Two Two v. Fujitec America, Inc.

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.