American Family Mutual Insurance Company et al v. Techtronic Industries North America, Inc. et al

Filing 108

MEMORANDUM AND ORDER sustaining in part Defendants' 62 Motion For Summary Judgment; overruling as moot Plaintiffs' 60 Motion For Summary Judgment On Defendants' Fourth Affirmative Defense; overruling Defendants' 86 Motion to Strike Or Disregard the Declaration Of Plaintiff Robert Harris; and overruling as moot Defendants' 83 Motion To Strike Or Disregard theDeclaration Of Jennifer Chick, CPA. The Court grants summary judgment in favor of defendants on plaintiffs& #039; claims that defendants manufactured, distributed and/or sold a product which was unreasonably dangerous due to defects in its design and/or defects in its manufacture. Plaintiffs' remaining claim is that defendants manufactured, distributed and/or sold a product which was unreasonably dangerous due to inadequate warnings. Signed by District Judge Kathryn H. Vratil on 05/16/2014. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMERICAN FAMILY MUTUAL INSURANCE
COMPANY, as subrogee of Robert and Mandy
Harris, et al.,
Plaintiffs,
v.
TECHTRONIC INDUSTRIES NORTH
AMERICA, INC., et al.,
Defendants.

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CIVIL ACTION
No. 12-2609-KHV

MEMORANDUM AND ORDER
American Family Mutual Insurance Company, Robert Harris and Mandy Harris bring suit
against Techtronic Industries North America, Inc. (“TI North America”), OWT Industries, Inc. and
Techtronic Industries Factory Outlets, Inc. (“TI Factory Outlets”) asserting that a defective gasolinepowered pressure washer caused a fire on August 22, 2010. Specifically, under the Kansas Product
Liability Act (“KPLA”), K.S.A. § 60–3301 et seq., plaintiffs assert claims for inadequate warning,
design defect and manufacturing defect. This matter comes before the Court on Plaintiffs’ Motion
For Summary Judgment On Defendants’ Fourth Affirmative Defense And Memorandum In Support
Thereof (Doc. #60) filed October 25, 2013;1 defendants’ Motion For Summary Judgment (Doc. #62)

1

Plaintiffs seek summary judgment on defendants’ fourth affirmative defense, i.e. that
some or all claims should be barred and/or dismissed because American Family intentionally failed
to preserve the pressure washer at issue in this case. Defendants state that they raise this defense
in response to plaintiffs’ claims that the pressure washer was defectively manufactured and
designed. See Memorandum In Opposition To Plaintiffs’ Motion For Summary Judgment On
Defendants’ Fourth Affirmative Defense Regarding Plaintiffs’ Spoilation Of Evidence (Doc. #76)
filed November 22, 2013 at 2. As discussed below, defendants are entitled to summary judgment
on the merits of these claims. Accordingly, the Court overrules as moot plaintiffs’ motion to
preclude defendants’ fourth affirmative defense.

filed October 25, 2013; Defendants’ Motion To Strike Or Disregard The Declaration Of Plaintiff
Robert Harris And Supporting Memorandum (Doc. #86) filed December 13, 2013;2 and Defendants’
Motion To Strike Or Disregard The Declaration Of Jennifer Chick, CPA, And Supporting
Memorandum (Doc. #83) filed December 13, 2013.3 For reasons stated below, the Court sustains
defendants’ motion for summary judgment in part.
I.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories
and admissions on file, together with affidavits and other materials, if any, show no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a), (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Kaufman v. Higgs,
697 F.3d 1297, 1300 (10th Cir. 2012). A factual dispute is “material” only if it “might affect the
outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine” factual
dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla.,
942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to
the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive

2

Defendants urge the Court to strike the Declaration of Robert Harris, Exhibit 18 to
Plaintiffs’ Memorandum In Opposition To Defendants’ Motion For Summary Judgment (“Plaintiffs’
Memorandum”) (Doc. #77) filed November 22, 2013. The Court considers the motion only with
respect to facts which are material to its ruling on the motions for summary judgment.
3

Defendants urge the Court to strike the Declaration of Jennifer R. Chick, CPA,
Exhibit 10 to Plaintiffs’ Memorandum (Doc. #77). In ruling on defendants’ motion for summary
judgment, the Court does not rely on the declaration. Accordingly, the Court overrules as moot
defendants’ motion to strike the Chick Declaration.
-2-

matters for which he carries the burden of proof. See Applied Genetics Int’l, Inc. v. First Affiliated
Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887,
891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific
facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion
for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110
(10th Cir. 1991). Summary judgment may be granted if the nonmoving party’s evidence is merely
colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. 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, 794 (10th Cir. 1988). Essentially, the inquiry is “whether
the evidence presents a sufficient disagreement to require submission to the jury or whether it is so
one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52.
II.

Facts
The following facts are either undisputed or construed in the light most favorable to

plaintiffs.4

4

The Court includes only those facts which are material to its rulings herein and
disregards any facts which record citations do not properly support. Pursuant to D. Kan. Rule 56.1,
the Court considers only those facts which the parties include in their statement of facts, in
numbered fact paragraphs with proper record citation and support. See Cook v. Olathe Med. Ctr.,
Inc., No. 10-2133-KHV, 2011 WL 2690060, at *2 n.1 (July 11, 2011); Vasquez v. Ybarra, 150
F. Supp.2d 1157, 1160 (D. Kan. 2001). For purposes of summary judgment, the Court deems all
such facts admitted unless specifically controverted by the opposing party. D. Kan. Rule 56.1. The
Court does not consider facts which the parties discuss only in the argument section of their briefs
(continued...)
-3-

A.

Fire On August 22, 2012

On August 22, 2010, Robert Harris used a reconditioned Power Stroke Pressure Washer
Model No. PS80903B (“Power Stroke”) for at least five continuous hours to clean exterior portions
of his home in Overland Park, Kansas. The pressure washer operated as Harris expected, and did
not cause concern that he was in danger or that it might cause a fire. Harris did not smell gas fumes
and did not see gas leaking or seeping from the machine.
After cleaning his house, Harris left the Power Stroke on his deck for “five to fifteen”
minutes, i.e. the time it takes to get and drink a beer. Harris then carried the pressure washer from
his deck down at least seven stairs to the garage, a distance of less than 20 feet, with the muffler
guard away from his body. The Power Stroke included an on-product warning label which stated
“Hot Surface,” with an arrow pointing in the general direction of the muffler guard. The muffler
guard is made of metal and is stamped with the word “HOT.” Harris does not remember any gas
spilling or any remarkable smell of gas while he carried the product to the garage.
Before putting the Power Stroke away, Harris observed that a clamp was missing from the
gas line. Harris does not recall if he noticed the missing clamp while he was operating the pressure
washer but he definitely remembers noticing it in the late afternoon. Harris Depo. at 77-7-78:17;
111:14-112:7. The gas line was indented, so Harris believes that the clamp was present at some

