Two Two v. Fujitec America, Inc.
325 P.3d 707
| Or. | 2014Background
- Plaintiffs Linda Two Two and Patricia Fodge sued Fujitec America, Inc. alleging injuries from separate 2008 incidents in which an elevator dropped abruptly; claims included negligence and strict product liability.
- Fujitec moved for summary judgment, submitting its modernization/maintenance contract, an employee affidavit asserting compliance with standards and that Fujitec did not manufacture elevator components, and other records.
- Plaintiffs responded with contract excerpts, documents showing prior mechanical problems, and an ORCP 47 E attorney affidavit stating they had retained an unnamed elevator expert who had rendered opinions or provided facts that, if disclosed, would defeat summary judgment.
- Trial court granted summary judgment for Fujitec on both negligence (finding no admissible evidence of causation) and strict liability (finding Fujitec did not manufacture/supply parts). Court of Appeals affirmed.
- Oregon Supreme Court: affirmed in part and reversed in part — reversed summary judgment on negligence (ORCP 47 E affidavit and circumstantial evidence could create issues of fact on negligence and causation) but affirmed summary judgment on strict liability (no record evidence Fujitec manufactured or supplied the parts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ ORCP 47 E affidavit defeated summary judgment on negligence (including causation) | The affidavit shows an unnamed expert rendered opinions/facts that would create triable issues on negligence and causation | The affidavit was issue-specific (service/maintenance only) and did not address causation; thus insufficient | Reversed: read most favorably to plaintiffs, the affidavit can be understood to create material factual issues on negligence including causation; summary judgment on negligence was erroneous |
| Whether circumstantial evidence suffices to prove causation without explicit expert testimony | Expert affidavit plus records of abrupt elevator drop and history of mechanical problems permit a jury inference that negligence caused the drop | Elevators can drop from age/failure unrelated to negligence; without direct proof causation is lacking | Reversed: circumstantial evidence plus expert proof (or the ORCP 47 E affidavit) can create a triable issue on causation |
| Whether Fujitec is subject to strict products liability under ORS 30.920 for the elevator/parts | Plaintiffs argue contract evidence and payments for parts/labor raise an issue that Fujitec supplied or manufactured parts and thus may be a seller in the distribution chain | Fujitec submitted affidavits and contract pages showing parts were manufactured/supplied by third parties and government specified parts; Fujitec did not manufacture or sell the parts installed | Affirmed: plaintiffs failed to produce evidence that Fujitec manufactured, sold, or supplied the component parts; no strict liability under ORS 30.920 |
| Proper scope and effect of an ORCP 47 E affidavit that enumerates issues | The affidavit here need not enumerate every element; attorney’s affidavit referencing retained expert and that the expert rendered opinions sufficient to deny summary judgment is permissible | If affidavit is issue-specific, it only defeats summary judgment on enumerated issues; cannot rely on unspecified elements like causation | Clarified: ORCP 47 E may be general or issue-specific; if issue-specific it only controls those specified issues. Here, viewed favorably to plaintiffs, the affidavit was sufficient to raise issues on negligence (including causation). |
Key Cases Cited
- Trees v. Ordonez, 354 Or 197 (2013) (circumstantial and expert evidence may support causation in negligence).
- Hoover v. Montgomery Ward, 270 Or 498 (1974) (application of strict products liability and distinction between defective product and defective service).
- Moore v. Kaiser Permanente, 91 Or App 262 (1988) (ORCP 47 E issue-specific affidavits: enumerating topics limits the affidavit to those topics).
- Newmark v. Gimbel’s Inc., 54 N.J. 585 (1969) (a service provider can be held strictly liable when it supplies a defective product in the course of providing a service).
- Fulbright v. Klamath Gas Co., 271 Or 449 (1975) (a supplier may be strictly liable even if the product was provided free of charge).