FILED: May 20, 1999
KARI L. HAGAN, Personal
Representative for the
Estate of Kenneth S.
Hagan, Deceased,
Respondent on Review,
v.
GEMSTATE MANUFACTURING,
INC., an Idaho corporation,
Petitioner on Review,
and
NORTHWEST TRUCK SALES,
INC., an Oregon Corporation;
and JOHN L. JERSEY & SON, INC.,
an Oregon corporation,
Defendants.
On review from the Court of Appeals.*
Argued and submitted September 9, 1998.
Barbara L. Johnston, of Brisbee & Stockton, Hillsboro, argued the cause for petitioner on review. With her on the briefs was Larry A. Brisbee.
W. Eugene Hallman, Pendleton, argued the cause for respondent on review. With him on the briefs were James E. McCandlish, of Griffin, McCandlish, Portland, and William A. Gaylord of Gaylord & Eyerman, P.C.
Kathryn H. Clarke, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.
Julie K. Bolt, of Martin, Bischoff, Templeton, Langslet & Hoffman LLP, Portland, filed a brief for amicus curiae Oregon Association of Defense Counsel. With her on the brief was Jonathan M. Hoffman.
Thomas W. Brown, of Cosgrave, Vergeer & Kester LLP, Portland, filed a brief for amicus curiae Truck Trailer Manufacturers Association.
Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, Kulongoski, and Leeson, Justices.**
LEESON, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
*Appeal from Multnomah County Circuit Court,
Marshall Amiton, Judge.
148 Or App 192, 939 P2d 141 (1997).
**Riggs, J., did not participate in the consideration or decision of this case.
LEESON, J.
Plaintiff, the personal representative of the estate of
the decedent, Kenneth S. Hagan (Hagan), brought this damages
action against defendant Gemstate Manufacturing, Inc. (defendant)
alleging common-law negligence and products liability.(1) The
action followed Hagan's death in a collision with the rear-end of
a tiltbed trailer that defendant had manufactured. A jury found
defendant not liable. The Court of Appeals reversed and remanded
to the trial court. Hagan v. Gemstate Manufacturing, Inc., 148
Or App 192, 939 P2d 141 (1997). We allowed review and affirm the
decision of the Court of Appeals.
The parties agree on the following facts:
"On November 29, 1991, Kenneth Hagan was driving his
Ford Escort down N.E. Sandy Blvd. in Portland, when he
rear-ended a trailer being operated by John L. Jersey &
Son and manufactured by Gemstate Manufacturing. The
rear of the trailer is equipped with a 'double bevel'
coming to a point. * * *
"Kenneth Hagan's vehicle underrode the trailer,
causing the v-shaped point of the rear of the trailer
to penetrate through the occupant space of the car and
kill the driver.
"The trailer in question had a configuration of 35
inches from the rear-most portion of the trailer to the
ground. The rear of the trailer slanted downward until
it reached 30 inches from the ground within 24 inches
from the extreme rear of the trailer.
"The trailer did not have any underride devices."
(Internal citations omitted.)
At trial, plaintiff moved for a "Partial Directed
Verdict," arguing that, as a matter of law, the tiltbed trailer
that defendant designed and manufactured did not comply with 49
CFR section 393.86,(2) a federal safety regulation that applies to
the owner and operator of the trailer but not to the
manufacturer.(3) Alternatively, plaintiff requested three "Special
Requested Jury Instructions" about the requirements of 49 CFR
section 393.86. Defendant argued that plaintiff was not entitled
to a partial directed verdict or to her requested jury
instructions.
The trial court denied plaintiff's motion for a partial
directed verdict. It reasoned that the jury was required to
decide, as a matter of fact, whether the trailer complied with 49
CFR section 393.86. The trial court also declined to give
plaintiff's requested jury instructions or otherwise to instruct
the jury about the meaning of the regulation. Rather, the court
read the text of 49 CFR section 393.86 to the jury and instructed
it that, "in determining whether or not the trailer was defective
in design, you may consider whether there was compliance with
this regulation." As noted, the jury found defendant not liable.