4

(...continued)
and not in the statement of facts. Id.; see Cook, 2011 WL 2690060, at *2 n.1; Jones v. Unified Gov’t
of Wyandotte Cnty./Kansas City, Kan., 552 F. Supp.2d 1258, 1261 n.1 (D. Kan. 2008). Also, the
Court does not consider arguments raised for the first time in a reply brief. See Rubio v. Turner
Unified Sch. Dist. No. 202, 523 F. Supp.2d 1242, 1252 (D. Kan. 2007).
-4-

point in time.5 Harris does not know when the clamp came off or what caused it to come off.
After Harris put the Power Stroke away, a fire caused significant damage to his home and
personal property.6 The parties agree that the Power Stroke was the source of ignition.
The Overland Park Fire Department investigated the fire. Based on evidence at the scene
and multiple interviews with Harris, Investigator Mark Sweeney concluded as follows: The fire
appeared to be accidental, in that a hot manifold was located too close to combustible mower bags
and a flammable liquid container. The flammable liquid container was within inches of the hot
manifold. The area of origin was just inside the lower level garage door, behind the riding
lawnmower.
Plaintiffs’ cause and origin expert, Dan Anderson, agrees with Sweeney’s findings.
Anderson concluded that the fire was the result of the hot power washer exhaust manifold being
place against combustible materials located near floor level between the right rear tire of the riding
mower and the overhead door in the east rear garage. Anderson testified that the garage contained
four containers of gasoline: (1) the gas tank of the Power Stroke, which was sitting behind a riding
lawnmower; (2) a partially-full gas can near the Power Stroke; (3) the lawnmower gas tank; and
(4) the gas tank of a nearby all-terrain vehicle (“ATV”). None of the gas tanks, or their contents,
survived the fire. Anderson Depo., Defendants’ Exhibit K at 145:16-147:21. Anderson cannot
determine the order in which the gasoline components burned. Id. at 146:22-147:18.

5

At the time he purchased the machine, Harris did not notice whether a clamp was
missing from the gas line.
6

The record does not disclose the amount of time which elapsed between when Harris
put the Power Stroke away and when the fire occurred.
-5-

B.

Power Stroke Operator Manual

Harris purchased the reconditioned Power Stroke at the Direct Tools Factory Outlet Store
in Osage Beach, Missouri.7 Harris purchased a floor model which had been assembled by Factory
Outlet personnel.8 When Factory Outlet personnel assemble pressure washers to use as floor
models, they do not inspect them. Also, Factory Outlet personnel do not inspect floor models before
selling them.
When Harris purchased the Power Stroke, he received its operator manual. Harris skimmed
the manual for a couple of minutes to see if it contained anything “neat.”9 Harris Depo. at 37:20-25;

7

Although the record is not clear, it appears that the Factory Outlet is part of TI
Factory Outlets.
8

Defendants attempt to controvert this fact with deposition testimony by Harris. See
Reply Memorandum In Support Of Motion For Summary Judgment (“Defendants’ Reply”)
(Doc. #82) filed December 13, 2013. In his deposition, Harris testified that he did not recall whether
the Power Stroke was boxed up or assembled, or whether it was a floor model. See Robert Harris
Depo. at 53:15-23, Exhibit B to Defendants’ Reply (Doc. #82). In a transcribed statement taken the
day after fire, Harris stated that he had purchased a floor model. See Transcribed Statement,
Exhibit 14 to Plaintiffs’ Memorandum (Doc. #77) at 9. In ruling on defendants’ motion for
summary judgment, the Court construes this fact in the light most favorable to plaintiffs. In other
words, the Court accepts plaintiffs’ version, i.e. that Harris purchased a floor model which was preassembled by Factory Outlet employees. This fact appears to be relevant to plaintiffs’ theory that
the pressure washer was missing a fuel-line clamp at the time of purchase. As discussed below,
plaintiffs cannot prevail on this theory because they have not shown that a missing fuel-line clamp
caused the fire and contributed to an unreasonably dangerous condition.
9

Harris testified that generally, if he’s going to read the manual and it has a warning,
he would probably heed the warning. Id. at 36:15-17.
Regarding whether he read the manual, Harris testified as follows:
Did I read the manual on it? I skimmed through it to see if there’s anything neat in
there. Did I stop? I saw the warning symbol. You know, it’s on the very first page,
it’s a little triangle with a burn or something on it, and I know that it means, “Don’t
touch it because it’s hot.” Did I read every passage in there that had to do with that?
No, because I’d already known. I was looking to see if it had an automatic soap
(continued...)
-6-

114:20-115:6. Harris noticed that the Power Stroke had an automatic soap feature, which he thought
was neat. Id. at 115:7-23. He glanced through the manual to find out how it worked, but the
information did not stick out to him and he never figured it out. Id. Harris saw the triangle-shaped
warning symbol on the first page which indicated that the product gets hot and can burn you. Id.
at 37:25-38:4. Harris did not fully read the manual and does not recall reading any specific part of
the manual. Harris assumed that the operator’s manual contained safety information.
The Power Stroke operator manual is 16 pages long. See Power Stroke Operator Manual,
Exhibit H to Memorandum In Support Of Motion For Summary Judgment (“Defendants’
Memorandum”) (Doc. #63) filed October 25, 2013. The front cover states as follows: “Warning.
To reduce risk of injury the user must read and understand the operator’s manual before using this
product.” Page five contains an explanation of symbols in the book. One symbol shows a person
reading a book. The name of the symbol is “Read the Operator’s Manual.” The explanation of the
symbol states as follows: “To reduce the risk of injury, user must read and understand operator’s
manual before using this product.” Regarding unpacking and assembly, the operator manual states
as follows: “Operation of a product that may have been improperly preassembled could result in
serious personal injury.”
The manual provides “IMPORTANT SAFETY INSTRUCTIONS” which advise, in part, as
follows:
•

9

Stay alert and exercise control. Watch what you are doing and use
common sense. Do not operate tool when you are tired. Do not rush.

(...continued)
feeder on it or something similar to that. Did I read the verbatim the owner’s
manual? No.

Harris Depo. at 37:23-38:10.
-7-

•

***
Do not operate around dry brush, twigs, cloth rags or other flammable
materials.

Id. at 3 (emphasis in original).
The manual also provides “SPECIFIC SAFETY RULES” which advise, in part, as follows:
•
•
•

•
•

Keep cooling air intake (recoil starter area) and muffler side of engine at
least 3 feet away from buildings, obstructions, or other combustible objects.
Keep the engine away from flammables and other hazardous materials.
Keep away from hot parts. The muffler and other engine parts become
very hot; use caution.
***
Before storing, allow engine to cool.
***
Make sure minimum clearance of 3 feet is maintained from combustible
materials.

