No. 13675
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
ROY C. DUNCAN,
Plaintiff and Appellant,
ROCKWELL MANUFACTURING
COMPANY et al.,
Defendants and Respondents.
Appeal from: District Court of the Fourth Judicial District,
Honorable E. Gardner Brownlee, Judge presiding.
Counsel of Record:
For Appellant:
Jon E. Ellingson argued, Missoula, Montana
James E. Congdon, Missoula, Montana
For Respondents:
Garlington, Lohn and Robinson, Missoula, Montana
Gary Graham argued, Missoula, Montana
Worden, Thane and Haines, Missoula, Montana
Ronald A. Bender argued, Missoula, Montana
Submitted: May 26, 1977
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Filed:
Clerk
M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e
Court.
This i s an appeal by t h e p l a i n t i f f i n a personal i n j u r y
a c t i o n from an order of t h e d i s t r i c t c o u r t , Missoula County,
g r a n t i n g summary judgment t o a l l defendants. The complaint
proceeded upon t h e t h e o r i e s of s t r i c t l i a b i l i t y i n t o r t and
I
implied wa r a n t y of f i t n e s s f o r a p a r t i c u l a r purpose, a g a i n s t t h e
manufactur$r and r e t a i l e r of an a l l e g e d l y d e f e c t i v e , i n j u r y
causing prqduct, and t h e s a l e s agent of t h e product. The
record conslists of t h e pleadings, i n t e r r o g a t o r i e s t o t h e de-
fendants,
Iiequests f o r admissions of t h e defendants, p l a i n t i f f ' s
d e p o s i t i o n , defendants ' motion f o r summary judgment t o g e t h e r
with a f f i d a v i t s i n support and i n opposition, and t h e o r d e r of
t h e d i s t r i c t c o u r t g r a n t i n g t h e motion. P l a i n t i f f appeals t h e
order.
Plaintiff Roy C. Duncan purchased a t a b l e saw manufactured
by defendant Rockwell Manufacturing Company, from defendant A l l i e d
S t o r e s Marketing Corporation, through i t s agent, defendant
Wallace W. Payson, i n Missoula, Montana i n A p r i l 1971. The saw
was f u l l y assembled a t t h e time of t h e purchase. Duncan was a b l e
t o observe and i n s p e c t t h e saw p r i o r t o t h e s a l e and n o t i c e d no
defect. The saw was then placed on i t s back i n t h e r e a r of Dun-
c a n ' s pickup t r u c k and taken 80 m i l e s t o t h e v i c i n i t y of Flathead
Lake f o r use i n t h e b u i l d i n g of a s t r u c t u r e . The b u i l d i n g job
l a s t e d approximately t h r e e t o four months, and t h e saw was used
a t l e a s t once each day. N t r o u b l e was experienced with t h e saw
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a t that t i m e . I n June 1971, following t h e completion of t h e work,
Duncan again loaded t h e saw i n t h e r e a r of h i s pickup, laying i t
on i t s back. The saw was transported t o Missoula, placed i n a
s t o r a g e a r e a behind ~ u n c a n ' sgarage and remained t h e r e u n t i l
September 1972.
O n September 25, 1972, Duncan and h i s son removed t h e saw
from t h e s t o r a g e a r e a and placed i t i n t h e c e n t e r of h i s garage
floor. Duncan commenced t o ripsaw a long, narrow board without
checking t h e saw f o r s t a b i l i t y . F i f t e e n seconds l a t e r , a s he
was pushing t h e board through t h e saw, t h e saw t i l t e d and t h e
board jammed. Duncan's r i g h t hand was p u l l e d i n t o t h e moving
blade, r e s u l t i n g i n t h e amputation of h i s index f i n g e r below
t h e f i r s t j o i n t and l a c e r a t i o n s t o h i s second f i n g e r . Subse-
quent t o t h e a c c i d e n t , it was discovered one of t h e four l e g s
of t h e t a b l e saw was one-fourth inch s h o r t e r than t h e o t h e r t h r e e .
