Actions and Suits in Particular Cases

ORS 30.920
When seller or lessor of product liable

  • effect of liability rule


(1)

One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer is subject to liability for physical harm or damage to property caused by that condition, if:

(a)

The seller or lessor is engaged in the business of selling or leasing such a product; and

(b)

The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased.

(2)

The rule stated in subsection (1) of this section shall apply, even though:

(a)

The seller or lessor has exercised all possible care in the preparation and sale or lease of the product; and

(b)

The user, consumer or injured party has not purchased or leased the product from or entered into any contractual relations with the seller or lessor.

(3)

It is the intent of the Legislative Assembly that the rule stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965). All references in these comments to sale, sell, selling or seller shall be construed to include lease, leases, leasing and lessor.

(4)

Nothing in this section shall be construed to limit the rights and liabilities of sellers and lessors under principles of common law negligence or under ORS chapter 72. [1979 c.866 §2]

Notes of Decisions

While this section codifies rules set forth in section 402A of Restatement (Second) of Torts (1965) to govern design defect cases, and provides that rules should be construed in accordance with comments a to m of section 402A, statute does not prescribe particular construction of the rule or its comments; because test for unreasonably dangerous, cast in terms of reasonable seller, is equivalent to comment i's test cast in terms of consumer, trial court did not err in giving jury instruction cast only in terms of reasonable seller. Willamette Essential Oils v. Herrold & Jensen, 68 Or App 401, 683 P2d 1374 (1984)

Where stated intent of Legislative Assembly is that this section is to be construed in accordance with comments to section 402A of Restatement (Second) of Torts and such comments do not limit application of section to manufactured products, live skunk purchased from defendants was product within meaning of this section; right to recover for emotional distress is limited to recovery for emotional distress suffered by persons who suffer physical harm. Sease v. Taylor's Pets, 74 Or App 110, 700 P2d 1054 (1985), Sup Ct review denied

Word "consumer" in this section does not include all who might be affected by product. Ewen v. Mc Lean Trucking Co., 300 Or 24, 706 P2d 929 (1985)

Availability of strict tort liability claim depends on type of defect, not type of injury. Agristor Credit Corp. v. Schmidlin, 601 F Supp 1307 (1985)

In adopting statutory analog of Restatement (Second) Torts, §402A, legislature made substantial modification by using phrase "user, consumer or injured party," and injury to person by consumption of prescription medication was subject to this section, even though medication had not been prescribed for person who consumed it. Docken v. Ciba-Geigy, 86 Or App 277, 739 P2d 591 (1987), Sup Ct review denied

In action against pharmacy for negligently filling prescription, expert testimony of community standard of care is required to prove that pharmacist negligently failed to warn of dangers of prescription drug. Docken v. Ciba-Geigy, 101 Or App 252, 790 P2d 45 (1990), Sup Ct review denied

Where defendant acted as service provider by affixing new tread to casing, there was no sale of defective product. Watts v. Rubber Tree, Inc., 118 Or App 557, 848 P2d 1210 (1993), Sup Ct review denied, as modified by 121 Or App 21, 853 P2d 1365 (1993)

Although adequate warning on faultlessly-made product will prevent reliance on theory of strict liability in failure-to-warn defect case, product with manufacturing defect cannot be made nondefective simply by placing warning on product. Glover v. BIC Corp., 987 F2d 1410 (1993)

Reasonable manufacturer test has been repudiated and replaced with consumer expectation as sole test. Burns v. General Motors Corp., 133 Or App 555, 891 P2d 1354 (1995)

Supplier of component part that is not inherently defective is not strictly liable for failure to warn of dangers that may arise upon integration of part into machine built by another. Hoyt v. Vitek, Inc., 134 Or App 271, 894 P2d 1225 (1995)

Plaintiff must allege facts sufficient to infer unreasonable danger to persons or to property other than product itself. Carpenter v. Land O' Lakes, Inc., 880 F Supp 758 (D. Or. 1995)

Allegation of commercial loss due to product failure or damage to product is insufficient to state claim for relief. Carpenter v. Land O' Lakes, Inc., 880 F Supp 758 (D. Or. 1995)

On-site manufacture of hybrid product is not exempt where injury is due to defect in product provided rather than defect in repair or installation. Brokenshire v. Rivas and Rivas, Ltd., 142 Or App 555, 922 P2d 696 (1996)

Design safety is viewed only from consumer expectation perspective, not from reasonable manufacturer perspective. McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001)

To prove product was unreasonably dangerous due to defect, plaintiff must prove that at time product left seller's hands, product was in unreasonably dangerous condition to extent not contemplated by ultimate consumer and in dangerous condition beyond expectation of ordinary consumer having knowledge common to community regarding characteristics of product. McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001)

Prima Facie Case for Product Liability Is Established If

1) dangerous defect is shown to have existed at time of manufacture, regardless of later modification; or 2) dangerous defect is not shown to have existed at time of manufacture and it is shown that modification probably was not essential to cause of injury. Ensley v. Strato-Lift, Inc., 134 F. Supp. 2d 1191 (D. Or. 2001)

Defect that causes mere economic damage without physical destruction or injury to other property does not provide basis for product liability claim. Russell v. Deere & Co., 186 Or App 78, 61 P3d 955 (2003)

Law Review Citations

16 WLR 219 (1979); 59 OLR 374 (1981); 32 WLR 851 (1996); 78 OLR 1 (1999)

§§ 30.900 to 30.925

Law Review Citations

58 OLR 545 (1980); 18 WLR 613, 631 (1982); 64 OLR 517 (1986); 69 OLR 147 (1990)


Source

Last accessed
Jun. 26, 2021