JOHN F. BRADY, APPELLANT,
v.
STEYR-DAIMLER-PUCH A.G. WERKE GRAZ AUSTRIA AND STEYR-DAIMLER-PUCH OF AMERICA CORPORATION, APPELLEES
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John Brady purchased a moped that allegedly had a defective throttle assembly that stuck, causing him to collide with a utility pole and suffer injuries. The trial court granted summary judgment for the manufacturer and distributor defendants on all counts, but the appellate court affirmed only as to the negligence claim against the distributor and reversed regarding the implied warranty and strict liability claims, finding genuine issues of material fact remained.
Summary judgment was proper only as to the negligence claim against the distributor, who had no involvement in manufacturing or assembly. Summary judgment was improper on the implied warranty and strict liability counts because genuine issues of material fact existed regarding whether a defect caused the accident.
[1] A distributor is not liable for negligence in a products liability suit if the distributor had no involvement in the manufacturing or assembly of the product.
[2] Summary judgment is improper when the moving party fails to conclusively demonstrate the absence of genuine issues of material fact regarding a product defect and causati…
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Join FLexlaw to unlock all legal intelligence“On summary judgment the movant must show conclusively and unequivocally that genuine issues of material fact do not exist; of course, the burden on a party moving for summary judgment is greater than the burden which plaintiff must carry at trial.”
Establishes the heightened burden for summary judgment and the standard of review applied by the court.
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Join FLexlaw to unlock all legal intelligenceBrady purchased a new moped, drove it approximately 10 miles, and crashed into a utility pole. Brady testified the throttle had stuck, preventing him …
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LEHAN, Judge.
This is a personal injury products liability suit against a distributor and a manufacturer of a moped based upon implied warranty breach, negligence and strict liability. The trial court granted summary judgment for defendants. We affirm the summary judgment regarding the negligence count against the distributor. We reverse in all other respects.
Plaintiff purchased a new moped from a retail dealer, drove it for approximately 10 miles and ran it into a utility pole, resulting in injury to plaintiff. On deposition plaintiff testified that the moped’s throttle had stuck, thus preventing plaintiff from stopping the vehicle and leading to the collision with the pole.
The deposition testimony of plaintiff’s expert showed a defect in the moped’s throttle assembly involving the throttle cable having been misrouted in such a fashion as to be pinched between two parts of the vehicle. The expert was unable to attribute the sticking of the throttle to the misassembly, but testified that he could find no other reason to explain the stuck throttle.
The final assembling of the moped had been done by the retail dealer who is not a party to this appeal. However, the dealer’s employee who did the final assembling testified at deposition that the assembly of the throttle mechanism, including the routing of the throttle cable, had been accomplished prior to receipt of the moped by the dealer. The moped had been shipped in a sealed container from defendant manufacturer to defendant distributor and was then shipped by the distributor to the dealer in the same sealed container. As to our affirmance of the summary judgment on the negligence count against the distributor, there is no genuine issue as to any material fact, and defendant distributor is entitled to a judgment as a matter of law. The evidence established that the distributor had nothing to do with any assembling or manufacture of the vehicle.
As to all other counts, summary judgment was incorrect. See Ford Motor Co. v. Cochran, 205 So. 2d 551, 558 (Fla. 2d DCA 1968); McCarthy v. Florida Ladder Co., 295 So. 2d 707, 709 (Fla. 2d DCA 1974). See also Cassisi v. Maytag Co., 396 So. 2d 1140, 1143 (Fla. 1st DCA 1981) (quoting section 402A of the Restatement of Torts (Second)). On summary judgment the mov-ant must show conclusively and unequivocally that genuine issues of material fact do not exist; of course, the burden on a party moving for summary judgment is greater than the burden which plaintiff must carry at trial. See Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Holl v. Talcott, 191 So. 2d 40 (Fla.1966). In this case, defendants failed to show conclusively that no defect in the moped could be proven at trial to have caused the accident and resulting injuries.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.
HOBSON, A.C.J., and DANAHY, J., concur.
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Parke v. Scotty's, Inc., 584 So. 2d 621 (Fla. 1st DCA 1991)…e e.g. McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) (tire failure on a moving vehicle); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F. 2d 631 (8th Cir.1972) (aircraft in flight); Brady v. Steyr-Daimler-Puch A.G. Werke Graz Austria, 429 So. 2d 1348 (Fla. 2d DCA 1983) (moped’s throttle stuck during operation; plaintiff’s expert found cable misrouted and pinched, but could not attribute sticking of throttle to the misassembly); Gencorp., Inc. v. Wolfe, 481 So. 2d 109 (Fla. 1st DCA 1985), rev. de…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Cassisi v. The Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981)
- City OF Niceville v. McCULLOUGH, 295 So. 2d 707 (Fla. 1st DCA 1974)
- Ford Motor Co. v. Cochran, 205 So. 2d 551 (Fla. 2d DCA 1967)