McCroy ex rel. McCroy v. Coastal Mart, Inc.

• Decision Date: 21 June 2002
• Docket Number: No. CIV.A. 99-1090-MLB.,CIV.A. 99-1090-MLB.
• Citation: 207 F.Supp.2d 1265
• Parties: Kristopher M. McCROY, a minor, by and through his mother and next friend, Marie McCroy, and Marie McCroy, individually Plaintiffs, v. COASTAL MART, INC., and WILBUR CURTIS COMPANY, Defendants.
• Court: U.S. District Court — District of Kansas

Page 1265

207 F.Supp.2d 1265

Kristopher M. McCROY, a minor, by and through his mother and next friend, Marie McCroy, and Marie McCroy, individually Plaintiffs, v. COASTAL MART, INC., and WILBUR CURTIS COMPANY, Defendants.

No. CIV.A. 99-1090-MLB.

United States District Court, D. Kansas.

June 21, 2002.

Matthew L. Bretz, Juhnke & Bretz, Kristopher M. Wisbey, Hutchinson, KS, for Plaintiff.

Darrell L. Warta, Foulston Siefkin LLP, Wichita, KS, for Coastal Mart Inc.

Paul P. Hasty, Jr., Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, Kyle N. Roehler, Walters, Bender, Strohbehn & Vaughan, P.C., Kansas City, MO for Wilbur Curtis Co.

MEMORANDUM AND ORDER

BELOT, District Judge.

Before the court are the following:

(1) Coastal Mart's Motion for Judgment Notwithstanding the Verdict (Doc. 210) and Memorandum in Support (Doc. 213);

(2) Wilbur Curtis' Memorandum in Support of Motions for Judgment as a Matter of Law Pursuant to Rule 50 (Doc. 214);

(3) Plaintiffs' Opposition to Defendants' Motions for Judgment Notwithstanding the Verdict (Doc. 211) and Memorandum in Support (Doc. 215);

(4) Wilbur Curtis' Reply to Plaintiff's Memorandum in Opposition (Doc. 216);

(5) Wilbur Curtis' Motion for Entry of Judgment (Doc. 232); and

(6) Plaintiffs' Opposition to Wilbur Curtis' Motion for Entry of Judgment (Doc. 233) and Memorandum in Support (Doc. 234).

The court held oral argument on May 21, 2002. For the reasons stated, the court grants defendants' motions in full.

I. BACKGROUND

Plaintiffs filed this products liability action after 11-year old Kristopher McCroy spilled hot chocolate on his lap, resulting in severe burn injuries. Kristopher spilled the drink while riding in the back seat of his mother's conversion van. Kristopher's mother, Marie McCroy, purchased the hot chocolate from Coastal Mart and Coastal Mart dispensed it from a machine manufactured by Wilbur Curtis. Plaintiffs sued both defendants on theories of negligence, breach of implied warranty, and strict liability.¹

Kristopher's injuries occurred on January 31, 1998, as he was traveling home from a Saturday wrestling tournament in Salina, Kansas. Before leaving Salina, Marie stopped at a Coastal Mart and purchased a 20 oz. cup of hot chocolate for Kristopher to drink on the way home. Kristopher placed a lid on the cup, and inserted a straw, before leaving the store.² As Marie was waiting to exit the Coastal Mart parking lot, Kristopher tested the temperature of the drink by lifting the straw out and touching it to his tongue. When Kristopher "tested" the drink a second time, a drop of hot liquid fell onto his hand causing him to flinch. As he flinched, the cup flew up into the air and turned upside down. The force of the liquid caused the lid to come off, and the full contents of the 20 oz. cup spilled onto Kristopher's lap causing first and second-degree burns.

A. The Trial

The parties tried the case to a jury commencing August 21, 2001. Plaintiffs advanced multiple theories of liability against defendants at trial.³ Plaintiffs' claims stem, primarily, from allegations that the hot chocolate's excessive temperature rendered it unreasonably dangerous and defective and that more prominent and detailed warnings were needed to adequately warn of the specific injuries that could result.

Defendants moved for judgment as a matter of law at the close of plaintiffs' evidence and renewed their motions before the court submitted the case to the jury. The court took both motions under advisement. On August 29, 2001, the jury returned a general verdict, awarding Kristopher $75,000 in damages but apportioning only 10% fault against Coastal Mart and 20% fault against Wilbur Curtis. The jury apportioned 50% of the fault to Kristopher's mother, Marie McCroy, and 20% of the fault to Kristopher himself. See Doc. 204.

