Seeborg v. General Motors Corp.

• Decision Date: 29 December 1978
• Docket Number: No. CC,CC
• Parties: Hugo SEEBORG, Appellant, v. GENERAL MOTORS CORPORATION, and Carmichael Oldsmobile, Inc., dba Carmichael American, Respondents. 76-219; SC 25383.
• Court: Oregon Supreme Court

Page 1100

588 P.2d 1100

284 Or. 695

Hugo SEEBORG, Appellant, v. GENERAL MOTORS CORPORATION, and Carmichael Oldsmobile, Inc., dba Carmichael American, Respondents.

No. CC 76-219; SC 25383.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 11, 1978.

Decided Dec. 29, 1978.

Jeanyse R. Snow of MacDonald, Dean, McAllister & Snow, Astoria, argued the cause and filed briefs for appellant.

E. Joseph Dean of Davies, Biggs, Strayer, Stoel & Boley, Portland, argued the cause for respondents. With him on the brief was Mervin W. Brink of Brink, Moore, Brink & Peterson, Hillsboro.

HOLMAN, Justice.

This is an action to recover for property damage resulting from the loss of an Oldsmobile automobile by fire. Plaintiff is the purchaser of the vehicle; defendants are the manufacturer, General Motors Corporation, and the dealer, Carmichael Oldsmobile, Inc. The action is based upon the theories of products liability and implied warranty of merchantability. After the pleadings were in issue, defendants moved for summary judgment based upon defendant General Motor's affidavit, plaintiff's deposition, and the provisions of the owners' manual delivered with the vehicle. Plaintiff filed no countering affidavits. He appeals from a granting of summary judgment in favor of defendants.

The following facts appear from plaintiff's deposition: plaintiff bought a new vehicle from Carmichael in November 1972. In January 1973 a fuse burned out. Plaintiff had the fuse replaced at a service station. Later, another fuse burned out and the same service station replaced that fuse as well as the cigarette lighter in an attempt to remove the problem. When another fuse burned out in April or May 1973, the service station put in a "heavier" and "stronger" fuse. After the stronger fuse was inserted, there were no more problems with fuses' burning out. Plaintiff stated that when a fuse would burn out the interior courtesy lights, dashboard lights, gauge lights and the cigarette lighter would not work. The owners' manual, which was an exhibit to defendant General Motors' affidavit, demonstrates that the lights mentioned are controlled not by one fused circuit but by two; one fused circuit controlled the cigarette lighter and the courtesy lights, and the other circuit controlled the dashboard and instrument lights.

During the time previously related plaintiff took the car twice to Carmichael for work on it. On the first trip the car was undercoated and an attempt was made to repair a leak in the trunk. The trunk continued to leak, whereupon plaintiff took the car back to Carmichael. On one of these two trips plaintiff told Carmichael about the fuses' burning out and asked Carmichael to check the wiring to see if the leak in the trunk was causing the problem. There is no record of whether or not the wiring in the area of the leak was so checked. In any event, the trunk discontinued leaking after the second trip.

On July 3, 1973, plaintiff parked the vehicle in his driveway and it was totally destroyed by fire of unknown origin. The owners' manual contained the following warning: "Do not use fuses of higher amperage rating than those specified below." Plaintiff stated he was familiar with and had read the owners' manual. There is no evidence whether the last fuse which was inserted by the service station was of greater amperage than the limit provided in the manual, the only evidence being plaintiff's statement that it was "heavier" and "stronger" than that which came with the vehicle.

Oregon's summary judgment statute, ORS 18.105, provides in relevant part:

"* * *.

"(2) A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may, at any time, move, with or without supporting affidavits, for a summary judgment in his favor as to all or any part thereof.

"(3) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, 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. * * *.

"(4) * * * When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue as to any material fact for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

ORS 18.105 was "enacted to facilitate effective use of the court system by allowing for a quick, early and inexpensive method of determining whether the pleadings present a triable issue of fact." Garrison v. Cook,280 Or. 205, 209, 570 P.2d 646, 648 (1977). The party moving for summary judgment must establish that (1) there is no issue as to any material fact; and (2) he is entitled to judgment as a matter of law. If these requirements are met, the parties need not wait until trial but may seek a final adjudication of the action by motion. "In this way, dilatory tactics resulting from the assertion of unfounded claims or the interposition of specious denials or sham defenses can be defeated, parties may be accorded expeditious justice, and some of the pressure on court dockets may be alleviated." 10 Wright & Miller, Federal Practice and Procedure § 2712. But at the same time it must be remembered that a summary judgment motion goes to the merits of a case and, when granted, operates to merge or bar the cause of action for res judicata purposes. "Since its impact is rather drastic, summary judgment must be used with a due regard for its purposes and should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues." Id.

The moving party has the burden of showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. The record on summary judgment is viewed in the light most favorable to the party opposing the motion. Uihlein v. Albertson's, Inc.,282 Or. 631, 580 P.2d 1014 (1978); Taylor v. Baker, 279 Or. 139, 566 P.2d 884 (1977); Santilli v. State Farm, 278 Or. 53, 59, 562 P.2d 965 (1977); Forest Grove Brick Works v. Strickland, 277 Or. 81, 84-85, 87, 559 P.2d 502 (1977). This is true even as to those issues upon which the opposing party would have the trial burden. 6 P.T. 2 Moore, Federal Practice § 56.23 (2d ed 1976).

Federal Rule of Civil Procedure 56(e), the model for ORS 18.105(4), was added in 1963 to overcome a line of cases, primarily in the Third Circuit, holding that well-pleaded allegations might be sufficient in and of themselves to create the required genuine issue of fact and prevent summary judgment without actually controverting the content of the affidavits or other evidence introduced by the moving party. These cases had been criticized because they effectively prevented the court from determining whether a genuine issue of fact actually existed, thus thwarting the purpose of summary judgment. They permitted a party to render the rule nugatory through clever pleading. 10 Wright & Miller, Federal Practice and Procedure § 2711.

In deciding whether a genuine issue of fact exists, courts generally read "genuine issue" to mean "triable issue." Before a party has a triable issue, he or she must have sufficient evidence to be entitled to a jury determination. This has led both courts and commentators to compare the motion for summary judgment to the motion for a directed verdict. 10 Wright & Miller, Federal Practice and Procedure § 2713.

Before a purchaser may recover upon a products liability cause of action he must demonstrate that at the time the product leaves the manufacturer's or seller's hands it is dangerously defective. Restatement (Second) of the Law of Torts § 402A(1)(a) ¹ and comment (G ); Phillips v. Kimwood Machine Co., 269 Or. 485, 491, 525 P.2d 1033 (1974). There is little doubt in this case that since the vehicle did burn it was then in a dangerously defective condition. However, before plaintiff is entitled to a jury determination, there must be evidence from which it could be found that no change in the condition of the vehicle had been made from the time of its purchase which was essential to the cause of the loss. It was the contention of defendants that they were entitled to summary judgment because there had been an alteration in the vehicle since it was purchased and plaintiff could not demonstrate it was more probable than not that the change was immaterial to the vehicle's destruction; therefore, as a matter of law plaintiff could not recover. ² Plaintiff contends...