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Farnham v. Bombardier2/1/1994
ENTRY ORDER
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 characteristics." 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 snowmobile manufactured by Bombardier is defective in that it becomes unstable and may go out of control at high speeds. . . . There was nothing wrong with Bombardier's product." Plaintiff cites John Deere Co. v. American Nat'l Bank, 809 F.2d 1190 (5th Cir. 19
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