Urban v. Beloit Corp.

ERICKSON, Justice,

dissenting:

I respectfully dissent. The district court properly granted summary judgment for Beloit. There was no issue of material fact, and Beloit was entitled to summary judgment as a matter of law. C.R.C.P. 56. Beloit’s evidence establishes that Urban’s injury was caused by an open and obviously dangerous part of the calendar stack and was not caused by any hidden defect in the machine.

Urban conceded that the calendar stack falls under the statutory definition of “manufacturing equipment” for purposes of section 13-80-127.6, 6 C.R.S. (1985 Supp.). Beloit’s undisputed exhibits also establish that the calendar stack in question had been in continuous use for its intended purpose for more than ten years and that Packaging Corporation of America was not a manufacturer, seller, or lessor of calendar stack machines. Urban argues that the district court improperly granted summary judgment for Beloit because there remained a factual controversy *688under the statute of repose on the issue of whether his injury was caused by a hidden defect in the machine.

Summary judgment is proper when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Huydts v. Dixon, 199 Colo. 260, 606 P.2d 1303 (1980). The party moving for summary judgment carries the burden of establishing the lack of a triable factual issue, and all doubts must be resolved against him. Ginter v. Palmer and Co., 196 Colo. 203, 585 P.2d 583 (1978).

Section 13-80-127.6 provides that the time limitations of the section shall not apply to injuries which are “due to hidden defects” in the manufacturing equipment. Beloit need only show that the injuries caused by the machine were not caused by hidden defects. Beloit need not prove that the machine contained no hidden defects. To impose such a burden would be to require the impossible. Beloit cannot prove and should not be required to prove the nonexistence of hidden defects in the calendar stack if such defects were not the cause of Urban’s injury. To make such a requirement would be like requiring a defendant in a criminal case to prove the negative state of innocence.

Urban stated in his deposition that he had been told by supervisors at the Packaging Corporation plant that the calendar stack was dangerous and should be avoided, that he heard and observed before his injury that calendar stacks had dangerous moving parts, and that it was commonly known at the plant that there had been prior injuries caused by the calendar stack. Urban was injured when he placed a stack of cardboard in the machine and caught his left hand in the paper-feeding rollers. The rollers were in plain view, were moving, and were obviously dangerous. Urban has admitted that he was well aware of the danger before he was injured. The operation of the calendar stack made the threat of an injury caused by the rollers (such as that suffered by Urban) obvious to any operator of the machine. See Plante v. Hobart Corp., 771 F.2d 617 (1st cir.1985) (manufacturer not liable for failure to warn where product is obviously dangerous and the plaintiff and his employer were aware of the dangers in the product).

Once the party moving for summary judgment makes a convincing showing that genuine issues are lacking, C.R.C.P. 56(e) requires that the opposing party demonstrate with relevant and specific facts that a real controversy exists. Otteson v. United States, 622 F.2d 516 (10th Cir.1980) (identical F.R.C.P. 56(e)); Gates v. Ford Motor Co., 494 F.2d 458 (10th Cir.1974); Brown v. Ford Motor Co., 494 F.2d 418 (10th Cir.1974); Ginter, 196 Colo. at 203, 585 P.2d at 583; C. Wright & A. Miller, Federal Practice and Procedure § 2739 (1983). Urban’s bare assertion in an affidavit that “[he did] not know if any hidden defects exist in the machine in question” does not establish or even suggest that his injury was caused by a hidden defect in the machine. The district court correctly held that there is no factual dispute on the hidden-defect issue.

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. See Howard v. Green, 555 F.2d 178 (8th Cir.1977) (affirmative defenses must be pleaded and proved by the party asserting them); Latino Political Action Committee, Inc. v. City of Boston, 581 F.Supp. 478 (D.Mass.1984).

Accordingly, I would affirm the summary judgment entered by the district court.

I am authorized to say that Chief Justice Quinn and Justice Rovira join in the dissent.