Two Two v. Fujitec America, Inc.
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FILED: May 30, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON LINDA TWO TWO, an individual; and PATRICIA FODGE, an individual, Plaintiffs-Appellants, v. FUJITEC AMERICA, INC., a Delaware corporation, Defendant-Respondent, and CENTRIC ELEVATOR CORPORATION OF OREGON, INC., an Oregon corporation, Defendant. Multnomah County Circuit Court 090100985 A145591 Nena Cook, Judge pro tempore. Argued and submitted on January 11, 2012. Brandon Mayfield argued the cause for appellants. With him on the briefs was Law Office of Brandon Mayfield LLC. Thomas M. Christ argued the cause for respondent. With him on the brief were Julie A. Smith, Cosgrave Vergeer Kester LLP, Michael D. Kennedy, and Kennedy Bowles, P.C. Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge. ORTEGA, P. J. Affirmed. 1 ORTEGA, P. J. 2 Plaintiffs appeal from a limited judgment in favor of defendant Fujitec 3 America, Inc., assigning error to the trial court's grant of summary judgment to Fujitec on 4 plaintiff's common law negligence claim and their claims under Oregon's product liability 5 statutes, ORS 30.900 to 30.920. 1 Plaintiffs' claims arose from injuries they sustained in 6 separate incidents while riding in an elevator that Fujitec had "modernized," maintained, 7 and inspected. 2 The trial court granted summary judgment to Fujitec, concluding that 8 plaintiffs had failed to produce evidence of causation on their negligence claim and that 9 their product liability claims could not be sustained because Fujitec was not a 10 "manufacturer, distributer, seller, or lessor of a product" under Oregon product liability 11 law. 12 On appeal, plaintiffs contend that summary judgment was improper 13 because they submitted evidence on their negligence claim, including an affidavit under 14 ORCP 47 E, that created genuine issues of material fact or, alternatively, that the trial 15 court should have denied summary judgment because the doctrine of res ipsa loquitur 16 would allow a jury to infer causation. Plaintiffs also contend that their product liability 17 claims were not barred because Fujitec's modernization of the elevator qualified Fujitec 1 The trial court also granted summary judgment to Fujitec on plaintiffs' breach of warranty claims; plaintiffs do not challenge that decision on appeal. 2 Plaintiffs also named Centric Elevator Corporation of Oregon, Inc., as a defendant, alleging claims of negligence and product liability. Centric moved to join Fujitec's summary judgment motion as to the product liability claims, but not on the negligence claims. The court denied Centric's motion, and Centric has not appeared on appeal. 1 1 as a "manufacturer" under ORS 30.900. We affirm the trial court's grant of summary 2 judgment because plaintiffs failed to offer any evidence on causation in response to 3 Fujitec's motion for summary judgment and the product liability statute does not apply to 4 Fujitec. 5 Summary judgment is appropriate if there is no genuine issue of material 6 fact for trial and the moving party is entitled to judgment as a matter of law. ORCP 47 C. 7 There is no genuine issue of material fact if, based on the record, "no objectively 8 reasonable juror could return a verdict for the adverse party on the matter that is the 9 subject of the motion for summary judgment." Id. To determine whether a genuine issue 10 of material fact exists in this case, we review the record in the light most favorable to 11 plaintiffs--the nonmoving party--and draw all reasonable inferences in their favor. Jones 12 v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). We state the facts 13 consistently with that standard. 14 Plaintiffs were injured in separate incidents in 2008 when an elevator in the 15 building in which they worked dropped unexpectedly and stopped abruptly. In 2001, 16 Fujitec, pursuant to a contract with the federal General Services Administration (GSA), 17 had modernized the elevator (originally constructed in the 1960s or 1970s) by installing 18 new solid-state microprocessor controls, replacing the old relay logic elevator controls, 19 installing a seismic protection system, and remodeling the elevator car interior. After 20 completing the project, Fujitec maintained and periodically tested and inspected the 21 elevator pursuant to a contract with GSA. Fujitec performed those services through 2 1 2007, at which time it assigned, via contract, its obligations and rights to Centric Elevator 2 Corporation of Oregon. 3 After sustaining their injuries, plaintiffs filed a complaint, alleging that 4 Fujitec and Centric "negligently designed, installed, and maintained" the elevator in 5 which plaintiffs were injured, which was the "direct and proximate cause" of plaintiffs' 6 injuries. Plaintiffs also claimed that Fujitec was strictly liable under Oregon's product 7 liability law, ORS 30.920, because Fujitec's negligent design, construction, and 8 installation left the elevator "defective and dangerous" such that "it failed to perform in 9 the manner reasonably to be expected in light of [its] nature and intended function." 