On appeal, plaintiff assigned error to the trial
court's denial of her motion for a partial directed verdict and
to its refusal to give three of the jury instructions that she
had requested. Plaintiff argued that interpreting the regulation
was a question of law for the court. Defendant responded that
the trial court properly refused to give plaintiff's requested
jury instructions or to make other legal rulings based on the
meaning of 49 CFR section 393.86 because, as applicable to this
case, the regulation is merely evidence of the standard of care,
not law. Alternatively, and assuming that the meaning of the
regulation is a matter about which the court should have
instructed the jury, defendant argued that its trailer complied
with the regulation and that plaintiff's interpretation of the
regulation, reflected in her proposed jury instructions, was
incorrect.
The Court of Appeals held that the trial court did not
err in denying plaintiff's motion for a partial directed verdict.
It reasoned that, in this case, "[d]efendant's noncompliance with
the [regulation] is evidence that the jury may consider on both
claims, but it does not conclusively resolve either claim or the
question of liability under either claim as a matter of law."
Hagan, 148 Or App at 207. However, the Court of Appeals also
held that the trial court erred in failing to instruct the jury
on the meaning of 49 CFR section 393.86 and that all three of
plaintiff's requested jury instructions accurately stated the
law. Id. at 206. The Court of Appeals held that the error
prejudiced plaintiff because the jury was not instructed
according to her theory of the case. Id. Consequently, it
reversed and remanded. Id. at 207.
Resolving plaintiff's appeal required the Court of
Appeals to determine whether, in this case, 49 CFR section 393.86
is evidence, law, or both. It held that the regulation is both
evidence that has a bearing on the factfinding process and a
provision of law. Id. at 205. As evidence, the regulation is
admissible for the jury to consider in determining whether
defendant met the standard of care in designing and manufacturing
the trailer. As law, the regulation is subject to instruction
from the court regarding its meaning. Id.
The Court of Appeals stated that its holding that, in
this case, 49 CFR section 393.86 is both evidence and law is
consistent with this court's decision in Hansen v. Abrasive
Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993).
However, the court questioned whether Hansen is consistent with
an earlier decision of this court, Shahtout v. Emco Garbage Co.,
298 Or 598, 695 P2d 897 (1985). Hagan, 148 Or App at 205-06.
According to the Court of Appeals, Shahtout held that safety
rules are to be regarded only as rules of law, but Hansen held
that safety rules also "could have an evidentiary dimension and
an evidentiary use." Id. at 206. The court also questioned
whether the two cases are consistent regarding a judge's
responsibility to instruct the jury about the meaning of a safety
rule or regulation. Id. We allowed review to determine whether
there is a conflict between Shahtout and Hansen and, if there is,
to resolve it. We turn to an analysis of those two cases.
Shahtout was a negligence action. The plaintiff, a
passerby, was struck by the defendant's truck as the truck backed
up. The plaintiff sought damages, claiming that the defendant's
violation of OAR 437-56-095(2), a safety rule requiring trucks to
have an alarm device to signal when the truck was to be backed,
was negligence per se. Alternatively, the plaintiff argued that
the rule was relevant to the jury's determination of whether the
defendant had met the applicable standard of care.
The Workers' Compensation Department had promulgated
OAR 437-56-095(2) under the Oregon Safe Employment Act, ORS
chapter 654. The rule was intended to assure safe and healthful
working conditions for employees. Because the plaintiff was not
the defendant's employee, this court rejected her negligence per
se claim. As a nonemployee, the plaintiff in Shahtout was not
within the class of persons that OAR 437-56-095(2) sought to
protect. Consequently, although she suffered the type of injury
that the rule was enacted to prevent and the rule governed the
defendant's conduct toward its employees, the defendant's
violation of the rule did not necessarily establish that the
defendant had acted negligently toward the plaintiff.
The next question in Shahtout was whether OAR 437-56-095(2)
nonetheless was relevant to the jury's determination
whether the defendant had met the applicable standard of care.
