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Bostwick v. Ballard Marine5/31/2005
equipment or of real property. Thus, the tax records do not create a genuine issue of material fact or otherwise impact our analysis. Rather, applying the principles of Buttelo to this case, we conclude that Bostwick has failed in his burden to demonstrate a genuine issue of material fact.
Here, there is no evidence in the record that the first of the three policy considerations articulated in Butello applies to Ballard Marine. Specifically, there is no evidence that Ballard Marine is in a position to exert pressure on the manufacturer of the sandblasting pot to influence its design. Rather, the record indicates that the identity of the manufacturer of the sandblasting pot is unknown. Thus, Bostwick, who has the burden of proof at trial, fails to establish any genuine issue of material fact on the first of the three relevant criteria necessary to establish Ballard Marine's status as a product seller.
We move to the second element - whether the consuming public typically looks to Ballard Marine for advice in the selection, operation, and maintenance of the sandblasting pot.
The record contains no written lease to indicate terms of the equipment agreement between Ballard Marine and Marine Fluid, Inc. There is no evidence in the record that Ballard Marine ever operated the equipment, or had any use for it. Although there is no information in the record regarding equipment maintenance in general, Marine Fluid performed maintenance on the sandblasting pot. Although Ballard Marine's owner ordered the pot disposed of after the accident, Marine Fluid arranged the disposal and purchased a replacement pot.
The record contains only a few written references to the sandblasting pot in the monthly invoices Ballard Marine sent to Marine Fluid. The invoices from August 1994 through December 1994 contain charges for 'sandblast pot and air compressor' at $100 per day. There is no other general equipment rental charge. Starting in October 1994, the two items are billed separately at $100 per day for the sandblast pot and $600 per month for the air compressor. Starting in January 1995, the $600 monthly rental for the air compressor alone appears, though the record indicates that the price reflected a combined fee for the sandblast pot and the air compressor. No further references to the sandblasting pot appear in the invoices. The record reflects that another company, brought in by Marine Fluid to do sandblasting and painting for Marine Fluid's customers, rented the pot and air compressor from Ballard Marine until Marine Fluid decided to provide this service directly.
These facts do not establish public reliance on Ballard Marine for the selection, operation or maintenance of the sandblasting pot. On the contrary, they indicate that Ballard Marine leased its equipment to no more than two companies, each of which appeared to be experienced in the selection, operation, and maintenance of the sandblasting pot, and to assume that responsibility. Bostwick has not carried the burden of demonstrating a genuine issue of fact on this point.
Although Bostwick claims a list of facts established by 'uncontested evidence' supports a conclusion that Ballard Marine was 'in the business of leasing ', he fails to provide a single citation to the record. We are not required to search the record to establish what he asserts and decline to do so.
Finally, we consider the third element - whether Ballard Marine is best able to spread the costs of injury among the public. Again, there is nothing in the record to create a genuine issue of fact for this element.
While Ballard Marine certainly derived financial benefit from the lease of the sandblasting pot,
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