§20.4 Theories of Liability: Pleading and Proving a Claim for Relief

• Library: Torts (OSBar) (2012 Ed.)

§20.4 THEORIES OF LIABILITY: PLEADING AND PROVING A CLAIM FOR RELIEF

§20.4-1 The Strict Tort Liability Claim

The Oregon codification of the Restatement (Second) of Torts §402A (1965) (see §20.2-2) contains two substantial modifications of the Restatement provision, along with several minor changes that may make a difference in certain cases.

The two substantial changes are as follows:

(1) The express application of the strict-liability concept to product-leasing transactions, ORS 30.920(1); and

(2) The extension of protection beyond users and consumers to bystanders. The statute uses the phrase "user, consumer or injured party." ORS 30.920(2)(b) (emphasis added).

The Oregon Legislature did not adopt the three caveats to §402A as interpretive guides. The caveats state that the American Law Institute expresses no opinion on liability to bystanders, the liability of original manufacturers when the product is reprocessed or substantially changed before it reaches the user or consumer, and the liability of component-part manufacturers. Restatement (Second) of Torts §402A, supra, caveats 1-3.

The statute expressly provides that §402A, comments a through m, are to be used in construing ORS 30.920(1) and (2). ORS 30.920(3). Reference to comment n, dealing with contributory negligence and unreasonable assumption of the risk, was omitted, as well as comments o, p, and q, which relate to the caveats.

One minor language change is the use of the phrase "subject to liability for physical harm or damage to property" in ORS 30.920(1) (emphasis added). Section 402A uses the phrase "subject to liability for physical harm." Both phrases refer back to "the user or consumer or to his property" (in ORS 30.920(1), the language is "the user or consumer or to the property of the user or consumer"). Thus, "a defect unreasonably dangerous to property but not to persons is a sufficient basis for strict liability" and the owner of cattle injured or killed by a defective feeding machine has a strict-liability claim. Agristor Credit Corp. v. Schmidlin, 601 F Supp 1307, 1316 (D Or 1985). See also Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001), in which the owner of grapevines destroyed by a disease in purchased plants presented a pure damage-to-property strict-liability claim (the case was dismissed on statute-of-limitations grounds).

The codification expressly provides that the adoption of a version of §402A has no effect on the rights and liabilities of sellers and lessors in negligence or commercial code warranty actions. ORS 30.920(4).

NOTE: The Uniform Civil Jury Instructions Committee of the Oregon State Bar has issued a set of uniform products liability instructions. See UCJI Nos. 48.01-48.08.

§20.4-1(a) Unreasonably Dangerous Condition

The plaintiff must allege that the product in question was in an unreasonably dangerous condition and caused physical harm. The plaintiff should also allege one or more of the three types of defects: manufacturing defects (sometimes described as manufacturing flaws or production defects), design defects, and warning or instruction defects. See ORS 30.900. However, in some cases a plaintiff can prove that the product was defective without identifying the precise defect. When an accident occurs under circumstances that strongly suggest that some defect existed in the product at the time of sale and that the defect was responsible for the accident, even though the precise defect cannot be identified, the plaintiff may have proved enough to raise a jury question in strict liability. This category may be described as an indeterminate defect; indeterminate defects typically involve manufacturing flaws. For further discussion of indeterminate defects, see §20.4-1(a)(4).

A product is unreasonably dangerous if the defect endangers people or property other than the product itself. In Russell v. Ford Motor Co., 281 Or 587, 595, 575 P2d 1383 (1978), the court distinguished the disappointed user of a product from an endangered user. The court explained that "[t]he loss must be a consequence of the kind of danger and occur under the kind of circumstances, 'accidental' or not, that made the condition of the product a basis for strict liability," in this case a defective axle that caused a truck to turn over. See also Gladhart v. Oregon Vineyard Supply Co., 164 Or App 438, 454, 994 P2d 134 (1999), rev'd on other grounds, 332 Or 226 (2001) ("plaintiffs' claim that defendants' product caused physical harm to their vineyard meets the requirements of ORS 30.920"); Russell v. Deere & Co., 186 Or App 78, 82, 61 P3d 955 (2003) ("[a] defective product is not unreasonably dangerous . . . if it poses a risk only to itself; rather, the defective product must pose a risk to other property").

