West v. Allied Signal, Inc.

Decision Date15 June 2005
Citation200 Or. App. 182,113 P.3d 983
PartiesDonna WEST, Personal Representative of the Estate of Wendell Lee West, Appellant, v. ALLIED SIGNAL, INC., individually and as successor-in-interest to Allied Corp., successor-in-interest to Bendix Corp.; Borg-Warner Corporation, a Delaware corporation; Carlisle Companies, Inc., a Delaware corporation, individually and as successor-in-interest to Carlisle Corp.; CH Murphy/Clark-Ullman, Incorporated, an Oregon corporation, individually, and as successor-in-interest to CH Murphy, and as successor-in-interest to Clark-Ullman, Inc.; Daimler Chrysler Corporation, as successor-in-interest to Chrysler Corporation; Ferodo America, Inc., a Delaware corporation, individually and as successor-in-interest to Nuturn Corporation; Ford Motor Company, a Delaware corporation; General Motors, a Delaware corporation; G.I. Joe's, an Oregon corporation; Metalclad Insulation Corporation, a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Insulation Corporation of Oregon, an Oregon corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Corporation, a Delaware corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Development Corporation, a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; The Metalclad Group, Inc., a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Products Corporation, a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Supply, Inc., a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Insulation Corporation of Washington, Metalclad Products Corporation, and Bower Industries, Inc.; Metalclad Insulation Corporation of Washington, a Washington corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Supply, Inc., and Bower Industries, Inc.; Metropolitan Life Insurance Company, a New York corporation; Pneumo Abex Corporation, a Delaware corporation, individually and as successor-in-interest to American Brake Shoe Co. and Abex Corp., Defendants, and La Grand Industrial Supply Co., an Oregon corporation, Respondent.
CourtOregon Court of Appeals

Robert K. Udziela, Portland, argued the cause and filed the briefs for appellant.

R. Daniel Lindahl, Portland, argued the cause for respondent. With him on the brief were Jeanne F. Loftis and Bullivant Houser Bailey, PC.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA,1 Judges.

HASELTON, P.J.

Plaintiff, the personal representative of the Estate of Wendell West, appeals, challenging the allowance of summary judgment in favor of defendant La Grand Industrial Supply Co. on claims arising out of the decedent's alleged exposure to asbestos while working at a foundry in the early 1960s. The trial court concluded that plaintiff had failed to present sufficient evidence to permit a reasonable trier of fact to find that defendant had, in fact, supplied to the foundry asbestos gloves that decedent or his coworkers wore, causing decedent to be injuriously exposed to asbestos fibers. We disagree and, consequently, reverse and remand.

Summary judgment is proper if the "pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact * * *." ORCP 47 C. "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." Id. In reviewing the allowance of summary judgment here, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party. Bachmeier v. Tuttle, 195 Or.App. 83, 85, 96 P.3d 871 (2004).

Before recounting the material facts in accordance with the foregoing principles, we must resolve, at least in part, an evidentiary dispute between the parties. In particular, defendant contends that one of the affidavits that plaintiff submitted in opposition to summary judgment — the affidavit of Joachim Hillner, one of decedent's fellow workers at the foundry — was inadmissible because Hillner's affidavit did not comply with the requirements of ORCP 47 D that such affidavits

"[s]hall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant or declarant is competent to testify to the matters stated therein."2

The pertinent portions of the Hillner affidavit state as follows:

"I, Joachim Hillner, having been first duly sworn, do hereby depose and say:
"1. My name is Joachim Hillner. I worked at Western Foundry (in Tigard, OR) from 1960 through 1993. In 1960 I began working at Western Foundry as a foundry helper. I worked there intermittently between 1960 and June 1964. In June 1964, I was promoted to the journeyman position of master molder. From June 1964 through 1993 I worked for Western Foundry on a full time basis as a molder and coremaker.
"2. While working at Western Foundry, I and the other workers regularly used and/or wore asbestos-containing products. During my work at Western Foundry, and specifically during the years 1960 through 1965, I and other workers would routinely wear asbestos-containing gloves. The asbestos containing gloves were sold to Western Foundry by La Grand Industrial Supply Company (`La Grand'). La Grand was the major supplier of foundry products (including asbestos gloves) to Western Foundry from 1960 through 1975 and later.
"3. We would specifically refer to the gloves as asbestos gloves. It was important to us that the gloves were asbestos-containing products because we knew that the asbestos protected us from the extreme heat of the foundry. The gloves were kept in stock on the Western Foundry site.
"4. When the workers (including myself) would use asbestos gloves (sold to Western Foundry by La Grand), I personally observed dust being created from the asbestos gloves. I, and everyone in the vicinity, would breathe this dust. This occurred on a regular and sustained basis throughout the 1960 through 1965 time period and later as well.
"* * * * *
"6. When night shift workers wore the asbestos gloves (sold to Western Foundry by La Grand) and picked up and/or cleaned hot castings, a large amount of dust was created. I personally observed this. Dust was created simply by the use of the asbestos gloves (sold to Western Foundry by La Grand). I, and all workers in the vicinity, breathed this dust."3

