§20.2 Products Liability: a Historical Overview

• Library: Torts (OSBar) (2012 Ed.)

§20.2 PRODUCTS LIABILITY: A HISTORICAL OVERVIEW

Different legal theories can apply to a product accident lawsuit. Negligence, commercial warranties, fraud, misrepresentation, and strict tort liability theories may be relevant. Strict tort liability based on the Restatement (Second) of Torts §402A (1965) has held center stage in the product accident arena for the last 45 years. In 1979, the Oregon legislature codified §402A in ORS 30.920. This chapter therefore gives primary emphasis to strict tort liability. Sections 20.2-1 to 20.2-2 trace the historical development in Oregon of strict tort liability as applied to products.

In 1998, the American Law Institute adopted the Restatement (Third) of Torts: Products Liability, which made many major changes in the approach of §402A. While the provision and commentary of the Restatement (Third) may be helpful background, Oregon's products liability law is governed by statute and the codified §402A. ORS 30.900, et seq.

§20.2-1 Before Codification of §402A

In 1967, the Oregon Supreme Court adopted the Restatement (Second) of Torts §402A (1965) in Heaton v. Ford Motor Co., 248 Or 467, 470, 435 P2d 806 (1967). The court held that if a product "is in fact unreasonably dangerous the manufacturer is liable for the harms caused by such a defect." Heaton, 248 Or at 470. The plaintiff, however, must prove that the product is unreasonably dangerous. The court explained the basis of strict liability: "An article is dangerously defective when it is in a condition unreasonably dangerous to the user. Restatement (Second) of Torts §402A. Unreasonable, in this context, means dangerous to an extent beyond that which would be contemplated by the ordinary purchaser. Restatement (Second) of Torts §402A, comment g." Heaton, 248 Or at 471.

NOTE: In Heaton and subsequent cases, the court used the term dangerously defective rather than unreasonably dangerous. This choice was not intended to create any substantive differences. See Phillips v. Kimwood Mach. Co., 269 Or 485, 491 n 3, 525 P2d 1033 (1974). In McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001), the court reverted to the statutory §402A language of unreasonably dangerous.

The court in Heaton, 248 Or at 474, recognized three types of potential product defects that might fall within the strict-liability theory: manufacturing defects, design defects, and performance failures. Subsequent cases confirmed that strict liability could apply to all of the mentioned defects, including warning defects.

Seven years after Heaton, in Roach v. Kononen, 269 Or 457, 462-465, 525 P2d 125 (1974), and Phillips, 269 Or at 492-495, the court analyzed the application of §402A to design-defect and warning-defect cases and decided to substitute a reasonable-manufacturer-test jury instruction for §402A's ordinary-consumer-expectations test. The court also identified the factors to use in determining whether the evidence is sufficient to present a jury question on the issue...