Id. at 4 (emphasis in original).
In the maintenance section, under the heading “Storing the Pressure Washer,” the manual
states as follows:
Store the pressure washer with the gas tank empty by either draining the tank or
running the pressure washer until the gas runs out. Allow 30 minutes of “cool down”
time before storing the machine. Store in a dry, covered area where the weather
can’t damage it.
Id. at 13.
The warnings on the fourth page of the manual were modeled after sections 114 and 115 in
the American National Standard Institute (“ANSI”)/Underwriters Laboratories Standard for Safety
of High Pressure Cleaning Machines, UL 1776, revised through August 15, 2005 (“UL 1776”).
UL 1776 is not a binding or mandatory standard or regulation, but OWT Industries uses portions of
the standard as a guide for testing procedures for its pressure washers. While some manufacturers
use the standard as a testing guide, no pressure washer manufacturer currently lists its pressure

-8-

washer with UL 1776.
The Power Stroke operator manual does not specifically warn that the Power Stroke gets hot
enough to start a fire. Plaintiffs’ warnings expert, Michael Wogalter, has not identified any statute,
governmental regulations, mandatory industry standard or voluntary industry standard which the
Power Stroke warnings, manuals or on-product labels violated.
C.

Harris Purchased Exemplary Power Strokes From Factory Outlet After Fire

One week after the fire, Harris returned to the Factory Outlet to purchase exemplar pressure
washers like the Power Stroke that caused the fire. Declaration of Robert Harris ¶13, Exhibit 18 to
Plaintiffs’ Memorandum (Doc. #77).10 Harris purchased two exemplar pressure washers, both of
which were missing fuel-line clamps at the fuel pump. Id. Harris saw one more pressure washer
which was also missing the fuel-line clamp. Id. The Factory Outlet had no other pressure washers
that day. Id. Harris pointed out to a Factory Outlet salesperson that the three pressure washers on
the floor were missing fuel-line clamps. Id. ¶ 14. The salesperson responded as follows: “They’re
all like that. That’s just the way they come.” Id.
D.

Harris’s Prior Experience

Before August 22, 2010, Harris had used the reconditioned Power Stroke only one time.

10

Defendants seek to strike paragraphs 13 and 14 of the Declaration of Robert Harris
on grounds that they attempt to create a sham fact issue, i.e. a “new found memory” which was not
disclosed in discovery. See Motion To Strike Harris Declaration (Doc. #86) at 8-10. In their reply
brief, however, defendants concede that plaintiffs disclosed the information in supplemental
disclosures. See Defendants’ Reply Memorandum In Support Of Their Motion To Strike Or
Disregard The Declaration Of Plaintiff Robert Harris (Doc. #96) filed January 22, 2014 at 4. The
Court agrees with plaintiffs that defendants’ interrogatories did not clearly require disclosure of said
information. See Opposition Of The Harris Plaintiffs To Defendants’ Motion To Strike The
Declaration Of Robert Harris (Doc. #91) filed January 7, 2014 at 4. Defendants do not cite any
inconsistent deposition testimony by Harris. On this record, the Court will not strike paragraphs 13
and 14 of his declaration.
-9-

Harris had owned other pressure washers, though, and had used them often. All of his pressure
washers appeared to operate the same way. Harris had owned other equipment with small gas
engines and performed his own maintenance on those machines.
In 1977, Harris received vocational training to be a car mechanic, including training on
gasoline engines in cars. Based on his training and experiences, Harris knew the following:
(1) gasoline engines burn gasoline; (2) engines and their components become hot during operation;
(3) he himself had suffered burns from touching a hot engine; (4) exhaust gases from engines are
hot; (5) metal parts that vent hot exhaust gases get hot; (6) engines stay hot for a period of time after
the engine stops; (7) exhaust parts of engines stay hot for a period of time after the engine stops;
(8) plastic can burn; (9) paper can burn; (10) fabric can burn; (11) dried remnants of grass clippings
and leaves can burn; and (12) gasoline burns.11
E.

Defendants’ Involvement With Power Stroke

Defendants have not conducted any testing or gathered any data concerning the level of
education, experience with power tools, and/or trade or occupation of people who use or buy the
Power Stroke. Users and consumers of the Power Stroke are not required to have any particular
knowledge, experience or training. Defendants have not conducted any testing or gathered any data
concerning how consumers, owners or users actually use or store the Power Stroke.
Defendants tested the temperature of the Power Stroke controls, trigger and parts that a user

11

Plaintiffs assert that Harris did not know that after use, the Power Stroke could be hot
enough to start a fire. See Plaintiffs’ Memorandum (Doc. #77) at 23, ¶ 30. The evidence which
plaintiffs cite, however, does not support the assertion. See Plaintiff Robert Harris’ Answers And
Objections To The First Interrogatories Of Defendant OWT Industries, Inc., Exhibit 9 to Plaintiffs’
Memorandum (Doc. #77) (“I do not believe that the manufacturer gave me adequate warnings of
danger of fire when storing the power washer after use.”). The Court therefore does not consider
it.
-10-

would come into contact with while lifting and carrying the product. Defendants do not know how
hot the surfaces of the Power Stroke are after use, or how long the surfaces remain hot after use.
Before re-selling used power washers, during the reconditioning process, defendants did not do any
temperature testing.
1.

OWT Industries

OWT Industries designed, manufactured and reconditioned the Power Stroke. The
specifications for the Power Stroke include a “clamp” or “clip” that secures the fuel line to the
engine. During the “refurbishment” or “reconditioning” process, OWT employees detach the fuel
line from the engine. After testing, employees reattach the fuel line.
Arthur Grubbs, III, an OWT employee at the manufacturing plant in Pickens, South Carolina,
reconditioned the Power Stroke at issue in this case. Before the unit was packaged and shipped,
Grubbs tested the pressure washer and determined that the engine was good, the pump was good and
the machine had no apparent defect. As part of his training, Arthur Grubbs made sure that clips
were on the fuel lines. If a clip was missing, he would put one on the fuel line after he completed
his testing and before the pressure washer was shipped out.
2.

TI North America

Andrew Hornick, senior product safety engineer for TI North America, gave final
review and approval to the Power Stroke operator manual and on-product labeling. Hornick led the
pre-sale product safety review committee for the product. On December 5, 2008, the product safety
review committee met in a conference room at TI North America. The committee addressed topics
such as safety, specifications for component parts to be supplied by others and on-product labels to
be affixed to the Power Stroke. TI North America ultimately approved the product for sale. Also,

-11-

TI North America procured or was involved in procuring the engines used in the product from
America Honda Motor Co.
3.

