McLaughlin v. Michelin Tire Corp. , 1989 Wyo. LEXIS 174 ( 1989 )

THOMAS, Justice.

In this case, the court is asked to address , the several theories for imposing liability upon a manufacturer or seller of heavy equipment tires in the context of summary judgment. A critical question is whether there is any difference in the application of those several theories in the absence of an actual defect in the tires. We also address a collateral theory of independent negligence. The trial court entered a summary judgment in favor of Michelin Tire Corp. (Michelin) and Cobre Tire (Cobre) on the premise that there was no genuine issue of material fact, and these defendants were entitled to judgment as a matter of law. The trial court emphasized the failure of the plaintiff to produce any materials in opposition to the motion for summary judgment that raised an issue of fact as to whether there was any defect in the tires. We affirm the judgment of the district court on the theories of negligent manufacture and design, strict liability, breach of an implied warranty of merchantability, and breach of an express warranty. Because there do exist genuine issues of material fact, we reverse the summary judgment as to the theory of an implied warranty of fitness and as to the theory of independent negligence of Michelin and Cobre in not replacing the tires when they were not performing in a satisfactory manner.

Fred McLaughlin was injured on April 5, 1983, when he lost control of a Caterpillar scraper he was operating at the Jim Bridger Coal Company mine in Sweetwater County. He brought an action to recover damages for his injuries in which he named as defendants Caterpillar Tractor Co., Wyoming Machinery Company, Michelin Tire Corp., Cobre Tire, Larry Largent, Larry McNabb, Robert Dernovieh, Dennis Veeder, and Craig Paisley. In his complaint, McLaughlin alleged that his injuries resulted from his loss of control of the scraper due to severe bouncing and vibration caused by Michelin radial tires that had been installed on the machine. As theories of liability of the several defendants, McLaughlin alleged negligence, strict products liability in tort, breach of the implied warranties of fitness and merchantability, and breach of an express warranty. McLaughlin settled his claims against all defendants except Michelin and Cobre, and the trial court ultimately entered summary judgment against McLaughlin and in favor of Michelin and Cobre. The appeal is taken from that summary judgment, which was a final order under the circumstances.

In his brief, McLaughlin states the question to be:

“Do material issues of fact exist in this case which require reversal of the summary judgment entered below with regard to:

“(a) Appellant’s negligence claim;

“(b) Appellant’s strict liability claim; and

“(c) Appellant’s breach of warranty claims?”

Michelin, in its Brief of Appellee, expands on those issues and sets them forth in this way:

“I. Whether appellants have infused new issues for the first time on appeal which were not considered by the court below?

“II. Must plaintiff prove a defect regardless of the theory, be it negligence, strict liability or implied warranty?

“III. Do subjective complaints by operators prove a defect?

“IV. Is the circumstantial evidence test available?

“V. Does the evidence submitted by plaintiff in opposition to the motion for summary judgment invite the jury to speculate and thereby fail to raise a triable issue of fact?

“VI. Did Michelin have a duty to warn?

“VII. Even as to new matter not raised below, does a triable issue remain?”

Cobre invokes a third version of the issues stated as follows:

“Did the court err in determining that there exists no issue of material fact and that defendants (appellees) were entitled to judgment as a matter of law?

“1. May appellant raise new issues on appeal?

“2. Must appellant prove the tires were defective?

“3. Did Cobre have a duty to warn appellant?

“4. Was summary judgment proper?”

From the materials in the record, most of which were relied upon in connection with the motion for summary judgment, the essential facts can be gleaned. In March of 1983, Cobre and Jim Bridger Coal Company (Bridger) entered into a contract for goods and services pursuant to which Cobre agreed to provide Bridger with eighty percent of its requirements for tires and accessories and to furnish on-site tire maintenance personnel. In discussing its tire needs, Bridger, through its agent, Jack Erickson, mentioned to Cobre’s agent, Kenneth Moe, that Bridger was interested in trying steel-belted radial tires on their Caterpillar 631-D scrapers to see if that would provide a smoother, more comfortable ride for the scraper operators. Until that time, the scrapers uniformly had been equipped with bias ply tires.

