dissenting.
I respectfully dissent. There is no genuine issue as to any material fact, and the trial court properly granted summary judgment for the manufacturer, defendant Comet International Corporation (Comet).
When a party moving for summary judgment relies upon a statute and has established all of the facts necessary to receive the statute’s protection, and the opposing party relies upon an exception to the statute, then the burden shifts to the opposing party to set forth specific facts, admissible in evidence and based on personal knowledge of the affiant, that would bring the case within the exception. C.R.C.P. 56; Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218 (1970). See also Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961).
Here, it is undisputed that the machine when sold to Wayda’s employer was “new manufacturing equipment,” and that this lawsuit was “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.” Therefore, plaintiffs’ claims against Comet are barred under § 13-80-127.6(l)(b), C.R.S. (the statute of repose) in effect at the time these claims arose, unless plaintiffs met their burden of showing that the case fell within the exception for hidden defects. See also § 13-21-403(3), C.R.S. (1986 Cum.Supp.) (the rebuttable presumption, arising ten years after first sale, that the product was not defective, that the manufacturer was not negligent, and that all warnings and instructions were proper and adequate).
Plaintiffs contend, in effect, and the majority agrees, that the machine may have been defective, that one or more of these defects may have been hidden, and that such a hidden defect may have been the cause of Wayda’s injury and death. Therefore, they argue, there remains a factual controversy under the statute of repose. However, there is no admissible evidence in the record to demonstrate that Wayda’s injury or death was caused by any hidden defect in the machine.
Even if the plaintiffs’ engineer’s conclusion that the machine was defective in the timing of its rotational arm is accepted as fact for summary judgment purposes, that defect was visible and not hidden, and there was no showing that this alleged defect caused the injury. As stated by the three justices dissenting from the majority in Urban v. Beloit Corp., 711 P.2d 685 (Colo.1985):
“Pleading a hidden defect as an exception to the statute of repose without asserting or establishing any factual basis does not defeat the motion for summary judgment in the absence of relevant and specific facts demonstrating that a real controversy exists as to the exception. Urban has made no showing or even a claim as to what the hidden defect is that caused his injury and that would remove his case from the coverage of the statute of repose.”
The summary judgment should be affirmed.