Charbonneau v. Wilbur Ellis Co.

• Decision Date: 02 August 1973
• Docket Number: No. 746--III,746--III
• Citation: 512 P.2d 1126,9 Wn.App. 474
• Parties: Donald G. CHARBONNEAU, Appellant, v. WILBUR ELLIS COMPANY, a corporation, and Yakima Valley Spray Company, a corporation, Respondents.
• Court: Washington Court of Appeals

Page 474

9 Wn.App. 474

512 P.2d 1126

Donald G. CHARBONNEAU, Appellant, v. WILBUR ELLIS COMPANY, a corporation, and Yakima Valley Spray Company, a corporation, Respondents.

No. 746--III.

Court of Appeals of Washington, Division 3.

Aug. 2, 1973.

J. P. Tonkoff and Walter B. Dauber of Tonkoff, Dauber & Shaw, Yakima, for appellant.

Robert R. Redman of Gavin, Robinson, Kendrick, Redman & Mays, Yakima, for Yakima Valley Spray Co.

Pinckney M. Rohrback of Keller, Rohrback, Waldo, Moren & Hiscock, Seattle, for Wilbur-Ellis Co.

MUNSON, Judge.

Plaintiff appeals from an order granting summary judgment in favor of Yakima Valley Spray Company.

Plaintiff is the owner of an apple orchard in Yakima County. In the spring of 1971, he purchased from the Wilbur Ellis Company an emulsifiable oil and diazinon, which was to be applied as a dormant spray upon plaintiff's 42-acre apple orchard. The oil purchased from Wilbur Ellis Company was an emulsifiable oil formulated by Yakima Valley Spray Company.

From March 30, 1971, to April 1, 1971, plaintiff sprayed a mixture of water, emulsifiable oil and diazinon upon his orchard. Representatives of Wilbur Ellis gave recommendations and technical advice with respect to the application of this dormant spray. Plaintiff applied only 60 percent of the recommended dosage. Within a few days after spraying, extensive tree and crop damage became apparent.

Plaintiff filed suit for damages against both Wilbur Ellis Company and Yakima Valley Spray Company. After taking plaintiff's deposition and submittinginterrogatories, Yakima Valley Spray moved for summary judgment on the basis that there was no genuine issue of material fact existing by which liability for plaintiff's damage could be attributed to Yakima Valley Spray Company. The trial court granted the requested summary judgment. Plaintiff appeals. ¹

A motion for summary judgment is properly rendered if: 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . .' CR 56(c). To support his assertion that a genuine issue of fact existed with respect to whether or not the oil formulated by Yakima Valley was in fact defective, plaintiff relied upon the following:

(1) Plaintiff, who studied horticulture, basically pomology, for 1 1/2 years at Cornell University and has operated his orchard since 1959, expressed his opinion that the tree damage was caused by the oil spray. This contention is not disputed by the defendant.

(2) In support of his belief, plaintiff asserts he was advised by an expert, Amos Bourgo, a fieldman for Chevron Chemical Company, that the oil supplied by Yakima Valley Spray Company was defective.

(3) Plaintiff asserts by affidavit that the oil was mixed pursuant to recommended specifications and was properly applied by the use of standard and accepted good farming practices.

For the purposes of this motion, plaintiff contends that he has come forward with sufficient facts by affidavit to eliminate every effectual cause of damage except the oil itself. While he would admit that oil can cause damage, whether defective or not, he asserts that sufficient facts have been introduced to create a genuine issue of material fact as to the defectiveness of the oil.

The defendant likewise admits that application of the oil could have caused plaintiff's damage; but he claims this fact does not establish that the oil was defective. Thus, the plaintiff must do more than admit oil can cause damage; he must come forward with some facts to establish the defective condition of this oil.

Defendant requested and received, pursuant to CR 36, admissions from the plaintiff that: (a) he had made no test on the oil applied; (b) he had no reports or information that there was anything defective about defendant's emulsifiable oil other than Mr. Bourgo's claimed statement of opinion; and (c) no one advised him that defendant's oil was impure, not true to label, or was contaminated. Thus the defendant contends that the failure to produce any evidence that the oil was defective justified the granting of summary judgment for defendant.

Once the moving party has filed affidavits controverting the pleadings, the nonmoving party can no longer rely upon those pleadings, but must come forward with evidence which would create a genuine issue of material fact. W. G. Platts, Inc. v. Platts, 73 Wash.2d 434, 438 P.2d 867, 31 A.L.R.3d 1413 (1968). Since the only actions of defendant Yakima Valley herein were in formulating the oil, it can only be held liable if the oil, as formulated, is found to be defective and the cause of the orchard damage. Therefore, the only issue left is: Were sufficient facts presented to raise an issue that the oil itself was defective?

The plaintiff, who must be considered as an expert based upon his background, claims the damage came from the oil. However, that in and of itself does not mean the oil is defective because, as the defendant admits, oil which is not defective can cause the same damage. The only evidence of defectiveness which plaintiff has produced is the statement in his affidavit that he was told by an expert fieldman that the damage was due to defective oil. This is not evidence based upon plaintiff...