TI Factory Outlets

TI Factory Outlets did not design, manufacture, repair or recondition the Power
Stroke. Defendants contend that TI Factory Outlets sold the product in substantially the same
condition as it received it for resale and with all on-product labels, owners and operators’ manuals
supplied by the manufacturer.
F.

Value Of Harris Home

Mark Gray, senior field property adjuster for American Family, adjusted the Harris
homeowner’s insurance claim following the fire at their home. Gray determined that the house was
a total loss because the cost to rebuild the home would exceed the policy limits.12 In determining
what to pay under the homeowner’s policy, American Family did not consider the fair market value
of the home or personal property.
Harris testified that before the fire, he figured the fair market value of his home was “close
to $300,000.” The Harrisses’ tax return for 2010 declared $275,000 as the fair market value of the
house. In his deposition, Harris stated that this amount “sounds good.” His wife, Mandy Harris,
testified that the 2010 tax return declared that (1) before the fire, the fair market value of the home
was $275,000; (2) after the fire, the fair market value was $45,000; and (3) before the fire, the fair
market value of the contents in the home was $22,000.
III.

Analysis
Against all defendants, plaintiffs assert claims under the Kansas Product Liability Act,

12

The record does not disclose the policy limits.
-12-

K.S.A. § 60–3301 et seq., that at the time the Power Stroke was manufactured, distributed and sold,
it was unreasonably dangerous due to (1) inadequate warnings; (2) design defects; and
(3) manufacturing defects.13 See Pretrial Order (Doc. #57) filed September 24, 2013 at 15-16.
Defendants seek summary judgment on grounds that (1) plaintiffs cannot establish a prima facie case
of product liability based on a manufacturing or design defect; (2) plaintiffs cannot prevail on their
warning claim; (3) TI Factory Outlets is an innocent seller under K.S.A. § 60-3306; (4) TI North
America did not design, manufacture or distribute the Power Stroke; and (5) plaintiffs’ claims for
damages for real and personal property are limited to loss in fair market value.
A.

Manufacturing And/Or Design Defects

Plaintiffs contend that the Power Stroke was defectively manufactured and/or designed
because (1) during and after use, the muffler guard became and remained hotter than an ordinary
consumer would expect; (2) the product was missing a clamp on the fuel line; and (3) the Power
Stroke violated safety standards of the American National Standards Institute (“ANSI”).14 See
Plaintiffs’ Memorandum (Doc. #77) at 34-38.
Defendants assert that plaintiffs cannot establish a prima facie case of product liability on
these claims. To establish a prima facie case, plaintiffs must show the following elements: (1) the
13

Plaintiffs attempt to assert a separate claim that defendants negligently manufactured,
distributed and sold the Power Stroke without protecting against the dangerous nature of the product.
See Pretrial Order (Doc. #57) filed September 24, 2013 at 16. This claim is subsumed within the
KPLA claims. See Samarah v. Danek Med. Inc., 70 F. Supp.2d 1196, 1202 (D. Kan. 1999) (purpose
of KPLA is to consolidate all product liability actions into one theory of legal liability); Patton v.
Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 756, 861 P.2d 1299, 1311 (1993); Savina v. Sterling
Drug, Inc., 247 Kan. 105, 127, 795 P.2d 915, 931 (1990) (KPLA provisions apply to actions based
on strict liability as well as negligence, breach of express or implied warranty, and breach of or
failure to discharge duty to warn or instruct). Accordingly, the Court does not consider it separately.
14

Plaintiffs do not specify whether their allegations constitute design or manufacturing

defects.
-13-

injury resulted from a condition of the product; (2) the condition was unreasonably dangerous; and
(3) the condition existed at the time it left defendants’ control. See Jenkins v. Amchem Prods., Inc.,
256 Kan. 602, 630, 886 P.2d 869, 886 (1994); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d
348, 360 (Kan. 1983). Plaintiffs may prove these elements by direct or circumstantial evidence.
Ciba-Geigy, 233 Kan. at 54, 661 P.2d at 360. For circumstantial evidence to make out a prima facie
case, it must tend to negate other reasonable causes or an expert must opine that the product was
defective. Id. Plaintiffs may not base liability on mere speculation, guess or conjecture; rather, the
circumstances must justify an inference of probability as distinguished from mere possibility. Id.
1.

Whether The Power Stroke Was Unreasonably Dangerous Because
During And After Use The Muffler Guard Became And Remained
Hotter Than An Ordinary Consumer Would Expect

Plaintiffs assert that the Power Stroke was unreasonably dangerous because during
and after use, the muffler guard became and remained hotter than an ordinary consumer would
expect.15 Id. at 34-36. The parties agree that heat caused the fire: the power washer was hot and it
was placed too close to combustible materials. Thus plaintiffs can satisfy the first element of a
prima facie case, i.e. that the injury resulted from a condition of the product. The question therefore
becomes whether plaintiffs can satisfy the second element, i.e. that the condition was unreasonably
dangerous. A product is unreasonably dangerous if, when used in the way it is ordinarily used
considering the product’s characteristics and common usage, it is dangerous to an extent beyond that
which an ordinary consumer would contemplate with the ordinary knowledge common to the
15

Plaintiffs assert that they cannot determine whether the dangerous condition is
common to all Power Stroke washers or only the washer which Harris used. See Plaintiffs’
Memorandum (Doc. #77) at 35. Because plaintiffs do not assert facts which show that the product
performed other than as expected, the Court analyzes the claim as one based on a design defect. See
Jenkins, 256 Kan. at 635, 886 P.2d at 889 (allegation that product performed other than expected
lends itself more to manufacturing defect than design defect).
-14-

community as to its characteristics. Delaney v. Deere & Co., 268 Kan. 769, 793, 999 P.2d 930, 946
(2000); Jenkins, 256 Kan. at 635, 886 P.2d at 889.
Although their argument is somewhat difficult to follow, plaintiffs apparently contend that
the fact that a Power Stroke can get hot enough to start a fire is inherently and unreasonably
dangerous.16 See Plaintiffs’ Memorandum (Doc. #77) at 35. The mere fact of injury, however, does
not imply a design defect. Jenkins, 256 Kan. at 635, 886 P.2d at 889. In Jenkins, the Kansas
Supreme Court stated as follows:
Inferring a defect from the fact of the injury, particularly where, as here, the product
was exactly what the defendants intended and plaintiff makes no argument that the
product could have been designed to more safely perform its intended function, is
unsuitable.
Id.
Similarly, in this case, that fact that the pressure washer became hot enough to start a fire
does not itself show a design defect. Plaintiffs bear the burden to show that the product was
defective. Id., 256 Kan. at 633, 886 P.2d at 890. Plaintiffs point to no aspect of the Power Washer