10 Fujitec moved for summary judgment on all claims asserted by plaintiffs. 11 Fujitec argued that it could not be held liable under product liability law because it 12 applies only to "manufacturers, distributers, sellers, and lessors" of products and there 13 was no evidence that Fujitec manufactured, distributed, sold, or leased the elevator. As 14 for the negligence claim, Fujitec maintained that (1) its modernization met or exceeded 15 industry standards and complied with GSA's specifications; (2) it never "possessed" or 16 "controlled" the elevator after December 1, 2007; (3) there was no evidence of causation; 17 and (4) it inspected and maintained the elevator properly through December 2007. 18 Fujitec supported its motion with an employee's affidavit, asserting that Fujitec did not 19 manufacture the elevator in question or supply any of its parts and that Fujitec's work on 20 the elevator conformed to industry standards. The employee also testified that elevators 21 can simply drop "through no fault or negligence of anyone, including, simply because of 3 1 2 3 the age of the elevators." Plaintiffs' responded with several exhibits and an affidavit prepared by their attorney pursuant to ORCP 47 E. The affidavit stated, in part: 4 5 6 7 8 9 10 11 12 "4. 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 Fujitec's modernization of the elevators in the 911 building, and Centric's inspection and repair of those elevators was defective and dangerous to an extent beyond that which an ordinary consumer would have expected. 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. 13 14 15 16 17 18 19 "5. 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 Fujitec 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." 20 The trial court granted summary judgment, concluding that "there's no 21 admissible evidence of causation." As to plaintiffs' product liability claims, the court 22 determined that "as a matter of law * * * Fujitec did not manufacture or sell or distribute 23 or lease the elevator * * * or any of its parts." The court entered a limited judgment 24 dismissing plaintiffs' claims against Fujitec. 25 In challenging on appeal the grant of summary judgment, plaintiffs assert 26 three arguments. First, plaintiffs maintain that the evidence that they put forth in 27 opposition to summary judgment--an ORCP 47 E affidavit and exhibits--was sufficient to 28 create a genuine issue of material fact on their negligence claim. Alternatively, they 4 1 assert that summary judgment was improper because the facts in this case would allow a 2 jury, under the doctrine of res ipsa loquitur, to infer both negligence and causation 3 against Fujitec. 3 Finally, for their product liability claim, they contend, as they did before 4 the trial court, that under existing case law, Fujitec's modernization of the elevators is 5 "comparable" to the role of a manufacturer, such that Fujitec can be held liable under 6 such a theory. 7 We begin with plaintiffs' ORCP 47 E affidavit. As an initial matter, the 8 filing of an affidavit under ORCP 47 E precludes summary judgment only where expert 9 opinion evidence is required to establish a genuine issue of material fact. Deberry v. 10 Summers, 255 Or App 152, 163, 296 P3d 610 (2013). In such cases, an attorney affidavit 11 asserting that a retained expert will provide admissible evidence is sufficient, without 12 more, to create a material factual dispute. Piskorski v. Ron Tonkin Toyota, Inc., 179 Or 13 App 713, 718, 41 P3d 1088 (2002). The trial court presumes that the expert will testify 14 "on every issue on which summary judgment is sought" unless the affidavit "specifies the 15 issues on which the expert will testify[.]" Id. If the affidavit specifies the issues on 16 which the expert will testify, however, the trial court will presume that those are the only 3 Plaintiffs also advance an argument that Fujitec is vicariously liable for any negligence of Centric because of the contract between the parties. We reject that argument without discussion. Further, plaintiffs contend that the trial court erred by granting summary judgment because a different trial court judge denied Fujitec's motion for summary judgment in a separate case involving a separate plaintiff who alleged sustaining injuries in the same elevator that is part of this case. We also reject that argument without discussion. 5 1 issues on which the expert's testimony will create genuine issues of material fact. Id.; 2 Moore v. Kaiser Permanente, 91 Or App 262, 265, 754 P2d 615, rev den, 306 Or 661 3 (1988); see also Stotler v. MTD Products, Inc., 149 Or App 405, 409, 943 P2d 220 (1997) 4 (explaining that an attorney must specify the issues on which an expert will testify if the 5 attorney does not have a good faith belief that the expert's testimony will create a genuine 6 issue of material fact on all issues). 