I n h i s deposition Duncan i n d i c a t e d he had been a c t i v e l y
involved a s a carpenter s i n c e 1950 and was p r e s e n t l y q u a l i f i e d
a s a master carpenter. Duncan admitted he was f u l l y f a m i l i a r with
both t h e t a b l e saw i n question and t a b l e saws g e n e r a l l y , being
aware of t h e dangers a s s o c i a t e d with t h e use of such equipment
and t h e necessary precautions t h e r e f o r .
P l a i n t i f f urges t h r e e contentions on appeal:
1. The d i s t r i c t c o u r t e r r e d i n g r a n t i n g summary judgment where
genuine i s s u e s of m a t e r i a l f a c t e x i s t between a p p e l l a n t and
respondents.
2. That any defense r a i s e d by respondents, p a r t i c u l a r l y
t h a t of c o n t r i b u t o r y negligence, cannot be e s t a b l i s h e d a s a
matter of law i n a summary judgment proceeding.
3. S t r i c t l i a b i l i t y i n t o r t i s properly a p p l i c a b l e t o a
r e t a i l e r of a d e f e c t i v e product.
Here t h e l e g a l problem presented i s e s s e n t i a l l y one of t h e
p r o p r i e t y of summary judgment i n t h e context of a p a r t i c u l a r
products l i a b i l i t y action. Rule 56(c), M.R.Civ.P., provides
i n part:
"* * * The judgment sought s h a l l be rendered f o r t h -
with i f the pleadings, depositions, answers t o i n t e r r o -
g a t o r i e s , and admissions on f i l e , together with the
a f f i d a v i t s , i f any, show t h a t t h e r e i s no genuine i s s u e
a s t o any material f a c t and t h a t the moving p a r t y i s
e n t i t l e d t o judgment a s a matter of law. * * *"
This Court has held t h a t , under Rule 56, t h e party moving f o r
summary judgment has t h e i n i t i a l burden of e s t a b l i s h i n g t h e
complete absence of any genuine issue of material f a c t . Mustang
Beverage Co. v. Jos.Schlitz Brewing Co., 162 Mont. 243, 511
P.2d 1; Harland v. Anderson, Mont . 9 548 P.2d 613,
33 St.Rep. 363. Further, i n Kober & Kyriss v. B i l l i n g s Deaconess
Hospital, 148 Mont. 1 1 7 , 122, 417 P.2d 476, t h i s Court quoting
with approval from 6 Moore's Federal P r a c t i c e 2d, 156.15, s a i d :
"'The c o u r t s hold t h e movant t o a s t r i c t standard.
To s a t i s f y h i s burden the movant must make a showing t h a t
i s q u i t e c l e a r what the t r u t h i s , and t h a t excludes any
r e a l doubt a s t o t h e existence of any genuine i s s u e of
material f a c t . ' "
This Court has a l s o held t h a t the party opposing the motion
i s afforded t h e b e n e f i t of a l l reasonable inferences which may
be drawn from h i s offered proof. Kober & Kyriss v. B i l l i n g s
Deaconess Hospital, supra. Certainly,, summary judgment i s not a
v i a b l e s u b s t i t u t e f o r a t r i a l where a f a c t u a l controversy e x i s t s .
"* * * Summary judgment i s not a proper t o o l f o r
resolving disputed i s s u e s of f a c t and i s accordingly
improper whenever material f a c t u a l matter i s i n d i s -
pute. ***I1 Flanagan v . Curran, 164 Mont. 262, 265,
521 P.2d 200.
However, the summary judgment procedure does not end here.
Since the purpose of the procedure i s t o promote the stream-
l i n i n g of t h e j u d i c i a l process through a "screening-out" and
elimination of questions which do not merit r e s o l u t i o n by liti-
gation, the burden i s s h i f t e d t o the party opposing the motion
where the record reveals no genuine i s s u e of material f a c t .
Such burden i s a s s u b s t a n t i a l a s t h a t i n i t i a l l y imposed upon the
movant .
