The trial court may allow an amendment to conform to the proof under ORS 16.390 "when the amendment does not substantially change the cause of action and when the evidence on which the amendment is based was received without objection." Eck v. Market Basket, 264 Or. 400, 406, 505 P.2d 1156 (1973); Cutsforth v. Kinzua Corp., 267 Or. 423, 433-34, 517 P.2d 640 (1973); Quirk v. Ross, 257 Or. 80, 83, 476 P.2d 559 (1970). Whether to allow or refuse such an amendment is addressed to the discretion of the trial court, which will be reversed only for an abuse of discretion. Eck v. Market Basket, supra at 407-08; Quirk v. Ross, supra at 83; Von Bergen v. Kuykendall, 240 Or. 191, 193, 400 P.2d 553 (1965).
ORCP 23 A. An amendment, even one requested during trial, should normally be allowed unless the other party would be prejudiced in some respect. See Quirk v. Ross, 257 Or 80, 83, 476 P2d 559 (1970) (motion to amend pleading during trial should ordinarily be allowed unless other party is prejudiced); Franke v. ODFW, 166 Or App 660, 669, 2 P3d 921 (2000) (same). Whether the other party would be prejudiced is a decision committed to the discretion of the trial judge, and his or her decision will not be disturbed in the absence of an abuse of such discretion.
Finally, General Motors argues that the Halls did not prove that the defect in the Buick existed when the car left the factory. See Quirk v. Ross, 476 P.2d 559, 562-63 (Or.1970) (a product's age and its treatment since purchase are relevant, though not dispositive, in determining whether the product left the factory in defective condition). But the plaintiffs did present evidence that the defect in the Buick was not the result of its treatment since it left the factory.
Indeed, under Russell v. Ford Motor Co., 281 Or. 587, 596-98, 575 P.2d 1383 (1978), there is a presumption that an auto part that normally would not be altered, replaced, or serviced remains in the condition in which it was purchased. Compare Quirk v. Ross, 257 Or. 80, 476 P.2d 559 (1970) (auto brakes cannot be presumed to be in original condition after 39,500 miles). The engine mounts, like the axle assembly at issue in Russell, are normally not changed, repaired, or replaced during the car's life. GM's citation to Shanahan is inapposite; Johnson's earlier statement of opinion on the engine mounts was neither irrelevant nor collateral.
Under those cases, the gravamen of the inquiry is whether allowing a pretrial amendment would unduly prejudice the opposing party. See Quirk v. Ross , 257 Or. 80, 83-84, 476 P.2d 559 (1970) (explaining that a motion to amend should be allowed "unless the other party will be prejudiced in some respect"); Oregon P.O. Bldg. Corp. v. McVicker , 246 Or. 526, 529, 426 P.2d 458 (1967) (explaining that "[i]t is important to consider the effect of the amendment upon the adverse party"); see also Reeves v. Reeves , 203 Or. App. 80, 85, 125 P.3d 755 (2005) (explaining that the "longstanding rule" is that "an amendment should be allowed unless the other party is prejudiced"); Franke v. ODFW , 166 Or. App. 660, 671, 2 P.3d 921 (2000) (holding that, "in the absence of prejudice to plaintiff arising from the delay in asserting the defense, * * * the trial court abused its discretion in denying defendantsโ motion for leave to amend their answers").
In the absence of such evidence, any link between the product failure and a defect attributable to the manufacturer is simply too attenuated to serve to establish liability on the part of the manufacturer. W. Prosser, supra, 50 Minn. L.Rev. at 844โ45 (โwhen there is no [direct] evidence [of a defect], and it is only a matter of inference from the fact that something broke or gave way, the continued use [of a product prior to the accident] usually prevents the inference that the thing was more probably than not defective when it was soldโ); see also Soto v. Danielson Suzuki, supra, Superior Court, Docket No. CV 89โ363525; Harrison v. Bill Cairns Pontiac of Marlow Heights, Inc., supra, 77 Md.App. at 52โ54, 549 A.2d 385; Scanlon v. General Motors Corp., 65 N.J. 582, 599, 326 A.2d 673 (1974); Quirk v. Ross, 257 Or. 80, 88, 476 P.2d 559 (1970); Barnish v. KWI Building Co., supra, 602 Pa. at 421โ22, 980 A.2d 535. We note that this approach is different from the approach taken by the Restatement (Third) of Torts, Products Liability, ยง 3, which does not take a definite position as to the weight to be given to the age of the product in determining whether an inference may be drawn.
In the absence of such evidence, any link between the product failure and a defect attributable to the manufacturer is simply too attenuated to serve to establish liability on the part of the manufacturer. W. Prosser, supra, 50 Minn. L. Rev. 844-45 ("when there is no [direct] evidence [of a defect], and it is only a matter of inference from the fact that something broke or gave way, the continued use [of a product prior to the accident] usually prevents the inference that the thing was more probably than not defective when it was sold"); see also Soto v. Danielson Suzuki, supra, Superior Court, Docket No. CV 89-363525; Harrison v. Bill Cairns Pontiac of Marlow Heights, Inc., supra, 77 Md. App. 52-54; Scanlon v. General Motors Corp., 65 N.J. 582, 599, 326 A.2d 673 (1974); Quirk v. Ross, 257 Or. 80, 88, 476 P.2d 559 (1970); Barnish v. KWI Building Co., supra, 602 Pa. 421-22. We note that this approach is different from the approach taken by the Restatement (Third) of Torts, Products Liability, ยง 3, which does not take a definite position as to the weight to be given to the age of the product in determining whether an inference may be drawn.
While we would not go so far as to say that this evidence negates the possibility of a manufacturing defect, we do think that at some point "increased longevity must yield a progressively stronger inference that a given product . . . was not defective but failed from extrinsic causes." Mullen v. General Motors Corp., 32 Ill. App.3d 122, 336 N.E.2d 338, 346 (1975); see Genteman v. Saunders Archery Co., 42 Ill. App.3d 294, 355 N.E.2d 647, 652 (1976); Quirk v. Ross, 257 Or. 80, 476 P.2d 559, 563 (1970). III. Negligence Per Se
The doctrine of manufacturers' products liability cannot be said to require a manufacturer to build a fail-safe product. See Quirk v. Ross, 257 Or. 80, 476 P.2d 559 (1970). The cab and chassis of the truck underwent substantial change after leaving International's control and admittedly the truck was overloaded.
Of course, a plaintiff could be made to testify as part of his case-in-chief that he had not himself worked on, or had someone else work on, the allegedly defective product and to try to obtain such testimony from the dealer, but we agree with the view quoted above that it would be unreasonable to require a plaintiff to negate all other possible explanations of the defect when no such possibility has been raised by defendant. The present facts differ substantially from those in Quirk v. Ross, 257 Or. 80, 88, 476 P.2d 559 (1970), which concluded that "[a]fter two owners, innumerable servicings, and 39,500 miles of use free from brake difficulties except for the last few miles, no inference can be drawn that a defect existed in the brakes at the time of the vehicle's manufacture. . . ." Affirmed.