Two Two v. Fujitec America, Inc. , 355 Or. 319 ( 2014 )

No. 27 May 8, 2014 319
IN THE SUPREME COURT OF THE
STATE OF OREGON
Linda TWO TWO,
an individual,
and Patricia Fodge,
an individual,
Petitioners on Review,
v.
FUJITEC AMERICA, INC.,
a Delaware Corporation,
Respondent on Review,
and
CENTRIC ELEVATORS CORPORATION
OF OREGON INC.,
an Oregon Corporation,
Defendant.
(CC 090100985; CA A145591; SC S061536)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 11, 2014, at the Willamette
University College of Law, Salem.
Brandon B. Mayfield, Law Office of Brandon Mayfield
LLC, Beaverton, argued the cause and filed the brief for
petitioners on review.
Thomas M. Christ, Cosgrave Vergeer Kester LLP,
Portland, argued the cause and filed the brief for respondent
on review. With him on the brief was Michael D. Kennedy,
Kennedy Bowles, P.C., Portland.
Meagan A. Flynn, Preston Bunnell & Flynn, LLP,
Portland, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
______________
*  On appeal from Multnomah County Circuit Court, Nena Cook, Judge Pro
Tem. 256 Or App 784, 305 P3d 132 (2013).
320 Two Two v. Fujitec America, Inc.
WALTERS, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
Plaintiffs petitioned for review of a Court of Appeals’ decision affirming the
trial court’s award of summary judgment to defendant. The Court of Appeals had
held that plaintiffs’ ORCP 47 E affidavit was insufficient to create a question of
fact as to defendant’s negligence, and that plaintiffs had not established that
defendant was subject to strict liability under ORS 30.920. Held: The decision
of the Court of Appeals is affirmed in part and reversed in part. The trial court
erred in granting summary judgment on plaintiffs’ negligence claim but did not
err in granting summary judgment on plaintiffs’ strict liability claim. Plaintiffs’
ORCP 47 E affidavit, when read in the light most favorable to plaintiffs, was suf-
ficient to create a question of fact on the issue of defendant’s negligence. However,
plaintiffs did not establish that defendant manufactured, sold, or distributed any
components of the elevator, and thus defendant is not subject to strict liability
under ORS 30.920. The decision of the Court of Appeals is affirmed in part and
reversed in part.
The judgment of the circuit court is affirmed in part and reversed in part,
and the case is remanded to the circuit court for further proceedings.
Cite as 355 Or 319 (2014) 321
WALTERS, J.
In this case, we decide that the trial court erred
in granting defendant’s motion for summary judgment on
plaintiffs’ negligence claim, but did not err in granting
defendant’s motion for summary judgment on plaintiffs’
strict liability claim.
Plaintiffs Linda Two Two and Patricia Fodge filed
a complaint against defendant1 that included claims for neg-
ligence and strict liability.2 Plaintiffs alleged that they had
been injured in separate incidents in 2008 when an elevator
in the building in which they worked dropped unexpectedly
and stopped abruptly. In their negligence claim, plaintiffs
alleged that defendant had negligently designed, installed,
and maintained that elevator and that defendant’s neg-
ligence was the direct and proximate cause of plaintiffs’
injuries. Plaintiffs also alleged that their injuries were of a
type that would not have occurred absent someone’s negli-
gence and that the negligence that caused their injuries was
more probably than not attributable to defendant. In their
strict liability claim, plaintiffs alleged that defendant had
designed, installed, and constructed the elevator and that
the elevator was defective and dangerous.
Defendant sought summary judgment on both
claims. Defendant supported its motion with various docu-
ments, including portions of a modernization contract that
defendant had entered into with the federal government to
upgrade and maintain the elevator systems in the building
in which plaintiffs worked. Defendant also filed an affida-
vit from one of its employees stating, with regard to plain-
tiffs’ negligence claim, that defendant’s initial moderniza-
tion work and its continued maintenance of the elevator
conformed to or exceeded industry standards, that defen-
dant was not in possession or control of the elevator after
1
Plaintiffs named both Fujitec America, Inc., and Centric Elevator
Corporation of Oregon, Inc., (Centric) as defendants. Centric is not a party on
review. When we refer to defendant in this opinion, we mean Fujitec America,
Inc.
2
Plaintiffs’ complaint also included a claim for breach of warranty. The trial
court granted summary judgment on that claim and plaintiffs did not challenge
that decision on appeal to the Court of Appeals, nor do they challenge that deci-
sion in this court.
