SALEM, Ore. (Legal Newsline) - Deere & Co. must go to trial for a third time over claims it sold a riding lawnmower with a “visibility defect” that caused a man to back over his daughter because he didn’t realize he had to turn his head to check if she was there.
Delving deeply into the principles of product-liability law, the Oregon Court of Appeals reversed a jury verdict in the case for the second time over complaints about improper jury instructions. In a May 12 decision, the court said the trial judge shouldn’t have told the jury to consider whether a theoretically safer design was available when deciding if the John Deere mower was unreasonably dangerous.
The lawsuit arose after Kurt Norton pressed a Reverse Implement Option button on his mower that allowed him to drive the mower in reverse with the blades still engaged. He backed over his daughter Isabelle, injuring her.
The daughter sued Deere, arguing the mower was defective because with the RIO button engaged, the driver “would not realize that they could not see behind them without actually turning fully around.” Deere won the first trial, but appeals court reversed, citing jury instruction errors.
The plaintiff added her father as a defendant on remand and after a second trial the jury found both him and Deere liable. Deere appealed this time, challenging jury instructions including how jurors were supposed to apportion liability and what constituted an inadequate warning.
In its decision, the appeals court traced the long history of Oregon products-liability law, which legislators codified in 1979 with a statute defining a defective product as one that is “in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous too him.” What an ordinary consumer would contemplate, or what might be considered unreasonably dangerous, are fact questions left to the jury.
The Oregon Supreme Court also added guidance, rejecting the Appeals Court’s prior rulings allowing jurors to consider a “risk-utility” test in which they could decide a product was unreasonably dangerous because a safer design was feasible. Instead, the state high court requires judges to instruct jurors to decide only whether a product met the “consumer expectations” test, although as part of that exercise they can consider risk and utility.
In the second trial, the judge included an instruction to the jury to consider evidence of alternative designs when deciding if the utility of the mower outweighed its risk. That was improper, the appeals court ruled, because judges aren’t supposed to tell jurors how to apply specific facts to the law.
“The instruction provided the only direction to the jury on how to determine whether the mower was unreasonably dangerous,” the appeals court concluded. “It could have led the jury to make its finding that the mower was unreasonably dangerous on the incorrect basis that, in light of alternative safer designs, the mower’s risks outweighed its utility.”
The court also agreed with Deere that jury instructions about the adequacy of a warning label were inadequate because they didn’t list factors including its form and content, or the consequences of misusing the product. The appeals court rejected Deere’s complaint that the jury was told not to consider the father’s own negligence when deciding how much Deere should pay for selling the mower with a RIO button. Under Oregon law, companies can’t use evidence that the plaintiff misused a product as defense in a defect case, and the appeals court said that applies even when the evidence is against a co-defendant.
“We conclude, for that reason, that the trial court did not err in giving the instruction that the jury could not consider Norton’s negligence due to his inadvertent, inattentive, or awkward failure to discover or guard against the defect in assessing Norton’s percentage of fault,” the court said.