Jones v. General Motors Corp.

LANDAU, J.,

concurring.

I agree with the majority that the trial court erred in granting defendant’s motion for summary judgment and that this case should be reversed and remanded. I do not, however, agree with the majority’s reasoning. In particular, I do not agree that reversal is required by virtue of a change in summary judgment law, supposedly occasioned by 1995 amendments to ORCP 47 C. The majority concludes that those amendments effectively “federalize” Oregon summary judgment law, which includes the creation of an entirely new burden on the part of the nonmoving party to establish the existence of a genuine issue of material fact. In my view, the recent amendments to ORCP 47 C accomplish a far more modest result, namely a codification of the standard expressed in Seeborg v. General Motors Corporation, 284 Or 695, 588 P2d 1100 (1978), a standard from which our recent opinions are perceived — understandably — to have strayed. I would reverse under that standard, not the “federalized” version that the majority applies.

At issue is the proper construction of certain amendments to ORCP 47 C, represented by the bolded language:

“The motion and all supporting documents shall be served and filed at least 45 days before the date set for trial. The adverse party shall have 20 days in which to serve and file opposing affidavits and supporting documents. The moving party shall have five days to reply. The court shall have discretion to modify these stated times. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment 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 judgment.”

1995 Or Laws, ch 618, § 5 (bold in original).

In construing the amendatory language, our task is to ascertain the intentions of the legislature, taking as the first and best evidence of those intentions the language that the legislature enacted. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). If that inquiry does not clearly reveal the legislature’s intentions, we are permitted to consider also legislative history and other aids to construction. Id.

At the outset, I find significant that the amendments to ORCP 47 C do not delete or amend other language in the rule; instead, they only add language to the rule. That is important, because the language that the legislature did not change has been construed. First, the courts have consistently held that the moving party bears the burden of proving the absence of a genuine issue of material fact, even as to issues on which another party might bear the burden of proof at trial. See, e.g., Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 613, 892 P2d 683 (1995); Welch v. Bancorp Management Services, 296 Or 713, 716, 679 P2d 866 (1984); Taylor v. Baker, 279 Or 139, 149, 566 P2d 884 (1977). The party opposing the motion has no duty to offer any evidence at all until the moving party has produced evidence that would justify a directed verdict. Taylor, 279 Or at 149. Second, in determining whether the moving party has satisfied that burden, the following standard applies:

“In deciding whether a genuine issue of fact exists, courts generally read ‘genuine issue’ to mean ‘triable issue.’ Before a party has a triable issue, he or she must have sufficient evidence to be entitled to a jury determination. This has led both courts and commentators to compare the motion for summary judgment to the motion for a directed verdict.”

Seeborg, 284 Or at 700.¹

The question before us, then, is the effect of the new language in ORCP 47 C on the existing language, as it has been construed by the courts. In that regard, I observe that there is no language referring to the “federalization” of Oregon summary judgment law. In particular, there is no language remotely suggesting an intention to alter the burden of proof. Nor is there wording that, reasonably construed, supports a conclusion that the legislature intended to alter the definition of “genuine issue” of material fact, as described in Seeborg.

To the contrary, the amendatory language is remarkably similar to the Supreme Court’s language in Seeborg. As the majority opinion aptly concedes:

“On its face, the added language is capable of meaning exactly the same thing as the existing law. Its references to the way in which the record is viewed and to an ‘objectively reasonable juror’s’ ability to find for the nonmoving party signal more of an adherence to than a departure from the existing standards.”

139 Or App at 250. Why, then, does the majority insist that the language means something other than what it clearly says? The majority offers several reasons, none of which I find persuasive.

First, the majority opinion relies on a presumption “that the legislature intended the amendment to mean something.” 139 Or App at 250. I have no quarrel with the presumption. I do, however, quarrel with its application to this case. The majority opinion appears to assume that a statutory codification of case law does not “mean something.” That is simply wrong. Legislatures codify case law all the time, and we have never held such actions to be meaningless.²

Second, the majority opinion suggests that there is ambiguity in the language of the amendment. The opinion singles out

“the emphasis in the amendment on the hypothetical juror’s objectivity and reasonableness, and on the court’s consideration of the whole record before it, could plausibly be read to mean that the court must do some weighing and, in some way, evaluate what an objective and reasonable juror could think.”