7 As noted, plaintiffs' ORCP 47 E affidavit stated, in relevant part: 8 9 10 11 12 13 14 15 16 "4. 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 Fujitec's modernization of the elevators in the 911 building, and Centric's inspection and repair of those elevators was defective and dangerous to an extent beyond that which an ordinary consumer would have expected. 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. 17 18 19 20 21 22 23 "5. 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 Defendant Fujitec 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." 24 25 (Emphases added.) Fujitec asserts that the affidavit was too narrow to defeat summary 26 judgment, explaining that it was sufficient to create genuine issue of material fact on only 27 two specific issues: (1) that Fujitec's modernization of the elevator was dangerous and 28 defective and (2) that Fujitec negligently serviced and maintained the elevator. 6 1 According to Fujitec, the affidavit does not specify that plaintiffs' expert had offered an 2 opinion on the necessary element of causation--i.e., that, but for the negligence of Fujitec, 3 plaintiffs would not have suffered the harm that is the subject of their claims. See Watson 4 v. Meltzer, 247 Or App 558, 565, 270 P3d 289 (2011), rev den, 352 Or 266 (2012) 5 (examining "but-for" causation). Fujitec contends that summary judgment was proper 6 because plaintiffs' affidavit failed to mention causation, and none of the evidence 7 submitted by plaintiffs in opposition to summary judgment created a genuine issue of 8 material fact on that element. Plaintiffs counter that their use of the term "negligent" in 9 the affidavit was sufficiently broad to encompass the element of causation and defeat 10 summary judgment. They also argue that, regardless of any deficiency in the affidavit, 11 they introduced evidence sufficient to defeat summary judgment. 12 Ultimately, we agree with defendant. Fujitec's summary judgment motion 13 was based, in part, on the lack of evidence of causation. Plaintiffs' ORCP 47 E affidavit 14 specified the issues on which their expert would testify--i.e., that Fujitec "was negligent 15 in [its] service and maintenance" of the elevator--but did not indicate that the expert had 16 offered an opinion on whether Fujitec's negligence was the cause of their injuries, an 17 element essential to proof of a negligence claim. We recognize that, in certain contexts, 18 "negligence" can be understood to encompass all of the elements that must be proven to 19 establish a negligence claim, including causation. In this case, however, plaintiffs' use of 20 the word "negligent" can only be understood to refer to Fujitec's failure to meet the 21 standard of care applicable to servicing and maintaining the elevator. Most tellingly, 7 1 plaintiffs describe Fujitec as negligent "in [its] service and maintenance" of the elevator, 2 which unambiguously indicates that their expert's opinion goes to Fujitec's exercise of 3 care in servicing and maintaining the elevator, but does not address whether Fujitec's 4 conduct caused the harm that befell the plaintiffs. The separation between the concept of 5 negligent conduct, i.e., the failure to exercise the degree of care required, and causation is 6 consistent with how those concepts are treated in law. See, e.g., Dew v. Bay Area Health 7 District, 248 Or App 244, 258, 278 P3d 20 (2012) (noting that a jury found the defendant 8 "negligent" but did not find that the defendant's negligence caused the decedent's death). 9 Accordingly, this is a case where plaintiffs' enumeration of the elements on which their 10 unnamed expert would testify reasonably leads to the conclusion that they would not be 11 offering expert testimony on causation. 12 We also reject plaintiffs' contention that the evidence they submitted in 13 opposition to Fujitec's summary judgment motion was sufficient, independent of the 14 ORCP 47 E affidavit, to create a genuine issue of material fact on the issue of causation. 15 Without recounting that evidence in detail, suffice it to say that Fujitec's contracts with 16 GSA and Centric, plaintiffs' medical records, and incident logs of service calls for the 17 elevator did not create a genuine issue of material fact as to whether Fujitec's alleged 18 negligent conduct caused the harm that befell plaintiffs. 19 Alternatively, plaintiffs contend that, even if their ORCP 47 E affidavit was 20 insufficient to create a jury issue as to causation, summary judgment should have been 21 denied because the doctrine of res ipsa loquitur would allow a jury to infer causation in 8 1 this case. Generally, res ipsa loquitur is a rule of evidence that allows a jury to infer 2 negligence and causation if the injury that occurred is of the kind that more probably than 3 not would not have occurred in the absence of the defendant's negligence. McKee 4 Electric Co. v. Carson Oil Co., 301 Or 339, 353, 723 P2d 288 (1986). 