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10/28/94 RAYMOND KIRK v. GARRETT FORD TRACTOR

October 28, 1994

RAYMOND KIRK
v.
GARRETT FORD TRACTOR, INC.



Appeal from Calhoun Circuit Court. (CV-92-330). R. Joel Laird, Jr., TRIAL JUDGE.

Released for Publication February 26, 1995.

Maddox, Shores, Steagall, Kennedy, and Ingram, JJ., concur.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

The issue in this case is whether the trial court erred in entering a summary judgment in favor of the defendant -- a vendor of farm equipment -- on the plaintiff's claim that the defendant was liable for injuries that the plaintiff alleges were caused by a defective power auger. We affirm.

The plaintiff, Raymond Kirk, was injured on November 26, 1990, when his left leg became entangled in a power auger while he was assisting his uncle, Ronald Folsom, in digging holes for fence posts. Folsom had borrowed the auger from another relative, Glenn Buttram, Sr. As a result of the accident, Kirk filed this action against Garrett Ford Tractor, Inc., alleging liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). According to the record, the auger in question, bearing serial number 3712, was manufactured by the Danuser Machine Company, Inc., in January 1985, and was sold to Lovett and Tharpe, Inc., who then placed it on consignment to Freddie Wilhite, d/b/a Wilhite Tractor & Equipment Company. After a fire at Wilhite Tractor & Equipment Company, Lovett and Tharpe reacquired the auger and later sold it to Garrett Ford Tractor. Glenn Buttram, Sr., testified that he purchased the auger from Garrett Ford Tractor. Although Garrett Ford Tractor says it can find no record of the reported sale to Glenn Buttram, Sr., it concedes in its brief that there are factual issues pertaining to the identity of the seller. Therefore, we will consider Garrett Ford Tractor the seller for the purposes of this appeal.

Raymond Kirk contends that his left leg became entangled in the auger at an exposed universal joint linking the power take off ("PTO") shaft and the gear box. Safety shields were provided by the manufacturer, Danuser, to completely enclose the universal joints. According to John Rex, Danuser's vice president for engineering, the auger was shipped by Danuser accompanied by these safety shields. The record indicates that the universal joint of auger No. 3172 was enclosed in protective shields both when it was purchased by Glenn Buttram, Sr., and when Buttram used the auger himself prior to Kirk's accident. Garrett Ford Tractor maintains that sometime between Buttram's use and the date of Raymond Kirk's accident, the auger underwent a substantial change -- that the protective shields were removed and displaced, thereby exposing the universal joint and enabling Mr. Kirk's leg to come in contact with that joint. The trial court entered a summary judgment for the defendant, and the plaintiff appeals.

The standard for reviewing a summary judgment is the same as the standard for granting the motion; we must determine whether there was a genuine issue of material fact, and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala. 1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala. 1990).

Under the substantial evidence rule the nonmovant, in order to defeat a properly supported summary judgment motion, must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).

This Court has stated the elements of a claim under the AEMLD:

"'To establish liability, a plaintiff must show:

"'(1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if

"'(a) the seller is engaged in the business of selling such a product, and

"'(b) it is expected to and does reach the user or consumer without substantial change in the condition ...


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