139 Or App at 250 (emphasis in original). The linchpin of that argument rests, however, on an incorrect assumption that the current standard does not require precisely the same sort of limited weighing. Under the current rule, the summary judgment standard is equated with that of a directed verdict, which, in turn, is permissible only “when a reasonable person could draw but one inference from the facts” and that inference supports a finding for the moving party. See, e.g., Bidiman v. Gehrts, 133 Or App 145, 147, 890 P2d 436, rev den 321 Or 512 (1995); Kohler v. Alspaw, 132 Or App 67, 69, 887 P2d 832 (1994), rev den 321 Or 94 (1995); Van Den Bron v. Fred Meyer, Inc., 86 Or App 329, 331, 738 P2d 1011 (1987). Thus, courts always have been required to do the same sort of limited weighing in evaluating motions for summary judgment that the majority opinion says is newly suggested by the amendments to ORCP 47 C.

The majority opinion also finds ambiguity because

“the reference to the record before the court, plausibly, could contemplate that both parties’ showings are germane to whether a triable factual question exists, and that the burden does not fall solely on the moving party.”

139 Or App at 250. I fail to understand how the words “based upon the record before the court” plausibly suggest an intended alteration of the existing rule that the moving party bears the burden of proving the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. At least as early as Seeborg, 284 Or at 699, courts have been required to evaluate the existence of a genuine issue of material fact “on the record” before them. See, e.g., Hampton Tree Farms, 320 Or at 613; Richards v. Dahl, 289 Or 747, 749-54, 618 P2d 418 (1980); Taylor v. Hender, 116 Or App 142, 144-45, 840 P2d 1331 (1992).

Third, the majority opinion relies on the legislative history of the bill that resulted in the amendment to ORCP 47 C. At the outset, I do not agree that it is appropriate even to resort to the legislative history. Legislative history cannot create meaning; it can only clarify the meaning of words actually enacted by the legislature. As we said in Eslamizar v. American States Ins. Co., 134 Or App 138, 145 n 3, 894 P2d 1195, rev den 322 Or 228 (1995):

“Whatever the legislative history reveals, we are constrained to give effect to the language that the legislature actually enactedf] * * * If it is not what the legislature intended, then the legislature has made a mistake, and only the legislature may remedy it.”

See also Fernandez v. Board of Parole, 137 Or App 247, 252, 904 P2d 1071 (1995) (“we are constrained by the reasonable construction of language that the legislature actually enacted”); Faverty v. McDonald's Restaurants, 133 Or App 514, 533, 892 P2d 703, rev allowed 321 Or 512 (1995) (“Inchoate intentions are not law, only those intentions that are manifested in language that is enacted.”). In this case, whatever the legislative history shows, the fact remains that the language of the enacted amendment itself does not contain words that reasonably may be construed to effect the wholesale “federalization” of Oregon summary judgment law. On its face, it says nothing more than what the Supreme Court already said in Seeborg.

Having said that, I also do not find the legislative history as conclusive as does the majority. To be sure, some of that history shows that at least some of the members of one house of the Legislative Assembly believed that the amendments to ORCP 47 C effectively federalized Oregon summary judgment law. Other portions of the history, if anything, suggest a different view of what was meant by “federalizing” summary judgment law.

In reviewing the legislative history, I note that the case law is not particularly helpful. Neither this court nor the Supreme Court has developed any standards by which we should evaluate the probative value of one type of history or another. The past practice of both courts has generally been to seize upon any “snippet” revealed in the legislative history that proves a point and assume that it represents the views of the Legislative Assembly as a whole.³ To make matters worse, the courts have been hopelessly inconsistent in their treatment of legislative history. In just the last year, for example, the Supreme Court has held in one case that the views of a single witness testifying before a committee are not reliable evidence of the intentions of the legislature as a whole, State v. Guzek, 322 Or 245, 261, 906 P2d 272 (1995), and, in another case, that the views expressed by a single witness testifying before a committee are entirely satisfactory to express the intentions of the entire legislature, Zidell Marine Corp. v. West Painting, Inc., 322 Or 347, 358-59, 906 P2d 809 (1995).

The majority’s reliance on legislative history in this case exemplifies the problems that result from the current muddled state of the case law. The majority, not surprisingly, relies on the statements of Senator Bryant on the floor of the Senate. Those statements certainly show what Senator Biyant believed to be the effect of passage of the amendments, and perhaps even what the Senate — or at least a majority of it — intended when it passed the bill before it. Nevertheless, I do not understand how his statements can be taken to reflect the views of the House, which never heard them.

The majority’s reliance on the statements of Professor Brunet are even more troubling. Brunet testified before a Senate subcommittee in opposition to Senate Bill 385, which, at the time, did not even contain the language at issue. The majority opinion does not explain precisely how it is that Professor Brunet’s comments may be taken to reflect the intentions of the legislature. Even assuming that his comments were probative of the intentions of the subcommittee members who actually heard him testify, the fact remains that the Senate Judiciary Committee did not hear him testify. Neither did the balance of the members of the Senate nor, for that matter, anyone in the entire House. The majority does not explain, and I do not understand, by what fiction the comments of a witness, which an entire house of the legislature did not even hear, can reasonably be taken to represent the views of the legislature as a whole, or even a majority of it.

