Two Two v. Fujitec America, Inc.
305 P.3d 132
Or. Ct. App.2013Background
- Fujitec modernized an elevator in a building under a GSA contract and later maintained and inspected it through 2007.
- Plaintiffs were injured in separate 2008 incidents involving that elevator, allegedly due to Fujitec’s negligent design, installation, or maintenance.
- Plaintiffs sued Fujitec and Centric, asserting negligence and a product liability claim under ORS 30.900 to 30.920.
- Fujitec moved for summary judgment, asserting lack of causation evidence and that it did not manufacture or sell a product for product liability purposes.
- Plaintiffs opposing summary judgment submitted an ORCP 47 E affidavit and other exhibits, seeking to create a factual dispute on causation and potentially res ipsa loquitur.
- The trial court granted summary judgment for Fujitec on both negligence and product liability claims; the court later issued a limited judgment dismissing claims against Fujitec.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the ORCP 47 E affidavit raise a genuine issue on causation? | Plf. used broad ‘negligent’ language to imply causation. | Affidavit fails to specify causation, only addressing negligence per se. | Affidavit insufficient; no causation issue; summary judgment proper. |
| Should res ipsa loquitur support causation in these elevator incidents? | Res ipsa could permit an inference of negligence and causation. | Lack of expert causation and the injury type not shown as ordinarily resulting from negligence. | Res ipsa not established; record lacks second element; no inference of causation. |
| Is Fujitec a ‘manufacturer’ under ORS 30.900-30.920 for product liability? | Modernization activities may render Fujitec a manufacturer by assembly/installation. | Fujitec installed components provided by others; not a seller or lessor of a product; not a manufacturer. | Not a manufacturer; product liability statute does not apply. |
| Does Fujitec’s modernization constitute a sale of a product under ORS 30.920? | On-site assembly and installation akin to selling a defective product. | Work was a service using components supplied by GSA-designated vendors; not sale of a product. | No sale/lease of a product; ORS 30.920 not applicable. |
Key Cases Cited
- McKee Electric Co. v. Carson Oil Co., 301 Or 339 (Or. 1986) (res ipsa standard; negligence and causation inference discussed)
- Watts v. Rubber Tree, Inc., 118 Or App 557 (Or. App. 1993) (ORS 30.920 service vs. product distinction; hybrid transactions)
- Jamison v. Spencer R.V. Center, Inc., 98 Or App 529 (Or. App. 1989) (on product liability scope for on-site assembly of parts)
- Brokenshire v. Rivas and Rivas, Ltd., 142 Or App 555 (Or. App. 1996) (hybrid sale/install cases; on-site customization as product liability)
- Dew v. Bay Area Health District, 248 Or App 244 (Or. App. 2012) (distinguishes negligence from causation elements)
- Jeffries v. Murdock, 74 Or App 38 (Or. App. 1985) (foreign object in body; res ipsa context)
- Watzig v. Tobin, 292 Or 645 (Or. 1982) (elevates burden on showing probability under res ipsa)
- Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637 (Or. App. 1999) (legal test for res ipsa applicability)
- Bingenheimer v. State Farm Mutual Auto. Ins. Co., 196 Or App 316 (Or. App. 2004) (res ipsa probability standard for common-sense cases)
- Dew v. Bay Area Health District, 248 Or App 244 (Or. App. 2012) (causation versus negligence distinction)