On March 10, 1983, in accordance with the contract, and pursuing Michelin’s advice, Cobre delivered to Bridger two 33.25 X 35 Michelin XRDN** steel-belted radial tires and installed them on the front of a Caterpillar 631-D scraper, No. 699. The record discloses that Cobre relied almost exclusively on Michelin’s recommendations as to the suitability of any tires that Michelin manufactured for use on particular pieces of equipment and in certain types of terrain. Scraper No. 699 had been equipped with bias ply tires manufactured by another tire company prior to the installation of the Michelin tires. Immediately after installation of these tires, McLaughlin, who usually operated Scraper No. 699, became aware of extreme differences in its operation. McLaughlin complained to his supervisor, Jack Erickson, that the scraper, now equipped with the new Michelin tires, was racked with extreme and violent vibrations, that it would bounce and shake excessively, and that the bouncing did not subside as quickly as it had when the scraper h^d been equipped with the bias ply tires. Another operator stated that Scraper No. 699 “vibrated more with the new Michelin tires,” and that the operators were “getting beat up in the scraper.” Still another operator observed that the ride in the scraper was “rough and it vibrated and it wouldn’t smooth out.” This latter operator further observed that the Michelin tires caused the scraper to bounce more after an initial bounce than it had with the bias ply tires. A fourth operator testified that the Michelin radial tires were “bouncier” than the bias ply tires.

McLaughlin’s complaints, and those of the other operators of the scraper, were communicated to Cobre, which in turn passed them on to Michelin. Despite the voluminous complaints that continued over a period of twenty-six days, neither Cobre nor Michelin took the tires off the scraper. Instead, an attempt was made to cure these problems by varying the air pressure in the tires. This did not provide a remedy, and the extreme vibrations and bouncing continued. Late in March of 1983, Cobre and Michelin decided that on April 10,1983 they would permanently remove the tires. In the intervening period, an experiment was conducted that involved taking the tires from Scraper No. 699 and installing them on another scraper. The same problems of vibration and bounce occurred with the tires on the second scraper. Following the experiment, these tires were reinstalled on Scraper No. 699.

In accordance with Cobre’s and Michelin’s decision, the tires were still on Scraper No. 699 on April 5, 1983. On that date, McLaughlin, who was an experienced heavy equipment operator, was making a dirt haul pass over a ditch. Straddling the ditch while making such dirt haul passes to dump overburden, in the manner that McLaughlin did on the day of his injuries, was a “very accepted” practice at the coal mine, and “[t]here is no risk involved” with such a procedure. During one such pass, the scraper suddenly went into a violent series of vibrations in the course of which McLaughlin lost control of the scraper and was thrown through the side window of the cab. McLaughlin sustained severe lacerations to his face, which ultimately cost him his right eye, and compression fractures to the vertebrae in his back that resulted in permanent disability.

The parties dispute what actually occurred just prior to the accident to cause the scraper to vibrate so severely. McLaughlin’s co-workers stated in substance that they believed something was wrong with the tires. One related:

“* * * [H]e was bouncing * * *. I seen the tires on six-nine-nine going flat. When he was running over this dump area, they were going flat, and I was going to catch him. * * * I was trying to flash him over. I tried to stop him, but he was ahead of me.”

The same co-worker went on to say that “both wheels were coming off the ground,” that the tires were flattening to such an extent that the distance from the rim to the bottom of the tire was only about six inches, and that when the tires would spring back, the distance from the rim to the bottom of the tire would be about two and one-half feet. Another co-worker observed the actual injury occur, and he reported in his deposition:

« * * * I couj¿[ see ftje scraper bouncing real hard. I saw it bounce three or four times * * *. I saw him go sideways * * *. . Then I saw him come back and saw his head come through the door, the window, and knock that window clear out.”

After McLaughlin’s accident, several tests were conducted with the scraper that re-confirmed the beliefs of the several operators that the tires caused the accident. Agents of Michelin and Cobre also witnessed the tests, but none of them would offer an opinion as to what caused the accident. Instead, they reported that it appeared that the drivers of the scraper during the course of the tests manifested bad attitudes.

