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Timothy R. Lindsey v. E&E Automotive & Tire

October 1, 2010

TIMOTHY R. LINDSEY, APPELLANT,
v.
E&E AUTOMOTIVE & TIRE SERVICE, INC., AND JAMES S. EGBERT, APPELLEES.



Supreme Court No. S-13609 Superior Court No. 3AN-07-05365 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge.

The opinion of the court was delivered by: Fabe, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.

I. INTRODUCTION

In March 2005 Timothy Lindsey was severely injured when his employer's unattended truck rolled backwards and struck him. An inspection revealed that the cause of the accident was a non-functioning parking brake. Lindsey sued E&E Automotive & Tire Service Inc., the repair shop that had recently serviced the truck, for negligence. E&E had been asked to repair the parking brake but was unable to do so. E&E informed Lindsey's employer that it had not repaired the parking brake and that the parking brake still did not work. The superior court granted summary judgment in E&E's favor, concluding that E&E had fulfilled its duty to warn Lindsey's employer that the requested repair had not been made and that a defect still existed with the parking brake.

Lindsey appeals.

In general, a mechanic who undertakes to inspect or repair a vehicle must exercise reasonable care and will be held liable for harm resulting from the failure to exercise such care. Three more specific duties to exercise reasonable care are implicated in this case: the duty (1) not to increase the risk of harm when repairing a vehicle; (2) not to cause another to rely on a vehicle having been rendered safe when it has not; and (3) to warn a vehicle owner of any dangerous unrepaired conditions of which the mechanic is or should be aware. Because E&E fulfilled these duties when, after making no adjustments to the parking brake, it informed Lindsey's employer that it had not fixed the parking brake and that the parking brake still did not work, we affirm the superior court's grant of summary judgment in favor of E&E and its owner, James Egbert.

II. FACTS AND PROCEEDINGS

A. Facts

Wesgro Paint & Drywall Supply, Inc. owned a 1996 Ford F-700 truck. Hal Docherty, the manager at Wesgro responsible for maintaining the company vehicles, had the truck towed to E&E Automotive on February 8, 2005 in a "no start" condition for repairs to its starting mechanism and brakes.*fn1

Timothy Kramp, a mechanic at E&E, was responsible for repairing the truck. Kramp did not have any experience working with large trucks and testified that his contact with the truck involved in this lawsuit was "probably the first time [he had] worked on a larger vehicle." Kramp did not have knowledge about the parking brake system on the truck and stated that he was "completely unfamiliar with these parts." He did not attempt to learn about the parking brake system or to acquire a service manual. E&E had worked on large trucks in the past, but the truck involved in this lawsuit was the largest truck that E&E had serviced while Kramp was employed there.

Kramp briefly examined the parking brake system and noticed that the hydraulic valve at the front of the truck that attached to the parking brake at the rear of the truck was visibly leaking fluid. He attempted unsuccessfully to find a replacement hydraulic valve. Because he could not locate a replacement valve, Kramp performed no further diagnostic work on the parking brake and told Docherty that the truck should be taken to a hydraulic shop to fabricate the part and complete repairs. Kramp testified that replacing the hydraulic valve was the limit of E&E's capability with regard to repairing the truck's parking brake and that E&E generally did not have the capability to work on the rear of the truck where the parking brake was located. While the truck was at E&E, Kramp and another mechanic performed repairs on other parts of the truck that were more similar to those found on small vehicles, including the front brakes and the lock cylinder on the steering column.

Kramp maintains that prior to releasing the truck, he told Wesgro employees that E&E did not repair the parking brake and that the parking brake did not work. Kramp stated in an affidavit that he told Wesgro employees both over the phone and when the truck was picked up that the parking brake would not operate without repair and that the truck was not safe and should not be used until the parking brake was repaired. And in a sworn statement provided to the Alaska Division of Occupational Safety and Health several days after the accident, Docherty confirmed that "[t]he shop [E&E] told us that they could not repair the emergency brake and sent the truck back to us unrepaired." At his deposition, Docherty had difficulty recalling who told him this, but he did not deny ...


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