered this precise question in Holdsclaw v. Warren and Brewster, 45 Or.App. 153, 607 P.2d 1208, rev. den. (1980), where we held that only one form of contributory negligence could be considered for comparative purposes in a strict liability action. That form of negligence has in the past been commonly conceived as a type of assumption of risk. In Johnson v. Clark Equip. Co., 274 Or. 403, 547 P.2d 132 (1976), the court set out the elements of that type of assumption of risk when applicable to strict products liability cases:

"The defendant must show, first, that the plaintiff himself actually knew and appreciated the particular risk or danger created by the defect; second, that plaintiff voluntarily encountered the risk while realizing the danger; and third, that plaintiff's decision to voluntarily encounter the known risk was unreasonable." Id., at 409, 547 P.2d 132 (Emphasis in original).

Defendants concede error by the trial court under Holdsclaw. They request, however, that we re-examine that decision and overrule it. We have re-examined it and conclude it was correctly decided.

Defendant's primary concern is with our reliance in Holdsclaw on Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28 (1973), and Restatement of Torts 2d, § 402A, comment n. Findlay was the first Oregon decision to apply comment n. for the purpose of limiting contributory negligence as a defense to strict liability to instances of knowing and voluntary "assumption of risk." Defendants argue:

"Comment 'n.' of the Restatement was published in 1965 when the American Law Institute viewed contributory negligence as a complete defense and favored restricting the harsh application of this doctrine in the products liability area. * * * Under that view or rule, only a knowing and voluntary 'assumption of the risk' could be used as a defense to an action based on strict liability. That rule, however, quickly became outmoded with the advent of statutes allowing comparative negligence or fault, such as ORS 18.470 in its present form." (Emphasis supplied.)

In Holdsclaw we acknowledged that Findlay v. Copeland Lumber Co., supra, was "not directly in point because, at the time it was decided, the comparative fault statute specifically applied only to negligence actions." 45 Or.App. at 157 n. 2, 607 P.2d 1208. Nonetheless, our reliance on Findlay and comment n. was not misplaced. Our main concern in Holdsclaw was to interpret Baccelleri v. Hyster Co., 287 Or. 3, 597 P.2d 351 (1979). In Baccelleri, the Supreme Court sought to determine whether and to what extent comparative fault is a defense to strict liability under ORS 18.470. The court relied on a memorandum in the legislative history, which stated:

"Finally Section 1 provides for apportionment to the extent that plaintiff's conduct may be characterized as contributory negligence and would otherwise completely bar recovery. Section 1 is not intended to create new defenses. * * * Specifically, this Act is not meant to require apportionment of those types of contributory negligence held not to constitute a defense to strict liability. (This statement is followed by footnote 5, which reads:) Findlay v. Copeland Lumber, 265 Or. 300, 509 P.2d 28 (1973), adopts Restatement (Second) Torts, Section 402A, Comment n, which reads in part, 'contributory negligence of a plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.' * * * ." 287 Or. at 11, 597 P.2d 351.

This memorandum indicates the legislature did not believe Findlay and comment n. would become outmoded by its amendment of ORS 18.470, and that is how the Supreme Court interpreted it. ² The trial court erred in allowing the jury to compare plaintiff's ordinary negligence with defendants' strict liability.

Jury Poll

In their cross-appeal, defendants assert that the trial court committed reversible error when it declined to poll the jury with respect to determining each juror's answer to the question asked in the special verdict form.

The case was submitted to the jury following seven days of trial. Roughly seven and one-half hours into deliberations, the jury indicated a possibility of being deadlocked. After inquiry and learning the vote stood at eight-four, the court determined that the jury was not "hopelessly deadlocked" and reinstructed the jury, giving a modified form of the so called "Allen charge." Roughly three hours after the instruction was given, the jury reported it had a question. The jury was instructed to reduce its question to writing. Within a few minutes, and without submitting the question, the jury announced it had a verdict.

The verdict for the plaintiff, omitting title and caption, was read in its entirety. ³ The foreperson, when asked if the verdict was unanimous, replied, "It was nine to three." The court, sua sponte, polled the jury by asking them the customary question, "Is this your verdict?" All twelve jurors answered affirmatively. Defendants, sensing some confusion because of the announced vote of nine to three and a "polled" count of twelve to zero, timely requested that the jury be polled a second time to determine each juror's answer to each of the four questions in the verdict form. Plaintiff objected to a second poll, whereupon the court...