Monday, August 24, 2009

Oregon Product Liability Law - a brief primer

Oregon has basically adopted §420A of the Restatement (Second) of Torts through ORS 30.900-30.920. To prevail in a strict products liability claim, a plaintiff must prove the following:

  • The defendant was engaged in the business of selling the product.

  • The product was in a defective condition that was unreasonably dangerous to the plaintiff when the product left the defendant’s hands; and

  • The product was intended to and did reach the plaintiff without substantial change in the condition in which was sold.
By defective condition, it is meant that at the same time the product left the hands of the seller, it was in a condition that was not contemplated by the ultimate consumer and was unreasonably dangerous to the plaintiff.

A product may be in a defective condition in the following ways:

  • By design of the product itself;

  • By flaw arising from the manufacturing process; or

  • By the absence of adequate warnings or instructions.
To determine if the product is unreasonably dangerous, Oregon uses the consumer expectation test: “A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases the product with the ordinary knowledge common to the community as to its characteristics." ORS 30.920(3).

Additionally, a defendant is liable for damages if the above is proven even if the defendant “exercised all possible care.” ORS 30.920(3); Restatement (Second) of Torts §420A comments g-h (1965).

To prove these things, an engineer is required to explain to the jury how and why the product is defective. Oftentimes, plaintiffs have to spend thousands and thousands finding exemplars of the product and then put them through tests. These are very expensive cases to try.

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

Photo: A defectively designed scooter with a broken weld.

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