Two Two v. Fujitec
Case #: A145591
Ortega, P.J. for the Court; Sercombe, J. and Hadlock, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145591.pdf
Tort Law: An affidavit outlining elements on which an expert will testify that lacks indication that the expert will testify as to causation, absent other supporting evidence, is not sufficient to establish an issue of material fact.
Two Two appealed the trial court’s grant of summary judgment in this products liability and negligence case. Two Two was injured when an elevator “modernized,” maintained and inspected by Fujitec malfunctioned and dropped a number of feet unexpectedly. Two Two presented an affidavit indicating that an expert would testify, but it lacked indication that the expert would testify on causation. The trial court granted the motion for summary judgment, finding that Two Two's affidavit lacked indication that evidence would be offered on causation, creating no genuine issue of material fact. Two Two appealed, arguing that she did provide enough evidence to create a genuine issue regarding causation, or, in the alternative, the jury could infer causation under res ipsa loquitur. The Court of Appeals agreed with the trial court, finding that Two Two’s affidavit lacked evidence that there would be a genuine issue regarding causation, and, further, that res ipa loquitur did not apply because elevator malfunctions are outside common understanding, and the record was too deficient to determine whether this malfunction only occurs in the presence of negligence. Finally, the Court found that Fujitec’s work on the elevator was more akin to a sale, and Fujitec was therefore not a manufacturer. Affirmed.