(concurring in part and dissenting in part).
I concur in all of Parts I and II but dissent as to III.
I think the Court’s approach reverses the correct process on summary judgment. On the defendant’s motion for summary judgment on nonliability the defendant must demonstrate that no genuine issue of fact exists as to elements (a), (b) and (c) of § 324A. It is not on the plaintiff at that stage to proffer proof in acceptable form that there is a basis for (a), (b), (c) or any of them.
As I view the record here there are a lot of gaps. For example, the record shows that Liberty joined in the company safety survey, the recommendations numbering several hundred for the plant as a whole, including specific recommendations as to this very machine. The questions arise: If they found one deficiency on the machine why did they not catch this one? In that process to what extent was the company influenced by Liberty’s recommendation? There are no sure fire answers of the type summary judgment requires and the case ought not to be cut off at the pass, even though when full testimony is presented on a trial the case will not get through the gap.