Lamb v. B & B Amusements Corp.

• Decision Date: 19 November 1993
• Docket Number: No. 910018,910018
• Citation: 869 P.2d 926
• Parties: Prod.Liab.Rep. (CCH) P 13,696 Tammy Herring LAMB, Plaintiff and Appellant, v. B & B AMUSEMENTS CORP., an Arizona corporation, and Curtis Industries, Inc., a Delaware corporation, Defendants and Appellees.
• Court: Utah Supreme Court

Page 926

869 P.2d 926

Prod.Liab.Rep. (CCH) P 13,696

Tammy Herring LAMB, Plaintiff and Appellant, v. B & B AMUSEMENTS CORP., an Arizona corporation, and Curtis Industries, Inc., a Delaware corporation Defendants and Appellees.

No. 910018.

Supreme Court of Utah.

Nov. 19, 1993.

Rehearing Denied March 16, 1994.

Peter C. Collins, Salt Lake City, for Tammy Herring Lamb.

Scott Christensen, Salt Lake City, for B & B Amusements.

Robert H. Henderson, Salt Lake City, for Curtis Industries.

STEWART, Justice:

Plaintiff Tammy Herring Lamb was injured when the third and fourth cars of a five-car children's roller coaster in which she was riding separated. Apparently, the bolt connecting the cars failed. Lamb filed a complaint against B & B Amusements Corp., the operator of the amusement ride, for negligence in the maintenance and/or inspection of the roller coaster and Curtis Industries, Inc., the manufacturer of the bolt, for negligence and strict products liability. Lamb appeals a summary judgment in favor of Curtis and a jury verdict in favor of B & B. We reverse the summary judgment holding Curtis not liable as a matter of law and affirm the jury verdict.

I.

B & B moved for summary judgment on the negligence claim against it. In support of its motion, B & B submitted affidavits and deposition testimony establishing the maintenance and inspection procedures B & B used with respect to the roller coaster. B & B also submitted the affidavit of Dr. Thomas Blotter, who stated that if B & B's regular maintenance procedures were followed, the failure of the bolt was not the result of B & B's operation or maintenance of the roller coaster. In opposition to B & B's motion for summary judgment, Lamb submitted the affidavit of David C. Stephens. That affidavit stated that the bolt probably failed because of over-tightening or inadequate lubrication by B & B.

Curtis also moved for summary judgment on the products liability claim against it, but submitted no affidavit or other evidentiary material in support of its motion. Curtis argued that it was entitled to summary judgment on the grounds that plaintiff had submitted no evidence of Curtis's liability and that plaintiff's own expert suggested that B & B's conduct was responsible for the accident. Plaintiff opposed the motion on the grounds that the evidence in B & B's affidavits and depositions supported her claim against Curtis and that, in any event, the doctrine of res ipsa loquitur supported an inference of product defect that precluded summary judgment.

The trial court denied B & B's motion for summary judgment, but granted Curtis's motion on the grounds that res ipsa loquitur does not apply to strict liability cases and that plaintiff had failed to establish a material issue of fact on the products liability claim. After a trial on Lamb's negligence claim against B & B, the jury found in favor of B & B. Lamb appeals the summary judgment in favor of Curtis and the trial court's denial of her motion for a new trial against B & B.

Summary judgment allows the parties to pierce the pleadings to determine whether a material issue of fact exists that must be resolved by the fact finder. Reagan Outdoor Advertising, Inc. v. Lundgren, 692 P.2d 776, 779 (Utah 1984); Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983). The party moving for summary judgment must establish a right to judgment based on the applicable law as applied to an undisputed material issue of fact. Utah R.Civ.P. 56; Transamerica Cash Reserve, Inc. v. Dixie Power & Water, Inc., 789 P.2d 24, 25 (Utah 1990). A party opposing the motion is required only to show that there is a material issue of fact. Affidavits and depositions submitted in support of and in opposition to a motion for summary judgment may be used only to determine whether a material issue of fact exists, not to determine whether one party's case is less persuasive than another's or is not likely to succeed in a trial on the merits.

