§20.3 Parties

• Library: Torts (OSBar) (2012 Ed.)

§20.3 PARTIES

§20.3-1 Who Are Proper Plaintiffs?—Persons Entitled to Recover

§20.3-1(a) Strict Tort Products Liability

A party who suffers personal injury or property damage as a result of a product sold or leased by a defendant in an unreasonably dangerous condition may recover damages. ORS 30.920; Heaton v. Ford Motor Co., 248 Or 467, 470, 435 P2d 806 (1967); Restatement (Second) of Torts §402A (1965). In enacting this statute, the 1979 Legislature extended protection beyond buyers, users, and consumers to include bystanders: "user, consumer or injured party," ORS 30.920(2)(b) (emphasis added).

For examples of postcodification cases in which appellate courts have allowed bystanders to be plaintiffs, see Ewen v. McLean Trucking Co., 300 Or 24, 706 P2d 929 (1985) (pedestrian injured by defective truck), and Docken v. Ciba-Geigy, 86 Or App 277, 739 P2d 591 (1987) (plaintiff killed by mislabeled prescription drug intended solely for his brother's use). Precodification cases presaged the application to bystanders. See, e.g., Osborne v. International Harvester Co., 69 Or App 629, 639-640, 688 P2d 390 (1984); Cornelius v. Bay Motors Inc., 258 Or 564, 571-573, 484 P2d 299 (1971).

Parties who have subrogated interests of persons suffering personal injury or property damage may recover. Brownell v. White Motor Corp., 260 Or 251, 490 P2d 184 (1971) (plaintiffs were truck owner and insurer of truck). Parties entitled to indemnity from the manufacturer of a defective product may also recover. Fulton Ins. Co. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972) (plaintiffs were insurers of truck owner and driver and of contractor and subcontractor on job where truck was used). Persons using a defective product that causes injury to third parties, and who themselves incur attorney fees, costs, and other damages defending themselves in claims by those third parties, may be able to recover their losses from the manufacturer of the product. Oksenholt v. Lederle Laboratories, a Div. of American Cyanamid Corp., 294 Or 213, 656 P2d 293 (1982) (plaintiff brought negligence action against pharmaceutical company when drug that he prescribed to patient caused patient to become blind).

For economic loss recovery, see §§20.6-3 to 20.6-3(c).

Persons engaged in Class A or Class B felonious conduct (as well as murder and aggravated murder) may not recover in a personal injury or wrongful-death action when the "conduct was a substantial factor contributing to the injury or death." ORS 31.180(1). See §§20.5-1(e)(3), 20.5-2(d).

§20.3-1(b) Negligence

A plaintiff who suffers personal injury, property damage, or economic loss as a result of a defendant's negligence in designing, manufacturing, selling, or distributing a product may recover. See State ex rel. Western Seed Production Corp. v. Campbell, 250 Or 262, 268-270, 442 P2d 215 (1968) ("a complaint states a cause of action in tort when it alleges that the defendant negligently reproduced and sold seed which caused plaintiffs to lose the expected profit from their crop"). Privity of contract between the plaintiff and the defendant is not necessary. Strandholm v. General Const. Co., 235 Or 145, 157, 382 P2d 843 (1963).

When the 1979 Legislature codified the law of strict tort products liability by adopting the Restatement (Second) of Torts §402A (1965), it expressly declared: "Nothing in this section shall be construed to limit the rights and liabilities of sellers and lessors under principles of common law negligence or under ORS chapter 72 [the Uniform Commercial Code relating to sales]." ORS 30.920(4).

Prescription drug manufacturers owe a duty to adequately warn of risks associated with their drugs, and the duty is not only for the protection of patients but also for the protection of an injured party (Docken v. Ciba-Geigy, 86 Or App 277, 739 P2d 591 (1987)), and prescribing doctors. When a manufacturer breaches that duty and, as a result, a doctor is sued for malpractice, the doctor may recover in negligence against the manufacturer for reasonable litigation and settlement costs, economic loss, and harm to professional reputation. In Oksenholt v. Lederle Laboratories, a Div. of American Cyanamid Corp., 294 Or 213, 656 P2d 293 (1982), the court established three principles: (1) a doctor who settles a patient's claim involving a defective product prescribed for the patient can sue the manufacturer in negligence and fraud for failure to warn of the risk; (2) the recoverable damages include loss of earning capacity and injury to the physician's reputation; and (3) the settlement amount, if treated as an indemnity, is not recoverable, but, if treated as an innocent party's attempt to avoid further harm to reputation, is potentially recoverable.

The learned intermediary doctrine developed in negligence law is not a defense in strict liability. See §20.4-1(a)(3); Griffith v. Blatt, 334 Or 456, 465-466, 51 P3d 1256 (2002).

See §20.3-1(a) regarding the complete defense in civil actions based on certain types of criminal conduct of the plaintiff.

§20.3-1(c) Breach of Warranty

Under Oregon's version of the Uniform Commercial Code (UCC), a plaintiff who is in privity of contract with the defendant and who suffers personal injury, property damage, or economic loss as a proximate result of the defendant's breach of an express or implied warranty may recover damages for that loss if other conditions of liability are met, for example, notice as required by statute. ORS 72.3140, 72.3150, 72.7150(2); Redfield v. Mead, Johnson & Co., 266 Or 273, 275-282, 512 P2d 776 (1973) (plaintiff brought action against manufacturer of contraceptive drugs to recover for personal injuries resulting from alleged breach of implied warranty of fitness for particular purpose).

If the product is a consumer good as defined in ORS 72.8010(1), privity is not required between a manufacturer and the consumer. See ORS 72.8020, 72.8030 (manufacturer's implied warranties of merchantability and of fitness). For further discussion of this point, see §20.4-7(a).

A member of a buyer's family or household or a guest in a buyer's home may recover for personal injuries suffered because of a breach of an express or implied warranty if it was reasonable to expect that the family member or guest would use, consume, or be affected by the goods. ORS 72.3180.

An association of condominium owners may bring a claim for breach of express warranty and implied warranty as a "matter affecting the condominium" under ORS 100.405(4)(d) on behalf of the unit...