Pierce et al v. The Buckle, Inc.
Filing
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MEMORANDUM AND ORDER granting 43 Motion for Partial Summary Judgment; granting 47 Motion for Partial Summary Judgment. Please see order for details. Signed by District Judge John W. Broomes on 06/13/2018. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
W.F.P., a minor, by and through her
natural mother and Next Friend, Alyssa
Jordan Pierce,
MATHEW DAVID PIERCE, and
ALYSSA JORDAN PIERCE,
Plaintiffs,
v.
No. 16-2799-JWB
THE BUCKLE, INC., and
MIDWEST CUSTOM CASE, INC.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on motions for partial summary judgment by The Buckle
Inc. and Midwest Custom Case, Inc. (Docs. 43, 47.) The motions are ripe for decision. (Docs. 44,
45, 46, 48.1) Defendants’ motions are GRANTED for the reasons stated herein.
I. Facts
The court finds the following facts to be uncontroverted for purposes of summary
judgment.
Plaintiff W.F.P. is the minor child of Plaintiffs Mathew and Alyssa Pierce. W.F.P. alleges
she was an invitee at The Buckle retail store on November 16, 2016, and that she sustained injuries
when a dangerous multi-level textile display tipped over and crashed down upon her. W.F.P. was
accompanied by her mother, Alyssa, during her visit to The Buckle. (Doc. 45 at 1-2.)
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By stipulation of the parties, The Buckle Inc.’s motion is deemed a joint motion on behalf of both Defendants, and
Plaintiffs’ Response is deemed applicable to both Defendants. (Doc. 48.)
On the day of the occurrence, Alyssa had picked up W.F.P. from her husband, Mathew,
and took W.F.P. shopping with her inside the Oak Park Shopping Mall, so that Mathew could go
to work. Mathew was not present at The Buckle on November 10, 2016, was not directly injured
himself, and neither witnessed nor perceived the occurrence causing injury to W.F.P. (Id. at 2.)
Alyssa was not physically injured herself and did not see the display fall on W.F.P. Alyssa
was three or four feet away from W.F.P. at the time of the accident. Alyssa heard something behind
her and saw the store manager, Scott Marconnet, “jolt.” Alyssa quickly turned around and saw part
of a table on top of W.F.P., with one of the sides of it on the child’s face. W.F.P. was on her
stomach, with her face flat on the ground, facing the cash register. Alyssa picked W.F.P. up and
noticed she wasn’t crying but was starting to pass out. Alyssa also noticed W.F.P.’s left leg was
instantly swelling, so she pulled W.F.P.’s jeans down, at which point the child started to pass out
again. Alyssa cradled W.F.P. in her arms and took her to the back of the store so she could lay her
down on a table. The child “came to” and started crying. Alyssa then asked someone to call 911.
(Doc. 45 at 3-4.)
Alyssa’s back was to the display at the time of the accident and she did not see W.F.P. fall.
She did not see what W.F.P. was doing in the moments before the display ended up on top of the
child. The child later told Alyssa that she had “grabbed on to that pole,” indicating a pole
supporting one of the display’s tiers. (Doc. 45 at 5.)
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
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favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmovant must then
bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d
933, 935 (10th Cir. 2005). The court views all evidence and reasonable inferences in the light most
favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th
Cir. 2004).
III. Summary of Arguments
Plaintiffs’ Amended Complaint alleges that W.F.P. suffered a fractured femur and other
injuries from the incident. Count I alleges a claim on behalf of W.F.P. for personal injuries
allegedly caused by The Buckle’s negligence. Count II alleges a claim by Alyssa and Mathew
Pierce against The Buckle for loss of W.F.P.’s services and companionship, medical bills incurred
for W.F.P.’s treatment, and mental and emotional suffering as a result of W.F.P.’s injuries. Count
III alleges a claim on behalf of W.F.P. against Midwest Custom Case for injuries caused by a
defective or dangerous product. Count IV alleges a claim by Alyssa and Mathew Pierce against
Midwest Custom Care for the damages listed in Count II. (Doc. 34.)
Defendants contend they are entitled to judgment as a matter of law on Counts II and IV to
the extent these counts seek damages for loss of consortium and emotional distress.2 Insofar as
Alyssa and Mathew Pierce seek damages for loss of the services and companionship of W.F.P.,
Defendants point out that Kansas has refused to allow minor children to assert “parent/child
consortium” claims arising from injuries to their parents or caretakers, and argue by analogy that
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Defendants do not seek summary judgment on the parents’ claim for medical expense damages. (Doc. 44 at 3.)
