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Baccelleri v. Hyster Co. - 287 Or. 3, 597 P.2d 351 (1979)

Rule:

Comparative fault is applicable in strict liability in tort.

Facts:

Plaintiff worked as a checker on the docks in Portland. He was checking 30-foot-long bundles of angle iron, which had been unloaded from a ship and placed on the dock by the forklift operator. As he was kneeling down to check a bundle that was between 6 to 20 feet from the forklift a forklift operator had just deposited another bundle and was backing the forklift when he ran over the checker's legs. The checker filed a products liability action against the manufacturer of the forklift to recover damages for his injuries. Plaintiff contended that the forklift was unreasonably dangerous and defective because it lacked both visual and audible warning alarms to alert persons that the machine was backing up. Over the checker's objection, the trial court instructed the jury that assumption of risk was a complete defense. The jury returned a verdict for the manufacturer, and the checker sought review. 

Issue:

Can assumption of risk be used as a complete defense in a strict liability case?

Answer:

No.

Conclusion:

The court reversed and remanded the judgment of the trial court. The court held that, although comparative fault was applicable in strict liability cases, assumption of the risk as a complete bar in strict liability cases was abolished. Therefore, the trial court erred in instructing the jury on it. The court further held that the checker presented evidence through two experts, that the forklift without an audible warning, which would be activated when the forklift was placed in reverse gear, created an unreasonable risk of harm.

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