Sandford v. Chevrolet Division of General Motors

• Citation: 292 Or. 590,642 P.2d 624
• Parties: Mildred SANDFORD, Petitioner on review, v. CHEVROLET DIVISION OF GENERAL MOTORS and Friendly Chevrolet Company, acorporation, Uniroyal, Inc., a corporation and The Tire Factory, an Oregoncorporation, Respondents on review. TC A7707-10270; CA 15458; SC 27927 & 27905.
• Decision Date: 04 May 1982
• Court: Supreme Court of Oregon

Page 624

642 P.2d 624

292 Or. 590

Mildred SANDFORD, Petitioner on review, v. CHEVROLET DIVISION OF GENERAL MOTORS and Friendly Chevrolet Company, acorporation, Uniroyal, Inc., a corporation and The Tire Factory, an Oregoncorporation, Respondents on review.

TC A7707-10270; CA 15458; SC 27927 & 27905.

Supreme Court of Oregon.

Argued and Submitted Nov. 4, 1981.

Decided March 16, 1982.

Rehearing Denied May 4, 1982.

Raymond J. Conboy, Portland, argued the cause for petitioner on review. With him on the petition for review was Dan O'Leary, Portland, John S. Stone, and Pozzi, Wilson, Atchison, Kahn & O'Leary.

I. Franklin Hunsaker, Portland, argued the cause for respondent on review. With him on the respondents' brief were Darrel L. Johnson and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland, for respondent The Tire Factory, Howard F. Harrison, Newport Beach, Cal., for respondent Uniroyal, Inc. and Frank Bosch, Joss & Bosch, Portland, for respondent Uniroyal, Inc.

Before DENECKE, C. J., and TONGUE ^*, LINDE, PETERSON, TANZER and CAMPBELL, JJ.

LINDE, Justice.

Plaintiff suffered extensive burns when a pickup truck that she was driving overturned and caught fire. She brought an action for damages against a number of defendants in which she alleged, among other things, that the accident was caused by a defective tire manufactured by defendant Uniroyal, Inc., and mounted on the truck by The Tire Factory. The defendants filed answers alleging that plaintiff's own negligence caused her injuries. Over plaintiff's objections, the trial court submitted these allegations to the jury with instructions to reduce or deny plaintiff's damage claim if plaintiff's injuries resulted in part or predominantly from her own fault. The jury found defendants Uniroyal, Inc. and The Tire Factory at fault to the extent of 55 percent and plaintiff to the extent of 45 percent and awarded plaintiff a corresponding fraction of her total damages.

The Court of Appeals reversed. It held that a recovery of damages for injuries caused by a defective product is not barred or reduced by plaintiff's ordinary contributory negligence under Oregon's proportionate fault statute, ORS 18.470. The court also remanded the case for a new trial because the trial court denied a defense motion to poll the jury. 52 Or.App. 579, 629 P.2d 407 (1981). We allowed review in this case and in Wilson v. B. F. Goodrich, 52 Or.App. 139, 627 P.2d 1280 (1981), also decided today, primarily to decide whether and how the proportionate fault law applies when a dangerously defective product and a plaintiff's negligence together resulted in the plaintiff's injuries. Because it appeared that the question how negligence could be matched against products liability would bear on whether it was meant to be so matched in fixing damages, the Court addressed specific questions on that subject to the parties. ¹

I. Prior Development.

Legal developments before the enactment of the present ORS 18.470 in 1975 can be briefly summarized. This court recognized a tort action for injuries caused by a dangerously defective product in a series of cases beginning with Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967). In 1971, the Legislative Assembly enacted the first version of ORS 18.470 as a comparative negligence statute. ² In 1973, the court held that recovery on a products liability theory was not barred by a plaintiff's negligence in failing to discover the defect or to take precautions against its possible existence, as distinct from unreasonably using a product known to be defective. Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28 (1973) (citing Restatement of Torts 2d, § 402 A, comment n ).

The question in Findlay was whether contributory negligence, either of the ordinary kind or of the type sometimes characterized as implied assumption of the risk, was a complete defense to a strict products liability claim. There was no occasion to consider ORS 18.470, which by its terms applied only to negligence actions. A later decision enumerated the elements of assumption of the risk that would make out such a complete defense. Johnson v. Clark Equipment Co., 274 Or. 403, 547 P.2d 132 (1976). ³ After the decision in Findlay, the 1975 legislature made two significant changes in the relevant law. ORS 18.470 was amended to read:

"Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering. This section is not intended to create or abolish any defense."

