Kechi Township v. Freightliner, LLC et al
Filing
109
MEMORANDUM AND ORDER denying 103 Motion for Summary Judgment. Signed by District Judge Monti L. Belot on 8/5/2011. (rs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KECHI TOWNSHIP and EMPLOYERS
MUTUAL CASUALTY COMPANY,
Plaintiff,
v.
FREIGHTLINER, LLC n/k/a DAIMLER
TRUCKS NORTH AMERICA LLC,
Defendant.
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CIVIL ACTION
No.
10-1051
MEMORANDUM AND ORDER
Before the Court are the following:
1. Defendant’s Motion for Summary Judgment (Doc. 103);
2. Defendant’s Memorandum in Support of Summary Judgment (Doc.
104);
3. Plaintiff’s Response to Defendant’s Motion for Summary
Judgment (Doc. 107);
4. Defendant’s Reply to Plaintiff’s Response to Defendant’s
Motion for Summary Judgment.
This case comes before the court on Defendant’s Motion for
Summary Judgment. Plaintiff Kechi Township (Kechi) filed this action
against defendant Freightliner, LLC., n/k/a Daimler (Daimler) to seek
recovery for damages from a fire. Kechi asserts strict liability
claims for defective design, negligent design, and breach of the
implied warranty of fitness for a particular use. The motion has been
fully briefed and is ripe for decision. The motion is denied for the
reasons stated herein.
I.
UNCONTROVERTED FACTS
On December 19, 2007 at 12:15 A.M., a fire occurred in Kechi’s
shop building in Wichita Kansas. The fire completely destroyed Kechi’s
shop, and all its contents. At the time of the fire, a Model RL-70
2000 Freightliner truck was parked inside the shop building. The truck
was manufactured and sold by Daimler, and was last operated on
December 18, 2007 at 2:45-3:00 P.M.
Kechi pins the cause of the fire on the truck. Kechi retained two
experts to determine the cause of the fire. Don Birmingham opined,
based on his personal on-site investigation, burn patterns, and
discussions with Sedgwick County Fire Department investigators, that
the fire originated from the truck. James Martin opined that the fire
was caused by a loose connection near the starter of the truck that
created excessive resistance sufficient to ignite nearby combustibles.
After further investigation, a bus bar and cap nut were found in the
engine connecting the starter solenoid to the positive battery cable,
alternator output cable, and cab power cable.
Delco Remy is the manufacturer of the starter used in the truck.
Delco Remy’s product specifications for the starter state that a bus
bar and cap nut should not be used on the B+ starter terminal due to
increased
load
and
safety
hazards.
Mike
Stohler,
Delco
Remy
representative, explained that a bus bar and cap nut could cause the
connection in the starter to come loose and create sparks. Kechi’s
experts located an exemplar truck manufactured by Daimler, and found
that the exemplar truck had an identical cap nut. Kechi and the owner
of the exemplar truck both claim they, nor anyone else, altered the
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starter by installing a cap nut.
Daimler has a different explanation of the cause of the fire.
Kechi used a wood burning stove located in the shop building to heat
the shop building. On December 18, 2007 at 3:15 P.M.,
Kechi employee
Jacob Cox removed hot ashes from the stove and placed them in a
plastic trash container. Cox also placed additional logs into the
stove prior to leaving work that evening. It was not uncommon for the
stove to be burning wood all night. Captain Leake of the Sedgwick
County Fire Department opined in his report that the fire probably
originated near the trash container. Ultimately, however, he concluded
that the cause was of an undetermined nature.
II.
SUMMARY JUDGMENT STANDARD
The rules applicable to the resolution of this case, now at the
summary judgment stage, are well-known and are only briefly outlined
here.
Federal Rule of Civil Procedure 56(c) directs the entry of
summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.
Adamson v. Multi Community Diversified
Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).
When confronted
with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
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resolved in favor of either party."
477 U.S. 242, 250 (1986).
judgment.
III.
Anderson v. Liberty Lobby, Inc.,
If so, the court cannot grant summary
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
ANALYSIS
In order to set out a prima facie products liability claim, Kechi
must produce proof of three elements: 1) the injury resulted from a
condition of the product; 2) the conditions was an unreasonably
dangerous one; and 3) the condition existed at the time it left
Daimler’s control. Mays v. CIBA-Geigy Corp., 233 Kan. 38, 54 (1983).
Additionally, “regardless of the theory upon which recovery is sought
for injury in a products liability case, proof that a defect in the
product caused the injury is a prerequisite to recovery.” Miller v.
Lee Apparel Co., Inc., 19 Kan. App. 2d 1015, 1032 (1994)(citing
Wilcheck v. Doonan Truck & Equip., Inc., 220 Kan. 230, 235 (1976));
see also PLK 4th 128.17 and 128.18.
a.