322 Two Two v. Fujitec America, Inc.
December 31, 2007, and that elevators can drop “through
no fault or negligence of anyone, including, simply because
of the age of the elevators.” With regard to plaintiffs’ strict
liability claim, the employee averred that the elevator had
not been manufactured by defendant, and that defendant’s
modernization did not include the manufacture or design
of the elevator or any of its component parts. Further, the
employee stated, the elevator’s component parts were man-
ufactured and supplied by vendors and suppliers other than
defendant and those vendors and suppliers had been speci-
fied by the government or its consultants.
Plaintiffs responded to the challenge to their negli-
gence claim by submitting additional pages of the moderniza-
tion contract, a number of exhibits that arguably demonstrated
that the elevator had a longstanding history of mechanical
problems, and an affidavit prepared by their attorney pursu-
ant to ORCP 47 E. That affidavit stated, in part:
“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 *  * was negligent in [its] service and main-
*
tenance 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.”
To respond to defendant’s challenge to their strict
liability claim, plaintiffs pointed to provisions of the mod-
ernization contract and other documents in the record as
evidence that defendant had undertaken to redesign and
manufacture the elevator and that it had supplied and
installed the component parts necessary to fulfill its con-
tractual responsibilities.3
3
Plaintiffs’ ORCP 47 E affidavit also addressed plaintiffs’ strict liability
claim. As to that claim, the affidavit provided:
“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[’s] modernization of the 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.”
Cite as 355 Or 319 (2014) 323
In reply, defendant contended that plaintiffs’ ORCP
47 E affidavit was insufficient to defeat summary judgment
on plaintiffs’ negligence claim, because it addressed only
defendant’s negligence in the service and maintenance of
the elevator and failed to raise an issue of fact about whether
defendant’s alleged negligence had caused plaintiffs’ inju-
ries. Defendant also argued that the other documents that
plaintiffs had submitted in response to the motion for sum-
mary judgment were insufficient to raise an issue of fact as
to causation.
The trial court granted defendant’s motion for sum-
mary judgment on both claims. As to the negligence claim,
the trial court explained that “there’s no admissible evi-
dence of causation.” As to the strict liability claim, the court
explained that defendant had established, as a matter of
law, that it “did not manufacture or sell or distribute or lease
the elevator * * * or any of its parts.”
Plaintiffs appealed to the Court of Appeals, which
affirmed. Two Two v. Fujitec America, Inc., 256 Or App 784,
305 P3d 132 (2013). As to plaintiffs’ negligence claim, the
Court of Appeals agreed with defendant that plaintiffs’
ORCP 47 E affidavit was insufficient to defeat summary
judgment. Id. at 791. The court understood the affidavit’s
reference to negligence to be a reference to only one element
of a negligence claim—failure to meet the standard of care.
Therefore, the court reasoned, the affidavit did not address
another element of a negligence claim—causation—and
could not defeat summary judgment on that issue. Id. As
to plaintiffs’ strict liability claim, the court concluded that
defendant was not subject to ORS 30.920, Oregon’s strict lia-
bility statute. Id. at 796-97. The court explained that ORS
30.920 does not apply to service transactions and that the
evidence in the record demonstrated, as a matter of law, that
defendant’s only role was as a service provider. Defendant
had installed component parts manufactured and supplied
by others; it had not sold or supplied those component parts.
Id.Plaintiffs sought, and we allowed, review. Before
this court, plaintiffs argue that their ORCP 47 E affidavit
and the other evidence in the summary judgment record
324 Two Two v. Fujitec America, Inc.
raised material issues of fact that precluded summary judg-
ment on both their negligence and strict liability claims. We
turn first to plaintiffs’ negligence claim and begin with a
review of the summary judgment process set out in ORCP
47.
Under ORCP 47 B, a party against whom a claim
is asserted may move, “with or without supporting affida-
vits or declarations, for a summary judgment in that party’s
favor as to all or any part thereof.”
ORCP 47 C provides, in part:
“The court shall grant the motion if the pleadings, depo-
sitions, affidavits, declarations and admissions on file show
that there is no genuine issue as to any material fact and
that the moving party is entitled to prevail as a matter of
law. No genuine issue as to a material fact exists if, based
upon the record before the court viewed in a manner most
favorable to the adverse party, no objectively reasonable
juror could return a verdict for the adverse party on the
matter that is the subject of the motion for summary judg-
ment. The adverse party has the burden of producing evi-
dence on any issue raised in the motion as to which the
adverse party would have the burden of persuasion at trial.
