Summary of a Recent
Judicial Development in
Ag Torts

Defective Combine Not Unreasonably Dangerous

Randal Busby
National AgLaw Center Research Assistant

A farmer brought a product liability action against the manufacturer of a combine that the farmer used to harvest grain, alleging that the combine experienced a malfunctioning defect when it failed to properly separate, collect, and store seed after cutting it from the stalks. Russell v. Deere & Co., 61 P.3d 955 (Or. Ct. App. 2003). After the trial court granted summary judgment in favor of the manufacturer, the farmer appealed to the Oregon Court of Appeals. See id. The Oregon Court Appeals held that the allegedly defective was not unreasonably dangerous to persons or property, as is required to maintain a product liability claim under Oregon law. See id. at 959-60.

Plaintiff, Michael Russell, purchased a combine for use in his farming business, manufactured by defendant, Deere & Company ("Deere"), from a local dealer. See id. In 1997, Russell used the combine to harvest grain for ten farmers. See id. He later discovered "that the combine had left a substantial amount of grain on the ground after cutting it from the stalks" on each of the ten farms on which he had worked. Id. He paid each farmer for the losses they allegedly suffered, which totaled $106,255.93. See id.

Russell filed a "'complaint for indemnity' based on a product liability theory, alleging that the combine 'experienced a manufacturing defect in that it failed to properly separate, collect and store seed from the stalks of the rye, wheat, barley and oat grain straw." Id. Deere moved for summary judgment asserting, inter alia, that the alleged defect did not make the combine "unreasonably dangerous," as required for recovery under Or. Rev. Stat. § 30.920. See id. The trial court found that the damage alleged did not establish that the product was unreasonably dangerous to persons or to property and granted Deere's motion for summary judgment. See id. Russell appealed the trial court's decision to the Oregon Court of Appeals. See id.

On appeal, Russell argued that the defect in the combine rendered it unreasonably dangerous because it "'destroyed a significant amount of the very product it [was] designed to harvest.'" Id. He also asserted that the determination of whether a defect in a product was unreasonably dangerous was for the jury and that the trial court improperly decided the issue by granting summary judgment. See id. Deere did not dispute that the combine was defective or that the dealer sold the combine to Russell. See id. It contended, however, that the loss "was purely economic in nature and that, as a matter of law, a jury could not find on the basis of such 'damage' that the defect in the combine rendered it unreasonably dangerous." Id.

The court explained that the elements for recovery in a product liability action under Oregon law are set forth in Or. Rev. Stat. § 30.920. Section 30.920 provides that

(1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer is subject to liability for physical harm or damage to property caused by that condition . . . (3) It is the intent of the legislative Assembly that the rule stated in subsection[ ](1) . . . of this section shall be construed in accordance with the Restatement (Second) of Torts § 402A, Comments a to m (1965).

Id. at 957-58 (quoting Or Rev. Stat. § 30.920).

The court explained that for a plaintiff to recover on a product liability theory under § 30.920, it "must establish not only that the product was defective but also that the defect was of a type that rendered the product unreasonably dangerous to persons or property." Id. at 958. "A defective product presents an unreasonable danger," the court explained, "when it 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.'" Id. The court further explained that "[t]o be unreasonably dangerous, a defective product need not be 'man-endangering'; it is sufficient that the defective product poses an unreasonable danger to property." Id. (citations omitted). It added that "a defective product that merely causes property to decrease in value or subjects the user to economic loss is not unreasonably dangerous." Id. (citation omitted). The court finally explained that "a plaintiff may not rely on the bare assertion of a defect from which a jury may infer unreasonable dangerousness; rather, a party must affirmatively put forth some evidence on the issue of dangerousness before the issue may properly be submitted to a jury." Id. (citing Or. Rev. Stat. § 30.910).

The court stated that although neither § 30.920 nor Restatement § 402A establish what is required to demonstrate that a product is unreasonably dangerous, the Oregon Supreme Court's decision in Brown v. Western Farmers Assoc., 521 P.3d 537 (1974) "provides significant guidance relevant to the particular facts of this case." Id. See also Gladhart v. Oregon Vineyard Supply Co., 994 P.3d 134 (1999), rev'd on other grounds, 26 P.3d 817 (2001). In Brown, several plaintiffs sued a seller of chicken feed under a product liability theory after they purchased feed that caused the chickens' eggs to taste bad, thereby causing the chickens to become valueless. See id. (citation omitted). There, the plaintiffs' claim was rejected because "their complaint lacked an adequate allegation that the defective feed was unreasonably dangerous, as opposed to merely defective." Id. The court in Brown explained that

"We believe that the term 'unreasonably dangerous,' as used in [Restatment] Section 402A as the basis for the imposition of strict liability, without proof of negligence, was not intended to be so 'watered down' as to extend to any defect which in any way may decrease the value of property[.]"

Id. at 959 (citation omitted).

The court explained that under Oregon law, "mere economic loss unaccompanied by physical injury to property will not suffice for a product liability claim but physical destruction of, or perhaps other significant physical injury to, the property will." See id. It stated that

[h]ere, plaintiff alleged and presented evidence only of economic loss. The defect in the combine kept it from performing the function for which plaintiff had purchased it: harvesting grain. Plaintiff alleged that the combine failed to "properly separate, collect and store" the grain after cutting it from the stalks, thus reducing the amount of grain harvested by leaving a substantial amount of the crop lying in the field . . . . In short, the defect in the combine may have made it commercially impractical for plaintiff to collect the grain off the ground. But that fact at most reduced the economic value of the grain crop, which is a type of "damage" that, as a matter of law, does not equate with unreasonable dangerousness. Viewed in the light most favorable to the plaintiff, the summary judgment record establishes only economic losses identical in nature to those suffered by the egg farmers in Brown-that is, economic losses unaccompanied by physical injury to plaintiff's property.

Id.

The court concluded that because Russell failed to establish that the defective combine "physically injured or destroyed other property, a jury could not find the defect to be unreasonably dangerous. The trial court therefore did not err in granting summary judgment to defendant." Id. at 959-60.

The case was decided on January 29, 2003; this summary was posted November 20, 2003