OTLA Trial Lawyer Summer 2021

49 Trial Lawyer • Summer 2021 motion for partial summary judgment and granted summary judgment for the defendant. The trial court concluded although the plaintiff ’s ORCP 47 E af- fidavit was sufficient to controvert the elements of negligence and causation, both claims were barred by apparent authority immunity. The Court of Appeals reversed. First, the court held that apparent authority immunity did not apply to the plaintiff ’s claims because there was no evidence the troopers or the Oregon State Police actu- ally relied on the laws in question when they engaged in the allegedly negligent or trespassory conduct. Second, the court held the trial court did not err in giving effect to plaintiff ’s ORCP 47 E affidavit, and, in any case, there was sufficient evidence in the record to create an issue of fact as to whether the allegedly negli- gent conduct caused Box’s death. Third, the court held the troopers trespassed as a matter of law when they entered areas of the Box property where they lacked privilege or consent to do so. The court therefore concluded the trial court erred in denying the plaintiff ’s motion for partial summary judgment. In a product liability case, trial court erred by failing to more precisely in- struct jury that consideration of risk/ utility or alternative design evidence was limited to proving consumer expecta- tions theory of liability. Purdy v. Deere and Company , 311 Or App 244 (2021), Armstrong, J. Kathryn Clarke and Lisa T. Hunt represented the plaintiff. This is the second appeal of a jury’s verdict following a second trial of the plaintiff ’s claims arising from the ampu- tation injuries suffered by then two-year old Isabelle Norton when her father, defendant Norton, did not see and backed over her with his Deere riding lawn mower. In the first trial against defendant Deere, the jury issued a de- fense verdict on the plaintiff ’s claims of negligence and strict product liability that the Court of Appeals initially af- firmed. After the Supreme Court reversed the decision, the Court of Appeals, on remand, concluded four erroneous jury instructions required reversal of the judg- ment and remand for a new trial. On remand, the plaintiff tried the case alleging only a strict product liability claim against Deere and newly alleging a negligence claim against defendant Nor- ton. The second trial concluded with a plaintiff ’s verdict in the amount of $12.25 million in damages, and the jury finding Deere was 78% at fault Deere appealed the judgment. The Court of Appeals again ruled in favor of Deere when it reversed the judgment on a “dis- positive finding” of instructional error. Consistent with the appellate court’s decision on remand, the plaintiff origi- nally requested the following instructions pertaining to the product liability claim against Deere: A product is unreasonably danger- ous when it is dangerous to an ex- tent beyond that which would be contemplated by the ordinary consumer who purchases the prod- uct with the ordinary knowledge common to the community as to its characteristics. (UCJI 48.03) When determining whether a prod- uct is dangerous to an extent be- yond that which would be contem- plated by the ordinary consumer, you may consider evidence that the risks outweigh the utility. When determining whether risks outweigh utility, you may consider evidence that a safer design alternative was both practicable and feasible. ( Mc- Cathern v. Toyota Motor Corp. , 332 Or 59, 77-79, 23 P3d 320 (2001)) After considering the parties’ compet- ing arguments and proposed jury instruc- tions, the trial court’s finalized product liability instruction to the jury referred more specifically to the product at issue — Deere’s Model L120D riding mower See Sheets 50