Stewart v. NationaLease of Kansas City, Inc.

• Decision Date: 11 March 1996
• Docket Number: Civil Action No. 94-1060-MLB.
• Citation: 920 F. Supp. 1188
• Parties: John B. STEWART, Plaintiff, v. NATIONALEASE OF KANSAS CITY, INC., Defendant.
• Court: U.S. District Court — District of Kansas

920 F. Supp. 1188

John B. STEWART, Plaintiff, v. NATIONALEASE OF KANSAS CITY, INC., Defendant.

Civil Action No. 94-1060-MLB.

United States District Court, D. Kansas.

March 11, 1996.

COPYRIGHT MATERIAL OMITTED

Russell L. Mills, Wichita, KS, Eric J. Kidwell, Wichita, KS, for plaintiff.

George Greer Gsell, Woodard, Blaylock, Hernandez, Roth & Day, Wichita, KS, Timothy J. Finnerty, Kristin J. Blomquist, John V. Dwyer, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Wichita, KS, Natalie G. Haag, Kansas Gaming Commission, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

BELOT, District Judge.

Before the court are the following:

(1) Defendant's Motion for Summary Judgment (Doc. 57);

(2) Plaintiff's Response to Defendant's Motion for Summary Judgment (Docs. 59, 60);

(3) Defendant's Supplemental Motion for Summary Judgment (Doc. 66);

(4) Plaintiff's Response to Defendant's Supplemental Motion for Summary Judgment (Doc. 69);

(5) Plaintiff's Motion for Partial Summary Judgment (Doc. 65); and

(6) Defendant's Reply to Plaintiff's Motion for Partial Summary Judgment (Doc. 71).

I. FACTUAL BACKGROUND

The following facts are undisputed by the parties, unless otherwise noted. Plaintiff was employed as a truck driver for A.M. Castle Metals & Co. ("A.M. Castle"), delivering steel to A.M. Castle customers (Doc. 57 at 6). On June 26, 1992, plaintiff was working on top of a semi-tractor trailer leased by A.M. Castle from Defendant NationaLease of Kansas City, Inc. ("NationaLease") (Doc. 57 at 4). Plaintiff stepped onto a rubber dock bumper pad attached to the end of the leased trailer, which twisted, causing him to fall to the ground and injure himself (Doc. 57 at 5).

The Vehicle Lease and Service Agreement ("lease") between NationaLease and A.M. Castle, entered into on May 12, 1983, governs the trailer in question (Doc. 57 at 5). The lease provides in relevant part:

4. Maintenance and Repair. Lessor shall maintain, repair, and service the Vehicles such that they remain in good operating condition and in compliance with the laws of the state or states in which the Vehicles are licensed to operate and with all applicable regulations or other requirements of the United States Department of Transportation or Interstate Commerce Commission. Lessor shall also perform regular preventative maintenance Inspections of the Vehicles in order to accomplish the foregoing.

. . . . .

10. Servicing and Reporting. A. Lessee shall deliver to the service facilities designated by the Lessor all the Vehicles needing repair or such Vehicles as may from time to time be requested by Lessor for adjustment and repair, provided, however, that Lessor may inspect, adjust, or repair any and all or said vehicles upon Lessee's premises or elsewhere at all reasonable times, and Lessee shall cooperate fully to facilitate such inspections, adjustments, and repairs. Lessee shall return each Vehicle for periodic inspection for a maximum of eight (8) hours in each and every calendar week for service, inspections, adjustments, and repairs to eliminate insofar as practicable interruption in Lessee's use. Lessee further agrees upon the occurrence thereof but no later than the time which each Vehicle is returned to Lessor's garage, a written report of any and all such faulty operation or other trouble that the driver may have had with the Vehicle.

(Doc. 57, Exh. F).

