Delaney v. Deere and Co., No. 82,630.

• Decision Date: 10 March 2000
• Docket Number: No. 82,630.
• Citation: 999 P.2d 930,268 Kan. 769
• Parties: GENE DELANEY, Appellant, v. DEERE AND COMPANY and JOHN DEERE LIMITED, Appellees.
• Court: Kansas Supreme Court

268 Kan. 769

999 P.2d 930

GENE DELANEY, Appellant, v. DEERE AND COMPANY and JOHN DEERE LIMITED, Appellees.

No. 82,630.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

John D. Gehlhausen, of John Gehlhausen, P.C., of Lamar, Colorado, argued the cause, and Eugene B. Ralston, of Ralston & Pope. L.L.P., of Topeka, was with him on the briefs for appellant.

Larry A. Withers, of Kahrs, Nelson, Fanning, Hite & Kellogg L.L.P., of Wichita, argued the cause, and Alan R. Pfaff, Donald N. Peterson, and Jerry D. Hawkins, of the same firm, were with him on the briefs for appellee.

William J. Pauzauskie, of Oyler & Pauzauskie, of Topeka, was on the brief for amicus curiae Kansas Trial Lawyers Association.

The opinion of the court was delivered by

DAVIS, J.:

The United States Court of Appeals for the Tenth Circuit certifies two questions to this court in connection with a products liability lawsuit filed by Gene Delaney against Deere and Company and John Deere Limited (Deere). Delaney sued Deere for injuries he received when a large round hay bale fell from a homemade bale fork attached to a Deere front-end loader that Delaney was operating, crushing him. The district court granted summary judgment in favor of Deere. Delaney appealed and on its own motion, the Tenth Circuit Court of Appeals certified two questions to this court concerning the manufacturer's duty to warn of obvious dangers and the legal effect of an adequate warning.

Certified Questions:

1. Does K.S.A. 60-3305(c) apply to a manufacturer's duty to warn or protect against hazards on a multiple use product, or only to the duty to warn, as implied by Siruta?

2. Does Kansas follow the portion of Comment j of the Restatement (Second) of Torts § 402A, which provides that a product bearing an adequate warning is not in defective condition, or instead, would Kansas now adopt Comment 1 [of the Restatement (Third) of Torts § 2], which provides that an adequate warning does not foreclose a finding that a product is defectively designed?

The Certification of State Law Question Order from the Tenth Circuit is set forth in full:

"Plaintiff-appellant Gene Delaney appeals the district court's grant of summary judgment to defendants-appellees Deere and Company and John Deere Limited (`Deere'). The district court dismissed Mr. Delaney's product liability claims on the basis that Kan. Stat. Ann. § 60-3305(c) (1994), does not require a manufacturer to either warn or protect against hazards that are open and obvious, and that Restatement (Second) of Torts § 402A comment j establishes as a matter of law that an adequate warning precludes a finding that a product is in defective condition. For the reasons stated herein, we certify the following questions to the Supreme Court of Kansas and retain appellate jurisdiction:

"Does Kan. Stat. Ann. § 60-3305(c) apply to a manufacturer's duty to warn or protect against hazards on a multiple use product, or only to the duty to warn, as implied by Siruta?

"Does Kansas follow the portion of comment j of the Restatement (Second) of Torts § 402A, which provides that a product bearing an adequate warning is not in defective condition, or instead, would Kansas now adopt comment 1, which provides that an adequate warning does not foreclose a finding that a product is defectively designed?

"Background

"Mr. Delaney seeks recovery of damages for personal injuries he sustained when a large hay bale fell on him while he was operating a tractor with a frontend loader designed and manufactured by Deere. Mr. Delaney claims the design of the tractor/loader was defective and unreasonably dangerous and was not accompanied by adequate warnings.

"Mr. Delaney began using the tractor at issue in 1971 and purchased it in 1978 for use in his oil field business. He purchased the loader at issue in 1979 for the same use. The loader has the following warning, which he read and understood at the time of purchase:

`WARNING

`To Prevent Bodily Injury

1. Do not handle round bales with loader unless special John Deere round bale clamp is installed. Without clamp, bale can fall on operator when loader is raised.'

"At the time, Mr. Delaney was not in a business involving handling round bales. He does not remember re-reading the warning in 1990 when he returned to farming. Beginning in 1990, he sometimes moved round bales using the frontend loader with homemade bale forks nearly identical to those sold by Deere dealers. In doing so, he did not use the bale clamp mentioned in the warning, but instead lifted the bales a foot and a half off the ground with the loader. Despite the warning, Mr. Delaney alleges that this was a known and recognized farming practice.