As the moving party, Curtis had the affirmative burden of establishing that there were no material issues of fact as to its liability. Curtis submitted no affidavit or other evidence in support of its motion. Curtis simply argued that it was entitled to summary judgment because the affidavit of Lamb's expert stated that B & B's negligent maintenance of the bolt caused the accident and because Lamb presented no evidence of Curtis's liability. Curtis asserts that the negative implication of the affidavit of plaintiff's expert as to B & B's negligence is that the bolt was not defective. The issue, therefore, is whether Curtis, as movant, is entitled to summary judgment solely on the basis that the affidavit of Lamb's expert submitted in opposition to B & B's motion for summary judgment binds Lamb with respect to Curtis's motion for summary judgment on the products liability claim against Curtis. We think not.

Lamb pleaded a claim upon which relief may be granted under a theory that Curtis was liable under strict products liability law. See Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979); see also Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1302 (Utah 1981). On that theory, Curtis could be liable if its product was unreasonably dangerous to a user or consumer because of a defect or defective condition existing at the time the product was sold. See Utah Code Ann. § 78-15-6. To plead a case of strict products liability against a manufacturer, a plaintiff must allege (1) that the product was unreasonably dangerous due to a defect or defective condition, (2) that the defect existed at the time the product was sold, and (3) that the defective condition was a cause of the plaintiff's injuries. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 103, at 713 (5th ed. 1984); see also Zyferman v. Taylor, 444 So.2d 1088, 1091 (Fla.Dist.Ct.App.), review denied, 453 So.2d 44 (Fla.1984). Curtis does not argue that Lamb's complaint failed to state a claim, only that there is no material issue of fact as to the products liability claim.

Lamb's claims against B & B and Curtis were alternative theories of liability. The evidence was undisputed that a bolt broke, causing two roller coaster cars to separate, thereby injuring plaintiff. The critical factual issue was whether the bolt failed because of negligent maintenance, operation, or inspection by B & B or because of a manufacturing defect in the bolt.

Lamb's expert, David C. Stephens, stated in an affidavit in opposition to B & B's motion that in his opinion the most probable cause of the accident, based on his interpretation of the circumstantial evidence, was that the bolt failed because of over-tightening or inadequate lubrication by B & B. The affidavit did not establish that negligent maintenance, operation, or inspection caused the accident. Because it was submitted in opposition to B & B's motion, it established only that there was a material issue of fact as to B & B's liability. Stephens's affidavit did not prove, by negative inference or otherwise, that the bolt was defect free; it merely stated a factual theory of liability in a case in which the actual factual cause of the accident would be decided in a trial on the merits.

The Stephens affidavit must be viewed in light of the deposition testimony of B & B's employees who explained how the roller coaster was maintained and operated and the affidavit of B & B's expert, Dr. Thomas Blotter, who asserted that if regular maintenance procedures were followed, the failure of the bolt was not caused by negligent operation or maintenance practices by B & B. Taken together, Lamb's and B & B's evidence established only that there was a triable issue of fact as to B & B's negligence, not that the bolt was free of defect.

In submitting an affidavit in opposition to defendant B & B's motion for summary judgment, plaintiff was not bound by that submission with respect to her claim against defendant Curtis. In her complaint, she alleged the necessary facts to sustain a claim against Curtis for products liability. She was entitled to allege alternative theories of liability, even if they were inconsistent.

As movant, Curtis did not meet its burden of showing that there was no material issue of fact as to its liability. Therefore, the trial court erred in granting Curtis's motion for summary judgment. Accordingly, we reverse the summary judgment in favor of Curtis and remand for further proceedings.

II.

Lamb contends that the jury verdict for B & B should be reversed because the trial court refused to instruct the jury that a standard of care higher than the "reasonably prudent person" standard should be imposed on amusement ride operators.

Plaintiff asked the trial court to instruct the jury that the standard of care applicable to common carriers should be applied to amusement ride operators. Plaintiff took her proposed instruction from instruction number 31.6 of Jury Instruction Forms Utah (1957), which provides, "As a common carrier the defendant was required by law to use the highest degree of care for the safe carriage of plaintiff, to provide everything reasonably necessary for that purpose and to exercise a reasonable degree of skill." The trial court refused to give the instruction and instead instructed the jury that B & B should be held to the standard of care expected of a reasonably prudent...