The adverse party may satisfy the burden of producing evi-
dence with an affidavit or a declaration under section E of
this rule.”
Thus, under ORCP 47 C, the party opposing summary judg-
ment has the burden of producing evidence on any issue
“raised in the motion” as to which the adverse party would
have the burden of persuasion at trial.
In this case, defendant moved for summary judg-
ment and “raised in the motion” four issues with regard to
plaintiffs’ negligence claim: that (1) defendant properly per-
formed the modernization of the elevator; (2) defendant was
not in control or possession of the elevator after December 31,
2007; (3) plaintiffs’ incidents could have occurred through no
fault or negligence of defendant and plaintiffs thus were not
entitled to use the doctrine of res ipsa loquitor to prove negli-
gence; and (4) defendant properly inspected and maintained
the elevator through December 31, 2007. Because plaintiffs
had the burden of persuasion on those issues at trial, ORCP
Cite as 355 Or 319 (2014) 325
47 C required that they produce sufficient evidence on those
issues to defeat summary judgment. In contrast, however,
defendant did not “raise in the motion” an issue on which
it later relied—that defendant’s alleged negligence was not
a cause of plaintiffs’ injuries. Plaintiffs had the burden of
persuasion on that issue at trial and, had defendant raised
that issue “in the motion,” ORCP 47 C would have required
plaintiffs to produce evidence on the issue of causation to
defeat summary judgment.
Instead, defendant first raised the issue of causation
as a basis for summary judgment in its reply memorandum.
There, defendant argued that plaintiffs’ ORCP 47 E affidavit
was insufficient because it did not establish that defendant’s
alleged negligence had any causal relationship to plaintiffs’
injuries or that defendant did anything that caused the ele-
vator to drop. At the hearing on defendant’s motion, defen-
dant pressed that argument. Plaintiffs did not specifically
respond; plaintiffs focused in oral argument on the evidence
that they contended supported their strict liability claim.
When the case reached the Court of Appeals, plain-
tiffs contended generally that their ORCP 47 E affidavit
“should have been deemed sufficient to controvert the allega-
tions raised” in defendant’s motion for summary judgment,
but they did not argue specifically that, because defendant
did not raise causation as a basis for its motion, plaintiffs
were not required to produce evidence on that issue. Rather,
plaintiffs claimed that their affidavit created a question of
fact as to all elements of their negligence claim, including
causation. Plaintiffs contended that their attorney’s aver-
ment that plaintiffs had retained an expert who had “ren-
dered an opinion or provided facts which, if revealed by affi-
davit or declaration, would be a sufficient basis for denying
the motion for summary judgment” was sufficient to defeat
summary judgment. Plaintiffs take the same position in
this court and do not argue that they were not required to
raise a question of fact as to causation because defendant
did not raise that issue in its motion for summary judgment.
Thus, as this case comes to us, the Court of Appeals
and the parties all have assumed that defendant raised lack
of causation as a basis for its motion for summary judgment.
326 Two Two v. Fujitec America, Inc.
We too will take that course. However, we have described
the procedural history and the framework that ORCP 47 C
imposes in some detail because we think it important to
alert the bench and bar to the rule’s dictates. Parties seek-
ing summary judgment must raise by motion the issues on
which they contend they are entitled to prevail as a matter of
law. Parties opposing summary judgment have the burden
of producing evidence that creates a material issue of fact as
to those issues, but only as to those issues. If parties frame
and join issues consistently with that framework, some dis-
putes, such as the one in this case over the effect of plain-
tiffs’ ORCP 47 E affidavit, may well be avoided. However,
in this case, the dispute over the affidavit remains, and we
will address it both because plaintiffs did not assert the pro-
cedural deficiency that we raise here in their briefing before
this court and because the question that plaintiffs do pres-
ent concerns affidavits filed pursuant to ORCP 47 E, a mat-
ter of particular significance to practitioners.
