MEMORANDUM*

M. Lorraine Dupper appeals from a directed verdict in her products liability case against General Motors Corp. We affirm.

Dupper and her husband purchased a new 1981 GMC Caballero1 from a GMC dealer in December 1980. It was equipped with cruise-control, which became the focus of this case, and an automatic transmission. By September 20, 1983 the vehicle had been driven approximately 53,000 miles. On that date Dupper drove to a car wash in Lincoln City, Oregon. She parked next to some coin-operated vacuum machines, turned off the engine, and exited the vehicle.

Realizing that she had parked too close to the machines to open the passenger door, she "flopped over the edge of the seat and reached over to turn the key on." Dupper was not fully inside the vehicle; the door was open and her left foot was hanging below the door frame. She turned on the ignition and put the vehicle in gear, intending to roll forward far enough to allow the passenger door to clear the machines. The vehicle accelerated forward rapidly, leaving in excess of twenty feet of acceleration skids from both rear tires, entered the highway, and struck a semi-trailer.

Dupper brought a products liability suit against General Motors, alleging that a defect in the cruise control, coupled with her inadvertent actuation of the switch on the turn signal lever had caused the sudden acceleration and resulting accident. She claimed that a "safety switch" on the dashboard could have prevented the accident, and noted that other manufacturers provided switches on the dashboards of their vehicles, which made the cruise control less likely to be accidently activated. At the conclusion of the plaintiff's case General Motors moved for a directed verdict on the ground that the plaintiff had failed to prove as a matter of law that the cruise control unit in question was defective when it left the manufacturer, that its design was unreasonably dangerous, or that the accident was caused by the cruise control unit. The motion was granted, and Dupper appeals.

Under Oregon law, "[o]ne who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm or damage to property caused by that condition...." Or.Rev.Stat. Sec. 30.920. Subsection (3) states that this section "shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965)." The trial judge granted the defendant's motion for a directed verdict "for all the reasons stated in the defendant's memoranda, and the arguments and with reference specifically to Quirk v. Ross, " 257 Or. 80, 476 P.2d 559 (1970), for the reason that the plaintiff proved only that the design of the transducer in the cruise control allowed it to wear out with age, which was insufficient as a matter of law to establish a design defect.

The district court applied the wrong standard in granting defendant's motion for a directed verdict. When reviewing such a motion, "the judge must ask whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 251, 252 (1986). The district court failed to apply this standard in this case. It summarily granted defendant's motion for a directed verdict "for all the reasons stated in defendant's memoranda and arguments." This was a legally insufficient basis upon which to grant the motion.

The trial court's error, however, does not change the result in this case. We review the district court's grant of a directed verdict de novo. Othman v. Globe Indemnity Co., 759 F.2d 1458, 1463 (9th Cir.1985). After a review of the record, we find that a directed verdict can be sustained in this case.

The plaintiff in Quirk was injured when the car in which she was riding veered off the highway and struck a utility pole. She sued the manufacturer, alleging that the design of the rear axle was unreasonably dangerous because it caused the oil seals to wear out prematurely, which in turn resulted in brake failure. Quirk, 476 P.2d at 562. The Oregon Supreme Court granted the defendant's motion for an involuntary nonsuit, holding that evidence of a product's propensity to wear out is insufficient to allow an inference of a defective design, and "[t]he fact that other manufacturers make a longer lasting, better, and more efficient mechanism, standing alone, is not proof of defective design." Id.

Dupper urges the panel to distinguish the "reasonable seller test," which she claims was applied in Quirk, from the "consumer contemplation test," which she claims was applied in the later case of Ewen v. McLean Trucking Co., 300 Or. 24, 706 P.2d 929 (1985). In Ewen, a pedestrian who was struck by a truck brought a products liability suit against the manufacturer, alleging that the truck's design was unreasonably dangerous because it prevented the driver from seeing pedestrian traffic immediately in front of the vehicle. The Oregon Supreme Court held that Comment (i) of the Restatement required a jury instruction on the consumer contemplation test. Comment (i) provides: "The article sold must be 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."

Section 30.920 was enacted in 1979, prior to the Quirk decision, and it appears that no distinction was made between reasonable sellers and reasonable consumers until Ewen was decided in 1985. See Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033, 1036-37 (1974). General Motors argues that any distinction between sellers and consumers is immaterial because the evidence was insufficient to establish that the product's design was defective, and that as a threshold matter this must be determined before a jury can decide whether the defect was unreasonably dangerous. This argument is incorrect, but even under Ewen it appears that the appellant's evidence is insufficient. In Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806, 809 (1967), the Oregon Supreme Court stated:

Assuming that the other requirements of Restatement (Second) of Torts Sec. 402A have been met, the jury should be allowed to find the product defective when the record contains sufficient evidence of one or more of the following: (1) a dangerous defect in manufacture; (2) an unreasonably dangerous design; (3) circumstances in which, from common knowledge, the average user reasonably could have expected the product to perform safely.

