Kinser v. Gehl Co., 98-3152

Decision Date27 July 1999
Docket NumberNo. 98-3152,98-3152
Citation184 F.3d 1259
Parties(10th Cir. 1999) MARY KINSER, individually and as heir at law and personal representative of the estate of Tim Kinser, deceased, Plaintiff-Appellee, v. GEHL COMPANY, Defendant-Appellant
CourtU.S. Court of Appeals — Tenth Circuit

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 96-2361-EEO)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] E. Wayne Taff, of Sherman, Taff & Bangert, P.C., Kansas City, Missouri (Alan Epstein, of Hall & Evans, Denver, Colorado, and Steven F. Coronado, of Sherman Taff & Bangert, P.C., Kansas City, Missouri, with him on the brief), for the appellant.

Daniel F. Church, of McAnany, Van Cleave & Phillips, P.A., Lenexa, Kansas (Byron A. Bowles, of McAnany, Van Cleave & Phillips, P.A., Lenexa, Kansas, and Kenneth J. Eland, of Sloan & Eland, Hoxie, Kansas, with him on the brief), for the appellee.

Before KELLY, McWILLIAMS, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Gehl Company appeals from the district court's denial of its motion for judgment as a matter of law or, in the alternative, for new trial following a jury verdict in favor of plaintiff in this product liability lawsuit. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I.

Prior to his death, Tim Kinser operated a farm in Jennings, Kansas. On August 17, 1994, while baling alfalfa with his Gehl model 1870 big round baler, Kinser became entangled up to his waist in the compression rollers of the baler's feed intake unit. Farmhand Jeff Rhoades first arrived on the scene and, noting the tractor's engine was on and the power take-off (PTO) device, which transmits power from the tractor to the baler, was still engaged, turned off all machinery and attempted to assist Kinser in extricating himself from the baler. Unable to provide much help on his own, Rhoades obtained the assistance of fellow farmer George Gassman and the two used bumper jacks and an acetylene torch to free Kinser. Although an ambulance immediately transported Kinser to the Decatur County Hospital, he lost consciousness during the ride and was pronounced dead within thirty minutes of his arrival at the hospital.

In August 1996, plaintiff Mary Kinser,1 on behalf of herself and her decedent husband's estate, filed the instant product liability diversity action against Gehl, alleging (1) strict liability for manufacturing and selling an unreasonably dangerous product, (2) negligent design and manufacture, and (3) breach of implied warranty by introducing into the stream of commerce an unreasonably dangerous product that was not fit for its intended purpose.

II.

Much of the trial revolved around the design evolution of big round balers. There are two types of such balers on the market: open-throat models and closed-throat models. An open-throat baler utilizes spring-loaded tines to pick up crops off the ground and feeds the material directly into a rotating bale chamber. A closed-throat baler, which was the design of the Gehl 1870 baler used by Kinser, employs a similar pick-up system but, before feeding the crops into the bale chamber, first passes them through a series of compression rollers. These compression rollers create a higher density bale by packing down the initial core of the bale. Once the bale in the chamber has reached the desired size, an automatic tying system is triggered. This mechanism, located on the front of the baler just above the feed intake area, activates an arm that swings twine across the bale in the chamber and cuts the twine when the bale is fully wrapped.

Big round balers were invented in the early 1970s, and Gehl began manufacturing the machines in 1974. In the first decade of the big round baler's existence, numerous manufacturers, including Gehl, built both open-throat and closed-throat models. By the mid-1980s, however, every American manufacturer other than Gehl, for reasons unspecified in the record, had shifted its production exclusively to open-throat balers. Since that time, Gehl has been the sole domestic manufacturer of closed-throat balers.

Gehl's closed-throat balers have undergone multiple design changes from the time they first were manufactured in 1974. The model 1870, which was designed in 1989 and initially sold the following year, is a third-generation machine. (Kinser's specific baler was manufactured on January 9, 1991, and was purchased by him from a licensed dealer on June 18, 1991.) Notwithstanding the general design evolution, numerous former and current Gehl executives observed that the feed intake area of the baler, with which we are concerned here, has remained essentially the same in all models.

