This is an action to recover for property damage resulting from the loss of an Oldsmobile automobile by fire. Plaintiff is the purchaser of the vehicle; defendants are the manufacturer, General Motors Corporation, and the dealer, Carmichael Oldsmobile, Inc. The action is based upon the theories of products liability and implied warranty of merchantability. After the pleadings were in issue, defendants moved for summary judgment based upon defendant General Motor's affidavit, plaintiff's deposition, and the provisions of the owners' manual delivered with the vehicle. Plaintiff filed no countering affidavits. He appeals from a granting of summary judgment in favor of defendants.
The following facts appear from plaintiff's deposition: plaintiff bought a new vehicle from Carmichael in November 1972. In January 1973 a fuse burned out. Plaintiff had the fuse replaced at a service station. Later, another fuse burned out and the same service station replaced that fuse as well as the cigarette lighter in an attempt to remove the problem. When another fuse burned out in April or May 1973, the service station put in a "heavier" and "stronger" fuse. After the stronger fuse was inserted, there were no more problems with fuses' burning out. Plaintiff stated that when a fuse would burn out the interior courtesy lights, dashboard lights, gauge lights and the cigarette lighter would not work. The owners' manual, which was an
During the time previously related plaintiff took the car twice to Carmichael for work on it. On the first trip the car was undercoated and an attempt was made to repair a leak in the trunk. The trunk continued to leak, whereupon plaintiff took the car back to Carmichael. On one of these two trips plaintiff told Carmichael about the fuses' burning out and asked Carmichael to check the wiring to see if the leak in the trunk was causing the problem. There is no record of whether or not the wiring in the area of the leak was so checked. In any event, the trunk discontinued leaking after the second trip.
On July 3, 1973, plaintiff parked the vehicle in his driveway and it was totally destroyed by fire of unknown origin. The owners' manual contained the following warning: "Do not use fuses of higher amperage rating than those specified below." Plaintiff stated he was familiar with and had read the owners' manual. There is no evidence whether the last fuse which was inserted by the service station was of greater amperage than the limit provided in the manual, the only evidence being plaintiff's statement that it was "heavier" and "stronger" than that which came with the vehicle.
Oregon's summary judgment statute, ORS 18.105, provides in relevant part:
ORS 18.105 was "enacted to facilitate effective use of the court system by allowing for a quick, early and inexpensive method of determining whether the pleadings present a triable issue of fact." Garrison v. Cook, 280 Or. 205, 209, 570 P.2d 646, 648 (1977). The party moving for summary judgment must establish that (1) there is no issue as to any material fact; and (2) he is entitled to judgment as a matter of law. If these requirements are met, the parties need not wait until trial but may seek a final adjudication of the action by motion. "In this way, dilatory tactics resulting from the assertion of unfounded claims or the interposition of specious denials or sham defenses can be defeated, parties may be accorded expeditious justice, and some of the pressure on court dockets may be alleviated." 10 Wright & Miller, Federal Practice and Procedure § 2712. But at the same time it must be remembered that a summary judgment motion goes to the merits of a case and, when granted, operates to merge or bar the cause of action for res judicata purposes. "Since its impact is rather drastic, summary judgment must be used with a due regard for its purposes and should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues." Id.
The moving party has the burden of showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. The record on summary judgment is viewed in
Federal Rule of Civil Procedure 56(e), the model for ORS 18.105(4), was added in 1963 to overcome a line of cases, primarily in the Third Circuit, holding that well-pleaded allegations might be sufficient in and of themselves to create the required genuine issue of fact and prevent summary judgment without actually controverting the content of the affidavits or other evidence introduced by the moving party. These cases had been criticized because they effectively prevented the court from determining whether a genuine issue of fact actually existed, thus thwarting the purpose of summary judgment. They permitted a party to render the rule nugatory through clever pleading. 10 Wright & Miller, Federal Practice and Procedure § 2711.
In deciding whether a genuine issue of fact exists, courts generally read "genuine issue" to mean "triable issue." Before a party has a triable issue, he or she must have sufficient evidence to be entitled to a jury determination. This has led both courts and commentators to compare the motion for summary judgment to the motion for a directed verdict. 10 Wright & Miller, Federal Practice and Procedure § 2713.
Before a purchaser may recover upon a products liability cause of action he must demonstrate that at the time the product leaves the manufacturer's or seller's hands it is dangerously defective. Restatement (Second) of the Law of Torts § 402A(1)(a)
Plaintiff mistakes the burden which defendants have in establishing their right to summary judgment. Defendants do not have to establish that the stronger fuse was the cause of the fire; what they do have to establish is that because of the installation of the stronger fuse plaintiff cannot carry his burden to show that there was no change in the vehicle which was essential to its destruction by fire and, thus, that it was dangerously defective at the time of its purchase. The two are not the same. All defendants have to show is that the admitted factual posture of the case is such that plaintiff would not be entitled to a jury determination. They have to show that the facts are insufficient to establish that the defective condition of the vehicle which caused its destruction was dangerous at the time it was sold.
Plaintiff points out that we do not know whether or not the stronger fuse inserted by him after purchase was of a higher amperage rating than that specified by the manual. This is true. Nor, on the other hand, do we know that it was not. If it was established that the fuse was of a greater amperage rating than that specified by the manual, it would be clear (given the record of short circuits and the absence of any other explanation) that the change in the fuse was most probably an essential cause of the fire but for which it would not have occurred.
Plaintiff contends that even if the change to a stronger fuse was a cause of the fire, it would be "error to hold as a matter of law that the change was of such a substantial character so as to break the chain of causation between the product defect and the resulting fire." There was evidence from which it could be found that the vehicle as purchased had defective wiring. However, it was not dangerously defective because the fuse was a fail-safe device designed to keep the vehicle from catching fire in the event of such a contingency and there was no evidence in plaintiff's deposition or by affidavit that the defective wiring could have caused the fire in the absence of the change to a stronger fuse.
Plaintiff also contends that it would be error to hold as a matter of law that defendants could not reasonably anticipate that a stronger fuse would be installed into the electrical system. Defendant manufacturer did so anticipate such action by purchasers in the event of wiring defects and, therefore, included a warning about such changes in its manual. Plaintiff admits he was familiar with the manual which he had read. Unless we are prepared to say, which we are not, that the situation was so dangerous that a warning is insufficient, we must hold that the warning was adequate to keep the original defect in the wiring from being dangerously defective because of the possibility of the insertion of a stronger fuse.
In some cases it has been held that a warning is inadequate because it does not inform the purchaser or user of the extent of the danger involved in ignoring the warning. In this case we believe it to be self-apparent to everyone that the warning relating to the amperage of the fuse was related to the purpose which fuses serve — the prevention of fire.
As to plaintiff's implied warranty cause of action, we will assume but not decide that privity of contract between plaintiff and the defendant General Motors is unnecessary. This is the best warranty position plaintiff could hope for. If privity and all accompanying contractual and sales rules are done away with, the same rationale would apply to its disposition as we have used in disposing of the products liability count because then both theories are essentially the same. 2 Frumer and Friedman, Products Liability § 16A[a].
The judgment of the trial court is affirmed.