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Wood v. Old Trapper Taxi11/25/1997
user is unable to testify, as where the accident killed him or incapacitated him, no other witness was present at the time of the accident, and the product was destroyed, the fact of the accident and the probabilities are all that remain for the party seeking recovery. At this point the plaintiff can attempt to negate the user as the cause and further negate other causes not attributable to the defendant. These kinds of proof introduced alone or cumulatively are evidence which help establish the presence of a defect as the cause of the damage.
Brandenburger, 162 Mont. at 518, 513 P.2d at 275 (quoting Stewart v. Budget Rent-A-Car Corp. (1970), 52 Haw. 71, 75, 470 P.2d 240, 243). Here, both sides have offered testimony through their expert affidavits on the presence of a defect and when it occurred even though the failed part is missing.
Accordingly, we conclude that the District Court did not abuse its discretion in denying the defendants' motion to dismiss because of the missing evidence.
CONCLUSION
After review of the record in this case, we conclude that the evidence submitted by the Woods was sufficient to withstand the defendants' motion for summary judgment. We hold that the District Court erred in granting summary judgment in favor UNR and Rohn on the Woods' manufacturing defect and failure to warn claims. We affirm the District Court's denial of the defendants' motion to dismiss which was premised on the missing evidence.
In conclusion, the judgment of the District Court is affirmed in part and reversed in part. This matter is remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and HUNT concur.
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