Hiner v. Deere and Co., Inc.

• Decision Date: 20 August 2003
• Docket Number: No. 01-3335.,01-3335.
• Citation: 340 F.3d 1190
• Parties: Arvine HINER, Plaintiff-Appellant, v. DEERE AND COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

340 F.3d 1190

Arvine HINER, Plaintiff-Appellant, v. DEERE AND COMPANY, INC., Defendant-Appellee.

No. 01-3335.

United States Court of Appeals, Tenth Circuit.

August 20, 2003.

John Gehlhausen, Lamar, Colorado (Kevin Diehl, Topeka, Kansas, with him on the briefs), for Plaintiff-Appellant.

Peter F. Daniel, of Lathrop & Gage L.C., Kansas City, Missouri (Tammy M. Somogye, Overland Park, Kansas, with him on the brief), for Defendant-Appellee.

Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

This appeal arises from a product-liability suit governed by Kansas law. Plaintiff Arvine Hiner suffered injuries in a farming accident involving a tractor and front-end loader manufactured by Defendant Deere and Company. Plaintiff's complaint alleges that the tractor and loader were defective in design and that Deere failed to issue adequate warnings concerning risks posed by the equipment. The district court granted Deere's motion for summary judgment. Plaintiff appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

I. Background

We view the evidence in the light most favorable to the party opposing summary judgment. Mattioda v. White, 323 F.3d 1288, 1291 (10th Cir.2003). Plaintiff's accident occurred on January 2, 1998, while he was operating a Deere 4020 tractor. The tractor was equipped with a Deere Model 48 front-end loader. Plaintiff purchased the tractor and the front-end loader from another farmer in 1979. The tractor had been manufactured in 1964, and the front-end loader had been manufactured in 1972. The front-end loader consists of two arms attached to a loader bucket. The arms can be raised and lowered by hydraulic power, using levers at the tractor seat.

At the time of the accident, Plaintiff was using the loader to carry a large round hay bale. Intending to transport the bale across his pasture to a cattle feeder, he began driving with the bale about one-and-a-half feet off the ground. As he drove, he looked off to the side at some cattle walking toward him. While his attention was diverted, the front-end loader began rising upward. The hay bale, which had been resting unrestrained on the front-end loader, rolled backward onto Plaintiff. The accident rendered him paraplegic.

The type of hay bale that fell on Plaintiff—a large round bale—was not introduced into the farming industry until the fall of 1972 or the spring of 1973. Plaintiff adapted his front-end loader so that it could be used to transport large round bales. He welded brackets, or "ears," onto the bucket and then used these brackets to attach bale forks to the bucket. He also welded a backstop onto the bucket. When Plaintiff carried a large round bale with his loader, the bale would rest on top of the forks.

The basic hazard involved in Plaintiff's accident—the hazard of objects falling off loaders onto tractor operators—predates the introduction of large round bales. According to Plaintiff, however, the increasing use of large round bales exacerbated the dangers associated with using front-end loaders, because injuries resulting from large-round-bale accidents are especially severe. Deere and other manufacturers have responded to the danger of large-round-bale roll-down accidents by offering for sale a number of safety devices which reduce the risk of injury. One such safety feature is a roll-over protection system (ROPS) to which a canopy can be attached. The canopy prevents objects from falling onto the operator. Other safety devices include bale grapples and bale spears—specialized equipment used to secure large round bales on front-end loaders.

Although Plaintiff knew about the hazards of roll-down accidents and was familiar with the available safety devices, he believed that he could avoid the falling-object danger by carrying his load at a low level. At the time of his accident, however, the front-end loader elevated on its own—it rose "without conscious operator input." As will be discussed in greater detail below, Plaintiff did not know that such "self-raising" was possible and his lack of awareness of that possibility may have interfered with his ability to assess the risks of using the tractor and loader to carry large round bales.

Plaintiff filed suit against Deere, relying on both negligence and strict-liability theories. He alleged that Deere failed to issue sufficient warnings about the risks of roll-down accidents. He also alleged that the tractor and loader were defective in design, because they lacked certain safety devices that would have prevented his injuries. Deere filed a motion for summary judgment, which the district court granted as to all Plaintiff's claims.

Plaintiff appeals the summary judgment. Because this is a diversity case, we apply the substantive tort law of Kansas. We follow federal law, however, regarding the standard for granting summary judgment. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir.2001). Accordingly, "[w]e review the entry of summary judgment de novo, drawing all reasonable inferences in favor of the nonmovant[]. The moving party must show there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law." Boykin v. ATC/VanCom of Col., L.P., 247 F.3d 1061, 1063 (10th Cir.2001) (internal citations and quotation marks omitted).

II. Discussion

"Kansas law recognizes three ways in which a product may be defective: (1) a manufacturing defect; (2) a warning defect; and (3) a design defect." Delaney v. Deere & Co., 268 Kan. 769, 999 P.2d 930, 936 (2000). Plaintiff relies on both warning-defect and design-defect theories in asserting that Deere bears liability for his injuries. We first consider Plaintiff's warning-defect claims.

A. Warning-defect claims

Under Kansas law, "[a] product, though perfectly designed and manufactured, may be defective if not accompanied by adequate warnings of its dangerous characteristics." Meyerhoff v. Michelin Tire Corp., 70 F.3d 1175, 1181 (10th Cir.1995). The Kansas courts have cited the Restatement (Second) of Torts § 388 (1965) as authority for "[t]he general rule regarding a manufacturer's duty to warn." Long v. Deere & Co., 238 Kan. 766, 715 P.2d 1023, 1029 (1986). Section 388 states:

One who supplies ... a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel ... for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Two aspects of the warning-defect cause of action are the focus of the dispute in this appeal. First, what is the relevance of the user's knowledge of danger? Second, what is the scope of the manufacturer's duty, if any, to warn of dangers discovered after the item has been sold?

We begin with the relevance of the user's knowledge. Under paragraph (b) of § 388, there is no duty to warn of an obvious danger. Similar limitations appear in the Kansas Product Liability Act. K.S.A. § 60-3301, et seq. 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.

Accordingly, the Kansas courts have stressed that manufacturers should not be held liable for failing to warn about risks that would be apparent to ordinary users. See, e.g., Miller v. Lee Apparel Co., 19 Kan.App.2d 1015, 881 P.2d 576, 588 (1994) ("A product is not unreasonably dangerous when its degree of danger is obvious and generally known or recognized. If a danger is obvious, then its obviousness constitutes a warning, and the product seller's failure to provide a separate warning should not constitute a defect.") (internal quotation marks and citations omitted). Moreover, regardless of the ordinary user's knowledge of the danger, "[t]here is no duty to warn of dangers actually known to the user of a product...." Long, 715 P.2d at 1029 (internal quotation marks and citation omitted); accord Miller, 881 P.2d at 588.

As for the scope of a post-sale duty to warn, in Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 861 P.2d 1299, 1313 (1993), the court recognized "a manufacturer's post-sale duty to warn ultimate consumers who purchased the product who can be readily identified or traced when a defect, which originated at the time the product was manufactured and was unforeseeable at the point of sale, is discovered to present a life threatening hazard." Two factors govern whether a manufacturer must issue a post-sale warning: "a reasonableness test and the manufacturer's actual or...