§ 28.3 Types of Evidence to Be Used in Summary-judgment Proceedings

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 28.3 TYPES OF EVIDENCE TO BE USED IN SUMMARY-JUDGMENT PROCEEDINGS

§ 28.3-1 Introduction

Both the moving party and the opposing party in a summary-judgment proceeding may use only materials that would be admissible in evidence at trial and that are properly sworn or otherwise authenticated. See McIntire v. First Far W. Life Ins., 49 Or App 253, 619 P2d 1300 (1980); DeBerry v. Summers, 255 Or App 152, 166 n 6, 296 P3d 610 (2013). See also ORCP 47 D; OEC 201(a)-(g) (ORS 40.060-40.090). Parties may also rely on facts that are properly subject to judicial notice. See § 28.3-6 (judicial notice).

Affidavits, declarations, depositions, documentary evidence, and answers to requests for admission are the typical materials used to support or oppose a motion for summary judgment.

PRACTICE TIP: If evidence presented in support of or in opposition to a motion for summary judgment is inadmissible, the other party must make a timely objection. Appellate courts may consider both hearsay evidence and evidence that was not properly authenticated when the party opposing its admissibility fails to preserve the error by a timely objection below. Splinters, Inc. v. Andersen/Weitz, 192 Or App 632, 638, 87 P3d 689 (2004); Mains v. II Morrow, Inc., 128 Or App 625, 633 n 2, 877 P2d 88 (1994) (if no objection is made, the court may consider hearsay evidence submitted in support of or in opposition to motion for summary judgment); Stephens v. Bohlman, 314 Or 344, 351 n 7, 838 P2d 600 (1992), abrogated in part as stated in Halperin v. Pitts, 352 Or 482, 287 P3d 1069 (2012); Finney v. Bransom, 143 Or App 154, 158 n 4, 924 P2d 319 (1996), aff'd in part, rev'd in part on other grounds, 326 Or 472, 953 P2d 377 (1998).

§ 28.3-2 Affidavits, Declarations, and Exhibits

Affidavits or declarations may be submitted in support of or in opposition to a motion for summary judgment. In the absence of counter-affidavits or other conflicting evidence, the facts set forth in an affidavit submitted in support of a summary-judgment motion will be taken as true. Bewley v. Evanite Fiber Corp., 111 Or App 314, 826 P2d 74, rev den, 313 Or 299 (1992); Comley v. Emanuel Lutheran Charity Bd., 35 Or App 465, 469-70, 582 P2d 443 (1978); Ramirez v. Hawaii T&S Enters., 179 Or App 416, 418, 39 P3d 931, rev den, 335 Or 114 (2002).

Statements made by affiants must be made on personal knowledge. ORCP 47 D. Affidavits do not require an explicit statement as to the affiant's personal knowledge or competence. West v. Allied Signal, Inc., 200 Or App 182, 190, 113 P3d 983 (2005). Rather, the requirement is satisfied when an "objectively reasonable person," reading the affidavit as a whole, "would understand that statements in the affidavit [were] made from the affiant's personal knowledge and are otherwise within the affiant's competence." West, 200 Or App at 190; Hammel v. McCulloch, 296 Or App 843, 850, 441 P3d 617, rev den, 365 Or 502 (2019). Affidavits may be disregarded if they are drafted in a way that "ma[ke] it impossible for either the trial court or [the opposing party] to . . . determine if they compl[y] with the requirements of ORCP 47 D." Jeffries v. Mills, 165 Or App 103, 107, 995 P2d 1180 (2000). The adequacy of summary-judgment affidavits is a legal question. Jeffries, 165 Or App at 106.

Affidavits based solely on information and belief do not satisfy the personal-knowledge requirement—such statements are inadmissible hearsay, and, as such, they cannot be used to raise a factual issue and must be disregarded. McDonough v. Jones, 48 Or App 785, 791-92, 617 P2d 948 (1980), rev den, 290 Or 519 (1981); see Andrews v. R.W. Hays Co., 166 Or App 494, 499-502, 998 P2d 774 (2000) (hearsay testimony in an affidavit was properly excluded on the adverse party's objection); c.f. Robbins v....