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the opposing p a r t y ' s f a c t s must be material
and of a s u b s t a n t i a l nature, not f a n c i f u l , frivolous,
gauzy, nor merely suspbcious. 1 1 1 Silloway v. Jorgenson,
146 Mont. 307, 310, 406 P.2d 167, quoting from 6 Moore's
Federal Practice 2d, 156.11.
A p l a i n t i f f i n a products l i a b i l i t y a c t i o n has the i n i t i a l
burden of e s t a b l i s h i n g t h r e e elements p r i o r t o recovery, regard-
l e s s of whether h i s cause of action i s phrased i n terms of
negligence, warranty o r s t r i c t l i a b i l i t y : F i r s t , the p l a i n t i f f
must show t h a t he was injured by the product. Second, he must
present proof the product was defective and unreasonably unsafe.
Third, i t must be demot-strated such defect e x i s t e d when t h e
product l e f t the hands of t h e p a r t i c u l a r defendant. Prosser
Torts 4 t h ed. 5103. It i s the t h i r d element we a r e concerned with
here.
The theory of 5402A, Restatement of T o r t s 2d,adopted by
t h i s Court i n Brandenburger v. Toyota Motor Sales, 162 Mont.
506, 513 P.2d 268, only imposes l i a b i l i t y on t h e manufacturer o r
seller i f :
"* * * t h e product i s , a t the time i t leaves t h e
s e l l e r ' s hands, i n a condition not contemplated
by the ultimate consumer, which w i l l be unreasonably
dangerous t o him. * * *" Restatement of Torts 2d
5402A, Comment: g.
It i s c l e a r the conduct of the s e l l e r o r manufacturer i n
placing the product i n the stream of commerce i n a defective
condition, t o which t h e i n j u r y must be i d e n t i f i e d , i s the
cornerstone of t h e p l a i n t i f f ' s proof i n a s t r i c t l i a b i l i t y case.
The law i n Montana i s well established t h a t unless evidence i s
offered supporting the conclusion t h e product was defective
a t the time it l e f t the hands of the p a r t i c u l a r s e l l e r o r
manufacturer, t h e r e can be no l i a b i l i t y . Barich v. O t t e n s t r o r ,
Mont . , 550 P.2d 395, 33 St.Rep. 481. The law w i l l
not automatically presume the defect t o have been extant a t t h e
time t h e product was under t h e c o n t r o l of the defendant, from a
mere demonstration of a possible defect a t the time of the a c c i -
dent. Barich v. O t t e n s t r o r , supra. I n other words, from the
nature of t h e alleged d e f e c t , coupled with evidence of the
surrounding circumstances, i t may be reasonable t o i n f e r t h e
defect did n o t e x i s t a t the time of manufacture o r s a l e .
Upon a review of the record, w find respondents sustained
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t h e i r i n i t i a l burden of proof a s p a r t i e s movant under Rule 56,
M.R.Civ .P. , by demonstrating the product involved was subjected
t o s u b s t a n t i a l wear by moving i t long distances and by continued
a c t u a l use. Continued usage of a product w i l l not i t s e l f prevent
recovery where s a t i s f a c t o r y proof of an o r i g i n a l defect i s
offered. However, where no d i r e c t evidence of such defect e x i s t s
and proof must be made by inference, as here, continued use by
p l a i n t i f f may well preclude a finding t h e product was defective
when placed i n the stream of trade.
This case i s t o be distinguished from those where t h e r e i s
a malfunction of a recently acquired machine, which manifests
a l a t e n t defect. On the contrary such a defect a s i s involved
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here, had i t e x i s t ~ d r i o r t o the accident, would be obvious t o
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anyone using t h e product f o r even t h e s h o r t e s t period of time
upon a simple inspection.
