Hiner v. Deere & Co., 99-4025-DES.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtSaffels
Citation161 F.Supp.2d 1279
PartiesAlvine HINER, Plaintiff, v. DEERE & COMPANY, Defendant.
Docket NumberNo. 99-4025-DES.,99-4025-DES.
Decision Date21 September 2001
161 F.Supp.2d 1279
Alvine HINER, Plaintiff,
DEERE & COMPANY, Defendant.
No. 99-4025-DES.
United States District Court, D. Kansas.
September 21, 2001.

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Kevin L. Diehl, Eugene B. Ralston, Ralston & Pope, L.L.P., Topeka, KS, John Gehlhausen, Curtis L. Fleming, John Gehlhausen, P.C., Lamar, CO, for plaintiff.

Tammy M. Somogye, Lathrop & Gage, L.C., Overland Park, KS, Thomas S. Stewart, Peter F. Daniel, Lathrop & Gage, L.C., Kansas City, MO, for defendant.


SAFFELS, District Judge.

This matter is before the court on defendant's Motion for Summary Judgment (Doc. 93). Several additional motions are also presently pending before the court: defendant's Motion for Evidentiary Hearing (Doc. 27); defendant's Motion for Protective Order (Doc. 27); plaintiff's Motion to Exclude Testimony of Bobby Clary (Doc. 91); defendant's Motion to Exclude Testimony of Janet Toney (Doc. 95); defendant's Motion to Exclude Testimony of John Sevart (Doc. 97); and defendant's Motion to Exclude Testimony of George Rhodes (Doc. 99). The parties have filed appropriate response and reply papers to all of the pending motions; including plaintiff's Response (Doc. 107) to defendant's motion for summary judgment and defendant's Reply (Doc. 117) to said response. The court focuses its consideration on the

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motion for summary judgment, for its determination directs the fate of the remaining motions. For the following reasons, defendant's motion for summary judgment shall hereby be granted.


This product liability action ostensibly arises from plaintiff's ownership and use of a tractor and front-end loader manufactured by defendant. Plaintiff, a full-time farmer and former part-time professional farm equipment mechanic, seeks compensation from defendant for injuries he received in a large round bale role down.1

During the time relevant to this action, plaintiff owned and operated a 1964 John Deere 4020 tractor and a 1972 Model 48 John Deere front-end loader ("loader"). Plaintiff had owned both pieces of equipment for approximately nineteen years before the accident in question. In general terms, a loader is a hydraulic set of arms usually fitted with a large bucket on the end used to pick up and move material. The loader is designed to be attached to the front of the tractor, so the operator can manipulate the loader's hydraulic controls while seated on the tractor. Prior to the date of the accident in question, plaintiff had adapted the bucket of the loader by welding "ears" or brackets onto the bucket.2 To these brackets, plaintiff attached a bale fork. With the bucket and bale fork lowered to ground level, plaintiff was able to drive the forks under a large round bale of cut hay. Large round hay bales can weigh up to and in excess of one thousand pounds. With the forks in place, plaintiff need only activate the loader controls and lift the bale off the ground. In this configuration, plaintiff was able to drive the bale to any location on his farm. Unlike other farm implements, the bale fork does not pierce or grab the bale. Instead, the bale simply rests on top of the steel forks.3

On January 2, 1998, plaintiff was transporting a bale as described above. Plaintiff testified that the bale was approximately one to one and half feet off the ground. While traveling at a low rate of speed towards a bale feeder, plaintiff was looking back and to his left. Apparently, while plaintiff was distracted, the loader began traveling upward. Plaintiff, however, has no recollection of the accident. At some point, the bale was elevated to such an extent as to cause it to roll off the forks, tumbling back over the loader arms, impacting plaintiff. The tractor was not equipped with a rollover protective structure or falling object protective structure. Plaintiff suffered severe injuries as a result of the bale roll down.


Under the Kansas Product Liability Act ("KPLA"), Kansas Statutes Annotated §§ 60-3301 to 60-3307, a plaintiff's various theories of recovery, i.e., negligence, strict liability, or breach of warranty, are melded into a single claim. Kan. Stat. Ann. § 60-3302(c). See also Grider v. Positive Safety Mfg. Co., 887 F.Supp. 251, 252 (D.Kan.1995). Kansas law, however, recognizes three ways in which a product may be defective: (1) a manufacturing defect; (2) a warning defect; and

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(3) a design defect. Savina v. Sterling Drug, Inc., 247 Kan. 105, 795 P.2d 915, 923 (1990). Plaintiff asserts the products were defective in both design and in regards to applicable warnings.

As to design, plaintiff first claims his tractor was defective when it was sold because defendant did not include a rollover protective structure ("ROPS") with the tractor or recommend the purchase of one. Second, plaintiff claims the loader was defective for failing to have any falling object protection.

Plaintiff's failure to warn claims are as follows: (1) defendant failed to issue a post-sale warning about the need to install a ROPS; (2) defendant failed to issue a post-sale warning to loader owners regarding defendant's alleged knowledge that its loaders could, and/or had been reported to suddenly rise in the air and drop loads onto operators without conscious operator input; (3) defendant failed to issue warnings to loader owners of the need to install the loader only on tractors with ROPS with falling object protection; (4) defendant failed, after the realization of the large round bale roll down hazard, to issue post-sale warnings to loader owners of the need to have a falling object protection system installed on tractor/loaders; and (5) defendant failed to include self-leveling or warn of the need for self-leveling on the loader.

Defendant argues for summary judgment on all claims.


Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing'-that is, pointing out to the district court-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, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed. R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. 2548. Such a complete failure of proof on an essential

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element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. 2548.

A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. 2505.


A. Useful Safe Life

As a threshold argument, defendant submits it is entitled to summary judgment on both the design and warning claims according to the useful safe life doctrine. Under the KPLA, a manufacturer-defendant's liability for its product is directly tied to the product's useful safe life. Kan. Stat. Ann. § 60-3303(a). The KPLA begins by stating the general rule: "Except as provided in paragraph (2) of this subsection, a product seller4 shall not be subject to liability in a product liability claim if the product seller proves by a preponderance of the evidence that the harm was caused after the product's `useful safe life' had expired." Id. The KPLA defines "useful safe life" as follows: "`Useful safe life' begins at the time of delivery of the product and extends for the time during which the product would normally be likely to perform or be stored in a safe manner." Id. There is a presumption, however, that if the harm is caused more...

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