The court held that
"[i]n order to decide whether a safety rule should be
considered by a factfinder, * * * a trial court must
first determine its purpose and the nature and
circumstances of the risk to which the rule is
addressed, particularly whether the department [that
adopted the rule] contemplated a risk peculiar in
nature or gravity to an employee's position in the
workplace or a risk shared with nonemployees. If those
matters are disputed, it may be necessary to examine
the background of the department's adoption of the
rule. [Those matters] are not, however, a question of
fact on which to take evidence. Id. at 605 (emphasis
added).
Shahtout thus holds that a jury may consider a relevant safety
rule in determining whether a defendant met the applicable
standard of care, and the court's opinion provides a framework
for determining whether a rule is relevant in a particular case.(4)
Hansen was a products liability action. The plaintiff
sought damages from the defendant for injuries he sustained while
cleaning a sanding machine that the defendant had designed and
manufactured. The plaintiff contended that his injuries were
caused by the defendant's negligence in failing to incorporate
machine safety features in the sanding machine consistent with
safety rules promulgated under the Oregon Occupational Safety and
Health Code (OOSHC) and the federal Occupational Safety Health
Act (OSHA) and advisory standards promulgated by the American
National Standards Institute (ANSI). Although the OOSHC and OSHA
rules and the ANSI advisory standards did not regulate the
defendant's conduct as the designer and manufacturer of the
sanding machine, those rules and standards were intended to
protect the plaintiff from the type of injury that he suffered.
The Hansen court held that, although the ANSI advisory
standards and the OOSHC and OSHA rules were not binding on the
defendant, they were benchmarks for what was considered
reasonable conduct in the defendant's industry. Consequently,
they provided "some relevant information for consideration by the
jury about whether the defendant met the standard of care due and
[were], therefore, admissible as evidence." Hansen, 317 Or at
387.
Shahtout and Hansen are not inconsistent. Both cases
hold that relevant safety rules may be introduced as evidence at
trial for the jury's consideration of whether a defendant met the
applicable standard of care. Shahtout, 298 Or at 605; Hansen,
317 Or at 387. In deciding whether a rule is relevant, the trial
court must examine the purpose, nature, and circumstances of the
risk to which the rule is addressed.(5)
Shahtout, 298 Or at 605.
Although relevant safety rules are admissible, their function is
not to help establish, as a matter of fact, what happened. Id.
Rather, as explained above, relevant safety rules are admissible
to provide some information about whether the defendant met the
applicable standard of care. Hansen, 317 Or at 387. Although
admissible for that purpose, government safety rules nonetheless
are laws. Shahtout, 298 Or at 604. The meaning of a law is a
matter for the court to decide and communicate to the jury. Cf.
James v. Carnation Co., 278 Or 65, 72, 562 P2d 1192 (1977)
(questions of statutory interpretation are decided by the court
as a matter of law).
Read together, Shahtout and Hansen support the Court of
Appeals' holding that, in this case, 49 CFR section 393.86 is
both evidence and law. Although the regulation does not help to
show what happened when Hagan's car struck the rear of the
trailer, it is evidence that the jury properly could have
considered in determining whether defendant met the standard of
care in designing and manufacturing the trailer. The regulation
also is law, and it is the responsibility of the court to
instruct on the law. The trial court's failure to instruct the
jury on the meaning of 49 CFR section 393.86 was error.
Shahtout and Hansen also support the Court of Appeals'
holding that plaintiff was not entitled to a partial directed
verdict on the ground that defendant failed to comply with the
regulation. That is so because, even if defendant's trailer
unquestionably had failed to comply with the requirements of 49
CFR section 393.86, that lack of compliance only would be
evidence that the jury could consider in determining whether
defendant met the standard of care in manufacturing the trailer.
As this court explained in NW Pac. Indem. v. Junction City Water
Dist., 296 Or 365, 372 n 1, 677 P2d 671 (1984):
"A motion for a directed verdict is a request to
the court to rule as a matter of law that the movant is
entitled to have the jury return a verdict in specified
form. A motion for a directed verdict is not the
proper vehicle for asking the trial court to decide as
a matter of law that the movant is entitled to prevail
on less than all of the elements of a claim. Rather,
the claimant should proceed by proper request for a
suitable peremptory instruction to the jury on each of
the elements on which the claimant believes it is
entitled to prevail as a matter of law."
