# Heaton v. Ford Motor Co.

> Oregon Supreme Court · December 29, 1967 · 248 Or. 467

URL: https://www.frixlaw.com/law-library/cases/9549536

## Case

- **Full name:** HEATON, Appellant, v. FORD MOTOR COMPANY Et Al, Respondents
- **Court:** Oregon Supreme Court
- **Decided:** December 29, 1967
- **Citations:** 248 Or. 467; 435 P.2d 806; 1967 Ore. LEXIS 437
- **Precedential status:** Published
- **Opinion:** Dissent by O'Connell
- **Judges:** Perry, Sloan, O'Connell, Goodwin, Denecke, Holman, Lusk
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549536

## How later opinions describe it (automated extraction)

- holding that non-negligent seller of boat, which had exploded from alleged defect, could be held liable to plaintiff who suffered personal injuries during explosion, if jury found the defect created an ultrahazardous condition
- explaining that the liability that the court had recog- nized for dangerously defective products “was specifically rationalized as strict liability in tort”

## Opinion text

O’CONNELL, J.,
dissenting.
Plaintiff argues that the court rather than the jury is charged with the duty of determining whether the circumstances are appropriate for the application of the doctrine of strict liability. To support his view plaintiff relies upon Loe v. Lenhardt, 227 Or 242 , 362 P2d 312 (1961) where the court, in holding that aerial spraying of chemicals is an extrahazardous activity, *476 said “ [w]hen a question of this character is presented, it is the duty of the court to decide as a matter of law whether a given activity, in a given factual setting, is or is not extrahazardous.” ( 227 Or at 249 , 362 P2d at 316 .) In the same ease the court recognized that the classification of conduct for the purpose of determining whether it is extrahazardous, and therefore gives rise to strict liability, involves an adjustment of conflicting interests — “the product of a judicial balancing of the utility of the defendant’s conduct with the risk of harm if it miscarried.” ( 227 Or at 250 , 362 P2d at 316 .)
Applying the foregoing analysis, plaintiff argues that “In the products liability field it may thus be said that a product is ‘defective’ if a judicial balancing of the interests of the parties and the public indicates that the seller should be strictly liable for the particular injury involved.” According to plaintiff’s view, it is not the jury’s function in the present case to decide “whether the wheel performed as a reasonable person would have expected.” Quite to the contrary, plaintiff argues that “the pragmatic significance of strict liability is that the jury must find the defendant liable if it finds simply that his affirmative conduct produced the injury.” It is plaintiff’s position that the theory of strict liability should be deemed applicable whenever a person is injured as a result of exposing himself to a hazard in reasonable reliance upon the capabilities of a product as represented by the seller. The gist of plaintiff’s argument is summed up as follows:
“* * * It is not unreasonable to suggest that the driver of a vehicle promoted as ‘solid,’ ‘rugged’ and ‘built like a truck’ will subject that vehicle and its passengers to hazards to which he would not *477 subject a vehicle otherwise promoted. With specific reference to this case, it is not unreasonable to surmise that a driver of a vehicle so promoted who runs over a rock on the highway will not even consciously consider the possibility of stopping to check for damage because he takes it for granted that such an impact will not harm a vehicle which he has been conditioned to think of as ‘solid,’ ‘rugged,’ and ‘like a truck.’ ”
Plaintiff, then, is asking us to “take judicial notice of facts which form part of the common knowledge of people who possess average intelligence, * * * as, for example, the capabilities of a ‘jeep,’ Olson v. Riverview Cemetery, 220 Or 220 , 349 P2d 279 (1960).”
Apparently the majority opinion would hold that there was a failure of proof, irrespective of whether the question of strict liability is for the court or jury in a case of this kind. I disagree. If we had been presented with the same facts with the modification that plaintiff had struck a rock one inch in diameter rather than a five-inch rock, I am sure that the majority would have held that at least a jury question was made out. The beginning point of our reasoning would be that a manufacturer of automobiles must construct wheels of sufficient durability to withstand the impact of one-inch rocks, because one-inch rocks are not an uncommon obstacle on highways. A buyer could reasonably expect to have the wheel withstand such an impact and it would not be unreasonable for him to proceed on his journey after the impact. However, the buyer could not reasonably expect a wheel to remain safe after striking a rock two feet in diameter at seventy miles an hour. Somewhere along the continuum between one inch and two feet it will be necessary to draw a line. The line is drawn by deciding *478 whether a manufacturer should he required to construct a wheel of such durability as to withstand the impact of a rock of the size in question. Whether the manufacturer has that duty in a particular case should depend, it seems to me, upon whether the manufacturer could reasonably foresee the likelihood that the hazard would be encountered by those using the product, and this would, of course, depend to some extent upon the representations made by the manufacturer with respect to the durability of the product.
The manufacturer’s conduct must be measured against a standard of reasonableness, a standard similar to that employed in determining whether a defendant is negligent. Here, however, we do not measure defendant’s conduct in terms of fault but simply upon the basis of its foreseeability. A jury is just as well equipped to judge the reasonableness of defendant’s conduct on this score as it is when the inquiry is made as to defendant’s negligence. The members of the jury draw upon their experiences and observations and set up some kind of a standard as a measure against which to appraise the defendant’s conduct in the particular case. They would be justified in concluding that the wheel in this case was unreasonably dangerous according to the test stated in Eestatement (Second) of Torts §402A, p. 352 (1965), requiring a finding that “[t]he article sold must be 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.”
The majority apparently would require some evidence of what this community standard is. How is this to be done? Certainly this is not the type of question which calls for the testimony of an expert witness. *479 Are we to call lay witnesses to testify what “would be contemplated by the ordinary consumer”? If that is required in the present case, it would be equally necessary in an ordinary negligence case to inform the jury of the community standard on such questions as the reasonableness of conduct in driving a car with respect to speed, lookout and control.
But we submit these questions of the reasonableness of defendant’s conduct to the jury and, subject to the right of the court to decide as a matter of law that the standard was or was not met, we are willing to trust the jury’s judgment as to the community standard and to appraise the defendant’s conduct in light of it.
I believe that the question of defendant’s liability is kept from the jury in the present case not because there is a lack of evidence upon which to sustain a verdict for plaintiff, but because the majority of the court, finding the imposition of strict liability a severe burden upon the seller, attempts to limit that burden by distorting the concept of the jury’s function.
Sloan, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549536. Public record. Not legal advice.