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McCathern v. Toyota Motor Corp.4/28/1999
r which follows, we necessarily consider the sufficiency of plaintiff's proof under both theories.
II. TOYOTA'S MOTIONS FOR DIRECTED VERDICT AND JNOV
Toyota's first assignment of error asserts that the trial court should have granted its motions for directed verdict and JNOV because plaintiff's proof was deficient in three respects: (1) Plaintiff's evidence of a "safer reasonable alternative design"--and particularly that the 1996 4Runner represented such an alternative--was insufficient. (2) Plaintiff's evidence was insufficient to permit a reasonable jury to conclude that the design of the 1994 4Runner was defective under Oregon's consumer expectation test. (3) Plaintiff's evidence of causation was insufficient.
In reviewing the trial court's denial of Toyota' s motions for directed verdict and JNOV, we consider the evidence in the light most favorable to plaintiff and must affirm unless we conclude that there is no evidence from which the jury could have found the facts necessary to support the verdict for plaintiff. Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984). We do not weigh the evidence: "The jury weighed the evidence, Judged the credibility of the witnesses and resolved all conflicts in the evidence." Id. at 705. If more than one inference could reasonably be drawn from the evidence, we assume the inference most favorable to the verdict. Id. A. Safer Practicable Alternative Design
Toyota argues that plaintiff failed to submit evidence from which a jury could find that there was a safer practicable alternative design. In Toyota's view, Wilson v. Piper Aircraft Corp., 282 Or 61, 577 P2d 1322 (1978), stands for the proposition that a trial court may submit a product design defect case to the jury only if the plaintiff submitted sufficient evidence of a feasible, practicable, safer alternative design. Id. at 67-68. Plaintiff responds that such proof is not required under Oregon's consumer expectation test. Plaintiff further contends that, in all events, she adduced sufficient proof of a safer practicable alternative design.
Each party is correct--to an extent. As discussed above, __ Or App at __ (slip op at 9), proof of a safer practicable alternative is immaterial to the "representational" formulation of the consumer expectation test. That formulation is concerned solely with the manufacturer's representations and consumers' consequent expectations; alternative designs, whether practicably available or not, are inapposite to that inquiry. Conversely, as explained more fully below, proof of a practicable safer alternative design is integral to the "consumer risk-utility" approach. Reasonable expectation under that formulation is, necessarily, defined by reference to, and circumscribed by, practicability.
The source of the "practicable alternative" analysis in Oregon is Wilson, a case decided under the "reasonable manufacturer" test. There, the plaintiffs, who contended that an aircraft crash was caused by engine failure resulting from carburetor icing, sued the manufacturer, asserting that the aircraft was dangerously defective because a reasonable manufacturer would have designed it with a fuel-injected engine that was not susceptible to engine icing. The jury returned a verdict for the plaintiffs, but the Supreme Court reversed, holding that the plaintiffs' evidence of a safer reasonable alternative design was insufficient. Wilson, 282 Or at 66-71. The court acknowledged that the plaintiffs had offered proof that a fuel-injected engine was both safer and technically feasible, but it emphasized that an alternative design is not reasonable unless it is also "practicable." Id. at 68. Thus, the court held, in deciding whet
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