Here, defendant's asserted lack of compliance with 49 CFR section
393.86 would not have entitled plaintiff to prevail on either of
her claims or even any element of those claims. The Court of
Appeals correctly held that plaintiff would have been entitled to
a peremptory jury instruction, not to a partial directed verdict.
However, our holding that the trial court should have instructed
the jury on the meaning of the regulation does not end the
matter. The next inquiry is whether the trial court erred in
refusing to give plaintiff's requested jury instructions.
A party in a civil action is entitled to jury
instructions on its theory of the case only if its requested
instructions state the law accurately. Hernandez v. Barbo
Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998). An error in
refusing to give requested jury instructions requires reversal
only if the requested instructions "clearly, concisely, and
accurately stated the law in question." Severy v. Myrmo, 186 Or
611, 614-15, 207 P2d 151 (1949); see also Hoagland v. Solie, 247
Or 38, 41, 427 P2d 109 (1967) (same). To determine whether
plaintiff's requested jury instructions accurately would have
informed the jury about the meaning of 49 CFR section 393.86, we
must interpret the rule.
49 CFR section 393.86, a provision of the Federal Motor
Carrier Safety Regulations, provides:
"Every motor vehicle, except truck-tractors, pole
trailers, and vehicles engaged in driveaway-towaway
operations, the date of manufacture of which is
subsequent to December 31, 1952, which is so
constructed that the body or the chassis assembly if
without a body has a clearance at the rear end of more
than 30 inches from the ground when empty, shall be
provided with bumpers or devices serving similar
purposes which shall be so constructed and located
that:
"(a) The clearance between the effective bottom
of the bumpers or devices and the ground shall not
exceed 30 inches with the vehicle empty;
"(b) The maximum distance between the closest
points between bumpers, or devices, if more than one is
used, shall not exceed 24 inches;
"(c) The maximum transverse distance from the widest
part of the motor vehicle at the rear to the bumper or
device shall not exceed 18 inches;
"(d) The bumpers or devices shall be located not
more than 24 inches forward of the extreme rear of the
vehicle; and
"(e) The bumpers or devices shall be
substantially constructed and firmly attached. Motor
vehicles constructed and maintained so that the body,
chassis, or other parts of the vehicle afford the rear
end protection contemplated shall be deemed to be in
compliance with this section." (Emphasis added.)
When this court construes a federal statute or
regulation, we follow the methodology prescribed by federal
courts. See Northwest Airlines, Inc. v. Dept. of Rev., 325 Or
530, 538, 943 P2d 175 (1997) (following federal methodology in
construing federal statute). In construing regulations, a
federal court looks first to the plain meaning of the wording of
the regulation. United States v. Heller, 726 F2d 756, 762
(Temporary Emergency Court of Appeals 1983). If the wording is
ambiguous, the court examines administrative interpretation of
the regulation. Id. In the absence of administrative
interpretation, the court considers such factors as the overall
purpose of the governing statute, the overall purpose of the
regulation, the history of the regulation, and the practical
consequences of suggested interpretations to determine the intent
of the enacting body. Id.
49 CFR section 393.86 provides that, if a subject
vehicle has a clearance at the rear end of more than 30 inches
from the ground when empty, it shall be provided with bumpers or
devices that serve similar purposes, unless the vehicle has been
constructed and maintained so that the body, chassis, or other
parts of the vehicle afford the "rear end protection
contemplated" by the regulation. The regulation describes where
bumpers or other devices shall be located, 49 CFR § 393.86(a) to
(d), and requires that they be "substantially constructed and
firmly attached." 49 CFR § 393.86(e).
The interpretive issue in this case is the meaning of
the phrase "rear end protection contemplated" in the last
sentence of the regulation. According to defendant, the phrase
refers to the dimensional requirements specified in 49 CFR
section 393.86(a) through (d). Under that interpretation, if the
body, chassis or any part of a vehicle slopes down to 30 inches
from the ground within 24 inches of the rear, the vehicle is
deemed to satisfy the regulation, regardless of whether the
vehicle has been equipped with bumpers or other devices.
