## Facts

- Heriberto M. Hernandez, a maintenance mechanic at Westwood Manufacturing, encountered a newly installed “Belsaw” saw he had never seen before.
- The saw’s blade was enclosed in a cabinet; with the cabinet door closed, the blade was not visible.
- Hernandez tried to determine whether the saw was off but could not locate the on/off switch because the area was dark and the switch was not in customary locations.
- He detected no vibration and heard no sound, but the blade was running.
- Hernandez opened the cabinet door and crouched to inspect the interior; he slipped on sawdust and his hand contacted the spinning blade, causing a partial amputation.
- He sued the seller/distributor defendants in strict products liability, alleging the saw was dangerously defective (including lack of a visible on/off switch, door interlock, warning decal, and adequate blade guard).
- Defendants pleaded comparative fault, alleging Hernandez knowingly encountered the risk and acted negligently in inspecting the saw, including crouching on slippery sawdust and opening the cabinet before ensuring the saw was off.
- At trial, Hernandez requested a jury instruction that a plaintiff’s negligence consisting only of failing to discover or guard against a product defect is not comparative fault in strict products liability; the trial court refused and instructed that the jury could assign fault based on any conduct alleged by defendants.
- The jury allocated 49.5% fault to defendants and 50.5% to Hernandez, barring recovery under Oregon’s modified comparative fault rule.

## Issues

1. Whether, in an Oregon strict products liability action, the trial court commits reversible error by refusing to instruct that a plaintiff’s failure to discover or guard against a defect cannot be treated as comparative fault.
2. Whether the instructions given improperly allowed the jury to attribute comparative fault based on conduct that Oregon law excludes from the comparative fault calculus in strict products liability.
3. Whether the refusal to give the requested instruction was prejudicial in light of the jury’s fault allocation.

## Decision

- The Oregon Supreme Court affirmed the Court of Appeals, reversed the circuit court judgment for defendants, and remanded for further proceedings.
- The trial court erred by refusing Hernandez’s requested instruction because it correctly stated Oregon law, was supported by the pleadings and evidence, and concerned a material issue.
- The instructions given were inadequate because they permitted the jury to assign fault to Hernandez for conduct that could amount only to failing to discover or guard against a defect.
- The error was prejudicial because the fault split (50.5% to plaintiff) showed a substantial likelihood that the improper instruction affected the verdict.

## Legal Principles

- In Oregon strict products liability, plaintiff conduct that merely constitutes failing to discover a defect or failing to guard against the possibility of a defect is not a defense and may not be treated as comparative fault.
- Plaintiff conduct amounting to misuse of the product or voluntary assumption of a known risk may be considered in comparative fault in a strict products liability case.
- A party is entitled to a requested jury instruction when it (1) correctly states the law, (2) is supported by the pleadings and evidence, and (3) relates to a material issue.
- When comparative fault is pleaded in a strict products liability case, the jury must be instructed to exclude “failure to discover/guard against defect” negligence from fault apportionment.

## Conclusion

The court held that jurors in Oregon strict products liability cases must be instructed that a plaintiff’s failure to discover or guard against a defect is not comparative fault, and that refusing such an instruction is reversible error when it likely affected the fault allocation and outcome.


Hernandez v. Barbo Mach. Co., 327 Or. 99, 957 P.2d 147 (Or. 1998)