Aside from those theoretical problems, the majority opinion fails to place the statements of Professor Brunet in proper context. It omits a critical statement that sheds light on what Professor Brunet meant by his reference to “federalizing” summary judgment. After offering the suggestion that the legislature should “federalize” summary judgment law in Oregon, he said of his suggestion:

“It’s not currently, of course, in this bill, but it’s in another bill that you should give a lot of attention to.”

Tape recording, Senate Judiciary Subcommittee on Civil Process, February 20, 1995, Tape 19, Side A at 97. That other bill, Senate Bill 608, proposed to amend ORCP 47 C by adding the following language:

“[Summary judgment may be granted if, in addition to current requirements,] the opposing affidavits and supporting documentation submitted by the adverse party fail to set forth specific facts supported by admissible evidence adequate to avoid the granting of a motion for a directed verdict in a trial of the matter.”

That bill died in committee. At one point, the subcommittee considered inserting the foregoing language into Senate Bill 385, but it rejected that proposal, too. See Tape recording, Senate Judiciary Subcommittee on Civil Process, March 6, 1995, Tape 33, Side A at 310; memorandum from Max Williams, Committee Counsel, to David Heyndrickx, Legislative Counsel 4 (February 28, 1995). Under the circumstances, it is especially difficult to understand how Brunet’s statements reflect the views of the legislature as a whole about the intended meaning of the language that it did adopt, when the subject of his testimony was language that it did not adopt.

The majority opinion also relies on a single statement of counsel for the Senate Judiciary Committee, Max Williams. Committee Counsel, of course, is not a member of the legislature. Aside from that, it is not clear to me how Williams’s statement supports the majority opinion’s broad holding. All he said was that the proposed amendment was intended to

“overrule certain Oregon Court of Appeals cases with respect to summary judgment, in an effort to move Oregon’s summary judgment standard closer to that standard used by the federal courts.”

Tape recording, Senate Judiciary Subcommittee on Civil Process, May 8, 1995, Tape 147, Side A at 345-55. That is a far cry from saying, as the majority opinion does, that the amendment was intended to “federalize” all of Oregon summary judgment law. There is no mention of shifting burdens of proof or of overruling Seeborg, Hampton Tree Farms, Welch, Taylor or any other of the long line of Supreme Court cases on the nature of the showing required under ORCP 47 C. Indeed, the context for Williams’s remarks shows that he meant no more than what he said. He explained what he meant by “mov[ing] Oregon’s summary judgment standard” closer to the federal rule as merely “applying essentially a directed verdict standard.” Id. That is precisely what Seeborg already requires.

Williams’s explanation closely tracks Brunet’s testimony, in which the latter acknowledged that the current Oregon rule actually matches “almost word-for-word,” the standard set out in the federal rule, and explained that the real problem is that the Oregon Court of Appeals simply has failed to follow it. Tape recording, Senate Judiciary Subcommittee on Civil Process, February 20, 1995, Tape 19, Side A at 115. Instead, said Brunet, this court has applied what he termed an “any doubt” standard, which means that summary judgment will not be allowed if there is any doubt as to the existence of an issue of fact.⁴ Brunet is not the first to have made that observation about our decisions. See, e.g., Janice R. Wilson, Summary Judgments, Pleading and Practice § 43.22 (1994) (“As the Oregon Court of Appeals has applied these standards in recent years, any dispute, however farfetched the opponent’s position might be, seems to justify a denial of a summaiy judgment motion.”).

In that context, the amendment’s reference to language that recalls Seeborg makes sense: The legislature wanted courts — in particular, this court — to jettison the “any doubt” standard that has crept into the case law in recent years and to return to the directed verdict standard that Seeborg requires.

One final matter deserves at least passing reference. The Supreme Court has just issued an opinion in Doe v. American Red Cross, 322 Or 502, 910 P2d 364 (1995), in which it affirmed our reversal of a summary judgment on the ground that the moving party had failed to demonstrate the absence of a genuine issue of material fact. The court’s opinion, however, made no mention of the amendments to ORCP 47 C. I, frankly, do not know what to make of that, except perhaps that the Supreme Court either does not think the amendments substantially change existing law or that it believes that those amendments simply do not warrant discussion.

In short, I am not persuaded by any of the proferred bases for the majority opinion’s broad holding that Oregon summary judgment law has been “federalized.” I would hold that the amended rule merely clarifies what always has been the law in this state, namely, that summary judgment may be granted only if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In reviewing the trial court’s entry of summary judgment for defendants, therefore, I would apply the rule, as amended, with the foregoing understanding in mind, not the majority’s “federalized” version.