5 Fujitec asserts that res ipsa loquitur does not apply in this case because 6 elevators are complicated pieces of machinery and an ordinary person does not know 7 how they work or what could cause one to fail in the manner alleged by plaintiffs. 8 Fujitec acknowledges that its alleged negligence could be one possible cause of the 9 malfunction, but maintains that it was not the only possible cause. Accordingly, Fujitec 10 asserts that, without expert testimony on the matter, a jury could not infer that this is the 11 type of accident that ordinarily would not occur without Fujitec's negligence. 12 Courts determine whether res ipsa loquitur applies as a matter of law. 13 Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 640, 978 P2d 429, rev 14 den, 329 Or 319 (1999). An inference of negligence or causation will be permitted only 15 if a plaintiff establishes the fundamental elements of the doctrine: "(1) that there is an 16 injury, (2) that the injury is of a kind which ordinarily does not occur in the absence of 17 someone's negligence, and (3) that the negligence that caused the event was more 18 probably than not attributable to a particular defendant." Hammer v. Fred Meyer Stores, 19 Inc., 242 Or App 185, 190-191, 255 P3d 598, rev den, 350 Or 716 (2011) (internal 20 quotation marks omitted). 21 We focus our analysis on the second element--that the injury is one that 9 1 does not normally occur in the absence of someone's negligence. Generally, it is the 2 plaintiff's burden to present enough evidence for a jury to reasonably find that it is more 3 probable than not that the injury would not normally occur in the absence of negligence. 4 Watzig v. Tobin, 292 Or 645, 652 n 6, 642 P2d 651 (1982). As noted, Fujitec asserts that, 5 because the operation of an elevator is outside the common understanding of an ordinary 6 person, expert testimony is required to show that the type of accident that occurred here is 7 one that ordinarily would not occur in the absence of negligence. 8 We conclude that the summary judgment record lacks a legally sufficient 9 basis for a jury to conclude that the type of injury that occurred in this case is of a kind 10 that ordinarily does not occur in the absence of negligence. See Bingenheimer v. State 11 Farm Mutual Auto. Ins. Co., 196 Or App 316, 322, 100 P3d 1132 (2004) (deciding that, 12 without any evidence as to the relative probability that a vehicle would leak oil with or 13 without negligence, "a jury is without a legally sufficient basis for inferring, based on res 14 ipsa loquitur, that negligence of [the] driver of [the] vehicle caused the plaintiff's 15 injuries"). Given that "mechanical objects suffer breakdowns every day without someone 16 being negligent," id., and the only evidence in the summary judgment record is the 17 affidavit offered by Fujitec that the type of incident alleged by plaintiffs is of the sort that 18 can occur "in the absence of negligence by anyone," we conclude that plaintiffs failed to 19 establish the second element of res ipsa loquitur. That is, they presented no evidence as 20 to the probability that an elevator would fail in this manner with or without negligence, 21 and this is not the type of case where common experience would allow the conclusion 10 1 that a certain incident does not occur in the absence of negligence. See, e.g., Jeffries v. 2 Murdock, 74 Or App 38, 44-45, 701 P2d 451, rev den, 299 Or 584 (1985) (medical 3 malpractice foreign object in the body case). 4 Finally, we address plaintiffs' product liability claims. A "product liability 5 civil action" can include both negligence and strict liability claims within its scope. 6 Mason v. Mt. St. Joseph, Inc., 226 Or App 392, 397, 203 P3d 329 (2009). ORS 30.900 7 defines a product liability civil action as 8 9 10 "a civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of: 11 12 "(1) Any design, inspection, testing, manufacturing or other defect in a product; 13 "(2) Any failure to warn regarding a product; or 14 "(3) Any failure to properly instruct in the use of a product." 15 ORS 30.920 sets out the elements for a strict product liability claim. Strict liability 16 attaches to 17 18 19 "[o]ne who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer * * * if: 20 21 "(a) The seller or lessor is engaged in the business of selling or leasing such a product; and 22 23 24 "(b) The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased." 25 26 ORS 30.920(1). As noted, plaintiffs brought a strict liability claim based on their allegation 11 1 that Fujitec designed, installed, and maintained the elevator in such a manner as to leave 2 it in a defective condition unreasonably dangerous to the user. A strict liability claim 3 under ORS 30.920 can only attach to "[o]ne who sells or leases any product." Here, the 4 trial court concluded that Fujitec "did not manufacture or sell or distribute or lease the 5 elevator * * * or any of its parts" and, accordingly, granted summary judgment. 