The attachment modifying the lease further provides:

4. Service Agreement — It is agreed that the Lessor is responsible for service, tires, and predictable repairs, but no other services and costs.... "Predictable repairs" are intended to include all labor, parts and supplies to repair lights and reflectors, wheel bearings, and replacement air valves, glad hands, air lines, tires tubes, brake linings, wheel seals, and preventative maintenance services. It is not intended to include washing, licensing, or state inspections, failures of axles, floor, bulkhead, pins, slider, suspension, frame or crossmembers; brake drums, landing gear, accident repair, repainting, repair or replacement of tarps, chains or binders, or include substitute vehicles.

(Doc. 57, Exh. F).¹

Although NationaLease was headquartered in Kansas City, it arranged for a Wichita service company, Beeline, to be available for any on-site repairs needed in Wichita (Doc. 57 at 7). Neither the plaintiff nor any other person at A.M. Castle made any request of NationaLease or Beeline to repair the dock bumper pad on the trailer in question (Doc. 57 at 7; Doc. 65 at 13). Just over a month before plaintiff's injury, on May 19, 1992, NationaLease performed a preventative maintenance inspection on the trailer. It did not perform any maintenance on the dock bumper pad, but there is no evidence that the pad was in need of repair at the time. (Docs. 57 at 8; 65 at 14).

II. SUMMARY JUDGMENT STANDARDS

Rule 56(c) of the Federal Rules of Civil Procedure directs the entry of summary judgment in favor of the party who "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The court must determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Entry of summary judgment is mandated, after an adequate time for discovery and upon motion, against a party who `fails to make a showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1138 (10th Cir.1991) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). Summary judgment is inappropriate, however, if there is sufficient evidence on which a trier of fact could reasonably find for the nonmoving party. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir.1991).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact by informing the court of the basis for its motion. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. This burden, however, does not require the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original).

Once the moving party properly supports its motion, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The nonmoving party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id.; Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 726 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988), aff'd 939 F.2d 901 (10th Cir.1991). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan. Rule 56.1. The court reviews the evidence in a light most favorable to the nonmoving party, see e.g., Washington v. Board of Public Utilities, 939 F.2d 901, 903 (10th Cir.1991), under the substantive law and the evidentiary burden applicable to the particular claim. Anderson, 477 U.S. at 255, 106 S.Ct. at 2514.

III. DISCUSSION

Plaintiff, a citizen of the state of Kansas, filed this action on February 14, 1994 (Doc. 1).² Defendant is a Missouri corporation (Doc. 12). Thus, this court's jurisdiction is based upon diversity of citizenship under 28 U.S.C. § 1332. Plaintiff contends that NationaLease is liable for his injuries under several species of negligence: simple negligence, negligence per se, and res ipsa loquitur. Further, the plaintiff contends that NationaLease is liable under theories of breach of contract and breach of implied warranty. (Doc. 60 at 16-17). The court will summarize and address these theories of recovery in turn, beginning with those sounding in tort.³

A. Tort Theories

Plaintiff levels a scattershot of negligence theories at defendant, all based upon defendant's alleged failure to inspect and maintain the trailer in a safe condition.

In Count I of the complaint, plaintiff alleges that defendant leased the trailer to A.M. Castle in a defective condition and failed to maintain it in a safe condition, because the dock bumper pad at issue had only one of three bolts securing it at the time of his injury. The plaintiff contends that the defendant knew or could have known of this dangerous condition through the exercise of ordinary care. The plaintiff contends that these facts constitute a claim for ordinary negligence. (Doc. 73 at ¶¶ 8-12).

In Count II, plaintiff contends that NationaLease negligently failed to comply with K.S.A. 66-1, 129, 49 U.S.C.App. § 2501⁴ and 49 C.F.R. § 396.3, which generally provide that vehicles, parts and accessories must be maintained by "motor carriers" in a safe condition at all times. Plaintiff contends that the failure to comply with these statutes constitutes negligence per se. (Doc. 73 at ¶¶ 17-21).

In Count IV, plaintiff contends...