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Ford v. Carylon Corporation11/10/2005
y, but it's a safety equipment company that sells that type of stuff.
"Q: Okay. Now you -- obviously, you purchased those, you know -- is it called a safety switch?
"A: Safety T.
"Q: Safety T. And you purchased those direct from the company --
"A: The company, yeah.
"Q: -- who manufactures the thing? And would it be -- would you have purchase orders on those?
"A: It would be either that or bills, or something like that.
"Q: Okay. How often do those need to be replaced?
"A: That's hard to say. We will buy a number of them.
"Q: Uh-huh. (Counsel indicates affirmatively.)
"A: Let's say a dozen, just for a number --
"Q: Right.
"A: -- and have them in stock. And they have a way of being used as wheel chalks and getting lost and strayed and stolen. And so then we'll -- as they get up to the point where we don't have enough for the trucks in spare, then we'll order another batch."
These three segments of Kulbitskas's deposition testimony establish that Clean Earth Manufacturing was not the supplier of the safety T used by Video on the vacuum hoses. Kulbitskas's testimony demonstrates that he is quite familiar with Clean Earth Manufacturing and its products, that he is sure that Video does not purchase its hoses from Clean Earth Manufacturing, and that it purchases them from another company. He could not recall the name of that company. He likewise knows that Video obtains the safety T's it uses from "a safety equipment company," not Clean Earth Manufacturing, although, again, he could not recall the name of that company. Clearly, if Clean Earth Manufacturing was the supplier of the safety T, Kulbitskas would recall this fact. Therefore, we conclude that Eady has made a prima facie showing that Clean Earth Manufacturing, the manufacturer of the vacuum, did not "provide" the safety T at issue.
In response to this showing, Ford points first to a "Parts and Accessories Catalog" put out by the "Clean Earth Environmental Group." On page one of that catalogue is a "Disclaimer," which provides, in pertinent part, that "Clean Earth Environmental Group, Inc. does not manufacture or purport to own the product names and designs noted herein with a '*,' but Clean Earth is proud to offer these quality products to its customers ...." On page 13 of the catalogue, a variety of sizes of "In-Line Relief Valves" is advertised. A safety T is, as noted, also known as an in-line relief valve. There is no "*" designation associated with the advertisement for this item; therefore, it is a reasonable conclusion that Clean Earth Environmental Group, Inc., is the manufacturer of the safety T advertised in its catalogue.
Nonetheless, Kulbitskas was clear in his testimony that Video obtains safety T's not from Clean Earth, but from another source, and there is no evidence indicating that when Video purchased the SV-119 vacuum any hose that came with it was equipped with a safety T. Because Ford's burden is to present substantial evidence creating a genuine issue as to who manufactured the safety T at issue, and because the evidence proffered by Eady makes a prima facie showing that someone other than Clean Earth Manufacturing provided the safety T at issue, we conclude that Eady is entitled to a summary judgment as to this issue.
Conclusion
Because the defendants have met their burden of demonstrating that there is no genuine issue of material fact as to Ford's "trespass" claim, and because the defendants are consequently entitled to a judgment as a matter of law on this issue, we affirm the trial court's summary judg
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