Argued and submitted on February 08, 2013.
Marion County Circuit Court 10C14396 Mary Mertens James, Judge.
Robert K. Udziela argued the cause for appellant. With him on the briefs were J. Randolph Pickett, R. Brendan Dummigan, Kristen J. West, Kimberly O. Pickett, and Pickett Dummigan LLP.
Kent B. Hanson, Minnesota, argued the cause for respondent. With him on the brief were Hanson Bolkcom Law Group, Ltd., and Ryan J. McLellan and Smith Freed & Eberhard P.C.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
Plaintiff sustained serious injuries when the Chevrolet Cavalier he was driving accelerated out of control, left the road, and rolled over. According to plaintiff, the accident resulted from the driver's side floor mat sliding forward and interfering with his ability to operate the accelerator and brake. He brought this action alleging common-law negligence and product liability against defendant Power Chevrolet, the dealership that sold the car to plaintiff's then-girlfriend. The trial court granted defendant's motion for summary judgment, rejecting plaintiff's contention that he had defeated defendant's summary judgment motion by submitting an affidavit creating a disputed issue of material fact, ORCP 47 E, and accepting defendant's contention that it had established every element of an "alteration or modification" affirmative defense, ORS 30.915. We agree with the trial court that plaintiff's ORCP 47 E affidavit was inadequate to defeat summary judgment, but we disagree with its conclusion that defendant proved every element of its affirmative defense. We therefore reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
Summary judgment is appropriate when "there is no genuine issue as to any material fact and * * * the moving party is entitled to prevail as a matter of law." ORCP 47 C. The record, which we review on summary judgment in the manner most favorable to the nonmoving party, id., establishes the following facts. Plaintiff's girlfriend, Lukawitz, bought her Chevrolet Cavalier from defendant. The model she bought was a "base" model, that is, a model without most optional features. As relevant to this case, the model had neither floor mats nor a floor mat retention system as standard equipment. None of defendant's employees discussed a future purchase of after-market floor mats or told Lukawitz that such floor mats could interfere with the operation of the car. Lukawitz subsequently bought such floor mats from a "big box" store. She could not remember the name of the store or the brand name of the floor mats.
On one occasion before the accident that caused plaintiff's injuries, he became aware that the floor mats could be dangerous when, in his words, the "floor mat got caught in between the brake and the gas" while he was driving, causing the car to "just floor[ ] itself, " so that plaintiff had to reach down and pull the mat away from the pedals in order to regain control. After that incident, plaintiff removed the floor mats, but somebody--the record does not reveal who--reinstalled them. Thereafter, Lukawitz noticed the floor mats slipping forward, and they were removed again. Again, some unknown person reinstalled them. They were still in the car when, in April 2008, while plaintiff was driving in rural Polk County, the floor mat slid forward, causing the car to accelerate. Plaintiff was unable to control the acceleration; the car fishtailed, left the road, and rolled over. Plaintiff suffered serious injuries in the accident, rendering him quadriplegic. He testified that, at the time of the accident, he did not know that the floor mats had been reinstalled and that, if he had known that fact, he would have taken them out.
In his first complaint, plaintiff asserted claims in product liability and common-law negligence on the theory that defendant sold a defective product: the vehicle with an installed floor mat. The complaint also named Remington Industries, Inc., as the manufacturer of the floor mats. Defendant filed a motion for summary judgment, asserting that the floor mat was not part of the vehicle as sold; it was an after-market product. That fact, defendant argued, entitled it to summary judgment under the "alteration or modification" defense in ORS 30.915. That statute provides:
"It shall be a defense to a product liability civil action that an alteration or modification of a product occurred under the following circumstances:
"(1) The alteration or modification was made without the consent of or was made not in accordance with the instructions or specifications of the manufacturer, distributor, seller or lessor;
"(2) The alteration or modification was a substantial contributing factor to the personal injury, death or property damage; and
"(3) If the alteration or modification was reasonably foreseeable, the manufacturer, distributor, seller or lessor gave adequate warning."
The same statute, defendant reasoned, entitled it to summary judgment on plaintiff's common-law negligence claim as well as his product liability claim; the statute applies to any "product liability civil action" as defined in ORS 30.900,  and that definition includes "negligence claims within its scope." Mason v. Mt. St. Joseph, Inc., 226 Or.App. 392, 397, 203 P.3d 329, rev dismissed, 347 Or 349 (2009); see also Marinelli v. Ford Motor Co., 72 Or.App. 268, 273, 696 P.2d 1, rev den, 299 Or 251 (1985) ("[T]he term 'product liability civil action, ' as defined by ORS 30.900, embraces all theories a plaintiff can adduce in an action based on a product defect." (Emphasis in original.)). According to defendant's motion, there was undisputed evidence in the record to establish that it met all three of the ORS 30.915 subsections: Seller did not consent to after-market floor mats ...