Weems v. CBS Imports Corp.

• Decision Date: 09 June 1980
• Docket Number: Nos. 77-7079,s. 77-7079
• Citation: 46 Or.App. 539,612 P.2d 323
• Parties: Patrick WEEMS, Respondent, v. CBS IMPORTS CORPORATION; Unishop M & B of Oregon, Inc.; and Payless Drug Stores N. W., Inc., Appellants, Does I through X, including each and every number between I and X, inclusive; Black Company and White Company and Red Company, Defendants, (two cases). ; CA 14274, 77-6828; CA 14275.
• Court: Oregon Court of Appeals

Page 323

612 P.2d 323

46 Or.App. 539

Patrick WEEMS, Respondent, v. CBS IMPORTS CORPORATION; Unishop M & B of Oregon, Inc.; and Payless Drug Stores N. W., Inc., Appellants,

Does I through X, including each and every number between I

and X, inclusive; Black Company and White Company

and Red Company, Defendants, (two cases).

Nos. 77-7079; CA 14274, 77-6828; CA 14275.

Court of Appeals of Oregon.

Argued and Submitted Feb. 20, 1980.

Decided June 9, 1980.

Darst B. Atherly, Eugene, argued the cause for appellants. On the briefs were George A. Burgott, and Thwing, Atherly & Butler, Eugene.

Mickie E. Jarvill, Eugene, argued the cause for respondent. With her on the brief was Jarvill & Jarvill, Eugene.

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

BUTTLER, Presiding Judge.

Defendants appeal from the judgment entered on a jury verdict in favor of plaintiff in an action for personal injuries based on strict liability in tort. The only question presented is whether the trial court committed reversible error in giving a jury instruction. We conclude that it did, and reverse.

Plaintiff, then 13 years old, was injured when the recently-acquired cotton flannel pajamas he was wearing caught fire as he sat about 18 inches in front of the glass-enclosed fireplace in his home. Defendants manufactured, distributed and sold the pajamas. Although the complaint alleged four theories of liability in separate counts, all but the strict liability count were dismissed at the close of plaintiff's case.

The case was tried on a design defect theory and was intended to be submitted to the jury on that theory. Both parties presented expert testimony as to the flammability of cotton flannel and the feasibility and cost of adding a flame retardant to reduce the danger of the material catching fire and reduce the speed with which it would burn.

The only error assigned on appeal is the trial court's including in its instructions to the jury subsection 3 of Uniform Jury Instruction 170.02. That instruction, in its entirety, states:

"A product may be shown to be defective by proof of one (or more) of the following: (Eliminate subsections not involved in case.)

"1. A defect in manufacture;

"2. A defective design;

"3. Failure to perform safely under circumstances in which, from common knowledge, the average user reasonably could have expected the product to perform safely."

The trial court deleted subsection 1, but gave subsections 2 and 3. The court went on to instruct the jury as follows:

"One who sells a dangerously defective product is liable to a user for physical harm to him caused thereby, if the seller is engaged in the business of selling products and if the product reaches the user without substantial change in the condition in which it is sold.

"A product is dangerously defective when it's in a condition unreasonably dangerous to the user. Unreasonable in this regard means dangerous to an extent beyond that which would be contemplated by the ordinary purchaser of this type of product in the community. In order for you to determine whether this product is of a greater degree of danger than a consumer has a right to expect you assume that the manufacturer knew of the product's characteristics and quality and then you proceed to determine whether or not the seller would be negligent if he sold the product knowing the risk involved from the sale of property of that character.

"Within that definition negligence is defined as selling something that a reasonable, prudent person would not sell in those circumstances."

Defendants excepted to the giving of subsection 3 of the Uniform Instructions, claiming that it was not appropriate in a design defect case.

Uniform Instruction 170.02 comes directly from Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967), in which this state adopted strict liability as defined in the Restatement (Second) of Torts § 402A (1965). ¹ However, strict liability cases decided subsequently have tended to ignore Heaton, and it is by no means clear whether the third category (other than defect in design or manufacture) is alive and well.

In Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974), the Supreme Court adopted what appears to be a different test for imposing strict liability:

"The problem with strict liability of products has been one of limitation. No one wants absolute liability where all the article has to do is to cause injury. To impose liability there has to be something about the article which makes it dangerously defective without regard to whether the manufacturer was or was not at fault for such condition. A test for unreasonable danger is therefore vital. A dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. The test, therefore, is whether the seller would be negligent if he sold the article knowing of the risk involved. Strict liability imposes what amounts to constructive knowledge of the condition of the product." 269 Or. at 491-92, 525 P.2d at 1036. (Emphasis in original; footnotes omitted.)

The test announced in Phillips v. Kimwood Machine Co., supra, is the test applied in subsequent strict liability cases in this state to determine whether the product was defective in design. See, e. g., Harding v. Kimwood Corporation, 275 Or. 373, 551 P.2d 107 (1976); Myers v. Cessna Aircraft, 275 Or. 501, 553 P.2d 355 (1976); Newman v. Utility Trailer, 278 Or. 395, 564 P.2d 674 (1977); Baccelleri v. Hyster Co., 287 Or. 3, 597 P.2d 351 (1979).

The trial court correctly instructed the jury as to that test and the evidence is sufficient to permit a jury to find that a reasonably prudent manufacturer would not have manufactured and sold cotton flannel pajamas without a flame retardant if it had knowledge (regardless of whether such knowledge was actually possessed) of flammable characteristics of that fabric and the risks involved. See Harding v. Kimwood Corporation, supra, 275 Or. at 378, 551 P.2d 107. However, by instructing the jury that a product may be shown to be defective by its "(f)ailure to perform safely under circumstances in which, from common knowledge, the average user reasonably could have expected the product to perform safely" the jury was permitted to find the pajamas defective without regard to the conflicting expert testimony relating to the fabric's...