Duncan v. Rockwell Mfg. Co.

Decision Date11 August 1977
Docket NumberNo. 13675,13675
Citation567 P.2d 936,173 Mont. 382,34 St.Rep. 821
PartiesRoy C. DUNCAN, Plaintiff and Appellant, v. ROCKWELL MANUFACTURING COMPANY et al., Defendants and Respondents.
CourtMontana Supreme Court

Jon E. Ellingson (argued), James E. Congdon, Missoula, for plaintiff-appellant.

Garlington, Lohn & Robinson, Gary L. Graham (argued), Missoula, Worden, Thane & Haines, Ronald A. Bender (argued), Missoula, for defendants-respondents.

HARRISON, Justice.

This is an appeal by the plaintiff in a personal injury action from an order of the district court, Missoula County, granting summary judgment to all defendants. The complaint proceeded upon the theories of strict liability in tort and implied warranty of fitness for a particular purpose, against the manufacturer and retailer of an allegedly defective, injury causing product, and the sales agent of the product. The record consists of the pleadings, interrogatories to the defendants, requests for admissions of the defendants, plaintiff's deposition, defendants' motion for summary judgment together with affidavits in support and in opposition, and the order of the district court granting the motion. Plaintiff appeals the order.

Plaintiff Roy C. Duncan purchased a table saw manufactured by defendant Rockwell Manufacturing Company, from defendant Allied Stores Marketing Corporation, through its agent, defendant Wallace W. Payson, in Missoula, Montana in April 1971. The saw was fully assembled at the time of the purchase. Duncan was able to observe and inspect the saw prior to the sale and noticed no defect. The saw was then placed on its back in the rear of Duncan's pickup truck and taken 80 miles to the vicinity of Flathead Lake for use in the building of a structure. The building job lasted approximately three to four months, and the saw was used at least once each day. No trouble was experienced with the saw at that time. In June 1971, following the completion of the work, Duncan again loaded the saw in the rear of his pickup, laying it on its back. The saw was transported to Missoula, placed in a storage area behind Duncan's garage and remained there until September 1972.

On September 25, 1972, Duncan and his son removed the saw from the storage area and placed it in the center of his garage floor. Duncan commenced to ripsaw a long, narrow board without checking the saw for stability. Fifteen seconds later, as he was pushing the board through the saw, the saw tilted and the board jammed. Duncan's right hand was pulled into the moving blade, resulting in the amputation of his index finger below the first joint and lacerations to his second finger. Subsequent to the accident, it was discovered one of the four legs of the table saw was one-fourth inch shorter than the other three.

In his deposition Duncan indicated he had been actively involved as a carpenter since 1950 and was presently qualified as a master carpenter. Duncan admitted he was fully familiar with both the table saw in question and table saws generally, being aware of the dangers associated with the use of such equipment and the necessary precautions therefor.

Plaintiff urges three contentions on appeal:

1. The district court erred in granting summary judgment where genuine issues of material fact exist between appellant and respondents.

2. That any defense raised by respondents, particularly that of contributory negligence, cannot be established as a matter of law in a summary judgment proceeding.

3. Strict liability in tort is properly applicable to a retailer of a defective product.

Here the legal problem presented is essentially one of the propriety of summary judgment in the context of a particular products liability action. Rule 56(c), M.R.Civ.P., provides in part:

" * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * "

This Court has held that, under Rule 56, the party moving for summary judgment has the initial burden of establishing the complete absence of any genuine issue of material fact. Mustang Beverage Co. v. Jos. Schlitz Brewing Co., 162 Mont. 243, 511 P.2d 1; Harland v. Anderson, Mont., 548 P.2d 613, 33 St.Rep. 363. Further, in Kober & Kyriss v. Billings Deaconess Hospital, 148 Mont. 117, 122, 417 P.2d 476, 478, this Court quoting with approval from 6 Moore's Federal Practice 2d, P 56.15, said:

" 'The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.' "

This Court has also held that the party opposing the motion is afforded the benefit of all reasonable inferences which may be drawn from his offered proof. Kober & Kyriss v. Billings Deaconess Hospital, supra. Certainly, summary judgment is not a viable substitute for a trial where a factual controversy exists.

" * * * Summary judgment is not a proper tool for resolving disputed issues of fact and is accordingly improper whenever material factual matter is in dispute. * * * " Flanagan v. Curran, 164 Mont. 262, 265, 521 P.2d 200, 201.

However, the summary judgment procedure does not end here. Since the purpose of the procedure is to promote the streamlining of the judicial process through a "screening-out" and elimination of questions which do not merit resolution by litigation, the burden is shifted to the party opposing the motion where the record reveals no genuine issue of material fact. Such burden is as substantial as that initially imposed upon the movant.

" ' * * * the opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicions.' " Silloway v. Jorgenson, 146 Mont. 307, 310, 406 P.2d 167, 169, quoting from 6 Moore's Federal Practice 2d, P 56.11.

A plaintiff in a products liability action has the initial burden of establishing three elements prior to recovery, regardless of whether his cause of action is phrased in terms of negligence, warranty or strict liability: First, the plaintiff must show that he was injured by the product. Second, he must present proof the product was defective and unreasonably unsafe. Third, it must be demonstrated such defect existed when the product left the hands of the particular defendant. Prosser Torts 4th ed. § 103. It is the third element we are concerned with here.

The theory of § 402A, Restatement of Torts 2d, adopted by this Court in Brandenburger v. Toyota Motor Sales, 162 Mont. 506, 513 P.2d 268, only imposes liability on the manufacturer or seller if:

" * * * the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. * * * " Restatement of Torts 2d § 402A, Comment: g.

It is clear the conduct of the seller or manufacturer in placing the product in the stream of commerce in a defective condition, to which the injury must be identified, is the cornerstone of the plaintiff's proof in a strict liability case. The law in Montana is well established that unless evidence is offered supporting the conclusion the product was defective at the time it left the hands of the particular seller or manufacturer, there can be no liability. Barich v. Ottenstror, Mont., 550 P.2d 395, 33 St.Rep. 481. The law will not automatically presume the defect to have been extant at the time the product was under the control of the defendant, from a mere demonstration of a possible defect at the time of the accident. Barich v. Ottenstror, supra. In other words, from the nature of the alleged defect, coupled with evidence of the surrounding circumstances, it may be reasonable to infer the defect did not exist at the time of manufacture or sale.

Upon a review of the record, we find respondents sustained their initial burden of proof as parties movant under Rule 56, M.R.Civ.P., by demonstrating the product involved was subjected to substantial wear by moving it long distances and by continued actual use. Continued usage of a product will not itself prevent recovery where satisfactory proof of an original defect is offered. However, where no direct evidence of such defect exists and proof must be made by inference, as here, continued use by plaintiff may well preclude a finding the product was defective when placed in the stream of trade.

This case is to be distinguished from those where there is a malfunction of a recently acquired machine, which manifests a latent defect. On the contrary such a defect as is involved here, had it existed prior to the...

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    ...not constitute facts that are "material and of a substantial nature" that would prevent summary judgment. Duncan v. Rockwell Mfg. Co., 173 Mont. 382, 388, 567 P.2d 936, 939 (1977). Tin Cup must prove by more than mere denial and speculation that a genuine issue of material fact exists. Vall......
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