First, as to plaintiff’s argument that defendants failed to establish an absence of a genuine issue of material fact concerning the unreasonably dangerous nature of the automobile, under either standard, the trial court erred. As the majority correctly holds, under Cornelius v. Bay Motors, 258 Or 564, 573-75, 484 P2d 299 (1971), and Heaton v. Ford Motor Co., 248 Or 467, 471-74, 435 P2d 806 (1967), that plaintiff’s direct evidence of a defect creates a question of fact as to the unreasonably dangerous nature of the car.

Second, as to plaintiff’s argument that there is a genuine issue of material fact concerning whether the automobile left the manufacturer in a defective condition, again, under either standard, the conflicting testimony of the various mechanics creates a jury question.

Third, as to defendants’ argument that summary judgment nevertheless was correctly entered because of plaintiff’s unusual allergic condition, the application of the correct standard does make a difference. The majority, applying the federal standard, holds that plaintiff — although the nonmoving party — is required to establish that his reaction to the defect in the patrol car was not idiosyncratic. The majority concludes that, because plaintiff failed to do that, defendants would be entitled to summary judgment. The majority declines to hold plaintiff to that standard retroactively, and remands the case to give plaintiff an opportunity to meet that burden.

I find no need to do that. Applying the correct standard, defendants bear the burden of establishing an absence of a genuine issue of material fact and that they are entitled to judgment as a matter of law, even on issues as to which plaintiff might bear the burden at trial. Hampton Tree Farms, 320 Or at 613; Welch, 296 Or at 716; Taylor, 279 Or at 149. That means that defendants must establish the existence of the idiosyncracy in order to obtain summary judgment. They offered no evidence on that point. Accordingly, they were not entitled to summary judgment. I would reverse on that basis and not require the trial court to have the parties argue the summary judgment motions all over again under an incorrect “federalized” standard.

Warren, Edmonds and Armstrong, JJ., join in this concurrence.

1 In Seeborg, the court construed ORS 18.105(4), the precursor to ORCP 47 C. Nevertheless, the decision continues to be cited both by the Supreme Court and this court as the definitive statement of the summary judgment standard under ORCP 47 C. See, e.g., Ledford v. Gutoski, 319 Or 397, 403, 877 P2d 80 (1994); Cropp v. Interstate Distributor Co., 129 Or App 510, 512, 880 P2d 464, rev den 320 Or 407 (1994).

2 ORS 174.040, for example, codifies a longstanding, judicially-created rule regarding the severability of statutes. Compare ORS 174.040 and Fullerton v. Lamm, 177 Or 655, 696-97, 163 P2d 941, 165 P2d 63 (1946). No court ever has suggested, that the statute must mean something else, merely because it reiterated the common law rule. See, e.g., State v. Jackson, 224 Or 337, 343, 356 P2d 495 (1960) (“ORS 174.040 does no more than to codify what has long been the common law rule of construction in this state”). To cite a more recent example, we held that the 1993 Legislative Assembly enacted the first three subsections of ORS 197.829(1) to codify a judicially-created doctrine of deference to local government interpretations of local land use legislation. Friends of Neabeack Hill v. City of Philomath, 139 Or App 39, 45-46, 911 P2d 350 (1996).

3 The Supreme Court, for example, has relied on the statements of the person requesting introduction of the bill, Braun v. American International Health, 315 Or 460, 465, 846 P2d 1151 (1993); of a nonlegislator member of an advisory committee, State ex rel Juv. Dept. v. Ashley, 312 Or 169, 175, 818 P2d 1270 (1991); of a lobbyist, Henthorn v. Grand, Prairie School Dist., 287 Or 683, 689-90, 601 P2d 1243 (1979); of a citizen who would be affected by the passage of the bill in question, Sager v. McClenden, 296 Or 33, 37-38, 672 P2d 697 (1983); on the history of an unsuccessful bill on a subject related to the one in question, Davis v. O’Brien, 320 Or 729, 743, 891 P2d 1307 (1995); and even on the absence of legislative history entirely, id.

4 Brunet explained:

“In the federal system, summary judgments are readily granted and routinely affirmed on appeal. However, Oregon’s Rule 47, while much the same as the federal rule in text, has been hurt greatly by a series of appellate reversals of summary judgment. In essence, the Oregon Court of Appeals will reverse a summary judgment order if there is ‘doubt’ about whether a genuine issue of material fact exists.”

Testimony, Senate Judiciary Subcommittee on Civil Process, February 20, 1995, Ex. F at 5 (citation omitted).