Like all balers discussed in this case, the model 1870 is powered by a PTO and is operative only if the tractor is on, functioning at the same revolutions per minute as the tractor's engine. The only shut-off mechanism for the PTO and, hence, the baler, is located next to the driver's seat on the tractor.

Because of the many moving parts in the 1870 baler's feed intake and assembly areas, Gehl has issued an array of warnings in its operator's manual and posted a series of warning decals on the machine itself detailing the proper handling of the baler. These warnings direct users to follow a "mandatory safety shutdown procedure" before unclogging, cleaning, adjusting, lubricating or servicing the unit. Under this procedure, users must (1) disengage the PTO, (2) shut off the tractor engine and remove the starter key, (3) wait for all movement to stop, and (4) remove all power connections, including the PTO device, from the tractor. It is undisputed that, had Kinser adhered to these instructions, he would not have been injured.

Despite this mandatory shutdown procedure, numerous farmers testified the nature of their work makes it impracticable to abide by the instructions. Farmers frequently work alone and often have only a small window of time in which to harvest crops at ideal climatic conditions. Several farmers noted that it is common for them to get off of their tractor with the PTO engaged to, inter alia, assess feeding problems and general mechanical malfunctions in the feed intake unit, and adjust the twine in the automatic tying mechanism. With respect to the tying mechanism, the twine often breaks or the catch fails to secure one or both of the twine strings. As a result, the twine eludes the cutoff device, leaving twine dangling in front of the baler. A farmer is then forced to sit or lie on the ground directly in front of the baler's pick-up assembly area and rethread the twine. Such a position puts the operator under the PTO tongue and within several inches of the pick-up tines.

As there were no witnesses to the injury, it is unclear exactly how Kinser entangled himself in his baler's pick-up assembly area. Several individuals speculated Kinser was either attempting to unplug2 the baler or fix the automatic tying mechanism. Plaintiff's expert, Dr. Jerry Purswell, theorized that, as either scenario would have put Kinser within inches of the pick-up tines, Kinser likely lost his footing and was pulled into the machine. Plaintiff's other expert, William Kennedy, echoed this testimony.

Plaintiff presented extensive evidence on the purported defects in the 1870 baler's design. There is no dispute the baler's feed intake area and compression roller design represent potential hazards. In fact, the Farm and Industrial Equipment Institute (FIEI), a trade organization comprised of farm and industrial equipment manufacturers, discussed these hazards at a series of meetings in 1977 and 1978. The FIEI's Big Round Baler Manufacturers' Safety Committee, of which former Gehl vice-president of engineering Donald Burrough was a member, identified entanglement in the feed intake/assembly area as a particular hazard that could lead to the loss of life and limbs and suggested such countermeasures as additional shielding or the all-out elimination of compression rollers. During its six-year existence, the committee also discussed the operational difficulties and accident experiences of all big round baler manufacturers.

Dr. Purswell opined the 1870 baler was defectively designed. He claimed the FIEI's extensive analysis of feed entanglement injuries should have alerted Gehl to the likelihood of Kinser's injury. Purswell further observed the mere posting of warnings is ordinarily insufficient to make a product safe. He noted that under a proper "design hierarchy," warnings constitute an adequate response to a hazard only if the manufacturer is unable to either eliminate the hazard altogether or erect a guard to shield the hazard. Purswell suggested a number of ameliorative possibilities that could have greatly reduced the severity of Kinser's injuries, including the installation of an automatic shut-off mechanism (in the form of a lanyard or cable) on the front of the baler, movement of the pick-up tines further back along the bottom of the baler, movement of the hay holddown bar (i.e., wind guard) and/or elongation of the PTO tongue to minimize operators' potential proximity to the feed intake area, and construction of a guard in front of the pick-up tines. Purswell highlighted the feasibility of the guarding proposal by noting that John Deere previously had adopted similar modifications to its model 510 closed-throat baler.

Elaborating on Purswell's testimony, Kennedy referenced a guarding device on Vermeer's model 504-C closed-throat baler, maintaining such a guard easily could have been adapted to the Gehl 1870 baler and could have prevented Kinser's death. Kennedy further underscored the importance of "human factors" in product safety design (how operators typically use the machinery). Based on his own discussions with farmers and review of FIEI documents, Kennedy insisted a prudent manufacturer would know farmers frequently step off their...

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