The specific question to which we now turn is
whether the ORCP 47 E affidavit that plaintiffs filed in this
case, alone or in combination with the additional evidence
in the summary judgment record, was sufficient to defeat
summary judgment. ORCP 47 E provides:
“Motions under this rule are not designed to be used as
discovery devices to obtain the names of potential expert
witnesses or to obtain their facts or opinions. If a party,
in opposing a motion for summary judgment, is required
to provide the opinion of an expert to establish a genuine
issue of material fact, an affidavit or a declaration of the
party’s attorney stating that an unnamed qualified expert
has been retained who is available and willing to testify
to admissible facts or opinions creating a question of fact,
will be deemed sufficient to controvert the allegations of
the moving party and an adequate basis for the court to
deny the motion. The affidavit or declaration shall be made
in good faith based on admissible facts or opinions obtained
from a qualified expert who has actually been retained by
the attorney who is available and willing to testify and who
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.”
(Emphasis added.)
Cite as 355 Or 319 (2014) 327
As noted, plaintiffs’ ORCP 47 E affidavit provided
as follows:
“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 *  * was negligent in [its] service and main-
*
tenance 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 suf-
ficient basis for denying the motion for summary judgment.”
(Emphasis added.)
The italicized part of the second sentence of plain-
tiffs’ affidavit mirrors the italicized portion of ORCP
47 E.4 Defendant’s objection to the affidavit focuses not on
the second sentence of plaintiffs’ affidavit but on the first.
Defendant contends that, by specifying that the expert will
support plaintiffs’ claims that defendant was “negligent
in its service and maintenance” of the elevator, plaintiffs’
attorney acknowledged that the expert would testify only in
support of the claim of negligence, and not that defendant’s
negligence caused plaintiffs’ injuries. Defendant relies on a
line of Court of Appeals decisions for the proposition that,
“when a party files an issue-specific affidavit, the trial court
should conclude that the party does not have an expert for
unspecified issues.” (Emphasis in original.) That, defen-
dant asserts, has been the practice in Oregon for a quarter-
century, since Moore v. Kaiser Permanente, 91 Or App 262,
754 P2d 615, rev den, 306 Or 661 (1988).
In Moore, a medical malpractice action, the defen-
dants moved for summary judgment on the ground that
they were not negligent in their diagnosis and advice and
that the plaintiff’s return to work did not cause his condi-
tion to worsen. Id. at 264. In response, the plaintiff submit-
ted both his own affidavit averring that his return to work
had aggravated his medical condition and an affidavit from
his attorney stating that he had retained an expert who “is
available and willing to testify to the diagnoses, standard
4
Plaintiffs’ affidavit does not aver that their expert is available and willing
to testify. Defendant raises that deficiency in this court, but did not object to the
affidavit on that basis in the trial court. We therefore do not consider defendant’s
argument.
328 Two Two v. Fujitec America, Inc.
of care and duty of the defendants herein.” Id. The Court of
Appeals observed that the attorney had not stated that the
expert would testify to the elements of causation and dam-
ages and held that, “when a party chooses to enumerate the
elements on which an expert will testify, even though a gen-
eral assertion would otherwise satisfy the rule, the enumer-
ation must give notice of all elements on which the expert
may testify.” Id. at 265 (emphasis in original). In the case
before it, the court concluded, the affidavit was sufficient
to demonstrate genuine issues of material fact only on the
enumerated issues of diagnosis, standard of care and duty,
or foreseeability. Id. It was insufficient to defeat summary
judgment on the issues of causation and damages.
In Moore, the court stated that the defendant’s
motion raised two bases for summary judgment, but, with-
out explaining why, required that the plaintiff create a
question of fact in all issues as to which the plaintiff would
bear the burden of persuasion at trial, not only those issues
raised in the motion. Id. The Court of Appeals may have
been incorrect in that regard, but its reasoning was other-
wise apt.
As the court explained, ORCP 47 E provides that
motions for summary judgment are not to be used as dis-
covery devices to obtain either the names of potential expert
witnesses or their facts or opinions. That section of the rule
authorizes attorneys to submit, in good faith, an affidavit
that states that an unnamed qualified expert has been
retained and will testify to admissible facts or opinions cre-
ating a question of fact and provides that such an affidavit
“will be deemed sufficient to controvert the allegations of the
moving party” and will be an “adequate basis for the court to
deny the motion.” ORCP 47 E. However, the court explained,
difficulties may arise when an affidavit goes beyond those
requirements. Id.
To understand why such difficulties may arise, it
is helpful to outline the sanctions that may attach when an
attorney files an ORCP 47 E affidavit. ORCP 47 E requires
that an affidavit filed pursuant to that rule be made in good
faith. If an affidavit is presented in bad faith, the offending
party must pay the reasonable expenses that the other party
Cite as 355 Or 319 (2014) 329
incurred as a result, including reasonable attorney fees,
and the attorney may be subject to sanctions for contempt.
