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Bostwick v. Ballard Marine5/31/2005
JUDGES Concurring: Marlin Appelwick William Baker
PUBLISHED
At issue in this lawsuit is whether Ballard Marine, Inc. was 'in the business of leasing ' for purposes of the Washington Products Liability Act (WPLA) at the time a sandblasting pot injured Gregory Bostwick. We also decide whether the WPLA preempts a negligence claim against one who is not a 'product seller' under the WPLA.
We hold that the trial court properly granted summary dismissal of the products liability claim against Ballard Marine. It was not 'in the business of leasing ' and thus was not a 'product seller' for purposes of the WPLA. Because it was not a 'product seller' under the WPLA, the negligence claim against Ballard Marine survives. The trial court incorrectly granted summary dismissal of this claim. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
In 1975, Ballard Marine, as lessee, entered into a long-term lease of a shipyard with Florence Evans, the property's owner. In 1994, it subleased part of the shipyard to Marine Fluid Systems, Inc., a marine pipe fitting company. Bostwick worked for Marine Fluid, sandblasting and painting boats. At the time of the accident, Bostwick was overseeing operation of a five foot high sandblasting pot when he noticed it was leaking air from the lid. He attempted to tighten the lid by climbing up onto the pot and hitting one of the wingnuts securing the lid with a two-by-four. When he struck the wingnut, pressurized air exploded from the pot. The force of the air threw Bostwick to the ground. He suffered nerve damage resulting in paralysis in both arms.
Bostwick sued Ballard Marine on product liability and negligence theories. All parties moved for summary judgment. The trial court granted Ballard Marine's motion for summary judgment and dismissed with prejudice all of Bostwick's claims. In the same order, the court denied Bostwick's summary judgment motion. Bostwick appeals. Ballard Marine cross appealed a discovery order that imposed costs against it.
PRODUCT SELLER
Bostwick argues that Ballard Marine was a 'product seller' under the WPLA, that breached the duties of a manufacturer, and that the breaches proximately caused his injury. Specifically, he contends that the record demonstrates that Ballard Marine was 'in the business of leasing products' under the act. We hold that there are no genuine issues of material fact that show the activities of Ballard Marine were within the scope of being 'in the business of leasing products' for purposes of being a 'product seller.'
In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial', then the trial court should grant the motion. In making this responsive showing, the nonmoving party cannot rely on the allegations made in its pleadings. The evidence and all reasonable inferences therefrom is considered in the light most favorable to the plaintiff, the nonmoving party. An appellate court reviewing a summary judgment places itself in the position of the trial court and considers the facts in a light most favorable to the nonmoving party. We review de novo an order granting summary judgment. 'In the Business of Leasing '
The trial court determined in its summary judgment order that Ballard
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