Brejcha

Plaintiff Don E. Brejcha (plaintiff) appeals from a summary judgment in favor of defendant/respondent David Weisz Company (hereinafter defendant and/or Weisz). Defendant Weisz had sold a metal rolling machine to plaintiff’s employer at an auction, upon which plaintiff allegedly sustained injuries by reason of the lack of a point of operation safety guard or an emergency cut-off switch. We affirm.

Background

On January 4, 1980, plaintiff filed a complaint for personal injuries naming as defendants Wilson Machinery, Inc., a corporation, David Weisz Company (respondent herein), Star Metal Fabricators, and various named fictitious defendants. The complaint alleged causes of action for negligence, breach of warranty, and strict liability in tort seeking damages for loss of fingers while operating a rolling machine.

On May 9, 1980, defendant Weisz filed its answer to the complaint generally and specifically denying the allegations therein under the provisions of Code of Civil Procedure section 431.30, subdivision (d), and alleging the affirmative defenses of negligence and assumption of risk.

On June 3, 1983, defendant Weisz filed a Motion for Summary Judgment pursuant to…