ORCP 47 G. Consequently, an attorney is precluded from
representing that an expert will create an issue of fact on
an issue when the expert will not do so. When a motion for
summary judgment raises only one issue and the opposing
attorney avers that a qualified expert will create an issue of
fact sufficient to defeat summary judgment, a determination
of whether the affidavit was made in good faith will often be
fairly straightforward.5 However, when a motion for sum-
mary judgment raises more than one issue, that analysis
may be more complex. It may be more likely that the attor-
ney will intend to defeat the motion with a combination of
expert and nonexpert evidence. The attorney is not required
to identify the issues that the attorney will prove by expert
testimony and those that the attorney intends to prove
by nonexpert evidence, and the attorney may not want to
reveal the range or limits of the expert’s testimony. Thus, an
attorney may aver that an expert is available and willing to
testify to facts or opinions creating a question of fact without
specifying the issues on which the expert will testify. The
attorney may do so in good faith, as the Court of Appeals
recognized in Moore:
“The affidavit does not have to recite on what issues
the expert will testify. It need state only that an expert
has been retained and is available and willing to testify to
admissible facts or opinions that would create a question of
fact.”
91 Or App at 265.
We agree. However, the fact that an attorney is
permitted to proceed in that fashion does not mean that
the attorney must or will do so. An attorney may choose to
specifically delineate the issues that an expert will address,
5
However, there also may be circumstances in which the analysis will be
more complex. Under ORCP 47 E, an affidavit is necessary only if a party is
required to provide the opinion of an expert to establish a genuine question of
fact. Therefore, a party may submit a ORCP 47 E affidavit on summary judg-
ment but rely on nonexpert evidence at trial, contending that expert testimony is
unnecessary. In that circumstance, at least, and perhaps in others, the fact that
a party submitted an ORCP 47 E affidavit but did not call an expert to testify will
not necessarily establish that the affidavit was not made in good faith.
330 Two Two v. Fujitec America, Inc.
perhaps to add clarity to an argument or to avoid any ques-
tion that an affidavit is made in good faith. Again, we agree
with the Court of Appeals’ conclusion in Moore. When, in an
affidavit in opposition to a motion for summary judgment, an
attorney avers that an expert will address only specific issues
raised in the motion for summary judgment, the affidavit
alone will defeat summary judgment only on those specified
issues. Other evidence will be required to defeat summary
judgment on any unspecified issues raised in the motion.6
The affidavit that plaintiffs submitted in this case,
defendant contends, is issue-specific. According to defen-
dant, plaintiffs averred that they had retained an expert to
testify to one specified element of their negligence claim—
failure to adhere to the standard of care—and that other
evidence was required to defeat summary judgment on
another element—causation.7
Defendant is correct that plaintiffs’ ORCP 47 E
affidavit can be understood to be so limited. The affidavit
states that plaintiffs had retained an expert to support
their claims that defendant “was negligent in [its] service
and maintenance” of the elevator. A reasonable person could
understand the quoted phrase to mean that the expert
would opine only on whether defendant met the standard of
care in performing its service and maintenance obligation.
However, in context, a reasonable person also could under-
stand that phrase to mean that the expert would opine on all
issues necessary to defeat summary judgment on plaintiffs’
negligence claims. First, the affidavit states that plaintiffs
had retained a qualified expert to support their “claims” of
negligence, not to support a particular element of their neg-
ligence claims. Second, another paragraph of the affidavit
states that the expert also will support plaintiffs’ claims
that defendant’s modernization and repair of the elevator
6
In Moore, the Court of Appeals stated its conclusion a bit differently. The
court concluded that, when a party chooses to enumerate the elements on which
an expert will testify, the enumeration must give notice of all elements on which
the expert will testify. 91 Or App at 265. ORCP 47 E does not include any “notice”
requirement, and we prefer to explain the effect of an issue-specific affidavit in
different terms.
7
Defendant does not contend that other evidence was necessary to defeat
summary judgment on other elements of plaintiffs’ claim, such as damages.
