Wood v. Old Trapper Taxi
| Decision Date | 25 November 1997 |
| Citation | 54 St.Rep. 1263,952 P.2d 1375,286 Mont. 18 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,133 Jarold R. WOOD and Dara Wood, Plaintiffs, Appellants, and Cross-Respondents, v. OLD TRAPPER TAXI; James Hagen; James Kozora; KTCM and its successor television stations; UNR Industries, Inc., a Delaware corporation; and Rohn, a division of UNR Industries, Defendants, Respondents, and Cross-Appellants. |
| Court | Montana Supreme Court |
John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, for Appellants.
L.D. Nybo, Conklin, Nybo, LeVeque & Murphy, P.C., Great Falls, for Respondents UNR Industries and ROHN.
Jarold R. Wood and his wife, Dara Wood, filed suit in the First Judicial District Court, Lewis and Clark County, to recover damages as a result of injuries sustained by Jarold when a radio tower he was erecting collapsed. The Woods sued the above-named defendants and specifically sought damages against the manufacturers of the tower, UNR Industries, Inc., and Rohn, a division of UNR Industries, under product liability theories alleging a manufacturing defect and failure to warn. Defendants Old Trapper Taxi and James Hagen settled in full with the plaintiffs. The District Court granted summary judgment in favor of defendant James Kozora, which has not been appealed by the Woods. Defendant KTCM was named as a party but was never served. The District Court also granted summary judgment in favor of UNR and Rohn and against the Woods which is the subject of this appeal. Defendants UNR and Rohn have cross-appealed from the District Court's denial of their motion to dismiss. We reverse in part and affirm in part.
The dispositive issues on appeal are:
1. Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their manufacturing defect claim?
2. Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their failure to warn claim?
3. Did the District Court err in denying the motion to dismiss filed by UNR and Rohn?
Prior to 1965, UNR Industries, Inc., and Rohn, a division of UNR Industries (hereinafter the defendants) manufactured and sold a Model PT-64 radio tower. This tower was eventually sold in a used condition to James Kozora in Ohio, sometime between 1970 and 1972. The chain of ownership prior to Kozora is unknown. Kozora erected the tower in Sagamore Hills Township, Ohio, and apparently used it in connection with his ham radio. In 1975, Kozora disassembled the tower. In 1976, he moved from Ohio to Helena, Montana, and transported the tower to Helena in a U-Haul truck/trailer.
Upon moving to Helena, Kozora stored the tower in sections at his residence and never again assembled or used the tower. However, sometime after his arrival in Helena, Kozora sold the tower, along with guy wires, to James Hagen for $125. Hagen, the owner of defendant Old Trapper Taxi, purchased the tower with the intent to use it as part of a communications system for his business. Hagen took delivery of the tower and guy wires and stored the equipment inside his offices.
In the summer of 1990, Hagen hired plaintiff Jarold Wood, the owner of a Helena The Woods filed suit in the First Judicial District Court, Lewis and Clark County, on March 26, 1991. In their second amended complaint filed on September 3, 1993, they claim that the tower collapsed due to the failure of one of the legs which they allege had been altered and reinforced with a welded section of plumbing pipe and then painted over. Significantly, the Woods assert that the defendants performed this repair at their facilities prior to selling the tower. In addition, the Woods claim that the defendants were negligent and strictly liable for failing to warn or advise potential users that they should never attempt to erect the tower after it has been repaired or modified. The Woods further claim that the defendants were liable for failing to warn potential users that the tower should not be erected without the use of guy wires.
communications business, to erect the tower. On September 4, 1990, while attempting to erect the tower, Jarold was injured when he fell approximately forty-five feet due to the collapse of the tower.
The defendants admit that the tower collapsed due to a failure of one of the legs. However, the defendants vigorously assert that the tower was not altered or repaired at their facility and, therefore, they are not responsible.
