DocketNumber： 127986 CA A26012
Citation Numbers： 683 P.2d 1374, 68 Or. App. 401
Judges： Warren, Buttler, Rossman
Filed Date： 5/23/1984
Status： Precedential
Modified Date： 11/13/2024
specially concurring.
I agree with the result reached by the majority but write separately, because I believe our decision in Weems v. CBS Imports, 46 Or App 539, 612 P2d 323, rev den 289 Or 659 (1980), on which the majority relies, cannot be correct in the light of Phillips v. Kimwood Machine Co., 269 Or 485, 525 P2d 1033 (1974). The majority says that the trial court was correct in giving the “seller-oriented instruction” and implies that it would have been error to give the consumer-oriented instruction.
In Phillips, the Supreme Court said in no uncertain terms “that the two standards are the same.” 269 Or at 493. Although I believe that there is a difference between the two
The point is that, if the two standards are the same, it cannot be error to give one instruction rather than the other.
Assuming that the Supreme Court intended to say what it did in Phillips, our decision in Weems is incorrect. We held that, in a design defect case, it is prejudicial error to include the consumer-oriented standard like the one requested in this case in a jury instruction along with the reasonable seller standard. That is clearly not consistent with the Supreme Court’s position in Phillips that the seller, acting reasonably, would be selling the same product which a reasonable consumer believes he is purchasing. Accordingly, under Phillips, it cannot be error to give either the consumer-oriented or the seller-oriented instruction or a correctly worded combination of the two. See Phillips v. Kimwood
In April, 1981, the Oregon State Bar Committee on Procedure and Practice noted, in abandoning any attempt to formulate uniform jury instructions for product liability cases, that its efforts to do so had resulted only in frustration. With regard to the Supreme Court’s implication that the consumer-oriented and seller-oriented standards are the same, it commented:
“In the Phillips decision, the court dealt with the seeming inconsistency between the consumer-oriented standard and the seller-oriented standard. It concluded that any such inconsistency was academic since ‘they are two sides of the same standard.’ In other words, the court reasoned that a product a reasonable seller would sell would be the same product which a reasonable consumer would purchase. Phillips, supra, at 493.
“However, our analysis is that the difference in the two standards are more than theoretic and that they do create both conceptual and practical problems in the trial of product liability cases. Indeed, switching the standard of care from the broad-based consumer-oriented standard to the relatively narrow scope of a seller-oriented standard, in and of itself, presents a significant change in the focus upon a seller’s accountability. Whereas the former test encompasses the entirety of consumer expectations, the latter test imputes to the seller knowledge of the harmful character of his product and then questions his reasonableness in nevertheless selling the product to the public. Therefore, the ultimate question in each case is reduced to the issue of whether or not the product was being put to a foreseeable use. See Phillips, supra; and Newman v. Utility Trailer, 278 Or. 395 (1977). That issue, when viewed from the seller’s perspective, creates virtually limitless possibilities for liability.
“Moreover, the difference in the two standards goes beyond this difference in definitional precepts of liability. It also has ramifications both in the area of proof and in the area of defenses to a strict liability claim.”
I agree with the majority’s conclusion that the adoption of ORS 30.920 did not impliedly overrule Phillips.