"On the day of the accident, Mr. Delaney was moving bales using the bale fork on the front-end loader. As he drove the tractor in reverse, looking backward over his shoulder, one of the tractor's tires hit a stone post. The loader then rose in the air from its low position, and the hay bale fell on him. Mr. Delaney asserts that, at the time of the accident, his hand was on a different control lever than that used to raise the loader. He remembers this because the lever he used did not have a knob on it as did the levers for the loader. Thus, he believes that he did not accidentally cause the loader to rise.

"Mr. Delaney's expert, John Sevart, testified in his deposition that the loader could not have risen by itself without Mr. Delaney activating the control lever. However, Mr. Sevart submitted a supplemental report on May 14, 1997, after the deadline to file expert reports, which contradicted his deposition testimony. He wrote this report after he learned that, unknown to Mr. Delaney, the loader on Mr. Delaney's tractor had risen on its own on two prior occasions. Kenneth Rupp and Frank Smith revealed this information in their depositions on April 9, 1997. Deere filed its summary judgment motion on June 27, 1997.

"After large round bales were introduced in 1972, Deere designed and marketed special equipment to eliminate the risk of injury from bale drops or rolldowns. This equipment included the bale clamp described in the warning, as well as a bale fork and a bale hugger. Because the tractor and loader at issue are multiple use products and are used for much more than hauling large round bales, Deere did not make such equipment a standard attachment to its loaders.

"Discussion

"A.

"Mr. Delaney filed suit against Deere pursuant to the Kansas Product Liability Act, Kan. Stat. Ann. §§ 60-3301 to -3307 (1994), alleging claims of strict liability and negligence. Kansas recognizes three ways in which a product can be defective: (1) a flaw is present in the product at the time it is sold; (2) the producer or assembler of the product fails to adequately warn of a risk or hazard related to the way the product was designed; or (3) the product, although perfectly manufactured, contains a defect that makes it unsafe.

"Savina v. Sterling Drug, Inc., 795 P.2d 915, 923 (Kan. 1990). The district court held that, under Kan. Stat. Ann. § 60-3305(c), a manufacturer has no duty to protect against patent, open, or obvious risks. Section 60-3305 provides:

`In any product liability claim any duty on the part of the manufacturer or seller of the product to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product, and any duty to have properly instructed in the use of such product shall not extend: (a) To warnings, protecting against or instructing with regard to those safeguards, precautions and actions which a reasonable user or consumer of the product, with the training, experience, education and any special knowledge the user or consumer did, should or was required to possess, could and should have taken for such user or consumer or others, under all the facts and circumstances;

`(b) to situations where the safeguards, precautions and actions would or should have been taken by a reasonable user or consumer of the product similarly situated exercising reasonable care, caution and procedure; or

`(c) to warnings, protecting against or instructing with regard to dangers, hazards or risks which are patent, open or obvious and which should have been realized by a reasonable user or consumer of the product.'

"Kansas has adopted the consumer expectations test of Restatement (Second) of Torts § 402A comment i as the standard for design defects. See Barnes v. Vega Indus., Inc., 676 P.2d 761, 762 (Kan. 1984). A product is `unreasonably dangerous' only if it is `dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.' Restatement (Second) of Torts § 402A cmt. i. Some courts applying the consumer expectations test have held that, if a product user actually knew or should have known of an open or obvious danger, the product itself is not defective. See, e.g. Austin v. Clark Equipment Co., 48 F. 3d 833, 836 (4th Cir. 1995) (applying Virginia law). Other jurisdictions which have adopted the consumer expectation test have rejected the `open and obvious danger' rule as an absolute exception to strict products liability in a defective design case. See Lockley v. Deere & Co., 933 F.2d 1378 (8th Cir. 1991) (applying Arkansas law); Restatement (Third) of Torts § 2, Reporters' Note to § 2, cmt. d, part VI.C.

"The Kansas Supreme Court rejected the open and obvious danger rule in Siruta v. Hesston Corp., 659 P.2d 799, 806 (Kan. 1983). Siruta involved a plaintiff who was injured by a hay baler and sued under a strict liability theory of defective design. The defendant maintained that the baler was not defective as a matter of law because the danger was open and obvious. The court disagreed: `Simply because the hazard on a piece of equipment is open and obvious does not prevent it from being dangerous to the operator or consumer. The fact that the danger is patent and obvious may be an important factor in determining whether plaintiff's fault

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