Appellant o f f e r s no r e a l evidence i n opposition t o respon-
dents' proof, other than t h e mere a s s e r t i o n s he was present
whenever the saw was moved and was aware of t h e occasions of
i t s use and the i d e n t i t i e s of the various users. As the party
opposing the movant under the r u l e of Harland, appellant had the
s u b s t a n t i a l burden of r e f u t i n g the inferences drawn from undis-
puted f a c t s concerning the continued use and consequent wear
upon t h e t a b l e saw,to r a i s e again a genuine and material f a c t u a l
issue, Appellant's mere a s s e r t i o n s do n o t c o n s t i t u t e f a c t s
which a r e "material and of a s u b s t a n t i a l nature" such a s would
prevent summary judgment, When the complaint i s viewed i n the
l i g h t of a p p e l l a n t ' s statements i n h i s deposition and a f f i d a v i t
i n opposition t o the motion f o r summary judgment, together with
a l l e x h i b i t s presented, i t i s apparent there i s no genuine, material
f a c t u a l i s s u e i n t h i s case. The d i s t r i c t court was c o r r e c t i n
r u l i n g t h a t respondents were e n t i t l e d t o judgment a s a matter
of law,
Appellant's second contention i s t h a t under the general r u l e
a s enunciated i n Hagen v. Great Northern Railway Co., 153 Mont. 309,
456 P.2d 51 and Dean v, F i r s t National Bank of Great F a l l s , 152
Mont. 474, 452 P.2d 402, the affirmative defense of contributory
negligence r a i s e d by respondents i s not susceptible t o summary
adjudication. While there may be exceptions i n unusual circum-
stances, we find a p p e l l a n t ' s contention t o be a c o r r e c t statement
of the law. It cannot be disputed t h a t i n most cases t h e presence
o r absence of negligence remains a question of f a c t which i t s e l f
requires a trial under traditional negligence principles.
However where, as here, appellant's own claim is defective
and respondents' demonstration of a complete absence of material
issues of fact remains uncontroverted, more than adequate grounds
exist for summary judgment. Therefore we need not consider
whether summary judgment was the proper vehicle in the instant
case for establishing contributory negligence as a matter of
law.
Because this case is decided on other grounds, it is not
necessary to discuss the question of whether a retailer of a
defective product may be held strictly liable.
The summary judgment of the district court is affirmed.
We Concur:
Justices.
Mr. Justice Frank I. Haswell, dissenting:
I would vacate the summary judgment and remand the
case for trial on the merits.
My disagreement with the majority is on the facts,
not upon the law. Admittedly the record is barren of direct
testimonial proof that the defect existed at the time the
saw left the hands of defendants. However, in my view the
record supports an inference that it did. Proof of a defect
in the product may be made through inferences drawn from
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circumstantial evidence as well as by evidence. Barich
v. Ottenstror, Mont . , 550 P.2d 395, 33 St.Rep. 481 (1976);
Kober & Kyriss v. Billings Deac. Hosp., 148 Mont. 117, 417 P.2d
476; Brandenberger v. Toyota Motor Sales, 162 Mont. 506, 513
P.2d 268, Because this inference must be weighed against oppos-
ing evidence to determine where the truth lies, this case presents
a genuine issue of material fact precluding summary judgment
in my opinion.
Justice
M r . J u s t i c e Daniel J. Shea dissenting:
I concur with the d i s s e n t of J u s t i c e Haswell and I f u r t h e r
d i s s e n t because the d i s t r i c t court used h i s own personal standards
i n assessing p l a i n t i f f ' s conduct and a l s o because t h e d i s t r i c t
court erred i n r u l i n g the p l a i n t i f f was g u i l t y of contributory
negligence.
The d i s t r i c t c o u r t ' s summary judgment order s t a t e d :
"One of t h e i n s t r u c t i o n s t h i s court always gives
t o the t r i a l jury i s t h a t ' i n considering the evidence
you have a r i g h t t o do so based upon your conmhon
general knowledge formed by ordinary experiences and
observations i n your d a i l y a f f a i r s of l i f e . ' In this
a c t i o n the defendants have moved f o r a sunnnary judg-
ment based upon the f a c t s presented by the pleadings
and a s f u r t h e r explained by depositions and other
papers i n the court f i l e .
