Two Two v. Fujitec America, Inc.

An ORCP 47 E affidavit which states an expert will testify to causation is sufficient to raise a question of fact and avoid summary judgment. ORS 30.920, Oregon's strict liability statute, does not apply to apply to service transactions.

Two Two and Fodge (Two Two) appealed a decision by the Court of Appeals which upheld the trial courts grant of motions for summary judgment on negligence and strict liability claims. Two Two alleged they were injured in 2008 when an elevator suddenly malfunctioned and dropped. The Court of Appeals upheld the trial court’s decision that the ORCP 47 E affidavit filed by Two Two was insufficient to defeat a motion for summary judgment for negligence because it did not address the element of causation. The Court of Appeals also upheld the trial court’s grant of a motion for summary judgment for the strict liability claim because ORS 30.920 does not apply to service providers. In regards to the negligence claim, the Court held that there was an issue of fact worthy of jury determination; because the affidavit filed by Two Two stated that an expert would testify to causation as well as to maintenance performance, a reasonable person could find a question of fact. The Court upheld the grant of summary judgment for the strict liability claim because Fujitec only provided an installation service. Affirmed in part and reversed and remanded in part.