OTLA Trial Lawyer Summer 2021

50 Trial Lawyer • Summer 2021 — and told the jury: The Model L120D was in a defec- tive condition if, when the Model L120D left Deere’s control, the model was in a condition that was unreasonably dangerous in a man- ner not contemplated by the ordi- nary consumer. 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. When assessing whether the Model L120D was unreasonably danger- ous, you are to determine from the evidence and your common knowl- edge what ordinary consumers actu- ally expect from a product such as a Model L120D. You may also consider whether the model’s risks outweigh its utility. When determin- ing whether risks outweigh utility, you may consider evidence that a safer design alternative was both practi- cable and feasible. Based solely on the phrasing of the last two sentences, and by failing to more specifically instruct the jury that risk/ utility and alternative design evidence may be considered when determining what a consumer expects, the Court of Appeals concluded the trial court erred. The Court of Appeals determined the instruction as phrased “drew the jury’s attention away from [the applicable consumer-expectations] test” and imper- missibly implied the jury may addition- ally consider a risk-utility theory of liabil- ity. The Court of Appeals agreed with Deere that instructing the jury that it may consider “evidence that a safer de- sign alternative was both practicable and feasible” was “an inappropriate comment on the evidence.” This was true even though that sentence was identical to the instruction approved by the court in its prior decision on remand. The court l as t ly conc luded the ins t ruct ion “provided the only direction to the jury on how to determine whether the mower was unreasonably dangerous” and could have prejudicially led the jury to determine dangerousness on the basis of risks outweighing utility. The court did not address the jury’s specific findings of the mower’s dangerousness in the verdict form when it concluded this instruc- tional error was “dispositive,” requiring reversal of the judgment and remand for a third trial. The court addressed other assign- ments of error asserted by Deere as issues likely to arise again on remand. The court first agreed with Deere that a jury in- struction on warnings modeled after Uniform Civil Jury Instruction 48.07 was incomplete. The court next agreed with Deere that, in a case in which there was no longer a negligence claim against Deere, Deere’s proposed instructions incorporating the negligence standards of the Restatement (Second) of Torts section 402A, should be given (discussing foreseeable dangers, the seller’s knowl- edge of those dangers, or what the seller reasonably knew or should have known about nonobvious risks of harm). The court further agreed with Deere that an instruction on the adequacy of a warning must define adequacy from the standpoint of a reasonably prudent per- son and not rely, as it did here, on the commonly understood meaning of the term “adequate.” The court lastly concluded the trial court properly instructed the jury that, in considering defendant Norton’s per- centage fault, the jury could not con- sider negligence attributable to Norton’s inadvertent, inattentive, or awkward failure to discover or guard against the alleged product defect. UIM insurer must pay plaintiff ’s at- torney fees after refusing to pay damage amounts awarded in arbitration; such refusal removes the insurer’s “safe har- bor” protections from incurring fee liability because it withdraws the requi- site consent “to submit the case to bind- ing arbitration” under ORS 742.061(3). Burns v. American Family Mut Ins Co., 310 Or App 431 (2021), DeHoog, P.J. Travis Eiva represented the plaintiff. In making attorney fee award, trial court did not abuse its discretion in awarding one-third of fees sought for travel time from Portland to Roseburg, where court believed counsel from Eugene could have been hired, but court erred in be- lieving it could not award “fees on fees” just because it sustained some objec- tions to fee petition. Anderson v. Sullivan , 311 Or App 406 (2021); Aoyagi, J. The tenant was repre- sented by Harry Ainsworth. Cody Hoesly specializes in appeals, finan- cial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-222- 4424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is an attorney at Sugerman Law Office, 707 SWWashington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermanlawoffice.com or 503- 228-6474. Sheets Continued from p 49