Powell v. Adlerhorst International, Inc., et al

Filing 138

CIVIL MINUTE ORDER: This matter comes before the Court on Defendant's Motion for Judgment on the Pleadings 118 . The Court DENIES Defendant's Motion. See order for full text. Ordered by Judge Michael W. Mosman. (dls)

products (e.g., guns, cigarettes, cleaning products) would be unreasonable under the circumstances. As such,
failing to warn of Azi’s aggression, protectiveness, and disobedience could support a finding of negligence even
if these characteristics did not make Azi unreasonably dangerous.
Finally, the fact that Plaintiff is an employee of Azi’s purchaser (Sherwood) does not preclude him from
advancing his negligence theory on Defendant’s failure to warn. Since the duty of care in negligence does not
arise out of contract, the duty is owed “not only to the purchaser but to any person foreseeably using or affected
by the product.” Am. L. Prod. Liab. 3d § 10:8. This may include members of the purchaser’s family, persons
who borrow the product from the purchaser, and employees of the purchaser. Id. Even though there is some
disagreement over to whom exactly the duty runs, the Ninth Circuit has concluded that in most cases, “the jury
should determine the reasonableness and adequacy of the warnings provided under the unique circumstances of
each case.” Bryant v. Tech. Research Co., 654 F.2d 1337, 1348 (9th Cir. 1981). This conclusion is consistent
with Oregon law as well. See Anderson v. Klix Chem. Co., 472 P.2d 806, 813 (Or. 1970) (concluding that
whether a manufacturer’s duty to warn ran to a hotel maid who used the product was a question of fact)
(disapproved on other grounds by Phillips v. Kirmwood Mach. Co., 525 P.2d 1033 (Or. 1974)). Thus, in this
case, whether Defendant’s failure to warn or inadequate warning renders it liable to Plaintiff, an employee of the
direct purchaser, is a question of fact for the jury.
“[C]ollateral estoppel is inappropriate [when] there is any doubt as to whether an issue was actually litigated in a
prior proceeding.” Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 912 (9th Cir. 1997) (emphasis
added). Accordingly, the Court DENIES Defendant’s Motion for Judgment on the Pleadings [118], with the
caveat that Plaintiff may pursue his negligence claim on a theory of Defendant’s failure to warn only.

Civil Minutes
Revised 3/15/96

Honorable Michael W. Mosman