Cite as 355 Or 319 (2014) 331
was dangerous and defective. A reasonable person could
understand the reference to plaintiffs’ negligence claims as
a way of identifying the two claims about which the expert
would testify.8 Third, the second sentence of the affidavit
states that plaintiffs’ expert has “rendered an opinion or
provided facts which, if revealed by affidavit or declaration,
would be a sufficient basis for denying the motion for sum-
mary judgment.” From that sentence, a reasonable person
could understand that the expert’s testimony would create
a question of fact on all issues in the negligence claim for
which expert testimony would be necessary, including the
element of causation.
Although plaintiffs’ ORCP 47 E affidavit is suscep-
tible of more than one interpretation, ORCP 47 C requires
that we view it, like all parts of the record, in the light most
favorable to plaintiffs. Plaintiffs are the nonmoving party
and we must draw all reasonable inferences in their favor.
Schaff v. Ray’s Land & Sea Food Co., Inc., 334 Or 94, 99,
45 P3d 936 (2002); Jones v. General Motors Corp., 325 Or
404, 420, 939 P2d 608 (1997). Following that instruction, we
interpret plaintiffs’ affidavit to mean that they had retained
a qualified expert who could testify to an opinion or facts
that, if revealed, would create a question of fact on all ele-
ments of plaintiffs’ negligence claim raised in the motion for
summary judgment. Therefore, if defendant raised the issue
of causation in its motion for summary judgment (and, as
noted, we proceed as if it did), then plaintiffs’ ORCP 47 E
affidavit was a sufficient basis for denying summary judg-
ment on that issue.
Even if plaintiffs’ affidavit addressed only the stan-
dard of care and not causation, there also is a second, inde-
pendent reason for our conclusion that the trial court erred in
granting summary judgment on plaintiffs’ negligence claim.
If we were to give plaintiffs’ affidavit the limited interpre-
tation for which defendant advocates—that plaintiffs had
retained an expert who could testify only that defendant
had failed to meet the standard of care in its service and
maintenance of the elevator—a jury could nonetheless infer
8
Plaintiffs also had pleaded a breach of warranty claim that the expert
apparently was not expected to address.
332 Two Two v. Fujitec America, Inc.
from that evidence of negligence and other facts in the sum-
mary judgment record that defendant’s negligence caused
plaintiffs’ injuries.
Causation may be proved by circumstantial evi-
dence, expert testimony, or common knowledge. Trees v.
Ordonez, 354 Or 197, 220, 311 P3d 848 (2013). In Trees, a
medical negligence case, the court concluded that the plain-
tiff had adduced evidence from which a reasonable jury
could find that the defendant had breached the standard of
care by leaving protruding screws near the plaintiff’s esoph-
agus following neck surgery. The court also concluded that
the jury could infer that the defendant’s alleged negligence
had caused the plaintiff’s injuries from the fact of the pro-
truding screws, expert testimony that the esophagus was
perforated, and the fact that the plaintiff’s condition had
improved after the screws were removed.
In this case, defendant argues, and its employee
attested, that elevators may drop “through no fault or negli-
gence of anyone, including, simply because of the age of the
elevators.” Therefore, defendant contends, a reasonable jury
could not infer that plaintiffs’ injuries were caused by defen-
dant from the fact of the drop alone. However, plaintiffs did
not rely only on the elevator’s drop to establish causation.
They submitted an affidavit indicating that a qualified
expert would testify that defendant had negligently main-
tained and serviced the elevator. From evidence that the ele-
vator dropped abruptly and without explanation, together
with evidence that defendant was negligent in maintaining
and servicing it, a reasonable jury could infer that the eleva-
tor did not drop due to age or some other unidentified cause
but because of defendant’s negligence. Of course, a reason-
able jury also could reach a contrary conclusion, but, on
summary judgment, the question is not which conclusion is
most likely but whether an issue of fact exists that permits
jury resolution.9
In this case, the trial court failed to give effect to
plaintiffs’ ORCP 47 E affidavit, either because it failed to
9
Plaintiffs argue that, even without the ORCP 47 E affidavit, the summary
judgment record is sufficient to defeat defendant’s motion for summary judgment
under the doctrine of res ipsa loquitor. We need not decide that issue.
Cite as 355 Or 319 (2014) 333
recognize that the affidavit reasonably could be interpreted
to address all issues, including causation, raised by defen-
dant’s motion, or because it failed to recognize that, even if
the affidavit addressed only the standard of care, the affida-
vit, combined with other evidence of what occurred, would
enable a jury to infer that defendant’s breach caused plain-
tiffs’ injuries. The trial court’s conclusion that defendant
was entitled to summary judgment on plaintiffs’ negligence
claim because “there’s no admissible evidence of causation”
was erroneous.
