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Benjamin v. Wal-Mart Stores12/26/2002
ow you can get killed from it." Plaintiff also presented evidence of a model warning for portable radiant heaters, which included the statement "CARBON MONOXIDE CAN KILL YOU," a red triangle containing a skull and crossbones and the chemical symbol "CO," and the statement, "Using a portable gas camping heater inside a tent * * * or other enclosed area can produce deadly Carbon Monoxide," as well as information on the symptoms of carbon monoxide poisoning. Kvalseth testified that "you see something like that of course, and you will think twice about what it involves. * * * I'm not going to go ahead, you know, unless I find out more, when I read the rest of it, when I see something like that. * * * o you look at that and you realize, there's poison involved here."
He also opined that, " f a user isn't familiar with the product, and if you have a well-designed warning, it's much more likely he's going to read it * * *." Finally, Kvalseth testified that " arnings can and do change people's behavior, if they are done properly." Considering all of the above evidence and testimony, there was ample evidence from which the jury could have found that the inadequate warning on the Focus 15 heater was a substantial factor in causing Schoggins's death.
The fact that Schoggins "ignored" Anaya's "warning" is of no moment. Anaya testified that he did not know whether the heater caused his children's convulsions and that he told Schoggins "don't die in my tent" as a joke, not as an actual warning, and that Schoggins "chuckled" in reply. Anaya said that, if he actually had had concerns about the safety of the heater, he would not have let Schoggins use it. Certainly, the jury was entitled to believe Anaya's testimony that he intended, and Schoggins took, the "warning" as a joke.
Nor is it significant that the evidence does not show that Schoggins actually read the warning on the heater. There was evidence that one of the ways in which the warning was defective was that its design was insufficient to draw a user's attention to the warning, such a by a brighter color or larger typeface. The jury could infer from that testimony, as well, that Schoggins likely would have noticed, read, and heeded a differently designed warning.
The trial court did not err in denying Coleman's motion for directed verdict on plaintiff's failure to warn allegation.
2. Product liability claim: Defective design
We turn to whether there was evidence from which the jury could have found that the Focus 15 was defectively designed. In McCathern, the Supreme Court explained that, in enacting ORS 30.920, the legislature intended to adopt the "consumer expectations" test of liability for a product's defective design and that, in order to prove liability under that test, the plaintiff must prove (1) that, at the time it leaves the seller's hands, the product is in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him or her; and (2) that the product is 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. 332 Or at 75-77 (citing Restatement at ยง 402A, comments g (defining "defective"), i (defining "unreasonably dangerous")). As the court explained,
" hether a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer is a factual question to be determined by the jury. It is the trial court's role, however, to ensure that the evidence is sufficient for the jury to make an informed decision about what ordinary consumers expect." McCathern, 332 Or at 77 (citation omitt
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