The critical physical evidence, namely, the failed leg section of the tower is missing. However, the remaining parts of the tower, as well as a videotape of the tower before the collapse, were available to both parties and examined by their respective experts.
On February 7, 1996, the defendants moved for summary judgment on the Woods' product liability claims. In their supporting brief, the defendants also moved to dismiss the case because the failed leg section was missing and, thus, they argue they could not adequately defend themselves without this key piece of evidence.
On May 15, 1996, the District Court granted summary judgment in favor of the defendants on the manufacturing defect claim. The court reasoned that since the key piece of evidence was not available and the expert testimony was conflicting on the crucial question of whether or when a defect existed, the Woods were unable to prove that the tower was defective when it left the defendants' control. The District Court denied the defendants' request for summary judgment on the failure to warn claim, however, concluding that there were questions of fact on this issue to submit to the jury. Although the defendants' motion to dismiss was not directly addressed in the District Court's memorandum and order granting summary judgment, it is clear from a review of the record that this motion was denied.
Both sides were unsatisfied with the District Court's ruling. On October 11, 1996,the Woods filed their motion to alter or amend the District Court's May 15, 1996, summary judgment order, arguing that the manufacturing defect claim should also be submitted to the jury. Shortly thereafter, the defendants countered by filing a motion to alter or amend the District Court's order on the failure to warn claim. On January 14,1997, the District Court denied both parties' motions to alter or amend judgment.
On February 18, 1997, the parties presented additional oral argument to the District Court on the failure to warn claim. On March 13, 1997, the defendants filed a motion for reconsideration, asking the District Court to reconsider its January 14, 1997, memorandum and order on the failure to warn claim in light of the additional argument. On March 26, 1997, the District Court issued an order granting summary judgment in favor of the defendants on all claims.
The Woods appeal from the District Court's orders granting summary judgment to UNR and Rohn. UNR and Rohn cross-appeal the failure of the District Court to dismiss the Woods' claims due to missing evidence, the repaired section of the tower.
This Court reviews an order granting summary judgment de novo by utilizing the same criteria used by a district court initially under Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903; In re Estate of Lien(1995), 270 Mont. 295, 298, 892 P.2d 530, 532. Furthermore, on review, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. Payne Realty & Housing, Inc. v. First Sec. Bank of Livingston (1992), 256 Mont. 19, 25, 844 P.2d 90, 93; Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.
Summary judgment is a remedy which should not be granted when there is any genuine issue of material fact; the procedure should never be substituted for trial if a material factual controversy exists. Rule 56(c), M.R.Civ.P.; Payne Realty, 256 Mont. at 24, 844 P.2d at 93; Cereck, 195 Mont. at 411, 637 P.2d at 511.
The party seeking summary judgment has the burden of demonstrating a complete absence of any genuine factual issues. D'Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. This Court looks to the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of a genuine issue of material fact. Ulrigg v. Jones (1995), 274 Mont. 215, 218, 907 P.2d 937, 940. The party opposing summary judgment must present material and substantial evidence, rather than merely conclusory or speculative statements, to raise a genuine issue of material fact. B.M. by Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401.
Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their manufacturing defect claim?
The Woods argue that the District Court erred in granting summary judgment to UNR Industries and Rohn on the manufacturing defect claim. The Woods contend that there are genuine issues of material fact regarding the important question of whether the tower was defective when it left the defendants' facilities.
The defendants counter that the Woods are unable to prove that the tower was defective when it left their facilities; therefore, summary judgment should be granted as a matter of law.
After review of the record in this case, we conclude that the District Court erroneously took it upon itself to resolve disputed issues of material fact. Although the defendants argue that the documents and affidavits submitted do not create genuine issues of material fact, we conclude that the documents were sufficient to meet the Woods' burden in opposing summary judgment.
The heart of the Woods' claim is strict liability in tort. A person who sells a product in a defective condition unreasonably dangerous to a user or consumer is liable...
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