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Bostwick v. Ballard Marine5/31/2005
neither policy considerations nor the record supports a conclusion that it was 'in the business of leasing' the pot for purposes of the WPLA. Ballard Marine lacked the sales volume to influence the pot's design or manufacture, and its long term lease was either with Marine Fluid or Marine Fluid's business associates. Ballard Marine was not in the position to spread the cost of injury among the public, and there is no evidence that Ballard Marine exhibited any expertise that would justify consumer reliance on it regarding the sandblasting pot.
Moreover, as in Buttelo and the cases cited therein, Bostwick presented no evidence that Ballard Marine ever exercised control over either the pot, or the other shipyard equipment, had the opportunity or duty to inspect or maintain it, or used it in the course of its own business. Again, without citation to the record, Bostwick asserts that 'Ballard Marine assumed the risk of loss and damage to the sandblast pot, and insured the pot.' The record is devoid of evidence for this proposition.
Bostwick points to two cases from other jurisdictions to support his argument. However, those cases are distinguishable in that, in each case, the lessor actively marketed a significant quantity of the defective product to multiple lessees. In contrast, Ballard Marine's lease of a single sandblasting pot over a long term to two sub-tenants, does not present the same policy considerations for applying the principles of product liability.
In short, the record does not support the existence of any genuine issue of material fact that Ballard Marine was 'in the business of leasing ' for purposes of the WPLA. It was not. Because Bostwick fails to establish any genuine issue of material fact for purposes of his products liability claim, and Ballard Marine is entitled to judgment as a matter of law, the trial court properly granted summary judgment on this claim.
NEGLIGENCE OF NON-SELLERS
Bostwick argues that even if Ballard Marine were not liable under the WPLA as a product seller, it may still be liable for common law negligence as a non-seller. Thus, Bostwick argues, the trial court incorrectly granted summary judgment on his negligence claim. We agree.
Hiner v. Bridgestone/Firestone, Inc. addressed the principle at issue here. In that case, a motorist was injured in a collision while driving a car on which tires manufactured by the defendant were mounted. The trial court dismissed the motorist's products liability claim at the close of the motorist's evidence. The supreme court granted the motorist's petition for review from a decision of the court of appeals. The issue was whether under the WPLA the affirmative defense of entity liability applies other than to manufacturers and product sellers. Reversing the court of appeals, the supreme court concluded that contributory negligence under the comparative fault statute could be attributed to entities that would not be liable under the WPLA. In commenting on the argument that the legislature intended to limit, rather than expand, the category of defendants subject to a product liability claim, the supreme court noted the case of Buttelo v. S.A. Woods-Yates American Machine Co. The supreme court stated that Buttelo 'merely limited a product lessor's liability under the Product Liability Act and in fact discussed a non-seller defendant's potential vicarious liability for an employee's negligence in supervising installation of the product.' Thus, one who is not a 'product seller' under the act may still be liable for negligence.
The supreme court went on to address the same argument that Ballard Marine makes in this case: that Washington Water Power Co. v. Graybar
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