Huenink v. Rice, Civ. A. No. 92-4100-DES.
| Decision Date | 15 July 1994 |
| Docket Number | Civ. A. No. 92-4100-DES. |
| Parties | Marvin HUENINK, Plaintiff, v. Thomas RICE, d/b/a Rice Motors, and John Young, d/b/a Salina Auto Auction, Defendants. |
| Court | U.S. District Court — District of Kansas |
Jack A. Quinlan, Scott, Quinlan & Hecht, Topeka, KS, Kenneth Cobb, Cobb, Hallinan & Ehrlich, P.C., Lincoln, NE, for plaintiff.
C. Stanley Nelson, Debra E. James, Hampton, Royce, Engleman & Nelson, Salina, KS, Wayne T. Stratton, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for defendants.
This matter is before the court on the summary judgment motion (Doc. 100) of defendant Thomas M. Rice, d/b/a Rice Motors. This is a negligence action arising out of an automobile accident that occurred on the grounds of the Salina Auto Auction when a 1983 Chevrolet Monte Carlo, brought to the auction by Mr. Rice, and driven by an employee of defendant John Young, collided with the rear of a 1985 Pontiac Firebird, allegedly injuring plaintiff Marvin Huenink. Plaintiff Huenink and defendant Young oppose defendant Rice's motion.
After examining the parties' factual submissions and legal memoranda, and for the reasons set forth herein, the court grants in part and denies in part defendant Rice's motion for summary judgment (Doc. 101).
The pertinent facts established by the parties in accordance with District of Kansas Rule 206(c) are as follows:
1. On August 31, 1990, Mr. Rice was the sole proprietor of a used car business, Rice Vantastics, in Kensington, Kansas. At that time, he had been in the car business for eight years.
2. On August 31, 1990, Mr. Young was the sole proprietor of an auto auction, the Salina Auto Auction ("Auction"), in Salina, Kansas. He had been in the auction business at the same location since February of 1980.
3. Dealers brought vehicles to the Auction and left them for sale day. In August of 1990, the Auction neither took title to, nor inspected the mechanical condition of, the vehicles consigned for sale.
4. On July 27, 1989, Mr. Rice purchased a 1983 Chevrolet Monte Carlo, identification No. 1G1AZ3796DR235075, from the Auction. He intended to resell the Monte Carlo on his lot in Kensington, Kansas.
5. The Monte Carlo remained on Mr. Rice's lot for more than one year. During this time, Mr. Rice occasionally drove the vehicle. He never experienced any mechanical difficulty while driving it.
6. Paul Wisinger, a trained mechanic formerly employed by Mr. Rice, drove the Monte Carlo between 30 and 40 times in the year prior to August 31, 1990. He never experienced any mechanical difficulty while driving it.
7. Prior to August 31, 1990, neither Mr. Rice nor Mr. Wisinger learned of any accelerator problems with the Monte Carlo.
8. On August 31, 1990, Mr. Rice and his wife took the Monte Carlo from Kensington to the Auction. Mrs. Rice drove the Monte Carlo. No one accompanied her in the vehicle. Mr. Rice drove another car.
9. During the trip to Salina, Mrs. Rice noticed no mechanical difficulties. Specifically, she noticed no problems with the accelerator.
10. Prior to the beginning of the sale, Lester Headley, an employee of the Auction, started the Monte Carlo with no apparent difficulty. Later, Herbert Walle, another employee of the Auction, drove the vehicle toward its place in the auction line.
11. When Mr. Walle got into the vehicle, he depressed the accelerator pedal. After he depressed the pedal, the pedal pulled itself down toward the floorboard. Mr. Walle immediately hit the brakes and killed the car. Since he "knew there was something wrong with the accelerator," when he restarted the Monte Carlo he did not depress the accelerator but idled the vehicle around the Auction building and into its place in line.
12. On August 31, 1990, Mr. Walle was a temporary employee. He had been working at the Auction for two days. He does not remember being given directions as to what he should do if a vehicle seemed to malfunction during a sale.
13. Once he placed the vehicle in line, Mr. Walle left the engine running and got out. As he walked away, he looked back over his shoulder and warned Mr. Headley to watch the accelerator because it was sticking. Mr. Headley did not respond. Mr. Walle was not facing Mr. Headley and does not know if Mr. Headley heard him.
14. After Mr. Walle left, Mr. Headley stepped into the Monte Carlo. The auctioneer signalled him to pull the vehicle forward in line behind a Pontiac Firebird. Mr. Headley put the vehicle in drive and depressed the accelerator. The accelerator "stuck" and the car "jumped." As soon as he realized the vehicle was accelerating, Mr. Headley applied the brakes. However, before he applied the brakes, the Monte Carlo hit the Pontiac Firebird.
15. As part of his investigation of the accident, Officer Harvey Kutschka, a law enforcement officer with the Salina Police Department, measured ten feet of accelerating tire marks behind the Monte Carlo.
16. Following the accident, Mr. Young had someone restart the Monte Carlo. The accelerator did not stick. The vehicle was then turned off and pushed out of the building.
17. After it had been pushed outside, Mr. Rice inspected the Monte Carlo. He restarted the vehicle and tried to make the accelerator stick. However, the accelerator would not stick.
18. Mr. Rice drove the Monte Carlo from the Auction to Kensington. During the trip, he experienced no problems with the accelerator.
19. Once in Kensington, Mr. Rice again examined the vehicle but found no mechanical problems. He also had his mechanic, Mr. Wisinger, examine the vehicle. Mr. Wisinger found nothing.
20. In July of 1991, Mr. Rice sold the Monte Carlo at an auction in Colorado. During the year between the accident and the sale in Colorado, Mr. Rice remembers one incident where the cruise control "wanted to surge." However, during this time he neither experienced nor learned of any problems with the accelerator sticking.
A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to 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, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1985). The substantive law identifies which issues are material. Id. at 248, 106 S.Ct. at 2510. 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 properly 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 National Laboratory, 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 nonmovant's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. at 2552-53. 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. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1985). The nonmovant must go beyond the pleadings and, by affidavits or the depositions, answers to the 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. at 2553 ( Rule 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. at 2552. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. at 2552.
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'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. at 2510-11. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. at 2511.
In this action, plaintiff claims that defendant Rice is liable for his own independent negligent acts and vicariously liable for the negligence of defendant Young and Young's employees. Mr. Rice moves for summary judgment arguing that there is (1) no genuine issue of material fact regarding plaintiff's claims of "independent negligence," and (2) no basis for holding him vicariously liable for the negligence of Mr. Young and his employees.
To recover for negligence under Kansas law, plaintiff must prove duty, breach, proximate cause, and injury. McDermott v. Midland Management, Inc., 997 F.2d 768, 770 (10th Cir.1993); McGee By and Through McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980, 982-83 (1991). In the pretrial order, plaintiff contends that Mr....
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