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Garcia v. Coe Manufacturing Co.1/28/1997
apparently did not formally assume [its predecessor's] service contracts, it did, in fact, offer to service the machine to the potential economic advantage of both parties.
451 N.E.2d at 200.
{27} Here, the record discloses that Coe did more than merely continue WIW's name and acquire its good will. Moreover, its relationship with Montana de Fibra consisted of more than "a single service call." Under the purchase agreement, Coe assumed WIW's service contract obligations. Coe knew that a WIW boardline was in operation at the Montana de Fibra plant. Coe's employee made a service call to the plant, and its employees observed the line in operation. Penner was familiar with delayed start-up mechanisms and knew the boardline at the Montana de Fibra plant did not have such a mechanism. Finally, Coe participated in the installation and start-up of the boardline at the Montana de Fibra plant and performed at least two items of warranty work thereon. Therefore, even though the president of Coe stated in his affidavit that Coe was not aware of any accidents involving similar boardline equipment, viewing the facts in a light most favorable to Garcia, this evidence was sufficient to create an issue of fact whether Coe breached its duty to warn of potential safety hazards. Accordingly, we reverse the summary judgment regarding Garcia's negligence claim and remand for further proceedings consistent with this opinion.
{28} IT IS SO ORDERED.
PATRICIO M. SERNA, Justice
WE CONCUR:
GENE E. FRANCHINI, Chief Justice
JOSEPH F. BACA, Justice
1 This is a mechanism that would have emitted audible and visible warnings prior to restarting of the conveyor.
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