Rowson v. Kawasaki Heavy Industries, Ltd., No. C 91-3054.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtCharles A. Blades, of Blades, Carmichael, Rosser & Benz, Cedar Rapids, IA, for Kawasaki
Citation866 F. Supp. 1221
PartiesBryan D. ROWSON and Donna Rowson, Plaintiffs, v. KAWASAKI HEAVY INDUSTRIES, LTD., et al., Defendants.
Decision Date24 October 1994
Docket NumberNo. C 91-3054.

866 F. Supp. 1221

Bryan D. ROWSON and Donna Rowson, Plaintiffs,
v.
KAWASAKI HEAVY INDUSTRIES, LTD., et al., Defendants.

No. C 91-3054.

United States District Court, N.D. Iowa, Central Division.

October 24, 1994.


866 F. Supp. 1222
COPYRIGHT MATERIAL OMITTED
866 F. Supp. 1223
William G. Nicholson, of White & Johnson, P.C., Cedar Rapids, IA, and David M. Nelsen, of the David M. Nelsen Law Office, Mason City, IA, for Rowsons

Charles A. Blades, of Blades, Carmichael, Rosser & Benz, Cedar Rapids, IA, for Kawasaki.

 I. PROCEDURAL BACKGROUND ......................................... 1224
                 II. CERTIFICATION OF QUESTIONS TO THE IOWA SUPREME COURT .......... 1225
                III. STANDARDS FOR SUMMARY JUDGMENT ................................ 1226
                 IV. FINDINGS OF FACT .............................................. 1227
                 A. Undisputed Facts ........................................... 1227
                 B. Disputed Facts ............................................. 1228
                 V. LEGAL ANALYSIS ................................................ 1228
                 A. Whether Rowson Read Warnings ............................... 1228
                 B. Bryan Rowson's Failure To Read Warnings .................... 1231
                 1. The Duty To Provide Adequate Warnings ................... 1232
                 2. Unread Warnings And Causation Issues .................... 1232
                 C. Bryan Rowson's Failure To Heed An Open And Obvious Hazard .. 1240
                 VI. CONCLUSION .................................................... 1243
                

ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

BENNETT, District Judge.

This is a products liability lawsuit involving a four-wheeled all terrain vehicle, or ATV. Defendants seek partial summary judgment on plaintiffs' claims of failure to warn on the ground that plaintiff did not read any warnings, whether they were adequate or not. Defendants also seek summary judgment on plaintiff's claim that the ATV was defective because it lacked a rollover protection system,

866 F. Supp. 1224
or ROPS, on the ground that the lack of ROPS constituted an open and obvious danger for which defendants cannot be held liable

I. PROCEDURAL BACKGROUND

Plaintiffs Bryan D. Rowson and Donna Rowson (the Rowsons) filed this lawsuit on May 23, 1991, in Iowa District Court for Cerro Gordo County. Defendants are Kawasaki Heavy Industries, Ltd., Canadian Kawasaki Motors, Ltd, Kawasaki Motors Mfg. Corp., and Kawasaki Motors Corp. (collectively Kawasaki). The Rowsons' petition alleges that Bryan Rowson was injured in an accident on June 6, 1989, while riding a four-wheeled ATV designed, built, and sold by Kawasaki. The Rowsons assert various claims that the ATV in question was defective and unreasonably dangerous in design, manufacture, components, warnings,1 and instructions, and that it breached express and implied warranties of merchantability and fitness. Donna Rowson also claims loss of consortium.

Kawasaki removed this matter to federal court on July 29, 1991. On January 10, 1994, Kawasaki moved for partial summary judgment pursuant to Fed.R.Civ.P. 56(a) on some of the claims in the Rowsons' petition, which the court will hereafter refer to as a complaint. Specifically, Kawasaki argues that it is entitled to summary judgment on all of the Rowsons' claims of failure to warn because Bryan Rowson admitted in his deposition that he did not read any of the warnings or safety information labels attached to the Kawasaki ATV he was operating at the time of his injury, and did not read any part of the owner's manual that accompanied the vehicle at the time of its original sale. Consequently, Kawasaki argues that there is no genuine issue of material fact regarding the adequacy of the warnings it provided with the ATV. Kawasaki also seeks summary judgment on the Rowsons' claims based on the lack of structural or other protection to the rider of the ATV in the event of a roll-over type of accident because the lack of ROPS is an open and obvious condition for which as a matter of Iowa law no liability can attach to Kawasaki.

