Brokenshire v. Rivas and Rivas, Ltd. ( 1998 )

957 P.2d 157 (1998) 327 Or. 119

Victoria BROKENSHIRE, Respondent on Review,
v.
RIVAS AND RIVAS, LTD., an Oregon corporation, dba Cascade Pacific Group, Petitioner on Review.

CC 940100028; CA A87637; SC S43650.

Supreme Court of Oregon.

Argued and Submitted May 1, 1997. Decided April 30, 1998.

Thomas A. Gordon, of Gordon & Polscer, Portland, argued the case and filed the briefs for petitioner on review.

James D. Huegli, Portland, argued the cause for respondent on review. With him on the brief was M. Elizabeth Duncan, of Greene & Markley, P.C., Portland.

Robert K. Udziela, of Pozzi Wilson Atchinson, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Karen O'Kasey, of Schwabe, Williamson & Wyatt, Portland filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN and KULONGOSKI, JJ.^[**]

MEMORANDUM OPINION

This is a strict products liability case. We allowed review to consider whether the trial court properly denied defendant's motion for a directed verdict.

In the Court of Appeals, defendant argued, inter alia, that it had provided a service, not a product, and, therefore, that plaintiff had no claim under ORS 30.920.^[1] Plaintiff responded that defendant never had argued at trial that it had provided a service rather than a product and, therefore, that the issue had not been preserved for appeal.

A majority of the Court of Appeals' panel concluded that the issue had been preserved at trial and held that defendant had provided a product. Brokenshire v. Rivas and Rivas, Ltd., 142 Or.App. 555, 922 P.2d 696 (1996). Without addressing whether the issue had been preserved at trial, the dissenting judge concluded that plaintiff's claim was a claim for negligent installation and that the trial court erred in allowing that claim to go to the jury under the strict products liability statute. Id. at 569, 922 P.2d 696. This court allowed defendant's petition for review. Brokenshire v. Rivas and Rivas, Ltd., 324 Or. 487, 930 P.2d 851 (1996). We now conclude that we cannot reach the issue that prompted that allowance.

In the Court of Appeals and in this court, plaintiff consistently has argued that defendant never argued at trial that it had provided a service rather than a product. On review of the entire record, we agree. That claim of error appeared for the first time in defendant's opening brief in the Court of Appeals. Accordingly, review should not have been allowed. See ORAP 5.45(2) (no assignment of error will be considered on appeal unless preserved in lower court); Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991) (generally, before appellate court may address whether trial court committed error, adversely affected party must have preserved alleged claim of error in trial court).

Petition for review dismissed as improvidently allowed.

NOTES

[**] Fadeley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998, and did not participate in this decision; Durham, J., did not participate in the consideration or decision of this case.

[1] ORS 30.920 provides in part:

"(1) One 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 is subject to liability for physical harm or damage to property caused by that condition, if:

"(a) The seller or lessor is engaged in the business of selling or leasing such a product; and

"(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."