Tapley v. Golden Big O Tires, 81SA430

• Decision Date: 07 November 1983
• Docket Number: No. 81SA430,81SA430
• Citation: 676 P.2d 676
• Parties: Hermon L. TAPLEY, Cora E. Tapley, in their individual capacities, and Hermon L. Tapley as Administrator for the estate of Ronald Lee Tapley, Plaintiffs-Appellants, v. GOLDEN BIG O TIRES, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 676

676 P.2d 676

Hermon L. TAPLEY, Cora E. Tapley, in their individual capacities, and Hermon L. Tapley as Administrator for the estate of Ronald Lee Tapley Plaintiffs-Appellants, v. GOLDEN BIG O TIRES, Defendant-Appellee.

No. 81SA430.

Supreme Court of Colorado En Banc.

Nov. 7, 1983.

James A. Windholz, J. Scott McComas, Boulder, for plaintiffs-appellants.

Wood, Ris & Hames, P.C., Charles E. Weaver, Denver, for defendant-appellee.

LOHR, Justice.

This wrongful death and survival action stems from the death of Ronald Lee Tapley, who died as a result of inhalation of exhaust fumes from a used automobile that he had recently acquired from defendant G & G Auto Sales (G & G). The vehicle bore a safety inspection sticker issued earlier by defendant Golden Big O Tires (Big O). The decedent's parents, Hermon L. Tapley and Cora E. Tapley, brought the wrongful death action in Jefferson County District Court against G & G, its owners and one of its employees, and against Big O and one of its employees. Hermon L. Tapley, as administrator of his son's estate, also asserted a survival claim against the defendants. ¹ The trial court granted Big O's motion for summary judgment, and the plaintiffs appealed. ² We affirm in part, reverse in part, and remand this case to the trial court with directions.

I.

On April 28, 1979, 19-year-old Ronald Lee Tapley purchased a used 1967 Chevrolet automobile from G & G in Golden, Colorado, for the purpose of traveling to Billings, Montana, where he had secured employment. He departed for Billings shortly thereafter. On April 29, Tapley's body was discovered lying in the vehicle, which was parked by a roadside in Wyoming with the motor running. His death was caused by carbon monoxide poisoning. Inspection of the automobile disclosed that approximately twelve inches of tailpipe was missing, allowing the exhaust fumes to enter the car rather than to be vented behind it. The end of the broken tailpipe was rusted. On March 13, 1979, Big O had inspected the vehicle at the request of G & G and had issued a safety inspection sticker reflecting successful completion of that examination. ³

The plaintiffs brought this action under the survival and wrongful death statutes. The issues on appeal involve only Big O, against which compensatory relief was sought by Tapley's parents for negligent failure to detect the deficiency in the tailpipe when the vehicle was inspected for issuance of the safety inspection sticker. Those plaintiffs also claimed exemplary damages under section 13-21-102, C.R.S.1973, asserting that Big O's conduct was attended by circumstances of wanton and reckless disregard of the rights and feelings of the decedent and his parents. ⁴ Additionally, Hermon L. Tapley and Cora E. Tapley claimed a civil conspiracy, based on an alleged agreement among the defendants to evade the requirements of the safety inspection law, sections 42-4-301 to -306, C.R.S.1973, and of the regulatory prohibition, issued pursuant to section 12-6-104, C.R.S.1973, against sale of a vehicle in a defective condition. The plaintiff estate administrator also asserted certain survival claims under section 13-20-101, C.R.S.1973, and sought exemplary damages incident to those claims. Big O moved for summary judgment on all claims for relief. The trial court granted the motion and this appeal followed.

II.

Summary judgment is a drastic remedy and is not to be granted absent a clear showing that there is no genuine issue as to any material fact. E.g., Ellerman v. Kite, 625 P.2d 1006 (Colo.1981); Jones v. Dressel, 623 P.2d 370 (Colo.1981); Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552 (1946). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. E.g., Ellerman v. Kite, supra; Ginter v. Palmer and Co., 196 Colo. 203, 585 P.2d 583 (1978); Primock v. Hamilton, 168 Colo. 524, 452 P.2d 375 (1969). Moreover, a party against whom a motion for summary judgment is made must receive the benefit of all favorable inferences that may be reasonably drawn from the undisputed facts. O'Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227 (1964).

With the foregoing principles to guide us, we review the relevant factual record, which consists of various affidavits and depositions, to assess the correctness of the award of summary judgment in favor of Big O.

At his deposition, Billy Gene Gross, a co-owner of Big O, testified that the safety inspection required prior to issuance of inspection stickers includes a check of the exhaust system for leaks. Although his signature on the safety sticker indicated to Gross that he had inspected the Tapley vehicle on March 13, 1979, he had no specific recollection of the inspection. He stated that the customary way to check an exhaust system for leaks is to plug the exhaust with a rag and listen for the sound of escaping fumes, and to supplement this procedure with a visual inspection. Gross also explained that the exhaust system must be suitably constructed to evacuate the exhaust fumes outside the body line of the car. When shown a picture of the broken tailpipe on the Tapley vehicle as it appeared after Tapley's death, Gross testified that it would not pass a safety inspection. The picture depicts a broken pipe with extensive rust at and near its end. Hermon Tapley stated in an affidavit filed in opposition to Big O's motion for summary judgment that he had inspected the vehicle after his son's death "and discovered that it had a severely rusted tailpipe which was approximately twelve inches too short to vent exhaust beyond the underside of the vehicle." George Hoopes, a principal in Big O, related in his deposition that, when he saw the vehicle after the death of Ronald Tapley, the muffler and what was left of the exhaust pipe were rusted. He minimized the amount of rust but said that the way the vehicle was parked prevented him from inspecting it to his satisfaction. Hoopes stated that he always checks the exhaust systems of used vehicles held for sale by G & G.

In his deposition, Hermon Tapley noted that when he examined the vehicle before his son purchased it the tires were smooth. Gross testified in his deposition that a safety inspection includes examination of the tires to assure that they have at least 2/32 inch of tread.

The trial court ruled that even if the plaintiffs could establish at trial that Big O issued a safety inspection sticker on March 13, that the tailpipe thereafter...