Vander Veer v. Toyota Motor Distributors, Inc.
| Decision Date | 18 April 1978 |
| Citation | 282 Or. 135,577 P.2d 1343 |
| Parties | Joseph B. VANDER VEER, Jr., as guardian ad litem of Joseph B. Vander Veer, III, a minor, Appellant-Cross-Respondent, v. TOYOTA MOTOR DISTRIBUTORS, INC., a California Corporation, Toyota Motor Sales U.S.A., Inc., a California Corporation and Toyota Motor Co., Ltd., a Japanese Corporation,Beaverton Toyota Co., Inc., an Oregon Corporation, Respondents-Cross-Appellants. Joseph B. VANDER VEER, Jr., as guardian ad litem of Elizabeth Ann Vander Veer, a minor, Appellant-Cross-Respondent, v. TOYOTA MOTOR DISTRIBUTORS, INC., a California Corporation, Toyota Motor Sales U.S.A., Inc., a California Corporation and Toyota Motor Co., Ltd., a Japanese Corporation, Beaverton Toyota Co., Inc., an Oregon Corporation, Respondents-Cross-Appellants. Phyllis C. VANDER VEER, Appellant-Cross-Respondent, v. TOYOTA MOTOR DISTRIBUTORS, INC., a California Corporation, Toyota Motor Sales U.S.A., Inc., a California Corporation, Toyota Motor Co., Ltd., a Japanese Corporation, Beaverton Toyota Co., an Oregon Corporation. Respondents-Cross-Appellants. Joseph B. VANDER VEER, Jr. and Phyllis C. Vander Veer, husband and wife, Appellants-Cross-Respondents, v. TOYOTA MOTOR DISTRIBUTORS, INC., a California Corporation, Toyota Motor Sales U.S.A., Inc., a California Corporation, Toyota Motor Co., Ltd., a Japanese Corporation, Beaverton Toyota Co., Inc., an Oregon Corporation, Respondents-Cross-Appellants. |
| Court | Oregon Supreme Court |
Donald A. Buss, of Buss, Leichner & Barker, Portland, argued the cause and filed briefs for appellants/cross-respondents.
E. Richard Bodyfelt, Portland, argued the cause for respondents/cross-appellants Toyota Motor Distributors, Inc., Toyota Motor Sales U.S.A., Inc., and Toyota Motor Co., Ltd. With him on the brief were Tooze, Kerr, Peterson, Marshall & Shenker, Portland.
William H. Morrison, Portland, argued the cause for respondent/cross-appellant Beaverton Toyota Co., Inc. With him on the brief were Morrison, Dunn, Cohen, Miller & Carney, Portland.
Before DENECKE, C. J., HOLMAN, HOWELL, BRYSON, LENT, and LINDE, JJ., and GILLETTE, J. Pro Tem. BRYSON, Justice.
These four cases to recover damages for personal injuries were consolidated for trial on the single issue of liability. Plaintiffs appeal from a jury verdict and judgment in favor of defendants.
Plaintiffs brought four separate actions. Mr. and Mrs. Vander Veer brought a joint action for the loss of the services and companionship of their two children. Mrs. Vander Veer brought an action for her personal injuries, as did each of the children through their guardians ad litem. The four complaints alleged strict liability, for an unreasonably dangerous defect in the braking mechanism of the Toyota involved, as to all defendants. Each complaint also alleged negligence in a second count against defendant Beaverton Toyota Co.
On November 11, 1972, plaintiff Phyllis C. Vander Veer was driving the family's 1972 model Toyota Celica automobile with her children, Joseph B. Vander Veer, III, and Elizabeth Ann Vander Veer, as passengers in the rear seat. The accident occurred about 8:45 a. m. The weather was clear and sunny and the pavement was dry.
Mrs. Vander Veer was driving north in the right lane on S. W. Riverside Drive, a multi-lane highway in Multnomah County, between west Portland and Oswego, Oregon. She came to a point where the indicated speed changed from 45 miles per hour to 35 miles per hour. What happened next is in dispute. Mrs. Vander Veer testified that she was traveling at 45 miles per hour when she came to the 35 miles per hour zone so she applied the brakes to slow down. When she did so, the Toyota pulled to the right. She released the brakes and corrected the steering. She reapplied the brakes, and the car again pulled to the right, causing her to lose control of the car. The car traveled about 150 feet before crossing into the opposite (southerly) lane of traffic, where it collided head-on with another car. Mrs. Vander Veer and the children were injured. At trial, plaintiffs offered expert testimony, hereinafter discussed in more detail, that the accident was caused by the car's defective left front brake.