Although defendant challenges the admissibility of the entire Hillner affidavit, defendant is particularly concerned with those portions of the affidavit that pertain to a single, critical matter: Did defendant supply any asbestos gloves to the foundry during the period of decedent's employment? Defendant asserts that nothing in Hillner's affidavit shows that Hillner had personal knowledge about the source of the foundry's asbestos gloves:

"There are a couple of ways the affiant could have provided the necessary foundation testimony. For example, he could have simply testified that he had personal knowledge of the source of Western Foundry's asbestos gloves. Or he could have testified to facts from which the court could reasonably infer that he had such knowledge, such as testimony that his job duties included purchasing supplies such as asbestos gloves. But the affidavit contains no such testimony.
"* * * Moreover, the affidavit says Joachim Hillner worked at Western Foundry as a foundry helper, molder, and coremaker. Nothing about that testimony would permit an inference that the affiant knew who sold asbestos gloves to Western Foundry. The affiant testified that his job put him out in the foundry,
...

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    • United States
    • Oregon Court of Appeals
    • December 6, 2006
    ...of summary judgment, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party. West v. Allied Signal, Inc., 200 Or.App. 182, 187, 113 P.3d 983 (2005). We describe the material facts consistently with that standard of review.2 Defendant is a public entity responsi......
  • State v. Riekens
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    • Oregon Court of Appeals
    • December 18, 2019
    ...established facts support multiple reasonable inferences, the jury may decide which inference to draw."); West v. Allied Signal, Inc. , 200 Or. App. 182, 192 n. 4, 113 P.3d 983 (2005) (noting that an inference is permissible and not "impermissible speculation" when "there is an experience o......
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    • United States
    • Oregon Court of Appeals
    • April 11, 2007
    ...the allowance of summary judgment, we draw all reasonable inferences in favor of the nonmoving party. West v. Allied Signal, Inc., 200 Or.App. 182, 187, 113 P.3d 983 (2005). Because we must consider whether the trial court erred in determining that the "newly discovered evidence" will chang......
  • Hammel v. McCulloch
    • United States
    • Oregon Court of Appeals
    • April 3, 2019
    ...47 D does not require an explicit statement by the affiant as to his personal knowledge and competence." West v. Allied Signal, Inc. , 200 Or. App. 182, 190, 113 P.3d 983 (2005) (emphasis in original). Rather, "the rule's requirements are satisfied if, from the content of the affidavit read......
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2 books & journal articles
  • § 28.3 Types of Evidence to Be Used in Summary-judgment Proceedings
    • United States
    • Oregon Civil Pleading and Litigation (OSBar) Chapter 28 Summary Judgment
    • Invalid date
    ...not require an explicit statement as to the affiant's personal knowledge or competence. West v. Allied Signal, Inc., 200 Or App 182, 190, 113 P3d 983 (2005). Rather, the requirement is satisfied when an "objectively reasonable person," reading the affidavit as a whole, "would understand tha......
  • § 4.7 Oregon Law and State Agencies
    • United States
    • Environmental Law Vol. 1: Regulation and Permitting (OSBar) Chapter 4 Wastes and Hazardous Substances
    • Invalid date
    ...A.J. Zinda Co., 196 Or App 262, 271, 101 P3d 819 (2004), rev den, 338 Or 374 (2005); West v. Allied Signal, Inc., 200 Or App 182, 192-93, 113 P3d 983 (2005); Abendroth v. Asbestos Corp., Ltd., 201 Or App 705, 120 P3d 535 (2005). NOTE: Several bills designed to take asbestos-related injury c......

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