The record also incorporates the opinions of experts. One said:

“ * * * I am of the opinion that there was no defect in either design or manufacture of the Michelin tires installed upon Unit 699 upon which Mr. McLaughlin was injured.”

Another expert whose deposition was taken by the plaintiff said he did not know whether there was a defect in manufacture of the tires and that it really did not matter. What he recognized was that excessive vibration apparently occurred and that it was attributable to these tires.

In his Complaint and Jury Demand, McLaughlin asserted, as theories of recovery against the several defendants, including Michelin and Cobre, negligence, strict liability in tort, breach of the implied warranties of fitness for a. particular purpose and merchantability, and breach of express warranty. The facts set forth above are a product of extensive pre-trial discovery. Following that discovery, Michelin and Co-bre presented motions for summary judgment, together with supporting affidavits, deposition excerpts and their memoranda of law. McLaughlin filed a memorandum in opposition to those motions together with the deposition excerpts and exhibits upon which he relied. The district court then issued its opinion letter granting the motions for summary judgment on all issues, and that determination was formalized by an Order for Summary Judgment entered on December 8, 1986. This appeal is taken from that order.

The summary judgment granted to Michelin and Cobre can be sustained only if there is no genuine issue of material fact, and the prevailing party is entitled to judgment as a matter of law. Matter of Estate of Roosa, 753 P.2d 1028 (Wyo.1988). A material fact is one that establishes or refutes an essential element of a cause of action or a defense asserted by a party. Roosa. If the moving party presents supporting summary judgment materials that demonstrate that no genuine issue of mate^ rial fact exists, the burden is shifted to the non-moving party to present appropriate supporting materials that serve to pose a genuine issue of a material fact for trial. Roosa. On appeal, this court examines the entire record in the light most favorable to the party who opposed the motion, affording to that party all favorable inferences that may be drawn from the materials either supporting or opposing the motion. Roosa. We have examined this record in that light.

We are unable to support the determination of the trial court that summary judgment was proper with respect to all of the theories asserted by McLaughlin. It is desirable, although perhaps not essential, that we explain the justification for affirming the summary judgment as to the theories of negligent manufacture and design, strict liability, breach of an implied warranty of merchantability, and breach of an express warranty. We conclude that genuine issues of material fact are present with respect to the theories of negligence in failing to remove the tires after their performance had been evaluated, and breach of an implied warranty of fitness for a particular purpose. We reverse the summary judgment as to those theories only.

In Wyoming, the elements of a negligence claim are: (1) a duty; (2) a violation of the duty; (3) proximate causation; and (4) an injury. Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276 (Wyo.1983), citing McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983). In a products liability action premised on negligence, which is alleged here, the plaintiff must prove that the manufacturer, seller, or distributor breached a duty of care owed to him and thereby proximately caused him to be injured. 1 American Law of Products Liability 3d § 10:1 (1987).

Wyoming also has adopted the doctrine of strict liability encompassed in the Restatement (Second) of Torts § 402A (1965). The rule there is stated:

“Special Liability of Seller of Product for Physical Harm to User or Consumer

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

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

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

“(2) The rule stated in Subsection (1) applies although

“(a) the seller has exercised all possible care in the preparation and sale of his product, and

“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Ogle v. Caterpillar Tractor Co., 716 P.2d 334 (Wyo.1986). See also Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979); Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); Restatement (Second) of Torts § 402A comment c; and Sims v. General Motors Corp., 751 P.2d 357 (Wyo.1988).

While the duties that are owed by defendants under a negligence theory in a products liability suit may vary, all relate to the reasonableness of the defendants’ conduct. A “manufacturer * * * is required to exercise reasonable care in the planning, designing, and manufacturing of a product in order to ensure that it is reasonably safe to use.” Donahue, 674 P.2d at 1280 (citing Maxted v. Pacific Car & Foundry Co., 527 P.2d 832 (Wyo.1974)). The duty of the seller or distributor is simply to exercise that care which a reasonably prudent person would under the same circumstances. 1 American Law of Products Liability 3d § 10:14.