This statement indicates that a product is defective if its design is unreasonably dangerous, and that the only "threshold" for the plaintiff to cross is in presenting sufficient evidence of a defective design.

Here, as in Quirk, the only evidence offered by the plaintiff was a theory that the product in question was likely to wear out with age and friction, and that this propensity to wear out could have caused the accident. The Quirk court concluded as a matter of law that evidence of a product's wear and subsequent failure is insufficient to establish a defect in design. Here the trial court correctly ruled that Dupper's evidence was insufficient to allow the jury to consider whether the product's design was unreasonably dangerous.

Under the third element of Heaton the jury should be allowed to determine whether a product is defective when sufficient evidence has been produced that the product failed under "circumstances in which, from common knowledge, the average user reasonably could have expected the product to perform safely." This seems to reflect the Ewen "consumer contemplation test" that Dupper urges the court to apply, but implicit in this element is adequate proof that the allegedly defective product caused the accident.

Dupper also asserts that the cruise control system was defective because it lacked an "ignition lock out" switch on the dashboard. Dupper argues that such a switch was a feasible alternative design to the allegedly defective, existing design. Such a system would require the driver of the car to turn the switch "on" in order to activate the cruise control. This performs the same function as the on/off switch on the turn control wand. However, the existence of this switch would not cure the alleged defect of the transducer wearing out. If the switch were left on, as the switch on the turn signal wand can be, the accident would have occurred in exactly the same claimed manner because of the worn out transducer. Therefore, Dupper's argument really suggests another safety feature for the unit, not a truly alternative design for the "defective" transducer.

Dupper also argues that the lack of the ignition control switch made the cruise control system unreasonably dangerous. As a matter of law, the absence of such a switch does not make the system unreasonably dangerous. The test is not whether the system is accident proof but whether the product, absent such a device, is unreasonably dangerous to the user. Curtis v. General Motors, 649 F.2d 808, 810-11 (10th Cir.1981); Westinghouse Elec. Corp. v. Nutt, 407 A.2d 606, 609-10 (D.C.App.1979). The vehicle already had four safety devices to prevent the cruise control from accelerating unintentionally. There is an on/off tab, a button recessed at the end of the turn signal wand, the brake pedal and a separate backup vacuum release switch. [App. 38-39; TR 650-51] The lack of a fifth lock-out switch does not make the vehicle "unreasonably dangerous" considering it would perform the same function as the switches already in place in the system. See Or.Rev.Stat. Sec. 30.920(1); Ewen v. McLean Trucking Co., 300 Or. 24, 32-33, 706 P.2d 929 (1986). Dupper has failed to meet this standard. Therefore, her claim based on the ignition lock out switch was properly dismissed by the trial judge.

Plaintiff also argues that the defendant is liable because of a failure to warn consumers that the transducer may wear out. However, Dupper's argument assumes that the transducer is a defective design, requiring a warning. As discussed supra, the transducer is not a defective design. Consequently, Dupper can not state a claim for failure to warn because there is no defective design to warn of.

The Oregon Court of Appeals explored the connection between defective design and failure to warn claims in Smith v. Fred Meyer, Inc., 70 Or.App. 30, 687 P.2d 1128 (1984). In Smith, the appellate court held that the plaintiff could not state a separate cause of action for failure to warn of the design which was alleged to be defective. Id. at 33. It stated, "If a product is unsuitable for its intended use, and as a result is unreasonably dangerous, then the correct inquiry is whether there is a manufacturing or design defect, not whether the manufacturer should have warned of the defect." Id. Therefore, under Oregon law, plaintiff's allegation of failure to warn does not state a viable claim.

In order to evaluate Dupper's theory of causation a brief explanation of the cruise control mechanism is necessary.

The driver operates cruise control by means of a switch located on the turn signal lever. It has three settings: "off," "on," and "resume." Cruise control will maintain the vehicle at constant speed when it is "on" and set at the desired speed. It can be deactivated by touching the brake pedal or moving the switch to "off." Cruise control can cause acceleration when the switch is moved from "on" to "resume" when the vehicle is moving more slowly than the set speed.

The speed of the vehicle is sensed by a transducer, which consists of two closely spaced metal disks, the drive disk and the driven disk. The drive disk is a magnet, and it spins, driven by the speedometer cable. As it spins it creates a magnetic field that causes the driven disk to arc according to the speed of the vehicle, much like the needle arcs on a speedometer. At approximately 30 miles per hour the driven disk moves far enough to close an electric switch, the low limit switch, and permits the cruise control to be activated. Below this speed the cruise control cannot normally be activated because the low limit switch is open.

An expert for the plaintiff testified that wear or debris between the drive disk and driven disk can cause the disks to impinge on one another and close the low limit switch at any speed above zero. If this were to occur the cruise control could be activated whenever the vehicle was moving by sliding the switch on the turn signal lever from "on" to "resume," which would cause the vehicle to accelerate to the speed that the cruise control was last set. The plaintiff's theory was that the switch had been left in the "on" position since the day before, when the cruise control had been operated at highway speeds, and that she had inadvertently activated the switch after placing the vehicle in gear.