Plaintiff argues that the phrase "rear end protection
contemplated" refers to bumpers or devices serving similar
purposes and that, unless a vehicle has been constructed and
maintained in a manner that provides the protection that such
bumpers or similar devices would provide, the vehicle fails to
comply with the regulation.
Although 49 CFR section 393.86 does not define the term
"bumper," the plain meaning of that word is "a device or
attachment * * * for absorbing shock and lessening or preventing
damage in collision or impact with another object." Webster's
Third New Int'l Dictionary, 296 (unabridged ed 1993). In
addition to identifying the vehicles that must be equipped with
bumpers or similar devices, the regulation prescribes a series of
dimensional requirements that those bumpers or devices must meet.
In light of the subject matter of the regulation, which is
bumpers or devices serving similar purposes, we hold that the
phrase "rear end protection contemplated" in the last sentence of
the regulation refers to bumpers or devices serving similar
purposes. Therefore, a vehicle that is more than 30 inches from
the ground at its extreme rear end complies with the regulation
only if it is equipped with bumpers or similar devices or if it
has been constructed or maintained to provide the protection that
would be afforded by bumpers or devices serving similar purposes,
namely, absorbing shock and lessening or preventing damage in a
collision or impact with another object.
Our holding that the phrase "rear end protection
contemplated" refers to bumpers or devices serving similar
purposes does not end the inquiry, because whether defendant's
trailer complied with the regulation depends on the kind of
damage that bumpers or similar devices are intended to prevent.
Plaintiff contends that the purpose of the regulation is to
prevent the damage caused by vehicle underride(6) and that a
vehicle that fails to prevent underride fails to comply with the
regulation. Defendant disagrees that the goal of the regulation
is to prevent underride. It argues that 49 CFR section 393.86
consists solely of a set of dimensional requirements and that its
trailer met those requirements. Defendant is correct that the
regulation consists solely of a set of dimensions and that it
does not state that its purpose is to prevent underride.
However, the regulation does contemplate that bumpers or similar
devices will provide some form of rear-end protection. Because
it is not clear from the words of the regulation what kind of
rear-end protection it seeks to prevent, we conclude that 49 CFR
section 393.86 is ambiguous.
Using the federal methodology for interpreting an
ambiguous regulation, the next step would be to examine
administrative interpretation of 49 CFR section 393.86. However,
there has been no administrative interpretation of the
regulation. Consequently, we turn to other factors. Plaintiff
argues that any ambiguity is resolved by reference to 49 CFR
section 178.345-1, which is a related regulation that applies to
cargo tank motor vehicles. 49 CFR section 178.345-1 defines
"rear bumper" as "the structure designed to prevent a vehicle or
object from under-riding the rear of a motor vehicle." According
to plaintiff, the reference following the definition of rear
bumper in 49 CFR section 178.345-1 -- "See § 393.86 of this
title" -- means that bumpers or other devices required by 49 CFR
section 393.86 must protect against or prevent vehicle underride.
Plaintiff's reliance on the definition of rear bumper
in 49 CFR section 178.345-1 is misplaced. As noted above, 49 CFR
section 393.86, which was adopted in 1952, does not define the
term "bumper." Neither does it incorporate the definition of
rear bumper contained in 49 CFR section 178.345-1. That is not
surprising, because 49 CFR section 178.345-1 was not added to 49
CFR section 178.345 until 1989, nearly 40 years later. 54 Fed
Reg 24,982, 25,020 (1989).
We turn to the history of 49 CFR section 393.86, which
is the factor that is most instructive in resolving the ambiguity
concerning the nature of the rear-end protection contemplated by
the regulation. According to plaintiff, the regulation was
adopted "to deal with the problem of rear underride."
Plaintiff's historical analysis consists solely of a statement by
the National Highway Traffic Safety Administration in 1981 that
the intent behind 49 CFR section 393.86 was "to help prevent
underride." 46 Fed Reg at 2,137. The history of the regulation,
however, is more complex than plaintiff indicates.