B. Legal Standards

A renewed motion for judgment as a matter of law (previously judgment notwithstanding the verdict or "judgment n.o.v.")⁴ under Fed.R.Civ.P. 50 "`may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment.'" See Aerotech Res., Inc. v. Dodson Aviation, Inc., 191 F.Supp.2d 1209, 1212-13 (D.Kan.2002) (quoting Jackson v. City of Albuquerque, 890 F.2d 225, 230 (10th Cir.1989)). Judgment as a matter of law is appropriate "`only if the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion.'" See id. (quoting J.I. Case Credit Corp. v. Crites, 851 F.2d 309, 311 (10th Cir.1988)). "`In determining whether the grant of a motion for judgment n.o.v. is appropriate, the court must view the evidence and indulge all inferences in favor of the party opposing the motion and cannot weigh the evidence, consider the credibility of witnesses or substitute its judgment for that of the jury.'" Id.

C. Timeliness of Wilbur Curtis' Filing

Plaintiffs first argue that Wilbur Curtis' failure to file a timely Rule 50(b) motion precludes the court from considering its memorandum in support of judgment as a matter of law. Doc. 215, p. 11-12. The court entered judgment, solely on the jury's liability verdict, on August 29, 2001, the same day the verdict was returned. Doc. 205. On September 10, 2001, Coastal Mart renewed its request for judgment as a matter of law by filing a timely motion for judgment notwithstanding the verdict. Doc. 210. Unlike Coastal Mart, however, Wilbur Curtis did not renew its request within the 10-day period mandated by Rule 50(b):

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment and may alternatively request a new trial or join a motion for a new trial under Rule 59.

Fed. R. Civ. Pro. 50(b). Although Wilbur Curtis eventually filed a "Memorandum in Support of Motions for Judgment as a Matter of Law Pursuant to Rule 50," it did so almost two months after the court had entered judgment on the liability verdict. See Doc. 214, filed October 25, 2001. Only months later, on May 7, 2002, did Wilbur Curtis file a written motion to accompany its memorandum in support. Doc. 232. Wilbur Curtis contends it was not obligated to renew its motion within the time-limits set out in Rule 50(b) because the motion was taken under advisement at trial and because the court has not yet entered a final judgment. Doc. 216, p. 2-3.

Generally, a timely post-judgment Rule 50(b) motion is required even if the court has previously taken it under advisement.⁵ See Johnson v. New York, New Haven & Hartford R.R., 344 U.S. 48, 50, 73 S.Ct. 125, 97 L.Ed. 77 (1952) (stating the rule "forbids the trial judge or an appellate court" from entering judgment in the absence of a timely Rule 50(b) motion); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2537, at 355 (2d ed. 1995) ("The motion must be made even though the trial court expressly has reserved judgment."). Wilbur Curtis correctly asserts, however, that without a "final judgment" the time for filing post-judgment Rule 50(b) motions does not begin to run. See O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 353 (3rd Cir.1981)(holding that the term "judgment" in Rule 50(b) is limited to final judgments).

Fed.R.Civ.P. 54(b) governs the entry of final judgments in multi-claim or multi-party litigation:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The court's August 29, 2001 judgment merely reflects the jury's apportionment of liability and damages on the claims tried to the jury; it does not resolve the cross-claim for indemnity asserted by Coastal Mart against Wilbur Curtis. See Doc. 205. The judgment is devoid, moreover, of the express language necessary to certify it for immediate appeal. See Oklahoma Turnpike Authority v. Bruner, 259 F.3d 1236, 1242 (10th Cir.2001) ("[A] certification under Rule 54(b) is only appropriate when a district court adheres strictly to the rule's requirement that a court make two express determinations.").⁶ Thus, the order is not a "final judgment" under Rule 54(b), and it never triggered the 10-day time-limit stated in Rule 50(b).

Because the court's August 29, 2001 entry does not constitute a "final judgment," Wilbur Curtis' request for judgment is certainly not untimely under Rule 50(b) and may, in fact, be procedurally premature. See Aguinaga v. Morrell & Co., No. 83-1858, 1989 WL 47089, at *1 (D.Kan. March 21, 1989)("The court does not believe that a motion for JNOV is procedurally appropriate at this time, since the liability judgment is interlocutory."). But the rules do not prohibit parties from filing post-trial motions before the entry of a final judgment resolving all claims. See Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 106 F.Supp.2d 696, 699 (D.N.J.2000) (discussing Rules 50 and 59). By its...