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Kansas would not allow a parent to recover for the loss of companionship of an injured child. (Doc.
44 at 5-7.) As for the claim by Alyssa and Mathew for emotional pain and suffering, Defendants
argue Kansas rejects such claims where the parent “is not present at the scene, is not directly
injured, and neither witnesses nor perceives the occurrence causing injury to the child.” (Id. at 7)
(quoting Smelko By & Through Smelko v. Brinton, 241 Kan. 763, 773, 740 P.2d 591, 598 (1987)).
Defendants contend neither parent meets this standard.
In response, Plaintiffs contend the court should recognize their claim for loss of
consortium. They point out that Defendants cite “no Kansas cases holding that a father and mother
do not have a claim for loss of services arising out of an injury to their child,” and argue the court
should allow the claim because Section 18 of the Bill of Rights to the Kansas Constitution
guarantees a remedy to all injured persons. (Doc. 45 at 9.) As for damages for pain and suffering,
Plaintiffs argue Alyssa meets the Kansas standard because she was present and perceived the
occurrence causing injury to W.F.P. They concede Mathew does not satisfy that standard, but again
argue the Kansas Constitution guarantees him a remedy. (Doc. 45 at 11.)
IV. Discussion
A. Parent/child Consortium Claim
The substantive law of Kansas governs this diversity action. See Macon v. United Parcel
Serv., Inc., 743 F.3d 708, 713 (10th Cir. 2014) (in diversity actions, federal court applies
substantive law of the forum state). After reviewing Kansas law, the court concludes Kansas would
not allow Plaintiffs to claim damages for loss of consortium arising from an injury to their child.
The Kansas Legislature specifically authorizes a claim for loss of consortium when a married
person is injured. See K.S.A. § 23-205. There is no comparable provision for injury to either a
parent or a child. In Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57 (1962), the Kansas Supreme
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Court refused to allow a minor child to claim loss of consortium arising from an injury to the
child’s father. In Klaus v. Fox Valley Systems, Inc., 259 Kan. 522, 912 P.2d 703 (1996), the
Supreme Court reaffirmed that holding, finding circumstances had not changed materially in the
33 years since Hoffman was decided, and noting the Kansas Legislature had chosen not to amend
the statute to allow such a claim. The court thus reiterated: “We hold that Kansas does not
recognize that minor children have a cause of action against a tortfeasor for direct negligence injury
to their parent, resulting in an indirect injury to them for loss of parental care and society.” Id. at
531, 912 P.2d at 708.
While the Kansas Supreme Court has not expressly addressed the reverse situation – i.e.,
whether a parent can claim loss of consortium damages from an injury to a child - Hoffman and
Klaus mandate a prediction that the court would not recognize such a claim. Cf. Johnson v. Riddle,
305 F.3d 1107, 1108 (10th Cir. 2002) (in applying state law, federal court must look to rulings of
the highest state court and, if no such rulings exist, predict how that court would rule). Hoffman
recognized that “when the child-parent relationship is impaired … the child is deprived of
something that is indeed valuable and precious,” yet it warned that courts “should proceed with
caution in laying down a new rule” that would open a new field of litigation and possibly lead to
multiple actions and duplication of damages. Id. at 169, 368 P.2d at 59-60. In Klaus, the court
similarly warned that creation of a new cause of action in this field was a matter of legislative
judgment. See Klaus, 259 Kan. at 530, 912 P.2d at 707 (emphasizing that “[d]eference to the
legislature is warranted by the complexities that would arise in Kansas from recognizing a cause
of action for loss of parental consortium”);see also Schmeck v. City of Shawnee, 231 Kan. 588,
647 P.2d 1263 (1982) (declining to allow parent to recover damages resulting from injury to adult
daughter). The same rationale applies equally when it is the parent, rather than the child, claiming
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damages from a loss of society or companionship. These cases indicate the Kansas Supreme Court
would not recognize a claim for loss of consortium by Alyssa and Mathew Pierce arising from the
injury to W.F.P. Defendants are accordingly entitled to judgment as a matter of law insofar as
Counts II and IV seek damages for loss of W.F.P.’s services and companionship.
B. Emotional Distress Damages
Alyssa and Mathew also seek damages for the emotional distress they suffered as a result
of their child’s injuries. In addressing this claim, both sides cite the Kansas Supreme Court’s
holding in Schmeck that “a parent has no cause of action for his or her emotional, physical, or other
injuries against one who negligently causes injury to an adult child, when the parent is not present
at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing
injury to the child.” Id. at 594, 647 P.2d at 1267. The parties appear to agree that Kansas would
allow a claim for emotional distress damages if the factual scenarios listed in Schmeck were
present.