In 1946, W. Y. Blanning, Director of the Bureau of
Motor Carriers of the Interstate Commerce Commission
(Commission), proposed that the Commission adopt a rear-bumper
regulation in response to the problem of underride. According to
Blanning,
"A study of numerous accidents reveals that an unduly
high percentage of fatalities and serious injuries have
resulted from the failure of large trucks and trailers,
especially trailers, to be equipped with rear bumpers
or that they were equipped with inadequate bumpers.
The normal floor height of this type of equipment is
such that a passenger car would ordinarily go under the
floor and result in shearing off the top of the
vehicle." Letter from W. Y. Blanning, Director of the
Bureau of Motor Carriers, to Don Blanchard, Society of
Automotive Engineers, of January 2, 1947.
Blanning proposed that the Commission adopt a regulation
requiring every vehicle whose extreme rear end is 24 inches or
more from the ground when empty be equipped with "bumpers or
similar devices" that create an effective distance between the
bottom of the bumpers or devices and the ground of not more than
24 inches. Although Blanning was concerned about underride, he
realized that equipping trucks or trailers with bumpers might
affect the capacity of those vehicles to approach loading
platforms. He asked the Bumper Heights Committee of the Society
of Automotive Engineers to conduct research to determine whether
a bumper regulation should be adopted, giving consideration both
to the safety aspects of the proposal and to "the standardization
of rear bumper heights in relation to loading platform heights."
Id.
After conducting a series of studies, the Bumper
Heights Committee reported that it believed that a bumper
regulation "would be impractical and ineffective in materially
reducing the amount of serious damage to colliding passenger cars
or the number of fatalities to passengers." Society of
Automotive Engineers Technical Board Recommendations Covering
Rear Bumpers on Trucks and Trailers (1947). The committee also
believed that a bumper regulation would "only minimize the amount
of damage and injury sustained from minor accidents at low
speeds." Id. Nonetheless, it recommended that "if it is deemed
necessary by the Interstate Commerce Commission to impose
regulations of some description," a regulation should affect
vehicles having a rear-end clearance of 30 inches or more from
the ground, and the clearance between the effective bottom of the
bumpers or devices and the ground should not exceed 30 inches
when empty. Id. The committee's recommendation was based on a
variety of factors, ranging from underride protection for
passenger cars of the heights and lengths of such cars in the
late 1940s to "prevent[ing] interferences with curbing,
unevenness and other obstacles in roads and highways." Id. The
Commission adopted the committee's dimensional recommendations
when it promulgated 49 CFR section 393.86 in 1952. The
regulation never has been amended.
The history of 49 CFR section 393.86 reveals that,
although it was proposed because of the problem of underride, the
Bumper Heights Committee believed that the regulation would be
"impractical and ineffective" in materially reducing underride.
In addition, the committee recommended that the Commission take
into account factors other than underride in prescribing the
dimensional requirements for bumpers or similar devices. The
Commission acquiesced to the concerns of the trucking industry
when it adopted the 30-inch ground-clearance requirement rather
than a 24-inch ground-clearance requirement. Nonetheless, the
history of 49 CFR section 393.86 reveals that the regulation was
promulgated to provide some protection against underride.
(7) In
this case, it is uncontested that defendant's trailer was not
equipped with any bumpers or similar devices, and defendant put
on no evidence that the trailer was designed and manufactured to
provide the underride protection that would have been afforded by
bumpers or similar devices meeting the dimensional requirements
of the regulation.
As noted above, plaintiff requested three "Special
Requested Jury Instructions." According to the Court of Appeals,
the trial court's failure to give plaintiff's special requested
jury instruction No. 8 was "particularly material," because it
would have informed the jury that defendant's trailer failed to
comply with 49 CFR section 393.86. Hagan, 148 Or App at 206. We
turn to an examination of whether that instruction contains an
accurate statement of the requirements of the regulation.
