Two v. Fujitec Am., Inc.

• Decision Date: 30 May 2013
• Docket Number: A145591.,090100985
• Citation: 256 Or.App. 784,305 P.3d 132
• Parties: Linda TWO TWO, an individual; and Patricia Fodge, an individual, Plaintiffs–Appellants, v. FUJITEC AMERICA, INC., a Delaware corporation, Defendant–Respondent, and Centric Elevator Corporation of Oregon, Inc., an Oregon corporation, Defendant.
• Court: Oregon Court of Appeals

256 Or.App. 784

305 P.3d 132

Linda TWO TWO, an individual; and Patricia Fodge, an individual, Plaintiffs–Appellants,

v. FUJITEC AMERICA, INC., a Delaware corporation, Defendant–Respondent,andCentric Elevator Corporation of Oregon, Inc., an Oregon corporation, Defendant.

090100985; A145591.

Court of Appeals of Oregon.

Argued and Submitted Jan. 11, 2012.

Decided May 30, 2013.

Brandon Mayfield argued the cause for appellants. With him on the briefs was Law Office of Brandon Mayfield LLC.

Thomas M. Christ, Portland, argued the cause for respondent. With him on the brief were Julie A. Smith, Cosgrave Vergeer Kester LLP, Michael D. Kennedy, and Kennedy Bowles, P.C.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

ORTEGA, P.J.

Plaintiffs appeal from a limited judgment in favor of defendant Fujitec America, Inc., assigning error to the trial court's grant of summary judgment to Fujitec on plaintiff's common law negligence claim and their claims under Oregon's product liability statutes, ORS 30.900 to 30.920. ¹ Plaintiffs' claims arose from injuries they sustained in separate incidents while riding in an elevator that Fujitec had “modernized,” maintained, and inspected.² The trial court granted summary judgment to Fujitec, concluding that plaintiffs had failed to produce evidence of causation on their negligence claim and that their product liability claims could not be sustained because Fujitec was not a “manufacturer, distributer, seller, or lessor of a product” under Oregon product liability law.

On appeal, plaintiffs contend that summary judgment was improper because they submitted evidence on their negligence claim, including an affidavit under ORCP 47 E, that created genuine issues of material fact or, alternatively, that the trial court should have denied summary judgment because the doctrine of res ipsa loquitur would allow a jury to infer causation. Plaintiffs also contend that their product liability claims were not barred because Fujitec's modernization of the elevator qualified Fujitec as a “manufacturer” under ORS 30.900. We affirm the trial court's grant of summary judgment because plaintiffs failed to offer any evidence on causation in response to Fujitec's motion for summary judgment and the product liability statute does not apply to Fujitec.

Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based on the record, “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.” Id. To determine whether a genuine issue of material fact exists in this case, we review the record in the light most favorable to plaintiffs—the nonmoving party—and draw all reasonable inferences in their favor. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). We state the facts consistently with that standard.

Plaintiffs were injured in separate incidents in 2008 when an elevator in the building in which they worked dropped unexpectedly and stopped abruptly. In 2001, Fujitec, pursuant to a contract with the federal General Services Administration (GSA), had modernized the elevator (originally constructed in the 1960s or 1970s) by installing new solid-state microprocessor controls, replacing the old relay logic elevator controls, installing a seismic protection system, and remodeling the elevator car interior. After completing the project, Fujitec maintained and periodically tested and inspected the elevator pursuant to a contract with GSA. Fujitec performed those services through 2007, at which time it assigned, via contract, its obligations and rights to Centric Elevator Corporation of Oregon.

After sustaining their injuries, plaintiffs filed a complaint, alleging that Fujitec and Centric “negligently designed, installed, and maintained” the elevator in which plaintiffs were injured, which was the “direct and proximate cause” of plaintiffs' injuries. Plaintiffs also claimed that Fujitec was strictly liable under Oregon's product liability law, ORS 30.920, because Fujitec's negligent design, construction, and installation left the elevator “defective and dangerous” such that “it failed to perform in the manner reasonably to be expected in light of [its] nature and intended function.”