16

In support of this claim, plaintiffs assert new facts which they did not include in their
statement of facts. See Plaintiffs’ Memorandum (Doc. #77) at 34-35. For example, plaintiffs assert
as follows:
Marcus Greene, former Quality Manager for OWT Industries, testified that fifteen
minutes should have been sufficient for the pressure washer to cool after use, and,
that if the pressure washer caused a fire, it “got hotter than it was supposed to.”
Greene Dep. at 85:21-86:1; 90:21-91:7.
Id. at 35.
As noted, pursuant to D. Kan. Rule 56.1, the Court does not consider facts which the parties
discuss only in the argument section of their briefs and not in the statement of facts. See Cook, 2011
WL 2690060, at *2 n.1; Jones, 552 F. Supp.2d at 1261 n.1. Moreover, even if the Court considered
these facts, they do not support an inference of probability as to what a ordinary consumer would
contemplate.
-15-

that was defectively designed. On this record, plaintiffs have not shown a genuine fact issue as to
the second element of a prima facie case, i.e. whether the muffler guard was unreasonably
dangerous.17 Accordingly, defendants are entitled to summary judgment on plaintiffs’ claim that the
Power Stroke was defective because the muffler guard became hot during use and afterwards
remained hot enough to start a fire.
2.

Whether The Power Stroke Was Unreasonably Dangerous Because It
Was Missing A Clamp On The Fuel Line

Plaintiffs assert that the Power Stroke was unreasonably dangerous because it was
missing a clamp on the fuel line. Construed in a light most favorable to plaintiffs, the facts suggest
that on the day of the fire, the product was missing a fuel-line clamp. Plaintiffs’ Memorandum
(Doc. #77) at 36. Even if plaintiffs could show the third element of a prima facie case, i.e. that the
condition existed at the time the product left defendants’ control, they have not presented evidence
to satisfy the first two elements, i.e. that the condition caused the fire and that the condition was
unreasonably dangerous. Plaintiffs assert that a reasonable jury could determine that the missing
clamp was a cause of the fire. Id. at 37. Plaintiffs present no evidence, however, that a missing fuelline clamp would cause a fire.18 Id. Likewise, plaintiffs present no evidence that a missing fuel-line
17

Even if plaintiffs could prove the second element of a prima facie case, it appears that
they cannot show the third element, i.e. that the unreasonably dangerous condition existed at the
time it left defendants’ control. Obviously, the Power Stroke was not hot at the time it left
defendants’ control. To the extent plaintiffs are complaining about some design or manufacturing
defect which caused superheating, they do not state what it is.
18

In support of the assertion, plaintiffs assert facts which they did not include in their
statement of facts and which the Court does not consider. In the argument section of their brief,
plaintiffs state as follows:
Defendants’ expert, Jack Hyde, acknowledges that gasoline has been reported to
ignite at temperatures as low as 495°F. Hyde Rep. at 23. This is within the range
(continued...)
-16-

clamp would constitute an unreasonably dangerous condition. On this record, plaintiffs have not
shown a genuine fact issue as to the first and second elements of a prima facie case. Defendants are
therefore entitled to summary judgment on plaintiffs’ claim that the Power Stroke was defective
because it was missing a clamp on the fuel line.
3.

Whether The Power Stroke Was Unreasonably Dangerous Because It
Violated Safety Standards Of The ANSI

Plaintiffs assert that the Power Stroke was unreasonably dangerous because it did not
comply with safety standards of the ANSI. Specifically, plaintiffs assert that the product violated
UL 1776 Standards which provide, in essence, that a pressure washer shall not reach a temperature
high enough to cause a fire. Id. at 37-38. As noted, the parties agree that heat from the Power
Stroke caused the fire. Accordingly, it appears that plaintiffs can satisfy the first element of a prima
facie case, i.e. that the injury resulted from a condition of the product. The question therefore
becomes whether plaintiffs can satisfy the second element of a prima facie case, i.e. that the
condition was unreasonably dangerous.
As noted, a product is unreasonably dangerous if, when used in the way it is ordinarily used
considering the product’s characteristics and common usage, it is dangerous to an extent beyond that

18

(...continued)
of temperatures Mr. Hyde concedes are necessary to ignite solid combustibles. Id.
at 24.

Plaintiffs’ Memorandum (Doc. #77) at 37.
As noted, pursuant to D. Kan. Rule 56.1, the Court does not consider facts which the parties
discuss only in the argument section of their briefs and not in the statement of facts. See Cook, 2011
WL 2690060, at *2 n.1; Jones, 552 F. Supp.2d at 1261 n.1. Moreover, even if the Court considered
the additional facts, they do not create an inference of probability that the missing clamp caused the
fire. See Plaintiffs’ Memorandum (Doc. #77) at 37 (asserting that it is “equally plausible” that first
material ignited in garage was gasoline from loose and leaking gas line).
-17-

which an ordinary consumer would contemplate with the ordinary knowledge common to the
community as to its characteristics. Delaney, 268 Kan. at 793, 999 P.2d at 946; Jenkins, 256 Kan.
at 635, 886 P.2d at 889. The uncontroverted facts establish that UL 1776 is not a binding or
mandatory standard or regulation and that no manufacturer of pressure washers currently lists its
pressure washer with UL 1776. Plaintiffs present no evidence which suggests that an ordinary
consumer would expect a pressure washer to comply with UL 1776 Standards. Thus, plaintiffs have
not shown that UL 1776 imposes the standard for reasonableness in this case. See, e.g., Pfeiffer v.
Eagle Mfg. Co., 771 F. Supp. 1133, 1136 (D. Kan. 1991) (standards issued by private entities merely
voluntary and do not constitute mandatory consumer product safety standard). On this record,
plaintiffs have not shown a genuine fact issue as to the second element of a prima facie case, i.e. that
the failure to comply with ANSI safety standards constituted an unreasonably dangerous condition.
Defendants are therefore entitled to summary judgment on this claim that the Power Stroke was
defective because it violated safety standards of the ANSI.
B.

Failure To Warn

Plaintiffs claim that at the time defendants manufactured, distributed and sold the Power
Stroke, it was unreasonably dangerous due to inadequate warnings. Defendants assert that they are
not liable under this theory because (1) they did not owe a duty to warn Harris about dangers which
he already knew; and (2) plaintiffs cannot show causation. Defendants’ Memorandum (Doc. #63)
at 21-23.
1.

