LaVoie v. Power Auto, Inc.
Case #: A150257
Schuman, P.J. for the Court; Wollheim, J.; and Duncan, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A150257.pdf
Civil Procedure: To survive a Motion for Summary Judgment, a responding attorney's affidavit that uses future expert testimony to satisfy a prima facie claim must state genuine issues of material fact that address any affirmative defenses raised by the opposition.
LaVoie appealed a trial court’s grant of Power Chevrolet’s Motion for Summary Judgment in a civil claim. LaVoie was in an automobile crash while driving a Chevrolet Cavalier purchased from Power Chevrolet. LaVoie claimed the crash was caused by an after market floor mat sliding forward and interfering with the driver’s ability to brake and accelerate. LaVoie’s complaint alleged common law negligence and product liability against Power Chevrolet. Power Chevrolet was granted summary judgment based upon an alteration or modification affirmative defense. LaVoie argued that his affidavit created a genuine issue of material fact because it claimed his expert witness would create issues of material fact relevant to the claims asserted in the complaint. Additionally, LaVoie argued Power Chevrolet’s affirmative defense was not applicable because after-market floor mats do not qualify as alterations or modifications and, even if they do, Power Chevrolet did not satisfy every element of the affirmative defense. The Court of Appeals held that LaVoie’s affidavit did not create an issue of material fact because it does not address the affirmative defense, despite unknown future expert testimony that could potentially create issues of fact. However, the Court also held Power Chevrolet did not sufficiently satisfy every element of their affirmative defense. Reversed and Remanded.