Fujitec moved for summary judgment on all claims asserted by plaintiffs. Fujitec argued that it could not be held liable under product liability law because it applies only to “manufacturers, distributers, sellers, and lessors” of products and there was no evidence that Fujitec manufactured, distributed, sold, or leased the elevator. As for the negligence claim, Fujitec maintained that (1) its modernization met or exceeded industry standards and complied with GSA's specifications; (2) it never “possessed” or “controlled” the elevator after December 1, 2007; (3) there was no evidence of causation; and (4) it inspected and maintained the elevator properly through December 2007. Fujitec supported its motion with an employee's affidavit, asserting that Fujitec did not manufacture the elevator in question or supply any of its parts and that Fujitec's work on the elevator conformed to industry standards. The employee also testified that elevators can simply drop “through no fault or negligence of anyone, including, simply because of the age of the elevators.”

Plaintiffs' responded with several exhibits and an affidavit prepared by their attorney pursuant to ORCP 47 E. The affidavit stated, in part:

“4. Since the time of the filing of [p]laintiffs' [c]omplaint [p]laintiffs have retained a qualified elevator expert whom they intend to rely on at trial to support their claims that [d]efendant Fujitec's modernization of the elevators in the 911 building, and Centric's inspection and repair of those elevators was defective and dangerous to an extent beyond that which an ordinary consumer would have expected. Plaintiffs' expert has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.

“5. Since the time of the filing of [p]laintiffs' [c]omplaint [p]laintiffs have retained a qualified elevator expert whom they intend to rely on at trial to support their claims that [d]efendant Fujitec was negligent in [its] service and maintenance of the elevators in the 911 building. Plaintiffs expert has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.”

The trial court granted summary judgment, concluding that “there's no admissible evidence of causation.” As to plaintiffs' product liability claims, the court determined that “as a matter of law * * * Fujitec did not manufacture or sell or distribute or lease the elevator * * * or any of its parts.” The court entered a limited judgment dismissing plaintiffs' claims against Fujitec.

In challenging on appeal the grant of summary judgment, plaintiffs assert three arguments. First, plaintiffs maintain that the evidence that they put forth in opposition to summary judgment—an ORCP 47 E affidavit and exhibits—was sufficient to create a genuine issue of material fact on their negligence claim. Alternatively, they assert that summary judgment was improper because the facts in this case would allow a jury, under the doctrine of res ipsa loquitur, to infer both negligence and causation against Fujitec.³ Finally, for their product liability claim, they contend, as they did before the trial court, that under existing case law, Fujitec's modernization of the elevators is “comparable” to the role of a manufacturer, such that Fujitec can be held liable under such a theory.

We begin with plaintiffs' ORCP 47 E affidavit. As an initial matter, the filing of an affidavit under ORCP 47 E precludes summary judgment only where expert opinion evidence is required to establish a genuine issue of material fact. Deberry v. Summers, 255 Or.App. 152, 163, 296 P.3d 610 (2013). In such cases, an attorney affidavit asserting that a retained expert will provide admissible evidence is sufficient, without more, to create a material factual dispute. Piskorski v. Ron Tonkin Toyota, Inc., 179 Or.App. 713, 718, 41 P.3d 1088 (2002). The trial court presumes that the expert will testify “on every issue on which summary judgment is sought” unless the affidavit “specifies the issues on which the expert will testify [.]” Id. If the affidavit specifies the issues on which the expert will testify, however, the trial court will presume that those are the only issues on which the expert's testimony will create genuine issues of material fact. Id.;Moore v. Kaiser Permanente, 91 Or.App. 262, 265, 754 P.2d 615,rev. den.,306 Or. 661, 763 P.2d 152 (1988); see also Stotler v. MTD Products, Inc., 149 Or.App. 405, 409, 943 P.2d 220 (1997) (explaining that an attorney must specify the issues on which an expert will testify if the attorney does not have a good faith belief that the expert's testimony will create a genuine issue of material fact on all issues).

As noted, plaintiffs' ORCP 47 E affidavit stated, in relevant part:

“4. Since the time of the filing of [p]laintiffs' [c]omplaint [p]laintiffs have retained a qualified elevator expert whom they intend to rely on at trial to support their claims that [d]efendant Fujitec's modernization of the elevators in the 911 building, and Centric's inspection and repair of those elevators was defective and dangerous to an extent beyond that which an ordinary consumer would have expected. Plaintiffs' expert has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.

“5. Since the time of the...