Duty To Warn

Defendants assert that they did not owe a duty to warn Harris about dangers which
he already knew. Id. at 21-22. Under Kansas law, manufacturers have a specific duty to warn

-18-

against a product’s reasonably foreseeable dangers. See, e.g., Burton v. R.J. Reynolds Tobacco Co.,
397 F.3d 906, 917 (10th Cir. 2005). Under the KPLA, however, the duty does not extend to
“warnings, protecting against or instructing with regard to those safeguards, precautions and actions
which a reasonable user or consumer of the product, with the training, experience, education and any
special knowledge the user or consumer did, should or was required to possess . . . under all the
facts and circumstances.” K.S.A. § 60-3305. Under this provision, defendants did not owe a duty
to warn Harris of dangers which he actually knew. See Miller v. Lee Apparel Co., Inc., 19 Kan.
App.2d 1015, 1030, 881 P.2d 576, 588 (1994) (citing Long v. Deere & Co., 238 Kan. 776, 773, 715
P.2d 1023, 1029 (1986)).
Defendants assert that Harris was a trained mechanic who had experience with gasolinepowered vehicles and tools, including pressure washers, and that he knew that engines get hot with
use and can ignite combustible materials. Defendants’ Memorandum (Doc. #63) at 22. The record
establishes that Harris knew the following: (1) gasoline engines burn gasoline; (2) engines and their
components become hot during operation; (3) he himself had suffered burns from touching a hot
engine; (4) exhaust gases from engines are hot; (5) metal parts that vent hot exhaust gases get hot;
(6) engines stay hot for a period of time after the engine stops; (7) exhaust parts of engines stay hot
for a period of time after the engine stops; (8) plastic can burn; (9) paper can burn; (10) fabric can
burn; (11) dried remnants of grass clippings and leaves can burn; and (12) gasoline burns. While
these facts show that Harris had extensive knowledge and experience regarding gasoline-powered
engines, they do not establish as a matter of law that he knew or should have known of the specific
danger in this case, i.e. that the Power Stroke could remain hot enough after use to ignite nearby
combustible materials. See, e.g., Meyerhoff v. Michelin Tire Corp., 852 F. Supp. 933, 944 (D. Kan.

-19-

1994) (evidence did not establish as matter of law that plaintiff was such experienced user that he
should fully appreciate risk). Thus, defendants are not entitled to summary judgment on this ground.
2.

Causation

Defendants assert that plaintiffs cannot show causation, i.e. that the alleged failure
to warn proximately caused plaintiffs’ injuries. Specifically, defendants contend that the operator
manual warns about the dangers of which plaintiffs complain but that Harris chose not to read and
heed the warnings. Defendants’ Memorandum (Doc. #63) at 23. Kansas law presumes that an
adequate warning will be read and heeded. See Meyerhoff, 852 F. Supp. at 946. Where adequate
warnings are in fact given, this presumption operates to the benefit of manufacturers. See
Wooderson v. Ortho Pharm. Corp., 235 Kan. 387, 411 681 P.2d 1038, 1057 (1984) (quoting Ortho
Pharm. Corp. v. Chapman, 388 N.E.2d 541, 555 (Ind. 1979)). If warnings are inadequate, however,
the law imposes a rebuttable presumption of causation. See id. In other words, if plaintiffs establish
the fact of an inadequate warning, the burden of proof shifts to defendants to show that the
inadequate warning did not cause plaintiffs’ injuries. See Burton, 397 F.3d at 913. Under Kansas
law, whether a warning is adequate depends upon whether it is reasonable under the circumstances.
See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 975 (10th Cir. 2001). For a warning
to be adequate, it must be of such a nature to be comprehensible to the average user and convey to
the mind of a user a fair indication of the nature and extent of the danger. Wheeler v. John Deere
Co., 862 F. 2d 1404, 1413 (10th Cir. 1988). The determination whether a warning is adequate is a
question of fact. See Graham v. Wyeth Labs., Div. of Am. Home Prod. Corp., 666 F. Supp. 1483,
1499 (D. Kan. 1987).
Defendants assert that the operator manual warned of the very danger of which plaintiffs

-20-

complain, i.e. that “the pressure washer becomes hot with use and should not be placed in contact
or close proximity with combustible materials until it has cooled down.” Defendants’ Memorandum
(Doc. #63) at 23.19 In support of the assertion, defendants do not cite specific provisions of the
operator manual. See id. It appears that defendants are drawing from warnings which are spread
throughout the manual. See Power Stroke Operator Manual at 4, 13.
Page 4 of the manual lists 37 bullet points of “Specific Safety Rules” which include, inter
alia, the following:
•
•
•

•

Keep cooling air intake (recoil starter area) and muffler side of engine at
least 3 feet away from buildings, obstructions, or other combustible objects.
Keep the engine away from flammables and other hazardous materials.
Keep away from hot parts. The muffler and other engine parts become
very hot; use caution.
***
Make sure minimum clearance of 3 feet is maintained from combustible
materials.

Power Stroke Operator Manual at 4 (emphasis in original). These provisions convey that the
machine gets hot and should be kept away from flammable and combustible materials, but they do
not communicate that the danger exists after the machine has been turned off. Another bullet point

19

Defendants also assert that “[i]t is uncontroverted the pressure washer’s warning
system – the on-product warnings and the operator’s manual – complied with all mandatory and
voluntary statutes[,] regulations and industry guidelines.” Id. at 22. Defendants cite no authority
to support that such compliance defeats liability as a matter of law. See, e.g., Graham, 666 F. Supp.
at 1499 (fact that vaccine warnings complied with FDA standards does not show warning was
adequate as matter of law).
Under K.S.A. § 60-3304, “when the injury-causing aspect of the product was, at the time of
manufacture, in compliance with legislative regulatory standards or administrative regulatory safety
standards . . . [which] addressed warnings or instructions, the product shall be deemed not defective
by reason of warnings or instructions, unless the claimant proves by a preponderance of the evidence
that a reasonably prudent product seller could and would have taken additional precautions.”
Defendants point to no applicable regulatory standards which addressed product warnings or
instructions.
-21-

on the same page states that “[b]efore storing, allow engine to cool,” but it does not state how long
it should cool or the dangers of not cooling. Id. (emphasis in original). Nine pages later, on page
13, in the “Maintenance” section under the heading “Storing The Pressure Washer,” the manual
states as follows:
Store the pressure washer with the gas tank empty by either draining the tank or
running the pressure washer until the gas runs out. Allow 30 minutes of “cool down”
time before storing the machine. Store in a dry, covered area where the weather
can’t damage it.
Id. at 13. The text is not in bold and does not explain why the gas tank should be emptied or why
the unit should cool down for 30 minutes.20 Id.
Plaintiffs assert that the operator manual does not clearly communicate the danger of fire in
storing a hot machine. Plaintiffs assert that the manual requires the user to draw inferences and
connections among several statements in different sections to understand that certain hazards may
apply not only during operation of the machine, but also during its shutdown and storage.21
Construed in the light most favorable to plaintiffs, the record supports plaintiffs’ assertions. In
various places, the manual states that the machine gets hot and should be kept away from flammable
and combustible materials, but it does not clearly communicate that the threat of fire exists after the
machine is turned off. On this record, a material fact issue exists as to the whether the warnings

