ENFIELD BY AND THROUGH ENFIELD v. Pitman Mfg.
| Decision Date | 30 April 1996 |
| Docket Number | No. 94-1423-JTM.,94-1423-JTM. |
| Citation | 923 F. Supp. 187 |
| Parties | Jerry Allen ENFIELD, By and Through His Conservator and Natural Mother, Mae ENFIELD, Plaintiff, v. PITMAN MANUFACTURING; Duluth Engineering & Mfg., Inc.; Pitman Engineering & Mfg., Inc.; A.B. Chance Company; Emerson Electric Company; Teague Equipment Company; and Independent Testing Laboratory, Defendants, City of Goodland, Kansas, Intervenor. |
| Court | U.S. District Court — District of Kansas |
David A. Hoffman and Donald W. Vasos, Shawnee Mission, KS and Carston C. Johannsen, Lenexa, KS, for plaintiff.
Eldon L. Boisseau and Anne Hull, Wichita, KS and Patrick W. Durick and Stephen D. Easton, Bismarck, ND, for intervenor; Emerson Electric; Pitman, Duluth Engineering; A.B. Chance.
Larry A. Withers, Wichita, KS, for Teague Equipment.
Daniel F. Church, Kansas City, KS, for Independent Testing.
Plaintiff Jerry Allen Enfield seeks damages from personal injuries allegedly caused when the boom on a Pitman Polecat digger derrick came loose and struck a utility pole, causing the pole to strike Enfield and result in his claimed injuries. Enfield alleges Independent Testing Laboratories (ITL) negligently inspected the Polecat. As a result, the Polecat was operated in an unsafe condition, causing the accident. ITL moves for summary judgment on the grounds of no breach of implied warranty and no showing of causation.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).
Once the initial showing has been made, the burden shifts to the nonmoving party to designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. When determining whether there is a material issue of fact, the nonmoving party's evidence is to be believed; all justifiable inferences are to be drawn in its favor; and its nonconclusory version of any disputed issue of fact is assumed to be correct. Multistate Legal Studies, Inc. v. Harcourt Brace Publ., Inc., 63 F.3d 1540, 1545 (10th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 702, 133 L.Ed.2d 659 (1996).
Kansas law applies to this case because the alleged negligence occurred in Kansas. See Tinkler v. United States by F.A.A., 982 F.2d 1456, 1466 (10th Cir.1992). In Kansas, a plaintiff must allege and prove the following four elements to sustain a negligence cause of action: (1) plaintiff is owed a duty by defendant; (2) defendant breached the duty; (3) plaintiff sustained damages; (4) damages were proximately caused by the breach. P.W. v. Kansas Dept. of Soc. & Rehab. Serv., 255 Kan. 827, 831, 877 P.2d 430 (1994); Calwell v. Hassan, 21 Kan.App.2d 729, 908 P.2d 184, 190 (1995), rev. granted, Nos. 72,817 & 73,062 (Kan. Mar. 15, 1996). The existence of a duty is a question of law. P.W., 255 Kan. at 831, 877 P.2d 430. Breach and causation issues are questions of fact. Calwell, 21 Kan.App.2d at 735, 908 P.2d 184.
ITL claims Enfield has failed to allege facts showing a breach of the duty and causation. The parties concede that ITL owed a duty to Enfield and Enfield can establish damages.
An examination of the duty owed is necessary to consider the question of breach. Under Kansas law, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner. Kansas liberally imposes an implied warranty of workmanlike performance in agreements calling for the performance of work or skill. Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan.App.2d 728, 738-39, 894 P.2d 881 (1995), rev. denied, ___ Kan. ___ (1995). A remedy for failure to perform services in a workmanlike manner may be sought under a theory of negligence. Zenda Grain, 20 Kan. App.2d at 739, 894 P.2d 881. This duty is owed to third persons as well: "`One who undertakes to render services to another which he should recognize as necessary for the protection of a third person is liable to the third person for harm resulting from his failure to exercise reasonable care.'" Calwell, 21 Kan.App.2d at 742, 908 P.2d 184 (quoting Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982)).
In his response to the summary judgment motion, Enfield cited to evidence in the record indicating the purpose of the inspection contract between ITL and the City of Goodland was to ensure that the Polecat was a safe work platform, including the testimony of an ITL official. Under Zenda Grain and Calwell, ITL owed a duty to Enfield to conduct the inspection in a workmanlike manner and to use reasonable care to ensure the Polecat was a safe work platform.
ITL claims Enfield has not presented any evidence of a breach. ITL argues its contract did not call for inspection of the bolts securing the boom and such an inspection was not necessary. Enfield presented evidence the contract's purpose was to ensure the Polecat was a safe work platform and the contract did not specify any specific areas for inspection. Enfield submitted an affidavit from an expert witness that a proper inspection of the Polecat would have included nondestructive acoustic emissions and ultrasonic testing of the bolts securing the boom to the Polecat, and that ITL had the capability to conduct these tests. Enfield cited national standards calling for the inspection of the bolts, standards that...
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