Kawasaki filed its brief, statement of undisputed facts, and list of citations in support of the motion for partial summary judgment on January 10, 1994. The Rowsons filed their resistance brief, statement of disputed facts, and list of citations on January 24, 1994. No reply brief or motion to file a reply brief has been filed. However, on October 13, 1994, Rowson filed as a supplement to his resistance to the motion for partial summary judgment portions of the deposition testimony of his expert witness, Dr. Edward Karnes.2 On October 17, 1994, Rowson also filed an affidavit concerning his recollection of having seen and read at least part of several of the warning labels on the ATV in question.3 In light of this affidavit, Rowson

866 F. Supp. 1225
filed an Amendment To Plaintiffs' Statement Of Disputed Facts And Exhibits on October 20, 1994, stating that Rowson now recalls having read the on-product labels. Hearing was held on Kawasaki's motion for partial summary judgment on October 20, 1994, in Cedar Rapids, Iowa.4 The Rowsons were represented at the hearing by counsel William G. Nicholson, of White & Johnson, P.C., in Cedar Rapids, Iowa, and David M. Nelsen, of the David M. Nelsen Law Office, in Mason City, Iowa. Kawasaki was represented at the hearing by Charles A. Blades, of Blades, Carmichael, Rosser & Benz, in Cedar Rapids, Iowa. At the hearing, Kawasaki was granted leave to file by facsimile a supplemental memorandum on the issue of whether the court should consider Rowsons' affidavit filed on October 17, 1994, and whether that affidavit generated a genuine issue of fact. Kawasaki filed such a supplemental memorandum on October 21, 1994. Rowson was granted to and including October 24, 1994, to file a reply, and did so on that date. The matter is now fully argued, briefed, and submitted by the parties

Before turning to the appropriate standards for summary judgment and then addressing the merits of Kawasaki's dual arguments for partial summary judgment in its favor, the court will examine whether the issues raised by Kawasaki, questions which the parties agreed at oral argument on October 20, 1994, are of first impression in Iowa, should be certified to the Iowa Supreme Court.

II. CERTIFICATION OF QUESTIONS TO THE IOWA SUPREME COURT

Whether a federal district court should certify a question of state law to the state's highest court is "a matter addressed to the discretion of the district court." Packett v. Stenberg, 969 F.2d 721, 726 (8th Cir. 1992) (citing Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974)).5 A court may consider the following factors in determining whether to certify a question to the state supreme court: (1) the extent to which the legal issue under consideration has been left unsettled by the state courts; (2) the availability of legal resources which would aid the court in coming to a conclusion on the legal issue; (3) the court's familiarity with the pertinent state law; (4) the time demands on the court's docket and the docket of the state supreme court; (5) the frequency that the legal issue in question is likely to recur; and (6) the age of the current litigation and the possible prejudice to the litigants which may result from certification. L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F.Supp. 1419, 1423-24 (D.Conn.1986).

Although some of these factors might weigh in favor of certifying the two questions presented here, which appear to be questions of first impression for Iowa courts, the court was presented with no request to certify questions to the Iowa Supreme Court. At hearing on this motion the parties stated that

866 F. Supp. 1226
they did not wish to certify questions because such a course might further delay trial of a matter already on file for over three years. The court believes that the availability of persuasive authority from other jurisdictions which have aided the court in coming to a conclusion on the legal issues presented has been such that this court will not certify the questions presented on its own initiative.

III. STANDARDS FOR SUMMARY JUDGMENT

The Eighth Circuit recognizes "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years "motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Thus, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Wabun-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992).

