Jones v. General Motors Corp.

• Decision Date: 21 February 1996
• Parties: , Prod.Liab.Rep. (CCH) P 14,606 Jerrold W. JONES, Appellant, v. GENERAL MOTORS CORPORATION, a Delaware corporation, and Wentworth Chevrolet Co., an Oregon corporation, Respondents. 9304-02799; CA A84036.
• Court: Oregon Court of Appeals

Page 1243

911 P.2d 1243

139 Or.App. 244, Prod.Liab.Rep. (CCH) P 14,606

Jerrold W. JONES, Appellant, v. GENERAL MOTORS CORPORATION, a Delaware corporation, and Wentworth Chevrolet Co., an Oregon corporation, Respondents.

9304-02799; CA A84036.

Court of Appeals of Oregon In Banc.

Argued and Submitted June 15, 1995.

Resubmitted In Banc Jan. 9, 1996.

Decided Feb. 21, 1996.

[139 Or.App. 245-A] Appeal from Circuit Court, Multnomah County, George M. Joseph, Senior Judge.

Kevin Keaney argued the cause, for appellant. On the briefs were Robert K. Udziela and Pozzi Wilson Atchison, Portland.

John V. Acosta argued the cause, for respondents. With him on the brief were Stoel Rives Boley Jones & Grey, and Lezlie Ott Marek and Bowman and Brooke, Minneapolis, Minnesota.

De MUNIZ, Judge.

Plaintiff appeals from a judgment entered after the court granted defendants' motion for summary judgment. We reverse.

Plaintiff is a Portland police officer. Defendant General Motors manufactured a 1991 Chevrolet Caprice that defendant Wentworth Chevrolet sold to the City of Portland (the City) for use as a patrol car. After the City purchased the car in March 1991, City mechanics installed a radio and other electrical equipment in the car. When they installed the equipment, the mechanics drilled a 3/4-inch diameter hole in the bulkhead that separates the engine compartment from the interior of the car. They used that hole instead of factory installed pass-throughs to connect wires that were encased in a plastic sleeve. The patrol car was assigned to plaintiff after the mechanics installed the equipment.

Approximately one month after plaintiff was assigned the patrol car, he began to experience flu-like symptoms and saw a physician at an immediate care center. A private physician examined him a month later and a specialist also examined him. Two months after being assigned the patrol car, plaintiff noticed a musty odor in the car. A Wentworth mechanic examined the car and indicated that the musty smell originated from "water leaking thru fire wall where a non-chev loom goes thru firewall." Plaintiff's symptoms subsided when he was away from the car.

Two City mechanics, Denkers and Schenfeld, subsequently examined the car on separate occasions. When Denkers first examined the car, it smelled slightly of windshield washer fluid, but he could not detect the source of the odor. Later, the car was returned for a second examination and it smelled strongly of windshield washer fluid. Denkers also noticed that the floor mat on the driver's side was soaked through. Denkers testified that water had entered the car through the holes drilled for the radio wires. When he sprayed water on the windshield, he observed water flowing over the bulkhead, down the wires and into the passenger compartment. ¹ He also observed a white, filmy substance growing under the floor mat on the driver's side.

When the car was brought in the second time, Schenfeld also examined it. He took the car to the wash rack, ran water down the windshield and watched it leak into the car through an eight-inch gap in the sealant between the front of the car and the bulkhead separating the engine compartment from the passenger compartment. He knew about the hole drilled for the radio wires, but said it was not the source of the water in the passenger compartment. He removed the floor mats, jute backing and rubberized asbestos sound panels from the floor and discovered a white substance growing on them. He believed that the white substance caused the odor in the car.

A City mechanic sealed the hole in the patrol car's bulkhead with silicone. There were no further reports of moisture in the patrol car. Denkers testified that, because of moisture intrusion problems in other 1991 Chevrolet Caprices belonging to the City, mechanics now install a rubber grommet sealed with silicone over the radio wire holes as a regular practice. Plaintiff's symptoms have recurred on two occasions when he has been exposed to musty or moldy smells. His physician informed him that he has a permanent condition.