A few years after Schmeck, the Kansas Supreme Court said the foregoing rule “has equal
application where the parents of a minor child claim damages for their emotional distress under
like circumstances.” Smelko, 241 Kan. at 773, 740 P.2d at 598. Later still, in Arche v. U.S. Dept.
of Army, 247 Kan. 276, 798 P.2d 477 (1990), the court said “[t]he rule in Kansas is that plaintiffs
can sustain a cause of action for negligent infliction of emotional distress caused by the injuries of
a third party only if they were witnesses to the occurrence which caused the injury.” Id. at 283,
798 P.2d at 482 (citing Smelko and Schmeck, supra). The court further noted, “We have thus far
held that visibility of results as opposed to visibility of the tortious act does not give rise to a claim
for emotional damages.” Id.
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Based on the cases quoted above, the Kansas Supreme Court would likely recognize a
claim for emotional distress under the standards in Schmeck, although it has not in fact allowed
any such claim to date. In the cases it has decided, the Kansas Supreme Court has drawn a bright
line between witnessing the tortious act that causes an injury and witnessing the resulting injury.
Thus, in Schmeck the mother who learned of her daughter’s injury and saw her about an hour after
an accident had no claim for emotional distress. Id. In Smelko, the parents were waiting just outside
an operating room and saw their infant child shortly after he underwent surgery. They heard and
witnessed his screams in the recovery room, where they tried to comfort him. No one realized at
the time that the child had been burned during surgery by a heating pad. The court found the parents
had no claim for emotional distress, saying that even if they had been in the operating room, it “is
unlikely they would have realized that the injury was taking place….” Smelko, 241 Kan. at 773,
740 P.2d at 598. The court also noted that California law (which was cited in Schmeck) “has
rejected a claim that the visibility of the results, rather than the visibility of the tortious act, is the
essential element,” and requires “that the tortious act must be susceptible of understanding
observance by the plaintiff.” Id. at 773-74 (citation omitted).
In Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988), the court rejected a claim for
emotional distress by a man who had been working with his brother when the brother fell into a
grain auger. The plaintiff did not witness the accident but heard his brother’s screams and ran over
to find him bleeding profusely at the point where his leg had been amputated by the auger. Id. at
858, 752 P.2d at 668. Although the plaintiff “was immediately on the scene and saw the gruesome
consequences,” he suffered no physical injury himself and had no claim for emotional distress
under Kansas law. Id. at 860, 752 P.2d at 669.
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Alyssa Pierce was present during the accident and heard something when it occurred. She
immediately saw the consequences of the injury to her child, but she did not see the incident as the
injury occurred. To date the Kansas Supreme Court has never allowed a claim for emotional
distress to proceed where the plaintiff failed to witness the actual event that caused the underlying
injury. Alternatively, to the extent that the facts of this case might be materially distinguishable
from the cited cases, thereby obligating this court to engage in the legal alchemy of predicting how
the Kansas Supreme Court would rule, Johnson, 305 F.3d at 1108 (in applying state law, federal
court must look to rulings of the highest state court and, if no such rulings exist, predict how that
court would rule), the court reaches the same conclusion. Given the trajectory of the cases cited
herein, it is difficult to imagine that the Kansas Supreme Court would stray far from Arche’s
conclusion that “visibility of results as opposed to visibility of the tortious act does not give rise to
a claim for emotional damages.” Arche, 247 Kan. at 283, 798 P.2d at 482. Given this binding case
law, the court is obligated to predict that the Kansas Supreme Court would hold that Alyssa cannot
recover for emotional distress because she witnessed the results of the allegedly tortious act, but
she did not witness or have “visibility of the tortious act” that caused the injury.
Because Kansas law does not allow a claim for emotional distress in these circumstances,
Defendants are entitled to judgment as a matter of law on Alyssa’s claim for emotional distress
damages. The Schmeck standard also entitles Defendants to summary judgment on Mathew’s claim
for emotional distress, as he was not present and did not witness the accident. Plaintiffs’ argument
that such a claim must be recognized due to Section 18 of the Kansas Bill of Rights was specifically
rejected by the Kansas Supreme Court in Schmeck, and is accordingly unavailing here. Schmeck,
231 Kan. at 594, 647 P.2d at 1267.
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V. Conclusion
Defendants’ Motions for Partial Summary Judgment (Docs. 43, 47) are GRANTED. IT IS
SO ORDERED this 13th day of June, 2018, at Wichita, Ks.
___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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