Voelkel v. General Motors Corp.

• Decision Date: 11 January 1994
• Docket Number: No. 92-4172-SAC.,92-4172-SAC.
• Parties: Michael VOELKEL, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: U.S. District Court — District of Kansas

846 F. Supp. 1468

Michael VOELKEL, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

No. 92-4172-SAC.

United States District Court, D. Kansas.

January 11, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Henry O. Boaten, Topeka, KS, Henry O. Boaten, Junction City, KS, for Michael Voelkel.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, Rodney E. Loomer, Sherry A. Rozell, Gregory W. Aleshire, Turner, Reid, Duncan, Loomer & Patton, Springfield, MO, for General Motors Corp.

MEMORANDUM AND ORDER

CROW, District Judge.

During the early morning hours of July 25, 1990, the plaintiff fell asleep at the wheel allowing his 1984 Pontiac Firebird to go off the road and collide with a tree. The accident occurred on a United States Military Reservation, Fort Riley, Kansas. The plaintiff alleges his personal injuries were enhanced when the seat belt that he was wearing failed to operate properly. The plaintiff brings this products liability action for personal injury upon causes of action in negligence, breach of express and implied warranty, strict liability, and negligence per se. The plaintiff further alleges express warranty claims under the Magnuson-Moss Warranty Act.

The defendant moves for summary judgment on several alternative grounds. The court shall grant such a motion if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc. 939 F.2d 887, 891 (10th Cir.1991). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted).

For purposes of this motion only, the following facts are uncontroverted¹:

1. On July 25, 1990, the plaintiff fell asleep while driving his 1984 Pontiac Firebird. The car crossed over the opposite lane and struck a tree just off the roadway. The plaintiff was taken to Irwin Army Hospital and later to Stormont-Vail Hospital for treatment of his personal injuries. The accident occurred on the federal military reservation at Fort Riley, Kansas.

2. The defendant, General Motors Corporation ("GMC"), is a Delaware corporation registered and authorized to do business in Kansas. GMC designed and manufactured, in part, the 1984 Pontiac Firebird driven by the plaintiff on July 25, 1990.

3. The plaintiff's expert, James Yule, is not formally trained in medical causation, injury mechanism, biomechanics or occupant kinematics.

4. In May 1991, GMC sent out a recall notice for the seat belt buckle assemblies in its 1984-1990 Pontiac Firebirds. The notice said that in some models the red push button would fracture causing the buckle not to latch or not to release. GMC apparently issued the recall after determining that the plastic parts in the seat belt buckle assemblies did not contain an ultra-violet stabilizer.

5. James Yule first testified in his deposition that it was unlikely that the condition stated in the recall notice was causally related to the plaintiff's injuries. (Yule Depo. at 106). Later in his deposition, when asked if there was any problem or defect with the belt buckle which was causally related to the plaintiff's injuries, Yule answered "maybe." (Yule Depo. at 129). Yule said that the buckle did not latch with a clear metallic snap and that the latching mechanism just "didn't feel quite right." (Yule Depo. at 129). Yule further explained that the red push button had faded, that a little piece of the buckle assembly had broken off inside when he disassembled the buckle, and that something never identified also fell from the buckle during disassembly. (Yule Depo. at 130). Yule, however, opined that the piece found broken inside did not "functionally" affect things. (Yule Depo. at 130). Yule later added that he was not sure if the "something" which fell during disassembly even came from the buckle area. (Yule Depo. at 132). Yule then admitted that he could not opine to a reasonable degree of engineering certainty that the unidentified piece which fell caused or contributed to the plaintiff's injuries. (Yule Depo. at 131-134).

6. The plaintiff testified that prior to the accident he had experienced the belt buckle not properly latching or becoming unlatched sometime after he had thought it had latched.

7. James Yule testified that when he inspected the seat belt in February of 1993 the left shoulder belt was inoperative because the belt-slackening or adjusting device was assembled wrongly and had locked the shoulder belt in the fully extended position. (Yule Depo. at 89-90). James Yule could not say to a reasonable degree of engineering certainty whether the observed condition of excessive slack existed before the accident or only happened after the accident. (Yule Depo. 92-95).

8. The plaintiff's attorney's assistant, Randy Wheat, removed the seat belt assemblies from the plaintiff's car at the plaintiff's attorney's request two days after Yule's inspection in February of 1993. Yule wrote with an ink pen on the retractor and webbing of the driver's side seat belt assembly. Expert witnesses for the defendant, Jennifer Sevigny and Dr. Charles Moffat, inspected the vehicle only after Wheat had removed the seat belts.

I. The Plaintiff's Legal Theories Were Not Viable When Fort Riley Became a Federal Enclave.

The defendant contends it is entitled to summary judgment on the plaintiff's warranty claims, negligent failure to warn claim, strict liability claims, negligence per se claim, and Magnuson-Moss warranty claim, because these legal theories were not recognized in Kansas, by statute or in common law, in 1872 when Fort Riley was ceded to the United States. The defendant relies on this general rule from Orlovetz v. Day & Zimmerman, Inc., 18 Kan.App.2d 142, 145-46, 848 P.2d 463 (1993):

With respect to federal enclaves situated within the boundaries of the State of Kansas, only federal law and such Kansas law (not in conflict with federal law) in effect at the time of the establishment of the federal enclave are applicable to the activities and operation within such federal enclaves. An exception to the above rule exists if subsequently enacted Kansas law is specifically adopted or made applicable by an act of Congress.

The plaintiff responds arguing that the exception applies here as Congress has enacted the following law:

In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be.

16 U.S.C. § 457. After devoting almost one-fourth of its original memorandum to this argument, the defendant in reply offers only a single sentence generally denying that this federal statute makes current Kansas law applicable here.

Section 457 has been interpreted to apply "the current substantive law of the surrounding state in actions for death or personal injury occurring within a federal enclave." Vasina v. Grumman Corp., 644 F.2d 112, 117-18 (2nd Cir.1981) (and cases cited therein). The apparent purpose of the statute is "to create a uniformity between the law to be applied in the federal enclave and that applied in the adjacent state." Burgio v. McDonnell Douglas, Inc., 747 F.Supp. 865, 867 (E.D.N.Y.1990). The second sentence of § 457 makes current state law applicable to personal injury actions, while the first sentence accomplishes the same for wrongful death actions. Id. By its application here, § 457 incorporates current Kansas law governing personal injury actions and permits the plaintiff to maintain the different legal theories that have been pleaded.

Buried in the defendant's brief on this first issue are other arguments unrelated to choice of law. The defendant contends that the plaintiff cannot recover under the Magnuson-Moss Warranty Act ("MMWA") for personal injuries and cannot allege a violation of MMWA by simply incorporating a state law personal injury claim. The plaintiff says that he has alleged the elements for a claim under 15 U.S.C. § 2304(a)(1)—(4) on which personal injuries are recoverable.

Upon its filing, the pretrial order supplants the pleadings and controls what claims and theories are available for trial. At page six of the pretrial order, the plaintiff alleges that the defendant labelled its warranty as "full" thus obligating itself to correct defects within a reasonable time. The plaintiff further alleges that ...