Stillie v. AM Intern., Inc., Civ. A. No. 91-2213-EEO.

• Decision Date: 06 April 1994
• Docket Number: Civ. A. No. 91-2213-EEO.
• Citation: 850 F. Supp. 960
• Court: U.S. District Court — District of Kansas
• Parties: Irene M. STILLIE v. AM INTERNATIONAL, INC.; Rockwell International Corporation; Rockwell Graphic Systems; Wohlenberg Projekte Und Systeme GMBH; H. Wohlenberg KG GMBH & Co.; Wohlenberg KG GMBH; Wohlenberg KG; Peter H. Johnson, d/b/a Book Machine Sales; and AM Wohlenberg GMBH.

850 F. Supp. 960

Irene M. STILLIE v. AM INTERNATIONAL, INC.; Rockwell International Corporation; Rockwell Graphic Systems; Wohlenberg Projekte Und Systeme GMBH; H. Wohlenberg KG GMBH & Co.; Wohlenberg KG GMBH; Wohlenberg KG; Peter H. Johnson, d/b/a Book Machine Sales; and AM Wohlenberg GMBH.

Civ. A. No. 91-2213-EEO.

United States District Court, D. Kansas.

April 6, 1994.

Gene E. Schroer, Schroer, Rice, P.A., Topeka, KS, for plaintiff Irene M. Stillie.

John M. McFarland, Terry J. Brady, William F. Ford, Jr., Gage & Tucker, Kansas City, MO, Michael T. Hannafan, Michael T. Hannafan & Associates, Ltd., Chicago, IL, Stephen A. Murphy, Westwood, KS, for defendants AM Intern. Inc., Rockwell Intern. Corp. and Rockwell Graphic Systems.

Heather Suzanne Woodson, Stinson, Mag & Fizzell, Overland Park, KS, David E. Everson, Jr., Stinson, Mag & Fizzell, Kansas City, MO, for defendants Wohlenberg Projekte und Systeme GMBH, H. Wohlenberg KG GMBH & Co.

Ronald W. Fairchild, Dianna L. Mans, Sheldon J. Moss, Porter, Fairchild, Wachter

& Haney, Topeka, KS, for defendant Peter H. Johnson, dba Book Mach. Sales.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Senior District Judge.

This matter is before the court on motions to reconsider our order of December 21, 1993, 841 F.Supp. 370, by plaintiff (Doc. # 197) and defendant Peter H. Johnson, d/b/a/ Book Machine Sales ("BMS"), (Doc. # 198). For the reasons set forth below, plaintiff's motion will be granted and defendant's motion will be denied.

The decision of whether to grant or deny a motion for reconsideration is committed to the court's discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988) (district court's decision on motion for reconsideration is reviewed under abuse of discretion standard). It is well established that a motion for reconsideration is the opportunity for the court to correct manifest errors of law or fact and to review newly discovered evidence or to review a prior decision when there has been a change in the law. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party's position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). A party's failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990) (quoting Paramount Pictures Corp. v. Video Broadcasting Sys., Inc., No. 89-1412-C, slip op. at 2, 1989 WL 159369 (D.Kan., unpublished, Dec. 15, 1989)).

In the instant case, plaintiff asks the court to reconsider the portion of our order granting summary judgment in favor of Johnson on plaintiff's strict liability claim. Plaintiff does not submit any new facts or legal authority, but argues that the court misconstrued Kansas law in holding that those in the chain of distribution after remanufacture are not subject to strict liability. Basically, plaintiff contends that Euro Graphic's rebuilding of the trimmer machine made the machine new again and, thus, reactivated the doctrine of strict liability with regard to the remanufacturer and sellers in the chain of distribution after remanufacture.

In our prior decision granting summary judgment, we looked to Sell v. Bertsch & Company, 577 F.Supp. 1393, 1399 (D.Kan. 1984), where Judge Saffels held that the seller of a used machine which had not been rebuilt was not subject to strict liability, and held that because BMS had not remanufactured the trimmer machine, BMS could not be held strictly liable. We did not, however, consider whether under Kansas law remanufacture of the trimmer by Euro Graphics made BMS subject to strict liability as a seller in the chain of distribution after remanufacture. If the Kansas Supreme Court would answer this question in the affirmative,¹ our order granting summary judgment was not proper because questions of fact on the issue of whether Euro Graphics remanufactured the trimmer, as contemplated by Kan.Stat.Ann. § 60-3302(b), remain for resolution at trial.

In Kennedy v. City of Sawyer, 228 Kan. 439, 445-46, 618 P.2d 788, 798 (1980), the Kansas Supreme Court held, "under the doctrine of strict liability, the liability of a manufacturer and those in the chain of distribution extends to those individuals to whom injury from a defective product may reasonably be foreseen." In addition, Kan.Stat. Ann. § 60-3302(b) (Supp.1993) defines "manufacturer" as "a product seller who ... remanufactures the relevant part or component part of a product before its sale to a user or consumer." The question, therefore, becomes whether the definition of manufacturer in section 60-3302(b) extends the doctrine of strict liability annunciated in Kennedy to sellers in the chain of distribution after remanufacture.

We believe that the Kansas Supreme Court would hold that because Kan.Stat.Ann. § 60-3302(b) defines manufacturer to include a seller who remanufactures, remanufacturers and sellers in the chain of distribution after remanufacture are subject to strict liability. Neither the Kansas Products Liability Act, Kan.Stat.Ann. § 60-3301 et seq. (1983 & Supp.1993), nor the Restatement (Second) of Torts § 402A² are, by their terms, limited to new products. See Sell, 577 F.Supp. at 1398 ("Courts imposing strict liability on sellers of used products generally have done so because Restatement § 402A is not limited by its terms to sellers of new products.").

In addition, the policies behind the doctrine of strict liability, i.e., providing "maximum protection for the injured party" and "discouraging the marketing of products having defects," Kennedy, 228 Kan. at 445-46, 618 P.2d at 794, apply with similar force following remanufacture. Application of strict liability after original manufacture has been justified on other grounds as well: 1) the manufacturer/distributor is better able to spread the risk than is the consumer; 2) reasonable consumer expectations; and 3) encouraging better products. Sell, 577 F.Supp. at 1399. We believe that these rationales can be applied following remanufacture as well.

In Tillman v. Vance Equip. Co., 286 Or. 747, 596 P.2d 1299, 1303 (1979), the Oregon Supreme Court discussed the practical ramifications of applying strict liability to the seller of a used machine which was not remanufactured or rebuilt:

We conclude that holding every dealer in used goods responsible regardless of fault for injuries caused by defects in his goods would not only affect the prices of used goods; it would work a significant change in the very nature of used goods markets. Those markets, generally speaking, operate on the apparent understanding that the seller, even though he is in the business of selling such goods, makes no particular representation about their quality simply by offering them for sale. If a buyer wants some assurance of quality, he typically either bargains for it in the specific transaction or seeks out a dealer who routinely offers it (by, for example, providing a guarantee, ...). The flexibility of this kind of market appears to serve legitimate interests of buyers as well as sellers.

We are of the opinion that the sale of a used product, without more, may not be found to generate the kind of expectations of safety that courts have held are justifiably created by the introduction of a new product into the

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