Kahn v. Sears, Roebuck and Co., USA, Civ. A. No. C 82-1483 A.

• Decision Date: 26 March 1985
• Docket Number: Civ. A. No. C 82-1483 A.
• Citation: 607 F. Supp. 957
• Parties: Elaine J. KAHN, individually and as next friend of Belton Troy Holder, III, a minor, Plaintiff, v. SEARS, ROEBUCK AND CO., U.S.A., Manco Products, Inc., and Tecumseh Products Company, Defendants.
• Court: U.S. District Court — Northern District of Georgia

607 F. Supp. 957

Elaine J. KAHN, individually and as next friend of Belton Troy Holder, III, a minor, Plaintiff, v. SEARS, ROEBUCK AND CO., U.S.A., Manco Products, Inc., and Tecumseh Products Company, Defendants.

Civ. A. No. C 82-1483 A.

United States District Court, N.D. Georgia, Atlanta Division.

March 26, 1985.

Gilbert H. Deitch & Gerald Kline, Bauer, Deitch & Raines, Atlanta, Ga., for plaintiff.

W. Anthony Moss, Ben L. Weinberg, Jr., Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for Tecumseh.

Ronald L. Reid, Alston & Bird, Atlanta, Ga., for Sears, Roebuck & Co.

Glenn Frick, Lokey & Bowden, Atlanta, Ga., for Marnco Products, Inc.

ORDER

VINING, District Judge.

This is a product liability case growing out of an incident which occurred on June 29, 1981, when the plaintiff's son, an eleven-year-old, received burns and other injuries when a fun-kart he was operating overturned and the fuel tank burst into flames.

The fun-kart, which had been sold by Sears, Roebuck and Company, had been assembled by Manco Products, Inc., and was propelled by a gasoline engine manufactured by Tecumseh Products Company.

The original action and amendments thereto contain several causes of action, among them an allegation that the defendants violated the Consumer Products Safety Act, 15 U.S.C. § 2051, et seq. The plaintiff, Elaine J. Kahn, individually, seeks to recover for mental pain and emotional distress that she says she suffered upon learning of her child's injury.

Each of the defendants has moved for summary judgment asserting that the Consumer Products Safety Act does not provide for a private right of action and that Kahn does not have an individual cause of action for mental pain or emotional distress in connection with her child's injury because she was not present when the child was injured.

The plaintiff does not have a cause of action for mental pain or emotional distress alleged have occurred upon her learning of her child's injury because she was not present at the time the injury happened. Southern Ry. Co. v. Jackson, 146 Ga. 243, 91 S.E. 28 (1916); Strickland v. Hodges, 134 Ga.App. 909, 216 S.E.2d 706 (1975); Goddard v. Watters, 14 Ga.App. 722, 82 S.E. 304 (1914).

Sears and Manco have also moved to dismiss Count V and Count VIII, respectively, of the plaintiff's amended complaint which allege a violation of 15 U.S.C. §§ 2064, 2068, and 2069, in that Sears and Manco failed to take any action to notify any governmental agency that they had notice that the fun-karts were unsafe, defective, and dangerous even though they had allegedly obtained information which would reasonably support the conclusion that the fun-karts failed to comply with applicable consumer products safety rules or contained a defect which could create a substantial product hazard.

The code sections relied upon by the plaintiff do not themselves provide for a private right of action; the plaintiff instead relies upon 15 U.S.C. § 2072 which provides, "Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer products safety rule, or any other rule or order issued by the Consumer Products Safety Commission may sue any person who knowingly (including willfully) violated any such rule or order...." The clear, unambiguous wording of section 2072 provides a private cause of action only for the violation of a rule or order promulgated by the Consumer Products Safety Commission and does not provides a private cause of action for violation of section 2064, section 2068, or section 2069. The plaintiff contends, however, that she has a cause of action for Sears' and Manco's alleged failure to comply with the reporting requirements of section 2064(b) as detailed in certain interpretive rules issued by...