LaVoie v. Power Auto, Inc.
312 P.3d 601
Or. Ct. App.2013Background
- Plaintiff injured when his Chevrolet Cavalier accelerated out of control, left the road, and rolled over due to an after-market floor mat allegedly sliding forward.
- Lukawitz, plaintiff's girlfriend, bought the base model which lacked floor mats or a retention system; aftermarket mats were subsequently installed and reinstalled by unknown persons.
- Plaintiff previously experienced a floor-mat interference incident, removed the mats, and later discovered they had been reinstalled; another incident occurred in April 2008 causing the crash.
- Plaintiff alleged product liability and common-law negligence against Power Chevrolet, the dealer that sold the car to Lukawitz; Remington Industries was named as the floor-mat manufacturer but later dropped from the case.
- Defendant moved for summary judgment contending the floor mat was an after-market alteration or modification under ORS 30.915, and that all elements of that defense were proven; the trial court granted the motion.
- On appeal, the court held the ORCP 47 E affidavit was insufficient to defeat summary judgment as to the defense, but that the defense had not been proven on all elements, so it reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of ORCP 47 E affidavit on defense | Affidavit asserts unnamed expert will testify on all elements | Affidavit fails to address all elements of the defense | Affidavit insufficient; remand for substantive ruling on defense |
| Applicability of ORS 30.915 alteration/modification | Floor mats constituted a defect in the vehicle when sold | Defense applicable; mats were an alteration | Defense potentially applicable; factual issue remains unresolved on remand. |
| Consent element of the defense | Implied consent via higher-end models’ standard equipment to use mats | No express or implied consent; legal issue of consent material | No consent proven as a matter of law; factual issues remain. |
| Foreseeability and warnings under the defense | Warnings may have been needed or the risk reasonably foreseeable | Warnings were not shown to be necessary as a matter of law | Jury could find warnings or foreseeability material; not conclusively established. |
Key Cases Cited
- Moore v. Kaiser Permanente, 91 Or App 262, 754 P.2d 615 (1988) (ORCP 47 E affidavits require retention of expertise to create a fact issue (general rule with exception))
- Piskorski v. Ron Tonkin Toyota, Inc., 179 Or App 713, 41 P.3d 1088 (2002) (Enumeration of issues requires addressing all relevant elements)
- Stotler v. MTD Products, Inc., 149 Or App 405, 943 P2d 220 (1997) (ORCP 47 E affidavit scope and elements consideration)
- Deberry v. Summers, 255 Or App 152, 296 P.3d 610 (2013) (Clarifies when expert testimony is required to create a material fact issue under ORCP 47 E)
- Marinelli v. Ford Motor Co., 72 Or App 268, 696 P.2d 1 (1985) (Product liability civil action scope includes negligence theories)