Two v. Fujitec Am., Inc.

• Decision Date: 08 May 2014
• Docket Number: SC S061536.,Nos. CC 090100985,CA A145591,s. CC 090100985
• Citation: 325 P.3d 707,355 Or. 319
• Parties: Linda TWO TWO, an individual, and Patricia Fodge, an individual, Petitioners on Review, v. FUJITEC AMERICA, INC., a Delaware Corporation, Respondent on Review, and Centric Elevators Corporation of Oregon Inc., an Oregon Corporation, Defendant.
• Court: Oregon Supreme Court

355 Or. 319

325 P.3d 707

Linda TWO TWO, an individual, and Patricia Fodge, an individual, Petitioners on Review,

v.FUJITEC AMERICA, INC., a Delaware Corporation, Respondent on Review,andCentric Elevators Corporation of Oregon Inc., an Oregon Corporation, Defendant.

Nos. CC 090100985; CA A145591; SC S061536.

Supreme Court of Oregon,

En Banc.

Argued and Submitted March 11, 2014.

May 8, 2014.

On review from the Court of Appeals.^*

Brandon B. Mayfield, Law Office of Brandon Mayfield LLC, Beaverton, argued the cause and filed the brief for petitioners on review.

Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Michael D. Kennedy, Kennedy Bowles, P.C., Portland.

Meagan A. Flynn, Preston Bunnell & Flynn, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

WALTERS, J.

In this case, we decide that the trial court erred in granting defendant's motion for summary judgment on plaintiffs' negligence claim, but did not err in granting defendant's motion for summary judgment on plaintiffs' strict liability claim.

Plaintiffs Linda Two Two and Patricia Fodge filed a complaint against defendant ¹ that included claims for negligence and strict liability. ² Plaintiffs alleged that they had been injured in separate incidents in 2008 when an elevator in the building in which they worked dropped unexpectedly and stopped abruptly. In their negligence claim, plaintiffs alleged that defendant had negligently designed, installed, and maintained that elevator and that defendant's negligence was the direct and proximate cause of plaintiffs' injuries. Plaintiffs also alleged that their injuries were of a type that would not have occurred absent someone's negligence and that the negligence that caused their injuries was more probably than not attributable to defendant. In their strict liability claim, plaintiffs alleged that defendant had designed, installed, and constructed the elevatorand that the elevator was defective and dangerous.

Defendant sought summary judgment on both claims. Defendant supported its motion with various documents, including portions of a modernization contract that defendant had entered into with the federal government to upgrade and maintain the elevator systems in the building in which plaintiffs worked. Defendant also filed an affidavit from one of its employees stating, with regard to plaintiffs' negligence claim, that defendant's initial modernization work and its continued maintenance of the elevator conformed to or exceeded industry standards, that defendant was not in possession or control of the elevator after December 31, 2007, and that elevators can drop “through no fault or negligence of anyone, including, simply because of the age of the elevators.” With regard to plaintiffs' strict liability claim, the employee averred that the elevator had not been manufactured by defendant, and that defendant's modernization did not include the manufacture or design of the elevator or any of its component parts. Further, the employee stated, the elevator's component parts were manufactured and supplied by vendors and suppliers other than defendant and those vendors and suppliers had been specified by the government or its consultants.

Plaintiffs responded to the challenge to their negligence claim by submitting additional pages of the modernization contract, a number of exhibits that arguably demonstrated that the elevator had a longstanding history of mechanical problems, and an affidavit prepared by their attorney pursuant to ORCP 47 E. That affidavit stated, in part:

“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 * * * 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.”

To respond to defendant's challenge to their strict liability claim, plaintiffs pointed to provisions of the modernization contract and other documents in the record as evidence that defendant had undertaken to redesign and manufacture the elevator and that it had supplied and installed the component parts necessary to fulfill its contractual responsibilities.³

In reply, defendant contended that plaintiffs' ORCP 47 E affidavit was insufficient to defeat summary judgment on plaintiffs' negligence claim, because it addressed only defendant's negligence in the service and maintenance of the elevator and failed to raise an issue of fact about whether defendant's alleged negligence had caused plaintiffs' injuries. Defendant also argued that the other documents that plaintiffs had submitted in response to the motion for summary judgment were insufficient to raise an issue of fact as to causation.