Plaintiff's requested jury instruction No. 8 states:
"I have explained to you that the jury is the sole
judge of the facts. Interpreting the law and deciding
issues of law, on the other hand, is the court's
function. In carrying out my role to decide questions
of law, the Court has determined, and I so instruct
you, that the Gemstate trailer involved in this case
did not meet the applicable federal standard, in that
it was more than 30 inches from the ground at the end,
and it was not designed or manufactured with bumpers or
similar devices, and did not otherwise afford the
protection against vehicle underride contemplated by
the federal regulation." (Emphasis added.)
That instruction states that defendant's trailer did not meet the
applicable federal regulation because it was not designed or
manufactured with bumpers or similar devices and "did not
otherwise afford the protection against vehicle underride
contemplated by the federal regulation." That instruction is
consistent with our interpretation of 49 CFR section 393.86.
There is no evidence in this case that defendant's
trailer was designed and manufactured to provide the protection
against underride that is afforded by bumpers or similar devices
that create a 30-inch ground clearance within 24 inches of the
extreme rear end of the vehicle. The trial court erred in
failing to give plaintiff's special requested jury instruction
No. 8 to the jury, because defendant's failure to comply with 49
CFR section 393.86 is evidence that the jury was entitled to
consider in deciding whether defendant met the applicable
standard of care in designing and manufacturing the trailer. The
Court of Appeals correctly held that failure to give special
requested jury instruction No. 8 was prejudicial to plaintiff and
requires that the judgment be reversed. Because the failure to
give that instruction was reversible error, we do not address
whether plaintiff's other requested jury instructions also would
provide a basis for reversal.
For the foregoing reasons, we hold that 49 CFR section
393.86, a federal safety regulation, is evidence that the jury
may consider in determining whether defendant met the standard of
care in designing and manufacturing its tiltbed trailer. The
regulation also is law, and the court is required to instruct the
jury on the law. Because plaintiff's special requested jury
instruction No. 8 accurately states the requirements of 49 CFR
section 393.86, the trial court erred in failing to give that
instruction. We have considered defendant's other arguments and
reject them without discussion.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
1. Plaintiff also named Northwest Truck Sales, Inc., and
John L. Jersey & Son, Inc., as defendants. Judgments of
dismissal were entered for those defendants before trial. Our
review involves only defendant Gemstate Manufacturing, Inc.
Return to previous location.
2. The text of the relevant requested jury instruction is
set out below.
Return to previous location.
3. 49 CFR section 393.86 is set out in the text below.
Return to previous location.
4. Because OAR 437-56-095(2) permitted methods other than alarm signal devices to achieve its safety goal, the Shahtout court held that the rule might not be relevant under the circumstances presented there. Consequently, the court remanded the case to the trial court to allow the parties to present evidence of the relevance of the rule. Shahtout, 298 Or at 606.
Return to previous location.
5. In this case, the parties agreed at trial on the applicable standard of care and that 49 CFR section 393.86 is relevant to the jury's determination of whether defendant met that standard. As defendant concedes, the trailer is subject to the regulation, and "a trailer manufacturer will not be able to market a trailer that an owner or operator cannot use in compliance with [it]."
Return to previous location.
6. The term "underride" refers to the front of a car or other small vehicle sliding under the rear end of a truck or trailer after the car or other vehicle strikes the truck or trailer from the rear. 46 Fed Reg 2,136, 2,137 (1981). Underride occurs if the rear end of the struck vehicle is relatively high off the ground. Id.
Return to previous location.
7. According to the National Highway Safety Bureau, "a rear-end clearance as high as 24 inches above the ground exposes a significant proportion of the vehicle population to a serious underride hazard." 35 Fed Reg 12,956 (1970). The National Highway Traffic Safety Administration tentatively has concluded that, "for safety purposes, the vehicle standard should require that the distance between the ground and the lower edge of the guard must be at most 22 inches." 57 Fed Reg 252, 255 (1992); See also 49 CFR § 571.223 ("Rear Impact Guards"); 49 CFR § 571.224 ("Rear Impact Protection") 61 Fed Reg 2004 (1996) (49 CFR § 571.224 adopted to address "the problem of rear underride crashes").
Return to previous location.
![]() |
|

![]() |
Updated: 05/20/99 Web authoring by Print Services |