The same chapter of the 1975 laws also enacted ORS 18.475, which abolished the "doctrines" of "last clear chance" and "implied assumption of the risk." ⁴ Or.Laws 1975, ch. 599.

We reviewed the foregoing developments and the legislative history of the 1975 amendment in Baccelleri v. Hyster Co., 287 Or. 3, 597 P.2d 351 (1979), in which a forklift truck which lacked an automatic warning signal had backed over the legs of a kneeling worker. A verdict for defendant was reversed because the trial court erroneously submitted a defense of assumption of the risk to the jury. This court went on to state that on a possible retrial, the conduct of the injured worker that was charged as an implied assumption of the risk might instead be a form of contributory negligence to be pleaded and compared as "fault" for purposes of the amended proportionate fault statute, ORS 18.470.

II. The present dispute.

Uncertainty about the comparison of "fault" in products liability cases was not wholly laid to rest by Baccelleri v. Hyster Co., supra. Some doubts about the reach of ORS 18.475 remained because Baccelleri dealt with alleged contributory negligence of a kind that defendant had characterized as "implied assumption of the risk." The decision therefore held only that "conduct which was sometimes labeled assumption of the risk but which is a subspecies of contributory negligence can be compared in the apportionment of damages," 287 Or. at 10, 597 P.2d 351, and that "comparative fault is applicable to strict liability in tort;" but it did not reach the question whether defendant had shown "that kind of contributory negligence which can qualify as comparative fault in a strict liability case." 287 Or. at 12, 597 P.2d 351.

The Court of Appeals, faced with this limited guidance, read Baccelleri as extending proportionate fault in products liability cases only to the kind of conduct by plaintiff that previously had been raised as a defense in Findlay v. Copeland and Johnson v. Clark Equip. Co., supra, under the rubric "assumption of the risk," Holdsclaw v. Warren & Brewster, 45 Or.App. 153, 607 P.2d 1208 (1980), and it followed that holding in the present case. Upon careful consideration of the 1975 legislation, however, we conclude that the legislation did not so confine the "fault" on the part of plaintiff to be compared with defendant's "fault," when each was a cause of the injury.

A comparison of ORS 18.470 before and after the 1975 amendment, quoted above, shows the following changes.

First, the 1971 version stated that "(c)ontributory negligence, including assumption of the risk," was not to bar recovery in a negligence action if it "was not as great as the negligence of the person against whom recovery is sought," but plaintiff's damages should be "diminished in the proportion to the amount of such negligence." The 1975 amendment removed the words "including assumption of the risk" from the reference to the "contributory negligence" that was no longer to be a bar. Standing alone, the change might suggest that implied assumption of the risk was once again to bar recovery, although contributory negligence would not. The context and the legislative history, however, show the contrary. More plausibly, the reference to "assumption of the risk" was deleted from ORS 18.470 because the 1975 act abolished the "doctrine of implied assumption of the risk" altogether. ORS 18.475, supra. Far from reintroducing a distinction between the terms "assumption of the risk" and "contributory negligence," the explanations accompanying the bill stated that "contributory negligence" in the statute should be "broadly construed" to include assumption of the risk in the form of unreasonably proceeding to encounter a known danger, which henceforth should be treated like any other contributory negligence. See the sources quoted in Baccelleri v. Hyster Co., 287 Or. at 10, 597 P.2d 351.

Second, the 1975 amendment replaced the reference to an action for "damages for negligence resulting in death or injury to person or property" with one to recover "damages for death or injury to person or property" without limitation to negligence actions. Third, it substituted a comparison of the parties' relative "fault" for their relative "negligence," and also substituted the combined fault of several defendants for the previous reference to a single defendant. Fourth, it cut off the defense of contributory negligence when the injured claimant's fault was "not greater than" that of the defendants' fault rather than when it was "not as great." Fifth, it specified that the "proportion" of the claimant's fault be stated as a "percentage of fault." It left unexplained, however, of what total entity the claimant's fault is to be stated as a percentage. Nor did it provide that this percentage was to be compared with a percentage of fault attributable to defendants. Indeed, the words "compare" or "comparison" do not appear in the statute, which speaks only of diminishing a plaintiff's recovery "in the proportion" of plaintiff's fault. Finally, the amendment added the closing sentence...