Brock Ex Rel. Brock v. Goodman , 83 N.M. 580 ( 1972 )

OPINION

SUTIN, Judge.

This is an appeal from summary judgment granted defendants in a suit for wrongful death resulting from one vehicle accident.

We reverse.

The defendant Annie Goodman is not a party to this appeal.

The record supports the following:

On August 2, 1969, Tom Goodman, husband of Annie, purchased four new 6-ply tires from Sears which were manufactured by Armstrong. Sears put Goodman’s old tubes in the new tires mounted and installed the tires on Goodman’s 1969 Ford half-ton pickup, and then balanced the new tires. On August 5, 1969, decedent was riding in the pickup driven by Annie Goodman. Mrs. Goodman drove the vehicle so as to cause it to veer off the pavement to the right for approximately 325 feet, at which time it veered 47 feet across the pavement to the left side of the road and was off the pavement for about 55 feet, and when she turned onto the pavement from the left shoulder, it traveled 52 feet, overturning once. The left front tire failed causing the tire to disengage from the rim. As a result, the rim acted as a pivot or fulcrum which caused the pickup to overturn, resulting in the death of decedent.

Brock alleged, (1) that the tire failure resulted from the defective condition of the tire at the time of the accident; (2) that Sears negligently failed to inspect or detect the defective condition of the tire which failed at the time of the mounting of the tire or, in the alternative, that Sears negligently damaged the tire in the process of mounting the tire; (3) that defendant Sears breached express and implied warranties of merchantability; (4) that the tire was in a defective condition which created an unreasonable risk of injury and death creating strict liability against Armstrong; (5) that Armstrong breached express and implied warranties of merchantability; and (6) that the negligent acts of Sears and Armstrong concurred.

The defendants answered in denial with several affirmative defenses.

The defendants filed a motion for summary judgment on the ground that the depositions of Annie Goodman, Tom Goodman, and Leopoldo Gonzales, the Sears employee who mounted the tires, do not support the alleged claims of Brock, and that Brock did not produce any evidence which would show or tend to show that there is any genuine issue as to a material fact and in the absence of such evidence, defendants are entitled to summary judgment.

Based upon the record, including an-. swers to interrogatories, the depositions mentioned, affidavits of two persons, the trial court awarded defendants summáry judgment. ' :

We wish to make it clespr once again the burden rests on the defendants, not the plaintiffs, to establish that rió genuine issue of material fact exists for trial and defendants are entitled to judgment as a matter of law. If the defendants fail to meet this burden, summary judgment is erroneous. Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970). Only when the defendants fulfill their burden and, make a prima facie showing that no mate-, rial fact issue exists, does it then become the duty of plaintiffs to show there is a factual issue present. Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971).

We have carefully read the pleadings, the depositions, answers to interrogatories, and affidavits. We find no evidence that when the tire was manufactured ■ by Armstrong it was a good, sound tire, free of defects; that when it was sold by: Sears it was carefully inspected for defects or conditions which would cause it to fail, and none were found. The only showing' of “no defect” in the tire comes from the', two Goodmans; Both testified in their depositions that there was nothing to indicate anything wrong with the tire between the time the tires were mounted and the; time of the accident. Mr. Goodman also'1 testified that he had not noticed a cut or-scrape on the tires prior to the accident. The foregoing is hot a prima facie show-: ing of no defect. Certainly a slight issue-of fact remains. Defendants failed--tó¡ meet their burden of showing an absence'of a material factual issue. The trial court-erred in granting summary judgment'. ■■ •:

Of course, at trial, it will be plaintiff’s,, not defendants’, burden to come forward with evidence and inferences therefrom sufficient to raise a factual issue for sub-, mission to the jury. If she fails to do this, she cannot complain if a verdict is directed against her.

Reversed.

It is so ordered.

' WOOD, C. J., concurs. COWAN, J., dissents.