The parties agree that the only way a defective transducer could have caused the sudden acceleration described in this case would be for Dupper to have moved the cruise control switch to the "resume" position after the vehicle had been placed in gear and began to move forward. Acceleration would not occur if the switch were moved before the vehicle began to move forward, and it would not occur unless the transducer closed the low limit switch as soon as the vehicle began to move. Thus, the appellant's case depended on two critical facts. First, a defective transducer closed the low limit switch and allowed the cruise control to be activated while the vehicle was moving forward very slowly, and second, the sequence of events occurred exactly as the appellant surmised: she turned on the ignition, placed the vehicle in gear, and inadvertently activated the cruise control after the vehicle's forward motion began. The transducer in question was scrapped with the vehicle and was not inspected by either party.

We agree with the lower court that the appellant failed to produce sufficient evidence to support her theory of causation. In fact, some of the appellant's own testimony can be construed to disprove her theory of causation. First, no evidence was presented that the transducer was defective at the time of purchase, that it was defective when the accident occurred, or that its wear characteristics made it likely to cause the accident described. It had performed without any problems for over 50,000 miles. Further, the transducer was destroyed when the vehicle was scrapped with the appellant's permission; prior to that time the appellant had the ability to remove and inspect the allegedly defective transducer in order to prove this element of her case.

Second, the appellant's own testimony does not support her theory that she inadvertently activated the cruise control by moving the switch to the "resume" position after the vehicle began to move forward. Her testimony was that her left hand was "probably about seven o'clock" on the steering wheel and that she was clutching at least four quarters in that hand. She also testified, as did eyewitnesses, that the vehicle "took off" immediately after being placed in gear, and one witness indicated that the vehicle was running at an excessively high idle prior to the accident. The cruise control switch is located behind the steering wheel on the turn signal lever at nine o'clock, and there was no evidence, including the plaintiff's own testimony, to support her contention that the vehicle moved forward, presumably at a normal speed, before she inadvertently activated the cruise control. Moreover, there was no evidence that cruise control could cause the type of rapid acceleration (more than twenty feet wheelspin from both tires) that occurred here.

Evidentiary rulings are reviewed for an abuse of discretion. Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986). The appellant first claims that the trial court erred in excluding consumer reports compiled by the National Highway Traffic Safety Administration regarding unwanted acceleration in General Motors vehicles. Some were unverified consumer allegations of "surge and droop" when cruise control was operated at highway speeds, which the plaintiff's expert claimed was indicative of drive to driven disk interference in the transducer. Others indicated that the drivers had accidentally moved the switch and activated cruise control while attempting to use the turn signal.

The decision to exclude this evidence was not an abuse of discretion. Trial judges are to be accorded "broad discretion ... in balancing probative value against prejudice." Longnecker v. General Motors Corp., 594 F.2d 1283, 1286 (9th Cir.1979). None of these reports supported the appellant's claim that the low limit switch closed as soon as the Dupper vehicle had moved forward, and the reports of accidental activation of cruise control by drivers who were attempting to signal a turn were properly excluded as less probative than prejudicial.

Second, the appellant claims that photographs of transducers that were removed from other vehicles should have been admitted to "show the phenomenon of wear out and drive to driven disk interference" in order to allow an inference that the transducer in the Dupper vehicle had worn out and become defective. The photographs purportedly revealed wear on the disks similar to that alleged on the Dupper vehicle. Granting the trial court broad discretion, the decision to exclude this evidence was proper. The transducers offered did not exhibit the type of behavior that was alleged to have occurred in the Dupper vehicle. One caused surging while the cruise control was in operation but there was no indication of a malfunction in the low limit switch, another operated without a malfunction for over 100,000 miles, and the third had an unknown history, being recovered from a repair shop.

AFFIRMED.

The majority has deprived the plaintiff of her constitutional right to a jury trial, and I therefore dissent.

The issue in this case really is not complicated. The plaintiff contends that she suffered serious injuries because her automobile had an unreasonably dangerous design defect, which is compensable under Oregon law.

The defendant, of course, wants everyone to believe that plaintiff's claim is based on wear and tear, which is not compensable, rather than the design of her automobile. The majority buys a lemon from a second-hand car dealer when it affirms the defendant's version of plaintiff's case.

The plaintiff contends that the cruise control unit of her automobile was defectively designed because it did not have a simple safety switch. Of course, she had to show why the safety switch was necessary. The cruise control unit was subject to normal wear and tear. Eventually, this wear and tear would reach a point at which a malfunction would be dangerous. Therefore, the switch was necessary to prevent such a malfunction from causing injury.

The plaintiff's case was not based on wear and tear, but on a design defect. The design defect was not a construction that would make less wear and tear, but a simple switch that would prevent injury when there was wear and tear.

The majority, in distorting the plaintiff's case, approves the violation of her constitutional right to a jury trial, and I therefore dissent.