Martin v. Intex Recreational Corp.

• Decision Date: 15 July 1994
• Docket Number: No. 91-2200-JWL.,91-2200-JWL.
• Citation: 858 F. Supp. 161
• Parties: Hannah M. MARTIN, a minor By and Through her mother and next friend Sheryll A. MULICH, and Sheryll A. Mulich as the mother, natural guardian and next friend of Hannah Martin, Plaintiffs, v. INTEX RECREATIONAL CORPORATION, Zee Toys, Inc., and Carlin Plastics Products Manufacturing Co., Ltd., Defendants.
• Court: U.S. District Court — District of Kansas

858 F. Supp. 161

Hannah M. MARTIN, a minor By and Through her mother and next friend Sheryll A. MULICH, and Sheryll A. Mulich as the mother, natural guardian and next friend of Hannah Martin, Plaintiffs, v. INTEX RECREATIONAL CORPORATION, Zee Toys, Inc., and Carlin Plastics Products Manufacturing Co., Ltd., Defendants.

No. 91-2200-JWL.

United States District Court, D. Kansas.

July 15, 1994.

Timothy M. Alvarez and Robert V. Wells, Wells, Wells & Alvarez, Kansas City, KS, for plaintiffs.

Robert D. Benham and Daniel F. Church, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

This case involves product liability claims brought by plaintiffs against defendants based on a variety of theories, including defective design, failure to adequately warn of dangers, strict liability and breach of warranties. Plaintiffs allege that Hannah Martin was seriously injured while disassembling a play tent that was manufactured and distributed by defendants. The matter is currently before the court on defendants' motion for summary judgment (Doc. # 59). For the reasons set forth below, defendants' motion is denied.

II. Factual Background

Plaintiff Hannah Martin was injured on or about August 28, 1988 while disassembling a play tent. The play tent consisted of a number of plastic tubular pipe and joint pieces that when fitted together formed a skeletal plastic frame in the shape of a house. This frame supported a flexible vinyl sheet cover that draped over and completely covered the plastic pipe frame. This style of play tent was sold by various companies, including Intex. The decorative designs on the flexible vinyl cover differ among manufacturers. Defendant Intex has marketed play tents using a variety of decorative printed covers since 1981 and continues to market such play tents at the present time.

At the time of her injury, Hannah was in the process of disassembling the play tent. As she was separating the pieces of plastic tubing, one of the tent poles allegedly was caused to come into contact with her eye, causing injury and damage to her eye. Following the plaintiff's injury her stepfather, Stacy Mulich, threw the play tent into the trash. The only pieces of the play tent that were saved are two plastic tubular pieces and two plastic joint pieces.

III. Summary Judgment Standards

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Anthony v. United States, 987 F.2d 670, 672 (10th Cir.1993). The court views the evidence and draws any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991). The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.

IV. Discussion

In their motion, defendants contend that they are entitled to summary judgment on plaintiffs' claims because plaintiffs cannot connect defendants to the play tent in question. Defendants contend that affidavit testimony, and other evidence in the record, conclusively shows that the play tent could not have been manufactured by defendants.

Defendants first argue that the play tent could not have been manufactured by them because the design on the vinyl covering was of a type that they did not manufacture at the time the injury occurred. Defendants contend that the play tent which allegedly caused plaintiff's injury was red with characters from the cartoon strip "Peanuts" on it, specifically Snoopy and Woodstock. Defendants rely on affidavits of Krystal Carver and Christopher Byrd, who were friends of plaintiff, in which they aver that the play tent involved in the injury was decorated with the Peanuts characters. In response, plaintiffs have presented affidavits from Hannah's parents and from the person who allegedly bought the play tent and her son, who allegedly gave the play tent to Hannah's parents, all averring that the play tent in question was a Mickey Mouse Clubhouse. Defendants did manufacture and distribute a play tent of that variety at the time of the alleged injury. The court believes it would be difficult to find a more pure example of a disputed fact issue than is presented here. Accordingly, the court finds no basis for granting summary judgment to defendants based on this conflicting evidence.

Defendants' second argument is based on an analysis of the four plastic pieces that were saved from the play tent in question. The four pieces saved from the play tent in question were compared with pieces of an exemplar of the Mickey Mouse Playhouse which defendants contend was representative of the Mickey Mouse Playhouse manufactured by defendants from 1983 through 1989. Defendants contend that...