Thus, in pursuing a theory of negligent design or manufacture, the conduct of the maker or seller is in question. On. the other hand, in pursuing a theory of strict liability, the focus is on the product itself. Beck, 593 P.2d 871; Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex.1978), on remand 599 S.W.2d 633 (Tex.Civ.App.1980). Pursuant to the theory of strict products liability, a seller or distributor can be liable for injury or loss resulting from a defective product that entered the stream of commerce in the absence of fault, while, under a negligence theory, fault on the part of the manufacturer, designer, or distributor is an element that must be established for an injured party to recover. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963); Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974). Also see East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). Strict products liability is invoked, and is intended to apply, in those instances in which traditional theories of negligence are inadequate or where it is practicably impossible to prove negligence. W. Pros-ser & W. Keeton, The Law of Torts § 98 (5th ed. 1984). Moreover, strict liability often is a more realistic theory of recovery than that of contract-warranty when a person suffers physical harm from a product that is dangerous if defective. See Yuba.

Despite these several distinctions, the widely recognized rule is that:

“The requirement of showing a defect is one element common to every products liability case, whether it is brought on a theory of negligence, breach of an express or implied warranty, strict tort liability, or a combination of theories.” W. Kimble & R. Lesher, Products Liability § 53 at 69 (1979).

The burden under this rule is upon the plaintiff to demonstrate a defect in fact, i.e., that the product failed. The record in this case does not establish any genuine issue of material fact as to product failure. It is silent with respect to any facts, introduced by McLaughlin or any other party, that indicate negligent manufacture or negligent design resulting in a failure of the tires or that justify an inference from any failure that would support strict liability. This case readily fits within the theory of Buckley v. Bell, 703 P.2d 1089, 1095 (Wyo.1985), in which, citing Baptista v. St. Barnabas Medical Center, 109 N.J.Super. 217, 262 A.2d 902 (1970), aff’d 57 N.J. 167, 270 A.2d 409 (1970), and referring to Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); Montez v. Ford Motor Company, 101 Cal.App.3d 315, 161 Cal.Rptr. 578 (1980); and Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), this court articulated the proposition that “a wrong product is not a defective product for purposes of strict liability.”

In the absence of some evidence to show a defect in these tires, the summary judgment in favor of Michelin on the alleged theories of negligence in manufacture or design and strict liability must be sustained. To the extent that those theories could be asserted against Cobre, they fail for the same reason. It is clear that the trial court was correct in granting summary judgment as to those theories of liability-

We also sustain the summary judgment as to the alleged theories of breach of an express warranty and an implied warranty of merchantability. Section 34-21-230, W.S.1977, articulates the requirements for express warranty. It provides, in pertinent part:

“(a) Express warranties by the seller are created as follows:

“(i) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise;

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Scrutiny of this record discloses neither an affirmation of fact nor a promise .by Michelin to Cobre, Cobre to Bridger, or Michelin to Bridger sufficient to support a factual issue as to the existence of an express warranty as defined in the statute. At the. very most, the record might support an inference that Michelin represented that the tires were good and had been used successfully on prior occasions. These statements fit within the definition found in § 34-21-230(b), W.S.1977, that “a statement, purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” See Terry v. Moore, 448 P.2d 601 (Wyo.1968). The entry of summary judgment on the claim of an express warranty must be sustained.

The implied warranty of merchantability is incorporated in § 34-21-231, W.S. 1977, that provides, in pertinent part:

“(a) Unless excluded or modified (section 2-316 [§ 34-21-233]), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *

“(b) Goods to be merchantable must be at least such as:

“(i) Pass without objection in the trade under the contract description; and

"(ii) In the case of fungible goods, are of fair average quality within the description; and

“(in) Are fit for the ordinary purposes for which such goods are used; and

“(iv) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

“(v) Are adequately contained, packaged, and labeled as the agreement may require; and

“(vi) Conform to the promises or affirmations of fact made on the container or label if any.”

While it has been held in some jurisdictions that proof of a defect is not required in an action premised on express warranty, based upon a rationale that the mere failure of the promised performance is sufficient, 2 American Law Products Liability 3d, §. 19:28, this court has held in Colorado Serum Company v. Arp, 504 P.2d 801 (Wyo.1972), that proof of a defect is essential under both express and implied warranties. This is consistent with the general rule set forth above and, because the record does not establish a defect in these tires, the district court properly granted summary judgment as to the theory of implied warranty of merchantability as well as express warranty.

