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Wallman v. Kelley8/6/1998
Appeal from the District Court of the City and County of Denver
Honorable Paul A. Markson, Jr., Judge
No. 95CV369
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS
Division IV
In this product liability action, plaintiff, Lynn Wallman, appeals the summary judgment dismissing her claims against the defendants, Bob Kelley, doing business as Acupuncture and Chinese Medicine, and Indochina Ginseng, Inc. We affirm in part, reverse in part, and remand with directions.
Plaintiff purchased and consumed a Chinese herbal medicine, Jin Bu Huan (JBH), to relieve pain in her thumb and to treat insomnia. Within a month thereafter, plaintiff contracted chemical hepatitis.
Plaintiff sued the defendants, both sellers of the herb, on theories of negligence per se under §25-5-403(1)(a), C.R.S. 1997, breach of implied warranty of merchantability under §4-2-314, C.R.S. 1997, and, as to Kelley, breach of implied warranty of fitness for a particular purpose under §4-2-315, C.R.S. 1997. The defendants filed motions for summary judgment which the trial court granted, and this appeal followed.
I.
Plaintiff contends the trial court erred in granting summary judgment on the negligence per se and implied warranty of merchantability claims. We agree.
We review orders granting summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995).
To prevail on a motion for summary judgment, the moving party has the burden of demonstrating the absence of a genuine issue of material fact, Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978), and entitlement to judgment as a matter of law. Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972).
An issue not raised by the moving party in the motion or brief cannot serve as the basis for summary judgment because the non-moving party is not put on notice as to the need to present evidence concerning that issue. Jefferson County School District R-1 v. Justus, 725 P.2d 767 (Colo. 1986).
Here, in the briefs accompanying their motions, defendants argued that plaintiff's claims should be construed as claims for strict liability in tort and that, as such, they were completely barred by §13-21-402, C.R.S. 1997, since defendants did not also manufacture the JBH. In addition, Kelley argued that plaintiff's claim for breach of implied warranty of fitness for a particular purpose must fail because there was uncontroverted evidence that she did not rely on his judgment when she selected JBH.
Kelley also argued that plaintiff had no evidence to prove she bought the JBH from him, and Indochina argued that plaintiff had failed to give notice of any breach of implied warranty.
However, none of the summary judgment motions or supporting briefs argued that plaintiff had failed to present evidence that the JBH allegedly sold by defendants caused her injuries. Defendants did set out in their briefs that proof of a strict liability in tort claim requires proof of causation, but the assertion was made in the context of the argument that plaintiff's claims must be asserted as strict liability claims, or not at all. And, we note that plaintiff did not have then pending any claim against defendants based upon the doctrine of strict liability in tort.
In his reply brief before the trial court, Kelley argued for the first time that plaintiff could not prove that the JBH she allegedly purchased from him caused her illness.
The trial court granted the defendan
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