Northrip v. Montgomery Ward & Co.

BERRY, Justice

(specially concurring) :

I concur specially in the majority opinion but do not believe it precisely states applicable rules to determine when summary judgment should be granted for defendant and when plaintiff is required to present evidentiary materials in opposition to defendant’s motion for summary judgment.

When defendant moves for summary judgment he must show there is no substantial controversy as to one material fact of plaintiff’s cause of action and this fact is in defendant’s favor, or show there is no substantial controversy as to all material facts constituting an affirmative defense. Runyon v. Reed, Okl., 510 P.2d 943 .

Plaintiff’s petition alleges Ward’s and the manufacturer are liable because they failed to instruct him. as to potential danger in use of the battery under normal conditions, or are liable under principles of negligence, warranty, or strict liability because it was defective.

Defendants contend summary judgment was proper because plaintiff must prove the battery was defective when it left their possession and the evidentiary materials indicate he will not be able to do so.

These evidentiary 'materials indicate plaintiff had the battery for at least six months; it was not a sealed container; plaintiff checked it and added water to it; the bulldozer was left unattended and third parties could have tampered with the battery; no tests were conducted upon it to determine cause of explosion; and it is not now available for tests.

This contention ignores plaintiff’s allegation defendants had a duty to warn him of dangers involved in use of the battery.

Even if the battery was not defective, plaintiff might be entitled to recover if he could establish defendants breached a duty to warn him the battery might explode and the failure to warn was the proximate cause of his damages. Technical Chemical Co. v. Jacobs, Tex., 480 S.W.2d 602 .

None of the evidentiary materials proffered by defendants provide any information concerning propensities of batteries of this type; what warning, if any, was given ; or whether the failure to warn was the most likely cause of the explosion.

Since defendants failed to sustain their burden of producing evidentiary materials to establish there was no substantial controversy as to one of the material facts of plaintiff’s cause of action under this theory, plaintiff had no duty to produce evi-dentiary materials to show an issue of fact did exist. Fitzke v. Shappell, 6.Cir., 468 F.2d 1072 ; 6 Moore’s Federal Practice § 56.15(3), p. 2335. '

Therefore, the trial court erred in granting summary judgment for defendants.

Furthermore, the evidentiary materials do not establish plaintiff will be unable to prove the battery was defective. In Marathon Battery, Inc. v. Kilpatrick, Okl., 418 P.2d 900 , the battery which exploded was a sealed container. We held this fact created an inference which supported the jury’s finding the battery was defective at the time it left the possession of the manufacturer.

Defendants contend that case is distinguishable because the wet cell battery involved herein was not a sealed container.

*499 The evidentiary materials upon this point only indicate one could add liquid to the battery. Defendants produced no eviden-tiary materials concerning characteristics of wet cell batteries, or how handling of the battery subsequent to the time plaintiff acquired it might have caused the explosion.

Therefore, it is my opinion the eviden-tiary materials do not establish plaintiff will be unable to prove there was a defect in the battery at the time it left defendants’ possession.

Defendants do not contend there was no substantial controversy as to any other material fact of plaintiff’s cause of action, or that there was no substantial controversy as to all material facts constituting an affirmative defense.

For the reasons stated above I concur specially in the majority opinion.