The case of Valentine v. Ormsbee Exploration Corp., 665 P.2d 452 (Wyo.1983), serves as an appropriate bridge to those theories upon which the court concludes a genuine issue of material fact does exist and that result in reversal. This court said in that case:

“ ‘Proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty. “When machinery ‘malfunctions,’ it obviously lacks fitness regardless of the cause of the malfunction. Under the theory of warranty, the ‘sin’ is the lack of fitness as evidenced by the malfunction itself rather than some specific dereliction by the manufacturer in constructing or designing the machinery.” [Citations.]’ MacDougall v. Ford Motor Company, 214 Pa.Super. 384, 257 A.2d 676, 679 (1969).” Valentine, 665 P.2d at 462.

Valentine was a contract case that applied traditional concepts of an implied warranty of merchantability or an implied warranty of fitness for a particular purpose without invoking tort theories of negligence and strict liability. Valentine establishes that the actual failure of a product serves to demonstrate a breach of implied warranty of fitness for a particular purpose.

In 1 M. Madden, Products Liability, § 5.11 at 160 (2d ed. 1988), the following statement is found:

“The warranty of fitness for a particular purpose may be breached even though the goods sold are not ‘defective’ in the usual sense. Although many of the cases which rest recovery for the buyer on this warranty do in fact deal with products that are for one reason or another ‘defective,’ such a condition is not required. Provided the conditions exist which give rise to the warranty, it may be breached when a product properly made and merchantable is simply the wrong one for the buyer’s particular use.”

The last sentence of this quotation aptly describes this case. While breach of the implied warranty of fitness can be established by proof that the product is defective in fact, with respect to this theory of liability, the product can be one that is defective as a matter of law. The implied warranty of fitness of a product for a particular purpose requires only an error in merchandising.

Section 34-21-232, W.S.1977, is the provision in Wyoming’s Uniform Commercial Code that adopts implied warranty of fitness for a particular purpose, and it provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

The elements of a cause of action under this theory are: (1) knowledge on the part of the seller of the purposes to which the goods will be put; (2) some reason for the seller to know that the buyer is relying on the seller’s skill and judgment; and (3) there must be actual reliance on the part of the buyer on the seller’s skill and judgment. J. White & R. Summers, Uniform Commercial Code § 9-9 at 358 (1980).

In cases involving an implied warranty of fitness, the proof of a “defect” assumes an entirely different character than the proof found under a negligence or strict liability context in which there must be proof of a defect in fact. Under the theory of implied warranty of fitness, if the product malfunctions when it is being used in the manner in which it was intended by the consumer, assuming that the intended use was communicated to the seller, there is a breach of implied warranty of fitness for a particular purpose that does permit recovery on behalf of the injured party. The failure to function satisfactorily coupled with fulfillment of the other statutory requirements of the cause of action found in § 34-21-232, W.S.1977, that is, knowledge on the part of the seller and reliance on the part of the consumer, results in a “defect” as a matter of law sufficient to justify recovery to one who is injured as a result of that malfunction. That defect exists not in the product itself but in the conduct of the seller in furnishing a product that simply was the wrong one for the buyer’s particular use. As McLaughlin correctly points out in his reply brief:

“ ‘Under the [statutory] theory of [implied] warranty [of fitness for a particular purpose], the “sin” is the lack of fitness as evidenced by a malfunction itself rather than some specific dereliction by the manufacturer in constructing or designing the machinery.’ ” Valentine, 665 P.2d at 462.

The material facts in issue then are whether: (1) Bridger communicated to Michelin and Cobre the purpose for which the tires were purchased; (2) Michelin and Cobre knew Bridger was relying on the particular skill and judgment of Michelin or Cobre when purchasing a tire; and (3) the tires, in fact, malfunctioned. Examining the summary judgment materials in the light most favorable to McLaughlin, as we are required to do, there are genuine issues of material fact as to each of those questions. Cobre and Michelin both knew that Bridger intended to use the Michelin steel-belted radial tires on their scrapers. In January of 1983, Cobre’s division manager, Kenneth Moe, went to the Bridger mine to discuss with Jack Erickson, McLaughlin’s supervisor, a change in the type of tire used on scrapers at the mine site. We find the following colloquy in the deposition of Kenneth Moe, relating to a conversation that took place at the Bridger mine between Moe and Erickson:

“Q. Do you remember who first brought up the question of using radial tires at the mine?

“A. Jack [Erickson] indicated that they wanted to try them, that they had run radials on all their other equipment up to this point but had not tried it on the scrapers.

“Q. Did he specifically indicate that he wanted to try the radials on the scrapers as opposed to other types of equipment?

“A. They were already running radials on all the other equipment.

“Q. Did Jack Erickson request a particular brand of radials?

“A. He said radials.

“Q. And he didn’t specify either a brand or a model number; is that correct?

“A. That is correct.

* ⅜ * * * *

“Q. Other than Jack Erickson’s request for the use of radial tires on scrapers, do you remember any other specifics of your conversation with him at that time?

“A. Other than they weren’t satisfied with the performance that the fabric tires were giving at that time, was the only other thing, and that was one of the reasons they wanted to try the radials.”

Concerning knowledge of Bridger’s intended use, Cobre admits in its brief that discussions took place between Cobre and Bridger regarding the use of steel-belted radials on the scraper. Furthermore, Co-bre indicates in its brief that Moe contacted Michelin’s district earth mover salesman, Gary Workman, and relayed to him the information that Cobre had received from Bridger. As to the particular scraper upon which the Michelin tires would be installed, Moe said, in his deposition:

“Q. Did you, or to your knowledge any other employees at Cobre Tire, including but not limited to Larry Farwell, make a determination before the McLaughlin accident as to which 631-D scraper to put the Michelin tires on and which 631-D scraper to put the Bridgestone tires on?

“A. Under its maintenance procedures there, Bridger supplies us with an MR, maintenance request, when a machine is ready for tires. In this case I imagine that this machine [Scraper No. 699] was the one that was ready for the first tires.”

Evidence does exist from which a jury could infer that Cobre and Michelin both knew, by virtue of information communicated from Bridger, the particular use to which these tires would be put.

It also is possible to infer, favorably to McLaughlin, that Bridger relied upon Michelin’s and Cobre’s skill and judgment in selecting the particular tires to use. The evidence shows that Bridger merely indicated it wanted to try steel-belted radials on the scrapers. It did not indicate a brand or model of tires. Bridger relied on the expertise and knowledge of Cobre and Michelin to decide which tires would be appropriate for use on the scraper. It was a joint decision by Cobre and Michelin to provide and install the particular Michelin tires what were on scraper No. 699 when McLaughlin was injured. Bridger Coal, in reliance upon the expertise of Michelin and Cobre, acquiesced in the installation of these tires. For example, Cobre says in its brief:

“ * * * Cobre’s division manager, Kenneth Moe, consulted Gary Workman, the Michelin district earth mover sales manager who was familiar with soil conditions encountered by scrapers at the mine. Workman recommended using Michelin XRDNA** steel belted radials and Moe followed his recommendation.”

Workman testified, in his deposition, that his knowledge of the conditions of the mine site was based on various on-site inspections and also upon inspection of used bias ply tires previously installed on the scrapers for the installation of the Michelin tires.

With respect to malfunction, the record is replete with information tending to demonstrate that the tires, at the very least, functioned in a manner entirely different from other tires used on the scraper. Witnesses for both sides testified as to an increase in the bouncing and vibration to which the scraper was subjected when equipped with the Michelin tires. These witnesses do disagree as to the ultimate effect of the vibrations and bouncing on the scraper, but there is, at least, evidence of a change in the operational characteristics of the scraper with Michelin tires. The occurrence of the accident itself is some evidence that could support an inference by the finder of fact that these tires malfunctioned. We also note the following in the testimony of Dale Bussman, an expert selected by McLaughlin, with respect to whether the tires were fit for the particular purpose intended by Bridger:

“Q. So your opinion, apparently, is not going to be that the tire was defectively designed or manufactured?

“A. That’s correct.

******

“A. Yes, you would have vibration regardless of the type of tire. It’s just that in this 'particular case we had a defective tire that was on this machine and it gave excessive vibration which resulted in a loss of control.

“Q. Are you changing your testimony? You told me you didn’t have an opinion as to the tires being defectively manufactured or designed. Are you now telling me that there’s a defect in the manufacture or design?

“A. No, what I’m saying is that these particular tires were — is was the wrong application for the tire.

“Q. What you're saying is it’s the wrong choice of tire for this application?

“A. Yes.

“Q. But the design itself is not subject to your criticism, it’s just what they did with this tire?

“A. Yes. Now, relative to the question of whether it was a defective manufacture, I mean, maybe — and I don’t know this, and it really doesn’t matter, because we know the tire gave the excessive vibration in this particular case — perhaps it was defectively manufactured, okay, I don’t know that. And I really don’t care. All I know is that the tire gave excessive vibration which resulted in the loss of control.” (emphasis added)

We conclude that this record encompasses evidence with respect to every element of a claim for breach of the implied warranty of fitness for a particular purpose, which structures genuine issues of material fact. In the provisions that are incorporated in Wyoming’s Uniform Commercial Code, particularly in §§ 34-21-232, 34-21-235, and 34-21-294(b), W.S.1977, our legislature adopted a remedy which applies in McLaughlin’s situation. In light of the information found in the summary judgment materials in the record in this case, this remedy clearly fits the facts. There are genuine issues as to these facts, and summary judgment should not have been granted as to this theory of recovery.

We also are satisfied that there do exist genuine issues of material fact with respect to the question of negligent failure to remove the tires. Michelin and Cobre assert, as a preliminary matter, that this theory should not be considered by this court because McLaughlin failed to raise it before the trial court. It is true that this court will not consider questions raised for the first time on appeal, Valentine, 665 P.2d at 462, but scrutiny of this record discloses that McLaughlin presented the theory of negligent failure to remove the tires to the trial court.

Negligence cases usually involve mixed questions of law and fact concerning the existence of a duty, that is the standard of care required of a reasonable person, and proximate cause, and such cases ordinarily are not susceptible to summary adjudication. Kobielusz v. Wilson, 701 P.2d 559 (Wyo.1985) (citing Keller v. Anderson, 554 P.2d 1253 (Wyo.1976)). See also O’Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985). The allegation by McLaughlin that Michelin and Cobre were negligent in failing to remove the tires presents only a simple claim of negligence, as opposed to a products liability claim. The question is whether it was reasonable for Michelin and Cobre to fail to remove the tires in light of the information it had about their unsatisfactory performance.

Under this theory of recovery, it would be material whether Michelin and Cobre knew of McLaughlin’s complaints and Bridger’s dissatisfaction with these tires. The complaints about the poor operational characteristics of the tires spanned a period of twenty-six days, and those complaints could persuade a trier of fact that a reasonable person would have removed the tires before McLaughlin’s injury. That fact finder might also conclude that the duty was violated by the failure of Michelin and Cobre to remove the tires prior to McLaughlin’s injury. McLaughlin certainly could argue that a reasonably prudent person, confronted with complaints such as these, would have removed the tires from the scraper and that the failure, to do so constituted a violation of these defendants’ duty to act as a reasonably prudent person would under the circumstances. A genuine issue of material fact is structured by the record that should have been presented to a jury for determination in this instance. We, therefore, conclude that the district court improperly granted the summary judgment on that theory of negligence, and the case also must be reversed for that reason.

The summary judgment granted by the district court is affirmed with respect to McLaughlin’s theories of recovery founded in negligence in manufacture or design of these tires, strict products liability in tort with respect to these tires, and breach of an express warranty or an implied warranty of merchantability. The failure of McLaughlin to produce evidence of an actual defect prevents recovery under those theories as a matter of law. With respect to the theories of negligence for failing to remove the tires and the implied warranty of fitness for á particular purpose, we do find genuine issues of material fact in the record that justify presentation to a jury. The case is reversed and remanded for further proceedings in accordance with the opinion of the court.

URBIGKIT, J., filed a specially concurring and dissenting opinion.