"In determining whether o r not t h e r e i s a genuine
i s s u e of f a c t f o r t h e jury t h i s judge deems himself
bound by the same r u l e s a s would apply t o the jury.
This judge has been t h e owner of a Rockwell Table Saw
f o r over 40 years. That saw has been used o f t e n and
i t has been used t o c u t many s h o r t pieces of both one-
inch and two-inch lumber t o be used a s ' j o i s t bracing. I
This judge has a l s o suffered an i n j u r y t o h i s l e f t
index finger from t h a t saw. This judge has o f t e n moved
t h a t e m and has always f e l t it necessary t o t e s t the
s t a b i l i t y of the saw before use and o f t e n has found i t
necessary t o shim one l e g a s was done by t h e p l a i n t i f f ' s
employee when the saw here i n question was used.
"The court holds a s a matter of l a w t h a t the
p l a i n t i f f was c o n t r i b u t o r i l y negligent i n f a i l i n g t o
take the most elementary precautions before attempting
t o use the saw. The court a l s o holds t h a t a s a matter of
law t h e i n j u r y could not have happened because of t h e
1/4 inch s h o r t e r leg unless the p l a i n t i f f was himself
negligent i n the feeding of the material i n t o the saw
blade.
"The motion f o r summary judgment i s granted."
I t i s c l e a r t h e t r i a l court r e l i e d on h i s own personal
experiences i n determining the standard t o which the p l a i n t i f f
i n t h i s case must be held. While it i s laudable t h a t t h e d i s t r i c t
court takes the precautions he does when he operates a t a b l e saw,
nevertheless, t h i s i s n o t t h e standard he must use when d e t e r -
mining a motion f o r summary judgment.
The b a s i s of the r u l i n g was t h a t the p l a i n t i f f was g u i l t y
of contributory negligence. However contributory negligence i s
not a defense i n a case involving s t r i c t l i a b i l i t y . Prosser
L
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on T o r t s , 4 t h Ed., pp. 522-525;l~estatement of Torts 2d, $402~4,
p. 356. The Restatement provides:
"since t h e l i a b i l i t y with which t h i s Section
deals i s not based upon negligence of t h e s e l l e r ,
but i s s t r i c t l i a b i l i t y , t h e r u l e applied t o s t r i c t
l i a b i l i t y / @#ffes. Contributory negligence of the
p l a i n t i f f i s not a defense when such negligence c o n s i s t s
merely i n a f a i l u r e t o discover t h e defect i n the pro-
duct, o r t o guard a g a i n s t the p o s s i b i l i t y of the existence.
On the other hand t h e form of contributory negligence
which c o n s i s t s i n v o l u n t a r i l y and unreasonably proceeding
t o encounter a knwwn danger, and commonly passes under
the name of assumption of r i s k , i s a defense under t h i s
Section a s i n other cases of s t r i c t l i a b i l i t y . I f the
user o r consumer discovers the defect and i s aware of
t h e danger, and nevertheless proceeds unreasonably t o
make use of the product and i s injured by i t , he i s
barred from recovery."
I n t h i s case p l a i n t i f f i n h i s deposition t e s t i f i e d t h a t
he had seen t h e saw standing two times before he was injured,
and a t n e i t h e r time was he aware of i t s i n s t a b i l i t y . It i s
c l e a r t h a t a t l e a s t on the b a s i s of the p l a i n t i f f ' s testimony,
and t h e r e was no o t h e r proof, t h a t he was not even aware of a
defect i n the saw a t the time he was injured. Under these c i r -
cumstances t h e defense of assumption of r i s k would not efen
be available. Moreover, even i f i t were, t h i s defense should
not be subject t o summary adjudication, but r a t h e r , i s a
question f o r the jury. Williams v. Brown Manufacturing Company,
I would reverse the summary judgment order and order the
case be t r i e d t o a jury on i t s merits.