We proceed to plaintiffs’ strict liability claim. As
noted, the trial court granted defendant’s motion for sum-
mary judgment on that claim because the court concluded
that the summary judgment record demonstrated that
defendant did not manufacture, sell, lease, or distribute the
elevator or any of its component parts. The Court of Appeals
also concluded that defendant was not subject to Oregon’s
strict liability statute, ORS 30.920. The court reasoned that
the only evidence in the record demonstrated that defendant
provided a service by installing component parts manufac-
tured and supplied by others and that ORS 30.920 does not
apply to such service transactions. Two Two, 256 Or App at
796-97.
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 lia-
bility 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.”
In enacting ORS 30.920, the Oregon legislature tracked
the wording of the Restatement (Second) of Torts, Section
402A (1965) and provided that the Oregon statute is to be
334 Two Two v. Fujitec America, Inc.
“construed in accordance with comments a through m of
that Restatement section.” ORS 30.920(3).
In Hoover v. Montgomery Ward, 270 Or 498, 528 P2d
76 (1974), this court considered the reach of Section 402A
in deciding whether a defendant that was alleged to have
improperly installed a tire could be held strictly liable. The
court cited cases from other jurisdictions which had held
that a party that provides a defectively dangerous product
in the course of providing a service may be subject to strict
liability under Section 402A. Id. at 501-02. In one of those
cases, Newmark v. Gimbel’s Incorporated, 54 NJ 585, 258
A2d 697 (1969), the New Jersey Supreme Court held that a
beauty shop could be strictly liable for injuries that occurred
when a shop employee applied a defective permanent wave
lotion to a patron’s hair. The Oregon Supreme Court did not
express disagreement with Newmark or the other cases that
it cited, but it declined to extend their reasoning to the case
before it. The court determined that the plaintiff had not
alleged that the tire that the defendant had supplied and
installed was defectively dangerous. Hoover, 270 Or at 502.
The plaintiff had alleged that it was the service (the instal-
lation) that was defective, not the product (the tire). Id. at
502-03.
In this case, we also need not decide whether a
business that supplies and installs a defective product may
be strictly liable for injuries caused by the product. That is
because, in this case, the record on summary judgment does
not include evidence that defendant supplied the component
parts that it installed in the elevator. In an affidavit that
defendant filed in support of its motion for summary judg-
ment, defendant’s employee averred that “[a]ll components
for the modernization were manufactured and supplied by
vendors and suppliers specified by GSA or its consultants.”
Plaintiffs claim that they submitted evidence to create
a question of fact on the issue of who supplied the com-
ponents and who manufactured the elevator. We are not
persuaded.
The evidence on which plaintiffs rely is evidence
that (1) defendant was hired to modernize the elevator and
was paid a significant sum for parts and labor; (2) defendant
Cite as 355 Or 319 (2014) 335
stated in a memorandum filed with the court that the micro-
processer controls that defendant installed were sold by and
shipped directly to the building by another entity (MCE);
(3) the government’s contracting officer stated in a letter in
December 2002 that defendant had performed its modern-
ization work in an outstanding manner, including providing
“the best possible products at the best possible cost effec-
tive prices” ’; and (4) when defendant assigned its inspection
and maintenance responsibilities to another party—Centric
Elevator Company (Centric)—effective January 1, 2008, it
agreed to sell parts to its assignee. We conclude that that
evidence does not raise an issue of fact as to whether defen-
dant supplied component parts for installation in the eleva-
tor or manufactured the elevator.
Parts of the modernization contract are in the
summary judgment record. One page of the contract is the
bid schedule demonstrating that the total bid price was
$1,011,753.30. The first item on the bid schedule is “elevator
modernization” with a lump sum base bid of $856,964.90.
Another page of the contract describes the services required
for the “initial work” (which we take to be the “modern-
ization”) as inspection of the elevators, submission of an
inspection report specifying the deficiencies that require
correction, and repair or adjustment of the deficiencies as
determined by the government. That page does not require
defendant to manufacture the elevator or to supply any
parts necessary to repair it, and no other evidence in the
record shows that defendant billed or was paid for parts that
it supplied. Other items on the bid schedule are for interim
and long-term maintenance. The pages of the contract that
describe defendant’s scheduled maintenance and call-back
obligations also do not require defendant to provide the parts
necessary to fulfill those obligations. However, with respect
to “minor repair work,” those pages provide that defendant
will be reimbursed for “material” at cost, but that the gov-
ernment has the right to furnish to defendant “all parts
and/or materials required for a particular repair.” Plaintiffs
did not produce any documents indicating that defendant
did any “minor repair work” pursuant to those provisions
or that defendant, as opposed to the government, supplied
parts or materials in fulfilling its obligations.
