As a firm that limits its practice primarily to aviation, product liability and high exposure negligence cases, Olson Brooksby is well aware of the many pleading traps in cases that involve both claims for strict products liability and negligence cases. Oregon abolished the alternative “reasonable manufacturer” test more than 20 years ago and now the only proper jury instruction in a product liability case is the consumer expectation test. In many product liability defense cases, counsel representing the product manufacturer, seller or distributor must harmonize the consumer expectation test with the so-called Fazzolari trilogy of cases in negligence cases. Fazzolari v. Portland School District 1J, 303 Or 1 (1987) followed a series of legislative tort reforms in product liability cases and to some extent is considered by many to be the appellate courts’ response to the perceived overuse of the terms duty and breach.
The Fazzolari trilogy, held that, in Oregon, the general standard for negligence claims, including those in product liability cases, will be whether or not the dangerous defect (whether based on design, manufacturing, or warning) is reasonably foreseeable and caused harm to a protected interest of the plaintiff. ORS 30.900 et seq. In negligence cases, however, when there is a special relationship, such as teacher/student or fiduciary, then the general principles of foreseeability do not apply and the case reverts back to the traditional concepts of duty, breach, causation and damages. In product liability cases, the harmonizing of these tests is critical.
The Consumer Expectation Test
Oregon is a consumer expectation test state. The consumer expectation jury instruction is the only proper jury instruction for liability based on strict product liability in Oregon. Under the consumer expectation test, the product must be “unreasonably dangerous” to be defective in a strict liability case. Oregon law provides that, whether pleaded as a negligence theory or as strict liability, the case will still be governed as a product liability action. Three types of defects are recognized: design defects, manufacturing defects, or failure to warn.
In design defect cases, risk-utility proof is not required to make a prima facie case. To prevail on a product liability claim, the plaintiff must prove that the product was unreasonably dangerous. In order to determine whether a product is “unreasonably dangerous” under Oregon law, the jury is instructed to apply the consumer expectation test. Although there are thousands of products that may be the subject of a product liability action under a theory of strict liability of negligence, the plaintiff must prove, and the consumer expectation test provides, that 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 (2001) (quoting RESTATEMENT (SECOND) OF TORTS §402A comment I (1979)).
The consumer expectation test is objective as applied. Jurors may not use their own personal subjective views of whether or not the product contained conditions that they themselves would expect. Similarly, they may not put themselves in the position of the injured plaintiff to make such a determination, but must apply the views of the community as a whole. The McCathern decision also made clear that the consumer expectation test is the only test properly given to the jury in a strict product liability test. For a good overview of Oregon product liability law, the McCathern decision is worth reading. Oregon’s product liability statute is contained in ORS 30.900 et. seq.
The Negligence Claim
An understanding of negligence law in Oregon requires a brief discussion of pre- and post-1987 common law decisions. Prior to 1987, Oregon generally held to a conventional approach to negligence cases, requiring the existence of a duty, a breach of that duty, causation, and damages. However, since the cases decided in the period around 1987, common law negligence in Oregon now depends on whether the defendant’s conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.
This change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate courts’ perceived overuse of the cliché “duty” or “no duty.” Oregon courts, therefore, began to encourage juries and judges to decide each case on its own facts. Duty continues to play an affirmative role when the parties invoke a particular status, relationship or standard of conduct beyond the standards generated by common law. This was the result of the so-called Fazzolari principle, which now governs negligence law in Oregon. See Fazzolari v. Portland School District 1J, 303 Or 1 (1987).
Fazzolari typically requires a three part test:
- Determine whether a particular status or relationship exists;
- If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists;
- If such a standard, status or relationship is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.
Typically, the kinds of relationships that invoke a duty beyond that of ordinary care are found in fiduciary duty cases or in cases where the parties have a particular contract or status. The duty beyond that of ordinary care could also be invoked under a particular statute or rule. If there is a special relationship, then the rule of general foreseeability does not apply. Rather, if a special relationship exists, then the plaintiff can argue that the defendant had a duty beyond that of ordinary care. Based on the limited information available to date, we do not see anything in the facts of this case that would suggest a special relationship between Cadet and the Huo family that would require a duty beyond that of ordinary care.
Negligent Infliction of Emotional Distress
Oregon is a physical impact state as it relates to pursuit of a claim for negligent infliction of emotional distress (NIED). Oregon subscribes to the physical-impact rule, meaning that damages arising from purely emotional or psychological upset (that is, NIED) are not typically recoverable for a defendant’s unreasonable actions or failure to act unless there is an accompanying physical impact to the party seeking relief, no matter how slight. In any case where a plaintiff is seriously injured, and there is also an injury to a spouse or close family member, the court and jury would almost certainly find (and it would likely be reversible error to not so find) that there was an accompanying physical impact as a result of plaintiff’s injuries. However, a plaintiff may also simply allege a claim for noneconomic damages incorporating the alleged NIED claim as part of the negligence claim.