A complaint must allege facts sufficient to permit at least an inference of unreasonable danger for a strict-liability claim to avoid dismissal. In City of Medford By and Through Medford Water Com'n v. Budge-McHugh Supply Co., 91 Or App 213, 754 P2d 607 (1988), the court properly dismissed the plaintiff's strict-liability claim, which portrayed the plaintiff as a disappointed user rather than an endangered user, because the complaint did not state facts that, if proved, would permit an inference of unreasonable danger to people or property.

In Cornell v. Merck & Co., Inc., 87 Or App 373, 742 P2d 667 (1987), the plaintiff failed to allege that a drug causing certain side effects had any manufacturing or design defect, or that the drug manufacturer failed to warn about the side effects or failed to properly instruct the consumer in the use of the drug. Instead, the plaintiff merely alleged that the drug was "unreasonably dangerous for use by reason of having dangerous and adverse side effects." Cornell, 87 Or App at 376. Because "[a] drug manufacturer is not liable for damages caused solely by side effects," the plaintiff failed to state a products liability claim. Cornell, 87 Or App at 376.

§20.4-1(a)(1) Manufacturing Defects

(1) Legal Background

Manufacturing defects or flaws usually result from some mishap in the manufacturing, testing, inspecting, or marketing processes. In other words, manufacturing defects are usually a result of some deviation of the product from its intended design. Also, a product that fails to perform its manifestly intended function and injures the plaintiff may be proof of a manufacturing defect. See Restatement (Third) of Torts: Products Liability §3, comment b (1998). Thus, a cracked soda bottle, a drug containing foreign matter, a power drill with a poor wiring connection, and a rotary lawnmower blade that is brittle because of a bad batch of steel are all examples of manufacturing flaws. See, e.g., Findlay v. Copeland Lumber Co., 265 Or 300, 509 P2d 28 (1973) (ladder rivet hole was drilled off-center); O'Lander v. International Harvester Co., 260 Or 383, 490 P2d 1002 (1971) (truck cab latching mechanism alleged to be improperly assembled, installed, headed, and aligned); Tucker v. Unit Crane & Shovel Corp., 256 Or 318, 473 P2d 862 (1970) (boom crane with inadequate welds); Bray v. Pfeifer, 112 Or App 375, 829 P2d 730 (1992) (steering mechanism that allegedly came apart).

In a manufacturing-defect case, the plaintiff must plead and prove that the product was in an unreasonably dangerous condition. The test is whether the product was "'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.'" McCathern v. Toyota Motor Corp., 332 Or 59, 77, 23 P3d 320 (2001) (quoting Restatement (Second) of Torts §402A, comment i (1965)).

It is important to differentiate between two basic concepts: the nature of the proof required to establish defectiveness, and the jury instruction to be given on defectiveness.

Proof. In a manufacturing-defect case, the plaintiff must plead and prove that the product failed to conform to the manufacturer's own design specifications and as a result was unreasonably dangerous. See Phillips v. Kimwood Mach. Co., 269 Or 485, 491, 525 P2d 1033 (1974).

Jury instruction. The jury in a manufacturing-defect case should be instructed that the plaintiff must prove by a preponderance of the evidence that the product was in an unreasonably dangerous condition. The test for "unreasonably dangerous" is whether the product was more dangerous than the ordinary consumer would expect under the circumstances. McCathern, 332 Or at 75.

A manufacturing-defect case is a true example of the application of strict liability. If the product departs from design specifications and injures someone, it does not matter that the producer exercised all due care with the best quality control systems in place. Strict liability attaches because of the design deviation and the dangerous condition of the product.

PRACTICE TIP: In a manufacturing-defect case, the jury should be instructed to consider whether the product was unreasonably dangerous because it departed from the manufacturer's own design specifications, and that the ordinary consumer expects manufacturers to at least meet their own design standards regarding safety. The jury should also be instructed that a product that departs from its intended design is defective even though all possible care was exercised in preparing and marketing the product.

(2) Practical application

In a manufacturing-defect case, there can be sufficient evidence of a defect and causation when the plaintiff's experts base their opinions in part on an accident victim's description of how the accident occurred. For example, in Bray, 112 Or App at 378, the driver testified that she lost control of the steering mechanism and her car. The experts, relying on that description, concluded that the description fit the pattern of a disconnected steering assembly.

NOTE: Bray may be characterized as an indeterminate defect, but most indeterminate defects are

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