Defendants, the manufacturers, distributors and seller of the car, offered evidence that the Toyota's left front brake was not defective. They produced several eyewitnesses, two of whom were in a car directly behind the Toyota. They testified that Mrs. Vander Veer turned her head to the right and raised her right hand "parallel" to her body concurrent to the time the car began to drift toward the guardrail on the right side of the road. They saw the brake lights flash as the car drifted toward the guardrail and just before plaintiff made a radical turn away from the guardrail. Three of the tires on the car were substantially under inflated. The fourth tire was destroyed in the accident. The car then fishtailed out of control, crossed into the oncoming lane, and collided with the other car. A Mr. and Mrs. Johnson, who were driving the car which was struck by plaintiffs' car, also testified that the plaintiffs' car turned to avoid hitting the guardrail, then fishtailed out of control.
Contemplating an extended trial, May 17 to June 2, the court empaneled two alternate jurors. After both parties had rested and before submitting the case to the jury, the trial court and counsel faced a procedural problem. Under Oregon law, a civil jury may reach a verdict if nine of the twelve jurors agree to the verdict. 1 However, the same nine jurors must agree on all the issues involved in the case. 2 If the jury in this case were to reach a nine-person plurality verdict in favor of the plaintiffs, the parties believed that four separate trials, all to the same jury, would be required on the damages issues and the same nine jurors would have to agree on damages. After a lengthy discussion of the problems that might be confronted in continuing the trial of each case on damages in the event of a plaintiffs' verdict on liability, the court and counsel concluded that if one of the regular jurors became incapacitated there would be a mistrial. To avoid such a result, the trial court decided to send the two alternate jurors into the jury room to deliberate with the regular jurors and to vote on the liability issue. The following written interrogatory was submitted to all fourteen jurors:
The interrogatory returned showed that nine of the regular jurors voted "no" for defendants. The two alternate jurors also voted "no" for the defendants. The alternate jurors' votes were not counted as part of the empaneled jurors' vote but they were recorded in case the alternates would later be needed to fill in for a regular juror. On the subsequent trials, the trial court apparently felt that the rule requiring the same nine jurors to agree on all issues would be satisfied if one of the nine regular jurors was replaced by an alternate juror who voted the same result on the issue of liability.
Plaintiffs first contend:
"The court erred in permitting the two alternate jurors to accompany the jury to the jury room and in permitting the two alternate jurors to deliberate and vote on the issue of liability."
We agree and reverse. The trial court's action violated several statutes. ORS 17.105 provides in part:
" * * * The jury shall consist of 12 persons, unless the parties consent to a less number. * * * "
ORS 17.190 provides in part:
Finally, ORS 17.305 provides in part:
Defendants argue that plaintiffs' counsel consented to the above procedure of using fourteen jurors and that a sufficient or proper exception was not taken to the procedure. We have reviewed the entire colloquy between court and counsel and conclude that the plaintiffs objected to the procedure and the court granted to plaintiffs an exception. In fact, the court granted an exception to all parties. It would serve no purpose to set out in full the entire discussion between court and counsel on the problem. It suffices to say that the court was fully aware of the problems that confronted him because of the existing Oregon statutes and the decisions of this court, and he was attempting to reach some decision to avert a mistrial and the loss of judicial time and expense to the parties. The record shows that the plaintiffs objected to the proposed procedure. During a recess, the plaintiffs and all of the defendants except Beaverton Toyota Co. reached a stipulation which...
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State v. Mickelson
... ... 165, 653 P.2d 483, 488 (1982); Vander Veer v. Toyota ... Page 694 ... Motor butors, Inc"., 282 Or. 135, 577 P.2d 1343, 1350 (1978) ... \xC2" ... ...
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Bremner By and Through Bremner v. Charles
...if necessary, by the damages phase. We review the decision to bifurcate for abuse of discretion. See Vander Veer v. Toyota Motor Distributors, 282 Or. 135, 144, 577 P.2d 1343 (1978) (applying the standard). Because a trial court's ruling on a motion for bifurcation of issues concerns "the a......
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Eagle Industries, Inc. v. Thompson
...agreement. We review the court's ruling excluding evidence on that ground for an abuse of discretion. Vander Veer v. Toyota Motor Distributors, 282 Or. 135, 146, 577 P.2d 1343 (1978). Defendant argues that the July agreement was "a pleaded and integral" part of his defense to the oral contr......
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Bremner by Bremner v. Charles
...We review the trial court's decision to try the case in separate phases for abuse of discretion. Vander Veer v. Toyota Motor Distributors, 282 Or. 135, 144, 577 P.2d 1343 (1978). We are limited to determining whether the trial court has exercised its discretion to an end not justified by an......