336 Two Two v. Fujitec America, Inc.
The letter congratulating defendant for “providing
the best possible products at the best possible cost effective
prices” was sent in 2002, after the modernization was com-
plete but before defendant began its long-term maintenance
responsibilities. Given that the contract price for the eleva-
tor modernization is stated as a lump sum and that neither
the contract nor any other document in the record indicates
that that lump sum included reimbursement for parts sup-
plied by defendant or that defendant billed for or received
payment for such parts, it is not reasonable to infer from the
letter alone that the contracting officer was congratulating
defendant for supplying component parts.10 Rather, read in
conjunction with the contract, the letter appears to congrat-
ulate defendant for providing services that resulted in the
best possible elevator system at a reasonable contract price.
We also do not view defendant’s representation that
MCE supplied component parts as raising an issue of fact
about whether defendant did so. The affidavit submitted by
defendant’s employee avers that MCE is a third party and
that MCE, not defendant, supplied component products.
Finally, the summary judgment record indicates
that, in October 2007, defendant assigned its contract to per-
form long-term service and maintenance services to Centric,
which assumed all contractual rights and obligations effec-
tive January 1, 2008. In the assignment agreement, defen-
dant agreed to provide Centric with parts and warranted
them for one year. However, the agreement between defen-
dant and Centric, which also appointed Centric as a distrib-
utor of defendant’s products, did not require Centric to pro-
cure products only from defendant. Centric was permitted
to obtain products from other manufacturers in certain cir-
cumstances. The summary judgment record is devoid of evi-
dence that defendant actually sold parts to Centric or that
Centric installed defendant’s parts in the elevator in which
plaintiffs were injured. We therefore agree with the Court
10
It may be true, as amicus curiae Oregon Trial Lawyers Association
observes, that a defendant may be liable for supplying a product even without
charging for it. See Fulbright v. Klamath Gas Co., 271 Or 449, 459-60, 533 P2d
316 (1975) (defendant that supplied vine burner free of charge subject to strict
liability). There must, however, be at least some evidence that the defendant is
the supplier. Here, the record contains no such evidence.
Cite as 355 Or 319 (2014) 337
of Appeals and the trial court that plaintiffs did not raise
an issue of fact as to whether defendant manufactured the
elevator or its supplied component parts.
Before concluding, however, we think it important to
caution against a misreading of this or the Court of Appeals
opinion. In explaining its decision, the Court of Appeals
stated that the “evidence only supports the allegation that
[defendant] provided a service by installing, per [the gov-
ernment’s] conditions and specifications, component parts
manufactured and supplied by other parties.” Two Two, 256
Or App at 796. The court’s statement is a correct statement
of the facts in the record in this case; the record indicates
that defendant installed parts that the government speci-
fied. However, the government’s specification is not material
to our analysis. Under ORS 30.920, anyone that is in the
business of selling a product that is dangerously defective is
liable for resulting injuries. That statute protects consum-
ers of such products even if, as may often be the case, the
consumers themselves select the products. See Restatement
§ 402A comment m (explaining that rule does not require
showing of consumer reliance on the seller). Thus, if there
had been evidence in this case that defendant had supplied
the component parts that it installed, the fact that the gov-
ernment had specified those parts would not have relieved
defendant of responsibility. Similarly, if there were evidence
that defendant had supplied the component parts used in
performing its repair and maintenance obligations, it would
not matter that the parts originally were manufactured and
supplied to defendant by others up the supply chain. It is
not only the manufacturer or the original seller that may be
held strictly liable for a dangerously defective product. Any
seller in the chain of distribution is subject to strict liabil-
ity under ORS 30.920 and Section 402A. See Restatement
§ 402A comment f (providing that strict liability applies not
just to the original wholesale seller, but also to subsequent
sellers and distributors of the product).
In summary, the trial court erred in granting sum-
mary judgment on plaintiffs’ negligence claim but did not
err in granting summary judgment on plaintiffs’ strict lia-
bility claim.
338 Two Two v. Fujitec America, Inc.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.