20

A few paragraphs later, the manual states as follows: “Drain the fuel tank completely.
Stored gas can go stale in 30 days.” Power Stroke Operator Manual at 13. This language implies
that the reason the user should store the pressure washer with an empty tank is to protect against
stale gas, not the risk of fire.
21

In support of their assertions, plaintiffs cite testimony by their expert, Michael
Wogalter, which they do not include in their statement of facts. See Plaintiffs’ Memorandum
(Doc. #77) at 39-40. As discussed, the Court does not consider facts which the parties did not
include in the statement of facts. Nevertheless, even without the expert testimony, the summary
judgment record supports plaintiffs’ assertions in this regard.
-22-

given were adequate. Construing the evidence in the light most favorable to plaintiffs, a fact finder
could reasonably conclude that the operator manual does not clearly convey to the average user a
fair indication of the nature and extent of the danger, i.e. that storing a hot pressure washer after use
can ignite nearby combustible materials. Accordingly, defendants are not entitled to summary
judgment on the failure to warn claim.
C.

Whether TI Factory Outlets Is An Innocent Seller Under K.S.A. § 60-3306

Defendants assert that under K.S.A. § 60-3306(a), TI Factory Outlets is immune from
liability because it is an innocent seller. Section 60-3306(a) provides as follows:
a) A product seller shall not be subject to liability in a product liability claim arising
from an alleged defect in a product, if the product seller establishes that:
(1) Such seller had no knowledge of the defect;
(2) such seller in the performance of any duties the seller performed, or was
required to perform, could not have discovered the defect while exercising
reasonable care;
(3) such seller was not a manufacturer of the defective product or product
component;
(4) the manufacturer of the defective product or product component is subject
to service of process either under the laws of the state of Kansas or the
domicile of the person making the product liability claim; and
(5) any judgment against the manufacturer obtained by the person making the
product liability claim would be reasonably certain of being satisfied.
K.S.A. § 60-3306(a). As the product seller, TI Factory Outlets bears the burden to prove each
element of the innocent seller defense.22 See Koehn v. Yamaha Motor Corp., No. 94-1112-JTM,
1996 WL 695409, at *3 (D. Kan. Nov. 5, 1996).
As to the first element, i.e. that seller had no knowledge of the defect, in the argument section
22

As discussed, defendants are entitled to summary judgment on the product liability
claims based on manufacturing and/or design defects. Accordingly, the Court considers the innocent
seller defense only with respect to the failure to warn claim. See, e.g., Baughn v. Eli Lilly & Co.,
356 F. Supp.2d 1177, 1183 (D. Kan. 2005) (under KPLA product can be defective in three ways:
manufacturing defect; warning defect; and design defect).
-23-

of their brief, defendants assert conclusively that TI Factory Outlets had no knowledge of any defect
in the Power Stroke. See Defendants’ Memorandum (Doc. #63) at 25. In their statement of facts,
however, defendants provide no facts regarding their knowledge of any defect.23 See id. at 4-16.
On this record, defendants have not satisfied their burden of proof with respect to the first element
of the innocent seller defense.
As to the second element, i.e. that the seller could not have discovered the defect while
exercising reasonable care, defendants assert that TI Factory Outlets did not have a duty to inspect
or test for latent or hidden defects. See id. at 25-27. It is unclear what relevance, if any, this
argument has to plaintiffs’ failure to warn claim. On this record, defendants have not satisfied their
burden of proof with respect to the second element of the innocent seller defense.
As to the third element, i.e. that the seller was not a manufacturer of the defective product,
defendants submit a declaration by a Factory Outlet employee which states that the Outlet Store did
not design or manufacture the Power Stroke. See Declaration of Darrell Ficke ¶ 13. Plaintiffs do
not specifically controvert this fact. See Plaintiffs’ Memorandum (Doc. #77) at 2. Plaintiffs assert
that TI Factory Outlets held itself out as the manufacturer of the Power Stroke, see id. at 31-32, but
they do not cite record facts to support the assertion.24 On this record, defendants have established
23

The Court notes that the Declaration Of Darrell Ficke states that the Outlet Store has
no knowledge of any defect in the Power Stroke. Id. ¶ 11, Exhibit B to Defendants’ Memorandum
(Doc. #63). Defendants did not include this fact in their statement of facts and plaintiffs have not
had an opportunity to controvert it. The Court therefore does not consider it.
24

In the argument section of their brief, plaintiffs assert that the following creates a
genuine issue of material fact as to whether TI Factory Outlets held itself out as manufacturer of the
Power Stroke:
Techtronic Outlets operates retail stores under the name “Direct Tools Factory
Outlets.” This necessarily implies that the manufacturer [] is offering its own
(continued...)
-24-

the third element, i.e. that TI Factory Outlets did not manufacture the Power Stroke.
On this record, defendants have not shown that as a matter of law, TI Factory Outlets can
satisfy all the elements of the innocent seller defense.25 Accordingly, defendants are not entitled to
summary judgment on this ground.
D.

Whether TI North America Designed, Manufactured Or Distributed The
Power Stroke

Defendants assert that TI North America is not liable because it is not a designer,
manufacturer, distributor or seller of the product. Specifically, in one paragraph, defendants assert
that plaintiffs have no evidence that TI North America participated in any activities which would
render it liable to plaintiffs under products liability or any other theory.26 See id. at 27. In support
of their assertion, defendants cite K.S.A. § 60-3302(c) for the general proposition that liability for
a defective product is predicated on a party designing, manufacturing, distributing or selling the
product.27

24

(...continued)
products “direct” to the consumers. There are no markings on the product’s
packaging that would have indicated, to a reasonable consumer, that the product was
not in fact “manufactured” by Techtronic Outlets. See Packaging, attached as
Exhibit 19, P. 1-2. Further, as a floor model, the pressure washer at issue would have
been displayed without its associated packaging. No prominent markings on the
product itself would indicate that its manufacturer was “OWT Industries, Inc.” See
Product Images, attached as Exhibit 20.

Plaintiffs’ Response (Doc. #77) at 32. Plaintiffs did not include these facts in their statement of facts
and the Court therefore does not consider them.
25

In light of defendants’ failure to demonstrate the first two elements, the Court does
not reach the fourth and fifth elements of the innocent seller defense.
26

Defendants assert that OWT Industries designed and manufactured the product.

