Dubas v. Clark Equip. Co.

Decision Date31 March 2021
Docket Number8:20-CV-465
Citation532 F.Supp.3d 819
Parties Rick DUBAS and Erin Dubas, Plaintiffs, v. CLARK EQUIPMENT COMPANY d/b/a Bobcat Company, Defendant.
CourtU.S. District Court — District of Nebraska

Ben J. Whitman, Pro Hac Vice, Clark, Fountain Law Firm, West Palm Beach, FL, Benjamin C. Fields, Pro Hac Vice, Fields Law Firm, Kansas City, MO, Christopher P. Welsh, Welsh, Welsh Law Firm, Omaha, NE, for Plaintiffs.

James C. Morrow, Morrow, Willnauer Law Firm, Kansas City, MO, John E. Tyrrell, Pro Hac Vice, Ricci, Tyrrell Law Firm, Philadelphia, PA, Julie A. Jorgensen, Morrow, Willnauer Law Firm, Omaha, NE, for Defendant.


Brian C. Buescher, United States District Judge This case comes before the Court on Defendant's partial Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). The Court finds that (1) Plaintiffs have successfully stated a claim for strict products liability maintained by a bystander; (2) Plaintiffs have failed to state a claim that Defendant had a post-sale duty to warn, surveil, recall, and retrofit the product it manufactured; and (3) Plaintiffs have failed to state a claim for punitive damages. Therefore, the Court denies in part and grants in part Defendant's Motion to Dismiss.


Plaintiffs Rick Dubas and Erin Dubas are husband and wife residing in Grand Island, Nebraska. Filing 1 at 1. Defendant Clark Equipment Company d/b/a Bobcat Company ("Clark Equipment") is a Delaware corporation with its principal place of business in West Fargo, North Dakota, properly registered to do business in the state of Nebraska. Filing 1 at 1. On August 30, 2019, Rick Dubas was cleaning cattle pens at the Nebraska State Fair using a gas-powered, backpack-style leaf blower when Kyle Sorenson, who was operating a Bobcat skid-steer loader in reverse, drove over Rick Dubas's left leg. Filing 1 at 3-4. Rick Dubas suffered severe crushing injuries to the bones and tissue of his left leg, blood loss, and infection, which led to surgeries, physical therapy, and numerous other damages. Filing 1 at 5.

The Dubases commenced this action against Clark Equipment, the designer and manufacturer of the skid-steer loader that was driven over Rick Dubas's leg, alleging strict products liability and negligence based on the lack of a rear-view camera system on the skid loader. Filing 1 at 4. Clark Equipment filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Filing 16. It moves to dismiss the strict-products-liability claim in its entirety because it argues that injury to a non-user bystander is not a recognized cause of action in Nebraska. Filing 17 at 2. Clark Equipment also moves to dismiss the parts of both the strict-products-liability and negligent-liability claims in which the Dubases allege a post-sale duty to warn, surveil, recall, or retrofit the loader, which Clark Equipment also alleges is not a recognized cause of action in Nebraska. Filing 17 at 7-8. Lastly, Clark Equipment moves to dismiss the Dubases' prayer for punitive damages under North Dakota law, arguing that Nebraska law, not North Dakota law, applies to this claim and bars any claim for punitive damages as unconstitutional. Filing 17 at 2.

A. Standard of Review

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am. , 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Barton v. Taber , 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ). " ‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,’ do not suffice." Zink v. Lombardi , 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

In analyzing a motion to dismiss, the Court must "accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, but [is] not bound to accept as true [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements’ or legal conclusions couched as factual allegations." McDonough v. Anoka Cnty. , 799 F.3d 931, 945 (8th Cir. 2015) (citations omitted) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "When considering a Rule 12(b)(6) motion, the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings." Ashford v. Douglas Cnty. , 880 F.3d 990, 992 (8th Cir. 2018) (quoting Smithrud v. City of St. Paul , 746 F.3d 391, 395 (8th Cir. 2014) ).

