Austria v. Bike Athletic Co.5/1/1991
COURT OF APPEALS OF OREGON
CA No. A63376
1991.OR.41367 ; 107 Or. App. 57; 810 P.2d 1312
Decided: May 1, 1991.
JOHN AUSTRIA, AS GUARDIAN AD LITEM FOR RICHARD AUSTRIA, A MINOR, AND JOHN AUSTRIA AND PERLA AUSTRIA, RESPONDENTS,
v.
BIKE ATHLETIC CO., COLGATE-PALMOLIVE CO. AND KENDALL RESEARCH CENTER, APPELLANTS, AND RENATO PIZARRO, M.D., DEFENDANT
Appeal from Circuit Court, Multnomah County. Richard L. Unis, Judge. No. A8707-04478.
James N. Westwood, Portland, argued the cause for appellants. With him on the briefs were Thomas M. Christ, Miller, Nash, Wiener, Hager & Carlsen and Mitchell, Lang & Smith, Portland.
W. Eugene Hallman, Pendleton, argued the cause for respondents. With him on the brief were Mautz Hallman, Pendleton, and James M. Pippin, Mark R. Bocci and Pippin & Bocci, Portland.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Deits
Richard Austria was severely injured by a blow to the head during football practice. Through his guardian ad litem, he sued the designer and manufacturer of the football helmet that he was wearing, alleging that its defective design was the cause of his injury. The jury returned a verdict for plaintiffs and defendants appeal, arguing, primarily, that the trial court erred in denying their motions for directed verdict, because there was insufficient evidence of causation. We affirm.
In September, 1985, Richard Austria was a sixteen year old high school junior. He was injured during football practice when the knee of another player forcefully struck the front of his helmet. Although he was dazed by the collision, he walked off the field on his own and seemed to suffer few ill effects. Approximately two weeks later, however, he experienced severe headaches. On October 1, he collapsed during football practice. A CT scan indicated that Richard had a subdural hematoma. Surgery was performed to relieve that condition but, as a result of his injuries, he is severely impaired physically and, to a lesser degree, mentally. The primary issue is whether there was evidence from which the jury could conclude that his injuries were caused by defects in the football helmet.
We view the evidence in a light most favorable to plaintiffs. James v. Carnation Co., 278 Or 65, 67, 562 P2d 1192 (1977). We can set aside the verdict only if we can affirmatively say that there is no evidence from which the jury could have found the facts necessary to establish an element of plaintiffs' cause of action. Or Const, Art VII (amended), ยง 3; Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984). Defendants' motion claimed that several facts were not proved and were necessary to establish causation: (1) the amount of force received by Richard as a result of the blow; (2) the amount of force that he would have received had he been wearing a helmet of alternative design; and
(3) the amount of force required to cause the type of head injury that he suffered.
We do not agree with defendants' premise that that particular evidence is necessary to prove causation. They point to no authority to support their argument that there must be direct evidence of each or any of those factors in order to prove causation in a case such as this. There is no reason why the sufficiency of an impact to do damage, or the insufficiency of a prod
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