Plaintiff filed this lawsuit against defendants, alleging claims based on negligence and strict product liability. In his amended complaint, he asserted that defendants were negligent:

"(a) In distributing a vehicle with a partially non-existent seal between the cowling and bulkhead below the windshield area which allowed moisture to enter the vehicle;

"(b) In distributing a vehicle which had no adequate sealing in the junction of the cowling and bulkhead below the vehicle's windshield to prevent the leakage of moisture into the vehicle; and

"(c) In failing to adequately inspect the vehicle to reveal the defect in the cowling/bulkhead."

He also alleged that one or more of those unreasonably dangerous defective conditions caused him physical and mental pain and suffering, including various respiratory ailments.

Before the 1995 legislative session our review of a summary judgment was to determine whether there was a genuine issue as to any material fact and whether the moving party was entitled to judgment as a matter of law, viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. ORCP 47 C; Hampton Tree Farms, Inc. v. Jewett, 320 Or. 599, 613, 892 P.2d 683 (1995). The moving party had the burden of showing that there were no genuine issues of material fact and that he or she was entitled to judgment as a matter of law. Moustachetti v. State of Oregon, 319 Or. 319, 321, 877 P.2d 66 (1994). The 1995 legislature enacted Senate Bill 385, part of which amended ORCP 47 C by adding the underlined language:

"The motion and all supporting documents shall be served and filed at least 45 days before the date set for trial. The adverse party shall have 20 days in which to serve and file opposing affidavits and supporting documents. The moving party shall have five days to reply. The court shall have discretion to modify these stated times. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." 1995 Or.Laws, ch. 618, § 5.

The legislature further provided:

"The amendments to ORCP 17, 47 C and 54 * * * apply to all actions, whether commenced before, on or after the effective date [September 9, 1995] of this Act." 1995 Or.Laws, ch. 618, § 140(2). ² The threshold issue here, thus, is whether the amendment to ORCP 47 C applies to an appeal from a summary judgment that was granted on the pre-amendment standard. We conclude that it does. The text of Section 140 is clear that the amendment applies to all actions "whether commenced before, on or after the effective date of [the] Act." Furthermore, reversing a summary judgment by applying the pre-amendment standard would only result in a remand to the trial court where the losing party could file a new motion for summary judgment to be determined under the 1995 amendment. Accordingly, a decision that a summary judgment did not meet the pre-amendment standard of review would have no practical effect.

In interpreting the amendment, we first consider the text and context of the statutory provision in order to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). ORCP 47 C requires a summary judgment to be granted if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact[.]" Into that context the legislature added the language that purports to define the nonexistence of a material fact:

"No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment."

The amendment is clear that a court cannot find that there is an issue of material fact unless the evidence would permit an "objectively reasonable juror" to return a verdict for the party opposing the summary judgment. However, the amendment does not state what standard the legislature intended that a court would apply in making that determination.

Under Oregon case law applying the unamended version of ORCP 47 C, the moving party had the burden of establishing the absence of genuine issues of material fact even as to matters about which the opposing party would have the burden of proof at trial. Seeborg v. General Motors Corporation, 284 Or. 695, 588 P.2d 1100 (1978). In addition, the function of the court, in determining if a genuine issue of material fact existed under the unamended rule, was not to weigh the evidence or to resolve conflicts in it, "but solely to determine if there is an issue of fact to be tried." Forest Grove Brick v. Strickland, 277 Or. 81, 87, 559 P.2d 502 (1977). In Seeborg, the court likened summary judgment motions to motions for directed verdicts, and noted that "[b]efore a party has a triable issue, he or she must have sufficient evidence to be entitled to a jury determination." Id. at 700, 588 P.2d 1100. "Sufficient evidence" in this context means "any evidence." See also Or. Const., Art. VII (amended) § 3.

The question is how and how much the 1995 legislature altered those...