Daimler’s “Lack of Evidence of a Design Defect” Argument
First, Daimler moves for summary judgment on the basis that Kechi
cannot sufficiently show that the alleged defect in the truck was in
fact part of the truck design. Further, Daimler asserts that Kechi
cannot show that the alleged defect existed at the time the truck was
sold to Kechi, and any assertion otherwise is mere speculation. Kechi,
on the other hand, argues that it can show Daimler’s truck design was
defective and that the defect existed at the time the truck left
Daimler’s
control.
Kechi
plans
to
use
expert
opinion
about
the
origination and cause of the fire, the vehicle history, the exemplar
truck, and the Delco Remy starter specifications to support its
argument.
Specifically,
Kechi
argues
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that
the
truck
design
was
defective because no alterations were made to the starter once the
truck was purchased from Daimler, the starter contained components
specifically warned of by Delco Remy, and therefore the truck was
defective before Kechi purchased the truck from Daimler.
While
Daimler
speculation1,
contends
Kechi’s
circumstantial.
“It
is
that
argument
not
is
Kechi’s
more
necessary
argument
accurately
that
plaintiff
is
simply
defined
as
prove
the
existence of a specific defect by direct evidence; circumstantial
evidence of a defect will suffice.”
Pekarek v. Sunbeam Products,
Inc., 672 F. Supp.2d 1161, *1190 (D. Kan. 2008)(citing Mays v.
Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983)). Based on Kechi’s
argument, a reasonable jury could conclude that Kechi’s experts are
credible and find that the truck at issue had a design defect when
purchased from Daimler. On the other hand, a jury may not believe
Kechi’s experts and find that Kechi failed to prove the truck at issue
was defective at the time of purchase. Because the condition of the
truck at the time of purchase is material to this case, and a
reasonable jury could find for either Kechi or Daimler, a genuine
issue of material fact exists with regard to the condition of the
truck at the time of purchase.
b.
Daimler’s “Failure to Eliminate Other Causes” Argument
Next, Daimler argues that summary judgment should be granted
1
The three cases cited by Daimler do state the standard language
that more than mere speculation is required to defeat summary
judgment. But none of the cases are remotely similar to this case.
Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010) involved an
administrative subpoena; Bones v. Honeywell Int’l, Inc., 366 F.3d 869
(10th Cir. 2004) was an FMLA case; and Conaway v. Smith, 853 F.2d 789
(10th Cir. 1988) was a wrongful discharge case. Cases which apply
standard language to similar facts are always far more persuasive.
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because Kechi has failed to eliminate other reasonable causes of the
fire. Specifically, Daimler argues that Kechi’s experts did not
expressly rule out that the wood burning stove located in Kechi’s shop
caused the fire. Kechi, on the other hand, argues that Mr. Birmingham
considered all possible sources of ignition and determined that the
source of the fire was the truck.
The Kansas Supreme Court has held:
“. . .for circumstantial evidence to be sufficient
to sustain a finding in a civil case, such evidence need
not rise to that degree of certainty which will exclude
any and every other reasonable conclusion. It suffices
that such evidence affords a basis for a reasonable
inference by the court or jury of the occurrence of the
fact in issue, although some other inference equally
reasonable might be drawn therefrom. Causation, like any
other fact question, may be shown by circumstantial
evidence.”
Am. Family Mut. Ins. Co. v. Grim, 201 Kan. 340, 343-44 (1968).
Here, Kechi’s experts have provided a “basis for a reasonable
inference” that the cause of the fire was a defect with the truck
starter. Mr. Birmingham concluded that the truck was the source of the
fire based on burn patterns in the shop. Mr. Martin determined that the
loose connection from the B+ terminal in the starter caused the fire.
Further, Mr. Birmingham stated in his deposition that the trash can
with the ashes from the wood burning stove was not the source of the
fire.
This evidence, coupled with Delco Remy’s product specifications
for the starter could lead to the reasonable inference that the truck
was defective, and caused the fire. On the other hand, the jury could
reasonably determine that Mr. Birmingham was incorrect in his findings
based on the report from Captain Leake that the fire started near the
trash container with the ashes from the wood burning stove. Whether the
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fire originated at the truck or some other source is a genuine issue
of material fact.
V.
CONCLUSION
Defendant’s Motion for Summary Judgment is denied for the reasons
stated in this order. The clerk is instructed to set this case for
trial. The parties are instructed to file their proposed instructions
and proposed voir dire questions one week prior to the trial date.
A motion for reconsideration of this order is not encouraged. The
standards governing motions to reconsider are well established.
A
motion to reconsider is appropriate where the court has obviously
misapprehended a party's position or the facts or applicable law, or
where the party produces new evidence that could not have been obtained
through the exercise of reasonable diligence.
Revisiting the issues
already addressed is not the purpose of a motion to reconsider and
advancing new arguments or supporting facts which were otherwise
available for presentation when the original motion was briefed or
argued is inappropriate.
Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan.
1992). Any such motion shall not exceed three pages and shall strictly
comply with the standards enunciated by this court in Comeau. The
response to any motion for reconsideration shall not exceed three
pages.
No reply shall be filed.
IT IS SO ORDERED.
Dated this
5th
day of August 2011, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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