Ewen v. McLean Trucking Co.

Oregon Court of Appeals · Torts

TortsProducts liabilityDesign defectComparative faultEmotional distressJury instructionsstrict products liabilitydesign defect

Facts

Mrs. Ewen, a 75-year-old woman with Parkinson's Disease, and Swarner began crossing a one-way street from east to west while Owens sat stopped at a red light in an International Harvester tractor-trailer owned by McLean Trucking. Because the truck encroached on the crosswalk, they moved around the front right side of the truck toward the middle of the intersection, and when the light turned green Owens moved forward without seeing them. The truck struck Ewen and Swarner, injuring Ewen and killing Swarner. Plaintiff alleged negligence against Owens and McLean Trucking and a strict products liability design-defect claim against International Harvester based on limited forward and right-side visibility.

Issue

Whether the trial court erred in submitting the design-defect visibility claims to the jury, refusing to compare the negligence of nonparty Swarner, allowing emotional-distress evidence subject to a limiting instruction, and instructing the jury with a consumer-oriented strict liability standard that included pedestrians.

Rule

A products liability claim may go to the jury only if there is sufficient evidence of a causal relationship between the alleged defect and the accident. Under ORS 18.480, the trier of fact compares the fault only of parties represented in the action, not nonparties whose fault is not placed in issue by the pleadings. In Oregon design defect cases, the reasonable seller test is the preferred formulation of 'unreasonably dangerous,' but because Phillips treated the reasonable seller and consumer-oriented standards as the same, giving a consumer-oriented instruction under ORS 30.920 is not reversible error.

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In Portland, Nora Vega was hit when a delivery van turned from a stop and the driver claimed he never saw her in the bike lane beside the front passenger door. Nora sued the van's manufacturer, Alder Crest Vehicles, alleging the van was defectively designed because it lacked a convex side mirror that would have revealed a person near the right front corner. One witness placed Nora beside the right front wheel when the van began moving, while other witnesses said she had already moved farther ahead of the hood.

Alder Crest moves for a directed verdict, arguing the evidence is too conflicting to show the missing mirror caused the collision. How should the court rule?

Explanation. A product liability design-defect claim may go to the jury only if there is sufficient evidence of a causal relationship between the alleged defect and the accident. On review of a directed verdict, evidentiary conflicts are resolved in the plaintiff's favor. If a reasonable jury could infer from favorable testimony that Nora was in a position where the proposed mirror would have revealed her, the case should be submitted. (Derived from Ewen v. McLean Trucking Co. (n.d.).)