Hinchman v. UC Market, LLC

Where a party’s theory is susceptible to proof through expert opinion evidence based on appropriate facts, a party’s offer of an ORCP 47 E affidavit is sufficient to create a genuine issue of fact to defeat summary judgment.

Plaintiff Hinchman was injured while in a store owned by Defendant UC Market, LLC (the Market). When Hinchman entered the store a mat was flat on the ground outside the door; however, when Hinchman left a few minutes later, the mat had been lifted by wind so it was folded over on itself. Hinchman tripped over the mat, suffering injury. Hinchman filed a negligence suit alleging the Market created the hazard by selecting a lightweight mat and failing to secure it down against the wind. The Market moved for summary judgment, which was granted despite Hinchman’s offer of an ORCP 47 E affidavit regarding expert testimony. Hinchman appealed. The Court held that Hinchman’s theory of the case was one susceptible to proof through expert opinion evidence, and that the Market had created the hazardous situation, combined with her ORCP 47 E affidavit, that was sufficient to permit a factfinder to infer the mat was lightweight, outdoors and unsecured on an unusually windy day. Reversed and remanded.