6 Plaintiffs' position on appeal is that the kind of work that Fujitec did in this 7 case, i.e., installing another manufacturer's products in the elevator system for GSA, is 8 the sale of a product under ORS 30.920. Plaintiffs maintain that the "key determination 9 [in reaching that conclusion] is whether it was a custom install." We ultimately conclude 10 11 that, in light of the undisputed facts, Fujitec was not subject to ORS 30.920. Fujitec advanced evidence in support of summary judgment that 12 demonstrated the following: Westinghouse originally constructed the elevator and 13 elevator systems several decades before Fujitec entered into a contract with GSA. During 14 the "modernization," GSA retained its own architect, designer, project manager, 15 construction manager, and contracts specialist. All components installed by Fujitec were 16 designed, manufactured, and sold by vendors and suppliers specified or required by GSA. 17 The scope of Fujitec's work on the elevator consisted of modernizing it by installing the 18 manufactured components that were specified by GSA. 19 Plaintiffs rely on Jamison v. Spencer R.V. Center, Inc., 98 Or App 529, 779 20 P2d 1091 (1989), and Brokenshire v. Rivas and Rivas, Ltd., 142 Or App 555, 922 P2d 21 696 (1996), rev dismissed as improvidently allowed, 327 Or 119 (1998), for the 12 1 proposition that Fujitec's assembly of component parts for GSA was akin to the creation 2 and sale of a product for purposes of ORS 30.920. Fujitec counters that Jamison and 3 Brokenshire are inapposite and that it simply provided a service when it modernized the 4 elevator, which, under another line of authority, makes it not subject to strict liability. 5 In Jamison, the plaintiff and the defendant had entered into a contract for 6 the sale of a travel trailer, which included the sale and installation of a trailer hitch 7 provided by the defendant. 98 Or App at 531. The installation of the hitch consisted of 8 "the assembly, including welding, of component parts of the hitch assembly." Id. The 9 plaintiff later lost control of the truck when a weld on the hitch assembly failed. To apply 10 the correct statute of limitations, we examined whether the plaintiff's claim was a 11 "product liability civil action" within the meaning of ORS 30.900. The plaintiff had 12 alleged that the defendant, who sold the hitch to the plaintiff, had made inadequate welds 13 in the hitch system and installed a deficient stiffener bar. Id. at 533. We concluded that 14 "[t]hose allegations, if proved, would show that assembly and installation of the trailer 15 hitch created a defect in the hitch, resulting in a defective product being sold to [the] 16 plaintiff." Id. 17 Brokenshire is a strict liability case in which the plaintiff sued a company 18 that sold and installed an "acrylic flooring system" to the plaintiff's employer. The 19 plaintiff slipped and fell on the floor and sued, alleging that the defendant was strictly 20 liable under ORS 30.920 because the flooring system was defective and unreasonably 21 dangerous. 142 Or App at 558. The defendant argued that its installation of the floor 13 1 was a service and not the sale of a "product" under ORS 30.920. Id. at 559. After 2 acknowledging that the case might be described as a "hybrid transaction" that was partly 3 the rendering of a service and partly the sale of a product, this court explained that the 4 defendant both sold the acrylic floor and performed the service of installing it. Id. at 560- 5 61. Relying on Jamison, the court concluded that because the defendant "was required to 6 customize each * * * acrylic floor that it sold by applying the proper mix of acrylic flakes 7 to the wet resin along with a finish coat of sealer to provide the desired combination of 8 color, texture and surface," the defendant's role was to "manufacture on site the floor" 9 that it had sold to the employer. Id. at 562. 10 Jamison and Brokenshire are inapposite here. Those cases involved the 11 defendant's sale and installation of a component part that was defective. That is, the 12 defendant in those cases created a product by the sale and assembly of component parts 13 that resulted in a defective product. In this case, however, the only evidence in the record 14 is that Fujitec installed component parts provided by others. As such, that evidence only 15 supports the allegation that Fujitec provided a service by installing, per GSA's conditions 16 and specifications, component parts manufactured and supplied by other parties. 17 Accordingly, this case is more in line with the authority that has concluded that ORS 18 30.920 does not apply to simple service transactions. See Watts v. Rubber Tree, Inc., 118 19 Or App 557, 848 P2d 1210, adh'd to on recons, 121 Or App 21, 853 P2d 1365 (1993), 20 (ORS 30.920 did not apply to a tire recapper because it had simply provided a service 21 when it affixed a new tread to a defective tire casing that was supplied by another). In 14 1 such cases, while the plaintiff may have a claim for negligent service, strict product 2 liability does not attach. This is such a case. 3 Affirmed. 15
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