Wayda v. Comet Intern. Corp., 85CA0334

• Decision Date: 15 January 1987
• Docket Number: No. 85CA0334,85CA0334
• Citation: 738 P.2d 391
• Parties: Prod.Liab.Rep. (CCH) P 11,312 Dianne WAYDA, Individually, and as next friend of Heidi Marie Wayda, Lauri Jane Wayda, and Robert John Wayda, minors, Albert Wayda, and Tina Wayda, Plaintiffs-Appellants, v. COMET INTERNATIONAL CORPORATION, an Illinois corporation, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 391

738 P.2d 391

Prod.Liab.Rep. (CCH) P 11,312

Dianne WAYDA, Individually, and as next friend of Heidi

Marie Wayda, Lauri Jane Wayda, and Robert John

Wayda, minors, Albert Wayda, and Tina

Wayda, Plaintiffs-Appellants, v. COMET INTERNATIONAL CORPORATION, an Illinois corporation,

Defendant-Appellee.

No. 85CA0334.

Colorado Court of Appeals,

Div. III.

Jan. 15, 1987.

Rehearing Denied Feb. 12, 1987.

Certiorari Denied (Comet) May 26, 1987.

Watson, Nathan & Bremer, P.C., Christina M. Habas, Denver, Wm. W. Webster & Associates, P.C., Allen W. Stokes, Jr., Denver, for plaintiffs-appellants.

Hall & Evans, Malcolm S. Mead, Bruce A. Menk, Denver, for defendant-appellee.

BABCOCK, Judge.

In this products liability action for wrongful death, plaintiffs appeal summary judgment entered in favor of defendant, Comet International Corporation. We reverse.

In August 1981, plaintiffs' decedent, Albert M. Wayda, was found crushed to death inside a vacuum thermo-forming machine manufactured by defendant. The machine had been in operation at Wayda's place of employment since 1969.

Defendant moved for summary judgment on the ground that plaintiffs' suit was barred by Colo.Sess. Laws 1981, ch. 179, § 13-80-127.6, which provided, in pertinent part:

"(1)(a) Notwithstanding any other statutory provisions to the contrary, all actions for or on account of personal injury, death, or property damage brought against a person or entity on account of the design, assembly, fabrication, production, or construction of new manufacturing equipment, or any component part thereof, or involving the sale or lease of such equipment shall be brought within three years after the claim for relief arises and not thereafter.

"(b) Except as provided in paragraph (c) of this subsection (1), no such action shall be brought on a claim arising more than ten years after such equipment was first used for its intended purpose by someone not engaged in the business of manufacturing, selling, or leasing such equipment except when the claim arises from injury due to hidden defects or prolonged exposure to hazardous material."

The trial court determined that there was no material issue of fact concerning the existence of a hidden defect within the machine; thus, defendant was entitled to summary judgment under the above statute of repose. The sole issue on appeal is whether a genuine issue of material fact still exists as to whether the machine contained a hidden defect which would constitute an exception to the above statute. We conclude that there is.

Summary judgment is a drastic remedy and is never warranted except on a clear showing that there is no genuine issue as to any material fact. Urban v. Beloit Corp., 711 P.2d 685 (Colo.1985). The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. Urban v. Beloit Corp., supra. The party against whom summary judgment might otherwise be entered is entitled to the benefit of all favorable inferences that may be drawn from the facts. Mount Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo.1984).

In an affidavit submitted in opposition to defendant's motion for summary judgment, plaintiffs' expert, a professional engineer, concluded that the machine was defective in several respects, particularly in the erratic timing of its rotational arm, against which Wayda was found dead. However, the trial court determined that these alleged defects were either obvious or not established by the affidavit. We conclude that, taken in the light most favorable to plaintiffs, the expert's conclusions were sufficient to raise a genuine issue of fact regarding the existence of a hidden defect in the machine. See Urban v. Beloit Corp., supra.

Defendant argues that, because Wayda and his co-workers were aware of the rotational arm's erratic functioning, such defect was not "hidden," as contemplated by § 13-80-127.6(1)(b). We disagree.

A "defect" does not mean a mere mechanical or functional defect, but one which makes the product unreasonably dangerous. Restatement (Second) of Torts § 402A (1965); Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973). Consequently, for a product to contain a "hidden defect" within the meaning of § 13-80-127.6(1)(b), it must have a defect that creates an unreasonably dangerous condition which is not readily apparent. Thus, although a functional flaw in the thermo-forming machine may have been obvious, it may not have been obvious that such malfunction constituted an unreasonable danger to the user.

Whether a product is unreasonably dangerous because of a defect is generally a question of fact to be determined by the trier of fact. Camacho v. Honda Motor Co., 701 P.2d 628 (Colo.App.1985). Whether an alleged unreasonably dangerous defect is hidden or obvious is also properly a question for the trier of fact. See Bolm v. Triumph Corp., 33 N.Y.2d 151, 305 N.E.2d 769, 350 N.Y.S.2d 644 (1973); Krugh v. Miehle Co., 503 F.2d 121 (6th Cir.1974); Kozlowski v. John E. Smith's Sons Co., 87 Wis.2d 882, 275 N.W.2d 915 (1979); Liberty Mutual Insurance Co. v. Rich Ladder Co., 441 N.E.2d 996 (Ind.App.1982). The trial court thus erred in concluding that no material issue of fact remained to be determined. See Roberts v. May, 41 Colo.App. 82, 583 P.2d 305 (1978).

Defendant also argues that determination of whether the defect was hidden requires an objective standard, i.e., that the dangerous condition was not discoverable upon reasonable inspection by an ordinary user. See, e.g., Ragsdale v. K-Mart Corp., 468 N.E.2d 524 (Ind.App.1984). However, we conclude that the appropriate standard is one based upon Wayda's actual awareness of the dangerous condition of the machine. See Urban v. Beloit Corp., supra; see also Anderson v. Heron Engineering Co., 198 Colo. 391, 604 P.2d 674 (1979).

Therefore, genuine issues of material fact still exist regarding the presence of a defect in the machine, whether such defect was unreasonably...