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Jett v. Ford Motor Company8/14/2002
Argued and submitted January 3, 2002.
Reversed and remanded.
Plaintiff Trudy Jett was injured in an accident as she loaded parcels on the job from a delivery truck that she drove for the United Parcel Service UPS. She and her husband initiated this action for negligence and loss of consortium. Named as defendants were Ford Motor Company (Ford), the manufacturer of the truck, and Milligan Motors, Inc., the company that serviced it. Defendants asserted that the injury was caused by plaintiff's own negligence in, among other things, failing to follow certain UPS safety rules that require drivers to put their trucks in "park," turn off the engine, and set the parking brake before getting out. The trial court, however, excluded evidence of the UPS safety rules. A jury found for plaintiff, assigning Ford 85 percent of the fault and plaintiff 15 percent. Ford appeals, raising a number of assignments of error, including that the trial court erred in excluding the evidence of the UPS safety rules and in delivering an erroneous instruction to the jury concerning comparative fault. We conclude that Ford is correct about the exclusion of the UPS safety rules and reverse and remand on that basis. We also conclude that Ford failed to preserve its objection to the contested jury instruction and therefore do not address that matter.
The facts relevant to the disposition of the appeal are not in contention. Plaintiff was a professional package delivery truck driver for UPS. On April 22, 1996, she reported that her regular truck was difficult to shift. Two days later, she again reported trouble with shifting. On April 29, the truck was taken in for servicing, and plaintiff was given a replacement truck. Plaintiff, however, reported that the replacement vehicle also was difficult to shift. On April 30, the individual responsible for truck maintenance and service spoke with plaintiff about the shifting problem with the replacement truck. He told plaintiff that the replacement truck was unsafe and that she should wait until later that morning to do her rounds, when her regular truck would be available.
Plaintiff declined to wait. She loaded the replacement truck with parcels, turned on the ignition, and pulled the truck forward approximately 10 feet. Immediately, however, she encountered difficulty with the gear shift. She moved the transmission shift lever to "neutral." She believes that she set the parking brake, because that was her usual practice. With the engine still running, she got out of the truck and walked behind it to retrieve some additional packages. While she was standing between the rear of the truck and the loading dock, the truck rolled back and pinned her against the dock, causing severe injuries.
Before trial, plaintiffs moved to exclude evidence of the UPS safety rules concerning the proper procedure for the disposition of delivery trucks before getting out of them. Initially, the trial court ruled that the rules are relevant to the issues of comparative negligence and denied plaintiffs' motion. The following day, however, the trial court reconsidered. The court drew a distinction between internal company safety rules and a safety-related law or regulation. Citing Jones v. Mitchell Bros., 266 Or 513, 511 P2d 347 (1973), and Jones v. Montgomery Ward, 49 Or App 231, 619 P2d 907 (1980), the court held that the former are not relevant, while the latter are. Accordingly, the trial court decided to allow plaintiffs' motion to exclude evidence of UPS safety rules.
At trial, Ford offered the testimony of Isfeld, a UPS driver trainer with 27 years of experience in the package delivery business. When Ford asked him about the standards that he uses
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