B. Consideration of Extrinsic Evidence

The Dubases ask the Court to consider Exhibit A which was attached to their Brief in Opposition to Clark Equipment's Rule 12(b)(6) Motion to Dismiss. Filing 20-1. Exhibit A is an affidavit by Shawn Warkenthien, an employee of Clark Equipment, dated July 8, 2020, which was filed in Moreno v. Clark Equipment Company d/b/a Bobcat , 15th Circuit for Palm Beach County, Florida, Case No. 50-2019-CA-013883. Warkenthien details Clark Equipment's internal discussions regarding whether to include rear-view cameras on their skid loaders. Filing 20-1 at 2-6.

This Court will not consider Exhibit A in deciding the present motion. Federal Rule of Civil Procedure 12(d) provides that when matters outside the pleadings are presented in relation to a motion under Rule 12(b)(6) and not excluded by the court, the motion shall be treated as one for summary judgment. Hamm v. Rhone-Poulenc Rorer Pharm., Inc. , 187 F.3d 941, 948 (8th Cir. 1999) (quoting Gibb v. Scott , 958 F.2d 814, 816 (8th Cir. 1992) ). The Eighth Circuit Court of Appeals has interpreted "matters outside the pleadings" to include any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings. Id. There are three instances in which courts may consider matters outside the pleadings: (1) materials that are part of the public record; (2) materials that do not contradict the complaint, and; (3) materials that are necessarily embraced by the pleadings. Smithrud , 746 F.3d at 395. Exhibit A does not fall into any of these categories and the Court will therefore not consider it in relation to the present motion.

Furthermore, the Dubases appear to have proffered the exhibit as evidence to support their argument that bystanders can assert strict products liabilities claims because they are intended users "within the contemplation of the manufacturer in terms of the product's targeted purpose and audience," which is an old standard used by Pennsylvania Courts prior to Tincher v. Omega Flex, Inc. , 628 Pa. 296, 104 A.3d 328 (2014). Filing 20 at 4. This exhibit is therefore not relevant to the Court's application of Nebraska law to the issues at hand. Accordingly, the Court excludes Exhibit A and does not consider it for purposes of the Rule 12(b)(6) Motion to Dismiss.

C. Strict Products Liability

Clark Equipment moves to dismiss the Dubases' claim for strict products liability, asserting that Nebraska law does not recognize strict-liability claims brought by bystanders who are not "users" or "consumers" of the product. Filing 17 at 7. The Court finds such a claim is cognizable under Nebraska law.

The Nebraska Supreme Court has not specifically addressed the issue of whether a bystander can maintain a strict-products-liability claim. "In determining the law of the State of Nebraska, [the Court] is bound by the decisions of the Nebraska Supreme Court." Anderson v. Nissan Motor Co., Ltd. , 139 F.3d 599, 601 (8th Cir. 1998) (quoting Farr v. Farm Bureau Ins. Co. of Neb. , 61 F.3d 677, 679 (8th Cir. 1995) ). "If the Nebraska Supreme Court has not addressed the issue before [the Court], [it] must determine what the Supreme Court would probably hold were it to decide the issue." Id. (citing Farr , 61 F.3d at 679 ). "In making this determination, [the Court] may consider relevant state precedent, analogous decisions, considered dicta, scholarly works and any other reliable data." Id. at 601-02 (quoting Farr , 61 F.3d at 679 ). After a review of Nebraska's current products-liability law, this Court finds that the Nebraska Supreme Court would likely permit claims of strict products liability brought by bystanders.

1. Review of Nebraska's Products Liability Law

The Nebraska Supreme Court has generally adopted the Restatement (Second) of Torts § 402A (1965) approach to strict-products-liability cases. See Kohler v. Ford Motor Co. , 187 Neb. 428, 435-36, 191 N.W.2d 601, 606–07 (1971) (favorably citing the Restatement (Second) in adopting strict tort liability); see also Sherrill v. Royal Indus., Inc. , 526 F.2d 507, 511 (8th Cir. 1975) ("[T]he Nebraska Supreme Court has adopted in substance section 402A of the Restatement (Second) of Torts."). Section 402A(1) provides, in relevant part, "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer , or to his property ...." Restatement (Second) of Torts § 402A (emphasis added). Clark Equipment relies on this "user or consumer" language to suggest that bystanders should not be permitted to maintain strict-products-liability actions in Nebraska. Filing 17 at 7.

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