Farnham v. Bombardier, Inc.

ENTRY_ORDER.93-037; 161 Vt. 619; 640 A.2d 47

[Filed 01-Feb-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-037

                             JANUARY TERM, 1994


 Sheila Farnham, Guardian          }          APPEALED FROM:
 of Gerald Farnham                 }
                                   }
      v.                           }          Washington Superior Court
                                   }
                                   }
 Bombardier, Inc.                  }
                                   }          DOCKET NO. S650-89WnC


              In the above entitled cause the Clerk will enter:

      Plaintiff Sheila Farnham appeals from the grant of summary judgment in
 favor of defendant Bombardier, Inc., in her products liability action.  We
 affirm.

      Plaintiff is the guardian of Gerald Farnham, who was injured in an
 accident that occurred during a snowmobile race between five snowmobilers on
 a runway about thirty feet wide at a private airstrip in Washington, Vermont.
 Defendant is the manufacturer of a Ski-doo Formula MX snowmobile ridden by
 another racer, John Kinnarney.  The snowmobiles reached speeds in excess of 60
 m.p.h.  Plaintiff alleged that Kinnarney's snowmobile flipped over and struck
 Gerald Farnham when both racers' vehicles were caught in a whiteout and
 Kinnarney braked his snowmobile in an attempt to slow down.  There were no
 witnesses to the actual moment of injury, but Gerald Farnham was found
 unconscious beside the track with a small wound in the back of his head.  The
 helmet he had been wearing was on the ground some distance away.  He remains
 comatose.

      Plaintiff claimed strict liability, among other things, alleging that
 the snowmobile ridden by Kinnarney contained design defects that rendered it
 unstable when braking at high speeds within its designed speed range.  The
 court granted defendant's motion for summary judgment because of a lack of
 evidence of a design defect, without reaching Bombardier's defenses of
 assumption of the risk and superseding cause.

      Reviewing a grant of summary judgment, we apply the same standard as the
 trial court, namely, that the motion should be granted when, taking all
 allegations made by the nonmoving party as true, there are no genuine issues
 of material fact and the movant is entitled to judgment as a matter of law.
 Garneau v. Curtis & Bedell, Inc., 158 Vt. 363, 366, 610 A.2d 132, 133 (1992).
 Summary judgment is appropriate if, after adequate time for discovery, a
 plaintiff is unable to make a sufficient showing to establish the existence of
 an element essential to her case, and on which she has the burden of proof at
 trial.  Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326, 1329 (1989).


 

      To establish strict liability in a products liability action, a
 plaintiff must show that the defendant's product (1) is defective; (2) is
 unreasonably dangerous to the consumer in normal use; (3) reached the
 consumer without undergoing any substantial change in condition; and (4)
 caused injury to the consumer because of its defective design.  Restatement
 (Second) of Torts { 402A (1965); see Zaleskie v. Joyce, 133 Vt. 150, 154-55,
 333 A.2d 110, 113-14 (1975) (adopting { 402A "strict product liability" in
 this jurisdiction).  It is plaintiff's burden to show a defective condition.
 Restatement, supra, { 402A comment g.  A product is defective if it is not
 "safe for normal handling and consumption."  Id. comment h.  Further,
 "unreasonably dangerous" means the product is "dangerous to an extent beyond
 that which would be contemplated by the ordinary consumer who purchases it,
 with the ordinary knowledge common to the community as to its character-
 istics." Id. comment i.

      Plaintiff contends that defendant did not raise the issue of product
 defect in its motion for summary judgment; therefore, plaintiff had no burden
 to present evidence on defect.  Defendant's motion, however, plainly stated
 that the snowmobile was not defective, albeit without isolating that statement
 under a special heading:  "Plaintiff alleges in her Complaint that the snow-
 mobile manufactured by Bombardier is defective in that it becomes unstable and
 may go out of control at high speeds. . . . [T]here was nothing wrong with
 Bombardier's product."  Plaintiff cites John Deere Co. v. American Nat'l Bank,
 809 F.2d 1190 (5th Cir. 1987), which held that "a district court may not grant
 summary judgment sua sponte on grounds not requested by the moving party."
 Id. at 1192.  In this case, however, defendant responded to plaintiff's
 allegation that the snowmobile was defective, and thus there was no sua sponte
 action by the court.  See Black's Law Dictionary 1277 (5th ed. 1979) (defining
 "sua sponte" as "voluntarily; without prompting or suggestion").

      In ruling against plaintiff on the element of design defect, the trial
 court examined the deposition testimony of plaintiff's expert, engineer
 Stanley J. Klein.  Klein testified both to the inherent instability of the
 machine at high speeds and to its inadequate braking system for safe stops at
 high speeds.  The court concluded that speeds in excess of 60 m.p.h were not
 normal use and held that the expert testimony was insufficient to establish a
 product defect because nowhere had Klein stated that the Ski-doo was unreason-
 ably dangerous in normal use.

      On appeal, plaintiff argues that although the expert may not have uttered
 the "magic words," "unreasonably dangerous in normal use," the substance of
 his testimony was more than sufficient to show product defect.  Plaintiff also
 argues that "normal use" includes foreseeable misuse.  See Vickers v. Chiles
 Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987) (normal use of product
 includes all reasonably foreseeable uses, including foreseeable misuse).
 Plaintiff points to defendant's own testimony that the Ski-doo ridden by
 Kinnarney was capable of travelling over 60 m.p.h.

      We do not address these arguments at length because we agree with the
 trial court's conclusion that the expert's assertions in this case, which are
 all plaintiff put forward during two years of discovery, are insufficient
 evidence of a product defect.  Moreover, this case is different from Vickers.
 There, the manufacturer of a large air compressor built a stairway for access

 

 and egress from the top of the unit, but the stairway was not visible and
 plaintiff jumped off the top of the compressor, injuring himself.  The court
 held that since the stairway was not visible, the manufacturer should have
 foreseen the misuse that occasioned plaintiff's injuries.  Id. at 539.

      The facts of this case are more like those in Menard v. Newhall, where a
 seven-year-old boy was blinded in a BB-gun fight.  We held that the gun was
 not unreasonably dangerous because the fact "that a BB gun, if fired at a
 person, could injure an eye, is nothing that even a seven-year-old child does
 not already know."  135 Vt. 53, 56, 373 A.2d 505, 507 (1977).  Here, as in
 Menard, the consequences were terrible.  But the dangers of racing snowmobiles
 five abreast on a narrow strip of land at high speeds are manifestly within
 the common knowledge of the ordinary consumer.  There is no evidence that the
 snowmobile was unreasonably dangerous under these circumstances even if it
 behaved as plaintiff alleges.  See Elliott v. Brunswick Corp., 903 F.2d 1505,
 1507 (11th Cir. 1990) (where plaintiff injured when she jumped into water next
 to pleasure boat, boat's unguarded propeller not dangerous beyond expectation
 of ordinary consumer because "consumer clearly understands that a revolving
 propeller involves danger"); Hylton v. John Deere Co., 802 F.2d 1011, 1015
 (8th Cir. 1986) (where danger of climbing into bin of combine was open and
 obvious, design of combine not dangerous beyond contemplation of ordinary
 consumer).

      Affirmed.



                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [x]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice