*1 580' testimony, after The doctor’s finder. undermined testimony, so

his initial just contradic- it became not the latter but, no evidence

tory probatively,

at all. defend- circumstances,

Under such to a law, entitled were

ants, of the

directed verdict ma- affirmed. should be therefore, I, dis- jority feel otherwise

sent. BROCK,

Nancy Administratrix S. Deceased, Terry Frank Estate Plaintiff-Appellant, Co., Sears, Roebuck &

Annie GOODMAN corporation, Defend a New York ants-Appellees. Appeals of Mexico. New Court McCary, Keleher, Dennis M. Michael L. 11, 1972. McLeod, Albuquerque, Keleher & Certiorari Granted March plaintiff-appellant. Rodey, Dickason, John,

Robert M. St. Sloan, Robb, Akin Albuquerque, & for de- fendants-appellees.

OPINION SUTIN, Judge. appeal

This is an from suit granted defendants in a ment wrongful from one accident. reverse. defendant Annie Goodman appeal. to this following: supports

The record August hus- Tom Annie, 6-ply purchased four band of new tires from by Armstrong. put old Goodman’s in- tires mounted and tubes the new *2 58X stalled the tires on record, Goodman’s 1969 Ford Based including an-. pickup, half-ton and then balanced the new interrogatories, swers to depositions August 5, 1969, tires. mentioned, decedent was persons, affidavits of two riding pickup in the Annie Good- summáry awarded defendants : man. Mrs. judgment. Goodman drove the vehicle so to cause it to pavement as veer off the clespr We wish to make it once approximately feet, again defendants, the burden on rests which time it veered 47 feet across plaintiffs, not the gen to establish that rió pavement to the left side of the road and uine issue of material fact exists for trial pavement feet, was off the for about 55 and defendants are entitled to and pavement when she turned onto the defendants fail to shoulder, feet, from the left traveled burden, meet er overturning once. The left front tire Kelly Montoya, roneous. failed causing the tire to disengage from Only when result, the rim. As a the rim acted aas the defendants fulfill their burden pivot or fulcrum which caused the mate-, prima make a facie that no overturn, in the of death exists, rial fact issue does it then become decedent. plaintiffs of to show there is a present. Shop Sanchez v. alleged, Brock (1) that the tire failure Foods, Rite 72 (Ct. resulted from the defective condition of App.1971). accident; tire at of (2) the time that negligently inspect Sears failed to or

detect plead defective condition read the of the tire We have interroga which failed at mounting ings, the time of the answers to or, alternative, tories, tire find no evi that and affidavits. Sears n negligently damaged process in tire dence that when the was tire; of by Armstrong good, sound (3) that was a defendant defects; by: sold express implied breached free when it was and of that war- carefully inspected for merchantability; ranties defects (4) was that Sears it fail, in it to was which would cause a defective or conditions condition which showing' created an injury unreasonable and none were found. risk of and the', tire comes from creating liability defect” in the strict of “no Arm- Goodmans; in their strong; (5) Both testified Armstrong that breached ex- two press nothing to indi implied depositions and warranties merchanta- bility; the tire between negligent anything wrong and that the with (6) cate acts the; and mounted Armstrong and concurred. the time the tires the accident. Mr. Goodman also'1 The defendants answered in denial with a cut or- had not noticed several affirmative defenses. scrape on the accident. the tires defendants filed motion for sum- prima foregoing facie show-: is hot mary judgment ground Certainly issue- ing of no defect. ositions of Annie Tom Good- failed--tó¡ Defendants remains. man, Leopoldo Gonzales, the Sears showing an absence' their burden of meet tires, employee who mounted the do not The trial factual issue. court- of material alleged nn claims summary judgment'. (cid:127): erred produce any did not Brock evidence plaintiff’s,, course, it will show tend to Of would defendants’, come forward burden to any genuine issue as to a material therefrom and inferences evidence the absence of such sub-, raise a factual sufficient defendants are entitled to to do jury. If she fails ment. mission proximately caused failure accident.” is directed complain if verdict cannot she pages more than two Nowhere against her. expert opine does the or even Reversed. *3 suggest, by that the failure was a caused It is so ordered. tire. defect in the The Rule 56 21- [§ WOOD, J., concurs. C. N.M.S.A.1953, Repl.Vol. 1-1(56), 40)] is unambiguous. Paragraph (c) clear and COWAN, J., dissents. judgment: states that a COWAN, Judge (dissenting). “ * * * shall be rendered forthwith predi- is action cause of plaintiff’s The the pleadings, if to answers a totally upon defect the existence cated file, interrogatories, and admissions on there is state that The in a tire. any, affidavits, together with the if showing of no defect” “prima facie a not any that there is no issue as to “certainly of fact a and that moving party material the fact their They point to none and remains.” to is entitled a by unsupported the record. is statement sparse for a they out are too The facts set Paragraph (e) states: neces- therefore must appraisal and fair supplemented. The em- sarily be “. . . a for summa- When motion the tires described installed the ployee who ry supported as made and is length. procedure He testi- rule, party an provided adverse tires, about feeling inside fied about allegations may rest not mere bal- on a machine and about putting them pleading, his re- denials of his but they ancing stated that them. He sponse, by or as otherwise affidavits more out and testified inside and checked rule, provided spe- in this must set forth if there was break than once genu- is cific pickup was tire, The would show”. “it re- ine issue does for with no approximately 300 miles summary judgment, spond, appropri- if accident. At the difficulty ate, against him.” shall entered [Em- occurrence, driver, Mrs. phasis added] control of the vehicle while lost reasoning the rule and The behind light cigarette. attempting to principles are Surkin guiding highway, 380 feet off travelled some Charteris, 1952), (5th F.2d Cir. v. first, It side and then the other. on one court stated: where the highway twice and onto moved back governing principles general it came back “The no tire failure until there was summary judgment are well Both Mr. motion road the second time. onto the * * * authoriz- deposition Rule established. and ’Mrs. Goodman pleadings, where the knowledge its use they or evidence es had no file, together ositions, and admissions had no a defect in affidavits, no show that there is allega- tending to information material genuine issue as of a defective tire. tions party entitled to a moving is an ex- produced and filed the affidavit pur- shortly of law. Its judgment pert had examined who litigants off from their to cut pose is not con- after the accident. The “* by jury. On t af- to trial tained the statement I][ separate test it is tire failed as the opinion that fiant’s substantial, to de- highway from the mere turned onto the formal from are any issues termine zvhat highway and that left shoulder of if present jury try, and to enable the court to dispose expeditiozisly cas- B. Cantrell, R. CANTRELL and June es giving judgment on the law where Plaintiffs-Appellants, the material dispute. facts are not sufficiency [Citations omitted] al., D. John DENDAHL et Defendants- complaint Appellees. does not control al- though the burden is par- on the moving ty clearly to demonstrate that there is no Appeals Court of of New Mexico. fact, issue of opposing sufficiently disclose zvhat the evi- dence will he to show that *4 genuine issue to be tried. * [Emphasis added]

The record before the trial court and

now before us shows genuine there is “no

issue as to major- material fact”. The

ity disregard both the substance of the purpose

record and the of Rule 56.

In the face of the record on which the

motion for summary judgment based, was incumbent plaintiff against summary

whom the judgment was directed specific “set forth facts showing that

there is a issue for trial.” This

she did not do. opposite “If the party has

sustained his burden to establish the ab- issue,

sence of a fact but there is available

additional proof to the is the moved ap- prise the silent, court. He cannot stand

but must show presence.’’ its Forbis, Cervantes (1964). P.2d 210 response specific Manpower, Inc., Green v.

of Albuquerque, 474 P.2d 80

Tacit concession

absence of a factual appears issue paragraph

last of their where

state will

have to come forward “with evidence and

inferences therefrom sufficient to raise a ”. To avoid the already she should

have done so. Convinced trial

court did not err in

judgment, I dissent.