The trial court granted defendant's motion for summary judgment on both claims. As to the negligence claim, the trial court explained that “there's no admissible evidence of causation.” As to the strict liability claim, the court explained that defendant had established, as a matter of law, that it “did not manufacture or sell or distribute or lease the elevator * * * or any of its parts.”

Plaintiffs appealed to the Court of Appeals, which affirmed. Two Two v. Fujitec America, Inc., 256 Or.App. 784, 305 P.3d 132 (2013). As to plaintiffs' negligence claim, the Court of Appeals agreed with defendant that plaintiffs' ORCP 47 E affidavit was insufficient to defeat summary judgment. Id. at 791, 305 P.3d 132. The court understood the affidavit's reference to negligence to be a reference to only one element of a negligence claim-failure to meet the standard of care. Therefore, the court reasoned, the affidavit did not address another element of a negligence claim—causation—and could not defeat summary judgment on that issue. Id. As to plaintiffs' strict liability claim, the court concluded that defendant was not subject to ORS 30.920, Oregon's strict liability statute. Id. at 796–97, 305 P.3d 132. The court explained that ORS 30.920 does not apply to service transactions and that the evidence in the record demonstrated, as a matter of law, that defendant's only role was as a service provider. Defendant had installed component parts manufactured and supplied by others; it had not sold or supplied those component parts. Id.

Plaintiffs sought, and we allowed, review. Before this court, plaintiffs argue that their ORCP 47 E affidavit and the other evidence in the summary judgment record raised material issues of fact that precluded summary judgment on both their negligence and strict liability claims. We turn first to plaintiffs' negligence claim and begin with a review of the summary judgment process set out in ORCP 47.

Under ORCP 47 B, a party against whom a claim is asserted may move, “with or without supporting affidavits or declarations, for a summary judgment in that party's favor as to all or any part thereof.”

ORCP 47 C provides, in part:

“The court shall grant the motion if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail 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. The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial. The adverse party may satisfy the burden of producing evidence with an affidavit or a declaration under section E of this rule.”

Thus, under ORCP 47 C, the party opposing summary judgment has the burden of producing evidence on any issue “raised in the motion” as to which the adverse party would have the burden of persuasion at trial.

In this case, defendant moved for summary judgment and “raised in the motion” four issues with regard to plaintiffs' negligence claim: that (1) defendant properly performed the modernization of the elevator; (2) defendant was not in control or possession of the elevator after December 31, 2007; (3) plaintiffs' incidents could have occurred through no fault or negligence of defendant and plaintiffs thus were not entitled to use the doctrine of res ipsa loquitor to prove negligence; and (4) defendant properly 27 inspected and maintained the elevator through December 31, 2007. Because plaintiffs had the burden of persuasion on those issues at trial, ORCP 47 C required that they produce sufficient evidence on those issues to defeat summary judgment. In contrast, however, defendant did not “raise in the motion” an issue on which it later relied—that defendant's alleged negligence was not a cause of plaintiffs' injuries. Plaintiffs had the burden of persuasion on that issue at trial and, had defendant raised that issue “in the motion,” ORCP 47 C would have required plaintiffs to produce evidence on the issue of causation to defeat summary judgment.

Instead, defendant first raised the issue of causation as a basis for summary judgment in its reply memorandum. There, defendant argued that plaintiffs' ORCP 47 E affidavit was insufficient because it did not establish that defendant's alleged negligence had any causal relationship to plaintiffs' injuries or that defendant did anything that caused the elevator to drop. At the hearing on defendant's motion, defendant pressed that argument. Plaintiffs did not specifically respond; plaintiffs focused in oral argument on the evidence that they contended supported their...