Oregon Supreme Court grants review of products liability decision discussing the scope of ORCP 47E and the “service versus sal

Plaintiffs Linda Two Two and Patricia Fodge have been granted review of a Court of Appeals decision that affirmed the trial court's grant of summary judgment to defendant Fujitec America, Inc., on plaintiffs' common-law negligence claim and their claims under Oregon's product liability statutes, ORS 30.900 to 30.920.  Linda Two Two v. Fujitec America, Inc. (S061536) (A145591) (appeal from Multnomah County Circuit Court; opinion reported at 256 Or App 784, 305 P3d 132 (2013)). The Plaintiffs were injured in separate incidents while riding in an elevator that Fujitech “modernized,” maintained, and inspected.

The Plaintiffs opposed Fujitech’s summary judgment motion against their negligence claims with an ORCP 47E affidavit.  But the appellate court found the affidavit deficient, holding that it only addressed issues of negligence, not causation. Without some evidence that Fujitech’s conduct caused Plaintiffs’ injuries, either by ORCP 47E affidavit or otherwise, the appellate court concluded that summary judgment was appropriate.

With regard to the products liability claim, Fujitech argued that it could not be held liable under strict products liability because it did not “sell or lease a product” as required by ORS 30.920.  Rather, Fujitech argued that it simply provided a service in modernizing an existing elevator.  Plaintiff countered that Fujitech should be liable under a line of cases that held that assembly of component parts can constitute a “sale” of a product sufficient to trigger strict products liability.  The court of appeals again sided with Fujitech, holding that Fujitech provided a service, and did not sell a product.  

On review, the Oregon Supreme Court will address four issues:

(1) What information is required to be included in an attorney's affidavit or declaration under ORCP 47 E, regarding retention of a qualified expert, in order to successfully oppose a motion for summary judgment in a case alleging negligence and products liability? 
(2) Was the summary judgment record in this case sufficient for a jury to conclude that the type of injury that occurred was of a kind that ordinarily does not occur in the absence of negligence?
(3) Can a defendant who contracts to modernize an elevator be subject to strict product liability when it allegedly sold, installed, and tested component parts, manufactured by others, in an elevator system that failed and caused injury to persons who rode on the elevator?
(4) Were plaintiffs required to prove the exact manufacturing flaw or design defect when they alleged, and provided a supporting affidavit under ORCP 47 E, that defendant's modernization of the elevator was dangerously defective under the "consumer expectation" test?




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