27

Section 3302(c) states as follows:
(continued...)
-25-

Plaintiffs cite evidence that TI North America was actively involved in the design and
manufacture of the Power Stroke. Specifically, plaintiffs point to facts which suggest that TI North
America’s senior product safety engineer, Andrew Hornick, was responsible for drafting and
reviewing the product manual and chaired the pre-sale product safety review of the product.
Construed in a light most favorable to plaintiffs, the record suggests that TI North America was
involved in approving the Power Stroke for sale. Specifically, the record suggests that Hornick led
the pre-sale product safety review committee – which met in a conference room at TI North America
– and that Hornick gave the final review and approval to the operator manual and on-product
labeling.28 On this record, defendants have not shown that as a matter of law, TI North America
cannot be held liable as a designer, manufacturer, distributor or seller of the product. See, e.g.,
Deines v. Vermeer Mfg. Co., 752 F. Supp. 989, 993-97 (D. Kan. 1990) (insurer’s active advice
regarding product design and warnings subjected it to liability for product liability claims).
Defendants are not entitled to summary judgment on this ground.
27

(...continued)
“Product liability claim” includes any claim or action brought for harm caused by the
manufacture, production, making, construction, fabrication, design, formula,
preparation, assembly, installation, testing, warnings, instructions, marketing,
packaging, storage or labeling of the relevant product. It includes, but is not limited
to, any action based on, strict liability in tort, negligence, breach of express or
implied warranty, breach of, or failure to, discharge a duty to warn or instruct,
whether negligent or innocent, misrepresentation, concealment or nondisclosure,
whether negligent or innocent, or under any other substantive legal theory.

K.S.A. § 60-3302(c).
28

Defendants assert that Hornick is employed by OWT, not TI North America.
See Defendants’ Reply at 4 ¶ 1. OWT’s interrogatory answers, however, state that Hornick is the
senior engineer of product safety for TI North America. See Defendant OWT Industries, Inc.’s
Objections And Response To Plaintiff American Family Mutual Insurance Company’s First Set Of
Interrogatories To Defendant at 6, Exhibit 1 to Plaintiffs’ Memorandum (Doc. #77). In ruling on
defendants’ motion for summary judgment, the Court construes this fact in favor of plaintiffs.
-26-

E.

Whether Plaintiffs’ Damages For Real And Personal Property Loss Are Limited
To The Difference In Fair Market Value

American Family seeks damages in the amount of $653,342.24, i.e. the total amount which
it paid to Robert and Mandy Harris under the insurance policy.29 Pretrial Order (Doc. #57) at 26-27.
In addition, Robert and Mandy Harris seek damages in the amount of $320,000 for uninsured
losses.30 Id. at 3, 5, 27.
Defendants assert that plaintiffs’ damages for loss of real and personal property are limited
to the difference in fair market value of the property before and after the fire. See Defendants’
Memorandum (Doc. #63) at 27-30. In support of the assertion, defendants cite general rules
regarding permanent damage to real and personal property, i.e. that the proper measure of damages
is the difference between the fair and reasonable market value of the property immediately before
and after the injury. Id. at 28-29.
In Evenson v. Lilley, 295 Kan. 43, 282 P.3d 610 (2012), the Kansas Supreme Court
explained general rules regarding property damages as follows:
when a house is burned to the ground, the tortfeasor is liable for the amount by which
the value of the property has diminished. When, however, the property is damaged
in such a way that it can be restored, as when a house suffers smoke and water
damage in a fire, the tortfeasor is liable for the costs of restoring the property to its
former condition, up to the total value of the property.
Id., 295 Kan. at 47, 282 P.3d at 614.
While defendants correctly state general principles regarding property damages, see
Defendants’ Memorandum (Doc. #63) at 23-30, they cite no authority which demonstrates that as
29

The $653,342.24 is comprised of $390,234.00 for the building, $225,161.00 for
contents of the building and $37,947.24 for alternate living expenses. Pretrial Order (Doc. #57) at
26-27.
30

The record does not contain a breakdown of uninsured losses.
-27-

a matter of law plaintiffs’ damages in this case are limited to the loss in fair market value of their
real and personal property. Indeed, Kansas courts have stated that no set rule exists regarding the
recovery of damages for the loss of real property. See, e.g., Horsch v. Terminix Int’l Co., 19 Kan.
App.2d 134, 139, 865 P.2d 1044, 1049 (1993). Rather, the measure of damages depends on the facts
of the case, i.e. a tortfeasor is liable for injuries and subsequent losses that are the natural and
probable result of its act. See Ettus v. Orkin Exterm. Co., 233 Kan. 555, 562, 665 P.2d 730, 737
(1983); Horsch, 19 Kan. App.2d at 139, 865 P.2d at 1049. Where other damages are present,
damages resulting from negligence are not limited to the difference in fair market value of the
property. See Ettus, 233 Kan. at 562, 665 P.2d at 737; Horsch, 19 Kan. App.2d at 139, 865 P.2d at
1049.
Here, in addition to property damage, plaintiffs seek damages for costs including debris
removal, emergency repair and alternate living expenses. See Pretrial Order (Doc. #57) at 26-27.
On this record, defendants have not shown that as a matter of law, plaintiffs’ damages are limited
to the difference in fair market value of their real and personal property before and after the fire.31
IT IS THEREFORE ORDERED that defendants’ Motion For Summary Judgment
(Doc. #62) filed October 25, 2013 be and hereby is SUSTAINED in part. The Court grants
summary judgment in favor of defendants on plaintiffs’ claims that defendants manufactured,

31

Although defendants do not articulate it as such, they appear to be making an estoppel
argument, i.e. that Robert and Mandy Harris cannot claim that the difference in fair market value
of their real and personal property is different from amounts which they declared on their 2010 tax
return. See Defendants’ Memorandum (Doc. #63) at 30. As noted, in their 2010 tax return the
Harrises declared that before the fire, the fair market value of the home was $275,000 and that after
the fire it was $45,000. The Harrises also declared that before the fire, the fair market value of
contents in the home was $22,000. Defendants cite no authority to support their claim that as a
matter of law, the tax return declarations limit the amount of damages which plaintiffs may recover
in this case.
-28-

distributed and/or sold a product which was unreasonably dangerous due to defects in its design
and/or defects in its manufacture. Defendants’ motion is otherwise overruled. Plaintiffs’ remaining
claim is that defendants manufactured, distributed and/or sold a product which was unreasonably
dangerous due to inadequate warnings.
IT IS FURTHER ORDERED that Plaintiffs’ Motion For Summary Judgment On
Defendants’ Fourth Affirmative Defense And Memorandum In Support Thereof (Doc. #60) filed
October 25, 2013 be and hereby is OVERRULED as moot.
IT IS FURTHER ORDERED that Defendants’ Motion To Strike Or Disregard The
Declaration Of Plaintiff Robert Harris And Supporting Memorandum (Doc. #86) filed December 13,
2013 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Defendants’ Motion To Strike Or Disregard The
Declaration Of Jennifer Chick, CPA, And Supporting Memorandum (Doc. #83) filed December 13,
2013 be and hereby is OVERRULED as moot.
Dated this 16th day of May, 2014 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

-29-