The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part:

Rule 56. Summary Judgment
(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party's favor as to all or any part thereof.
(c) Motions and Proceedings Thereon. ... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes...

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31 practice notes
  • Jones v. Amazing Products, Inc., No. CIV.A.1:00-CV-1678-JEC.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 19 de março de 2002
    ...inadequacy of the warning." Wilson Foods, 218 Ga.App. at 75, 460 S.E.2d at 534 (citing to Rowson v. Kawasaki Heavy Indus., Ltd., 866 F.Supp. 1221, 1238-1239 (N.D.Iowa Despite the fact that plaintiffs fail to specifically articulate this argument, they do refer often to the fact that Mr......
  • Loeckle v. State Farm Auto. Ins. Co., No. C98-3025-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 28 de julho de 1999
    ...to a statement made in their presence and which the defendants had not challenged in any manner); Rowson v. Kawasaki Heavy Indus., Inc., 866 F.Supp. 1221, 1229-31 (N.D.Iowa 1994) (holding that a belated affidavit could be considered where the affiant's memory was recently refreshed by photo......
  • Asa-Brandt, Inc. v. Adm Investor Services, Inc., No. C01-3021-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 18 de abril de 2001
    ...made in their presence and which the defendants had not challenged in any other manner); Rowson v. Kawasaki Heavy Indus., Inc., 866 F.Supp. 1221 (N.D.Iowa 1994) (holding that belated affidavit could be considered where affiant's memory was recently refreshed by photographs which he had not ......
  • Erickson-Puttmann v. Gill, No. C-01-4007-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 6 de maio de 2002
    ...Olympus Alum. Prod. v. Kehm Enters., Ltd., 930 F.Supp. 1295, 1309 n. 10 (N.D.Iowa 1996) (citing Rowson v. Kawasaki Heavy Indus., Ltd., 866 F.Supp. 1221, 1225 & n. 5 (N.D.Iowa 1994) (citing L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F.Supp. 1419, 1423-24 (D.Conn.1986))). The c......
  • Request a trial to view additional results
31 cases
  • Jones v. Amazing Products, Inc., No. CIV.A.1:00-CV-1678-JEC.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 19 de março de 2002
    ...of the inadequacy of the warning." Wilson Foods, 218 Ga.App. at 75, 460 S.E.2d at 534 (citing to Rowson v. Kawasaki Heavy Indus., Ltd., 866 F.Supp. 1221, 1238-1239 (N.D.Iowa Despite the fact that plaintiffs fail to specifically articulate this argument, they do refer often to the fact that ......
  • Loeckle v. State Farm Auto. Ins. Co., No. C98-3025-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 28 de julho de 1999
    ...to a statement made in their presence and which the defendants had not challenged in any manner); Rowson v. Kawasaki Heavy Indus., Inc., 866 F.Supp. 1221, 1229-31 (N.D.Iowa 1994) (holding that a belated affidavit could be considered where the affiant's memory was recently refreshed by photo......
  • Asa-Brandt, Inc. v. Adm Investor Services, Inc., No. C01-3021-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 18 de abril de 2001
    ...made in their presence and which the defendants had not challenged in any other manner); Rowson v. Kawasaki Heavy Indus., Inc., 866 F.Supp. 1221 (N.D.Iowa 1994) (holding that belated affidavit could be considered where affiant's memory was recently refreshed by photographs which he had not ......
  • Erickson-Puttmann v. Gill, No. C-01-4007-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 6 de maio de 2002
    ...Olympus Alum. Prod. v. Kehm Enters., Ltd., 930 F.Supp. 1295, 1309 n. 10 (N.D.Iowa 1996) (citing Rowson v. Kawasaki Heavy Indus., Ltd., 866 F.Supp. 1221, 1225 & n. 5 (N.D.Iowa 1994) (citing L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F.Supp. 1419, 1423-24 (D.Conn.1986))). The court conclud......
  • Request a trial to view additional results

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