Hoskinson v. High Gear Repair, Inc.

Filing 107

MEMORANDUM AND ORDER granting 81 defendant's Motion for Summary Judgment. Signed by District Judge J. Thomas Marten on 11/12/2013. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Betty Hoskinson, Individually and as
Surviving Spouse of Ronald Hoskinson,
Plaintiff,
vs.

Case No. 11-1190-JTM

High Gear Repair, Inc.,
Defendant.

MEMORANDUM AND ORDER
While unloading his employer’s anhydrous ammonia tanker trailer, Ronald
Hoskinson suffered serious injuries leading to his death when he came in contact with the
power take-off (PTO) shaft extending from his truck to a pump on the tanker. His
surviving spouse, Betty Hoskinson, brings the present action against a small Oklahoma
company, High Gear Repair, Inc., which had performed work on the tanker ten months
before the accident. Because this work was entirely unrelated to the PTO shaft and pump,
the court grants High Gear’s Motion for Summary Judgment.
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the
court must examine all evidence in a light most favorable to the opposing party. McKenzie
v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment beyond a reasonable

doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party
need not disprove plaintiff's claim; it need only establish that the factual allegations have
no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323
(10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon
mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving
party must come forward with specific facts showing the presence of a genuine issue of
material fact for trial and significant probative evidence supporting the allegation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried
its burden under Rule 56(c), the party opposing summary judgment must do more than
simply show there is some metaphysical doubt as to the material facts. "In the language
of the Rule, the nonmoving party must come forward with 'specific facts showing that
there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and the rule should be interpreted in a way that allows
it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Findings of Fact
SKC Leasing, Dodge City Express, and Sallee, Inc. are Kansas entities which have
facilities in Dodge City and Garden City, Kansas. Martin Keim is the CEO of each of these
companies. SKC owns trucks and trailers, which it leases to Dodge City Express and Sallee.
As of January 2013, Dodge City Express and Sallee operated 75 trucks (60 of which are
owned by SKC and 15 are leased from owner-operators) and 301 trailers.
Dodge City Express hauls mostly general commodities using refrigerated trailers
and dry van trailers.
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As of January 2013, Sallee used 13 cargo tankers to haul liquefied gas. Sallee does
business in 42 states, and has repair shops in Dodge City and Garden City. There are
approximately 15 shop employees. Since 2005, Brent D. Woods has been the safety director
for Sallee.
Ronald Hoskinson was hired by Sallee on January 27, 2010. He participated in a one
day orientation at Sallee’s Garden City office. Typically, Sallee’s “oldest driver,” Dave
Collins, would take new hires on deliveries of anhydrous ammonia and provide on-the-job
training on “all the process, safety procedures, safe unloading practices, safe loading
practices, safety equipment.” Woods understood from Hoskinson that Hoskinson had
“between 30 and 40 years of handling that material, anhydrous ammonia, so basically he
could have trained all of us how to handle it.”
According to Keim, Hoskinson did not receive on-the-job training from Sallee’s
oldest driver. Keim believed that given Hoskinson’s “experience doing the job” delivering
anhydrous ammonia, Hoskinson “could have taught me. He could have taught my
trainer.”
At one time, for approximately two years, Hoskinson had his own auto repair shop
where he performed general mechanical work on cars and trucks and rebuilt engines.
Hoskinson had also worked for 7 or 8 years as a mechanic for the Renick & Reynolds farm
on tractors, combines, planters and “all kinds of equipment.” All of the tractors he worked
on had a power take-off. Before Hoskinson was employed by Sallee, the trailers he had
used to haul liquefied gas had power take-offs.
On February 19, 2009, Mark Dorris Equipment and Leasing sold to SKC a cargo
tanker, Serial No. 4144454, used to transport liquefied gas.

The tanker had been

manufactured in 1977 by Trinity Industries of Fort Worth, Texas for Enderby-Anderson Co.
of Gainesville, Texas. Sallee referred to the tanker as trailer #58 or #58A1 (hereafter “Trailer
58”). “A” is used with the trailer number when the trailer is set up to haul anhydrous
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ammonia.

Figure 1.
Figure 1 shows the front of the trailer from the operator’s perspective.
The United States Department of Transportation (“DOT”) classifies ammonia as a
hazardous material and requires ammonia as a liquefied gas to be transported in containers
that meet DOT specifications. The design and construction standards for tankers that haul
liquefied ammonia gas are found at 49 C.F.R. 178.337, Specification MC 331.
DOT requires an annual inspection for MC 331 cargo tankers, and Trailer 58
underwent an external visual inspection and leakage test in February 2009.
All liquid and vapor inlet (openings that allow the product to flow only into the
tank) and outlet (openings that allow the product to flow either into or out of the tank)
connections to a standard MC 331 tank are located along the centerline of the tank bottom.
Under DOT regulations governing such trailers, (a) each inlet and outlet opening must be
fitted with a back flow check valve or an internal self-closing stop valve located inside the
cargo tank or inside a welded nozzle that is an integral part of the cargo tank, (b) a thermal
4

means of remote closure must be installed at or near the internal self-closing stop valve,
and (c) a mechanical means of remote closure must be installed on the end of the cargo tank
furthest away from the loading/unloading connection area.
On Trailer 58, a pump was used for off-loading the product. This product pump was
powered by a series of drive shafts connected to a tractor’s PTO output shaft. A short drive
shaft was attached to the product pump. This short shaft connected by a universal joint to
another drive shaft known as a jackshaft, which could telescope for connection to the
tractor’s PTO by means of another universal joint.
For 26 years Rocky Shaw has operated High Gear Repair, Inc. of Woodward,
Oklahoma. His brother, his wife, and his son also work in the business. High Gear
performs general maintenance on trucks.
Plaintiff notes that High Gear has also converted tankers from propane to
anhydrous ammonia. However, the evidence establishes that Trailer 58 was already
configured to carry anhydrous ammonia before it was taken to High Gear.
High Gear has done work for Roger Sallee for approximately 15 to 20 years, working
on approximately 15 trailers for Roger Sallee. Typically, Roger Sallee would call Shaw on
the phone and tell Shaw what work he wanted done on a trailer.
Roger Sallee sold his business to Keim and others in 2002. After the sale, Roger
Sallee worked as an owner-operator leased to Sallee. Shaw also continued to receive
telephone work orders for work from Sallee, Inc. after the sale.
Regarding Trailer 58, Keim telephoned Shaw that “he was going to send a trailer
down and wanted this plumbing changed on it.”
The parties do not agree as to the nature of this plumbing change. The Plaintiff cites
testimony by Keim that he told Shaw “we need to get this trailer up to—up to spec for
what we do. [Shaw] was familiar he worked on a lot of our trailer[s] in the past, so we
would have instructed him to get it in shape for us to haul with.” Keim further testified he
5

wanted the trailer modified so that it could be loaded from either side rather than the rear
only.
By “up to spec,” Keim referred to the intended change in plumbing on the trailer,
not any separate change to the PTO shaft connection to the pump. Immediately after the
cited testimony, counsel asked for a clarification:
Q. Did—did you ask him to put a protective guard on the driveshaft?
A. Not that I’m aware of.
Q. Okay. And none of your trailers at that time had—
A. At that time had them, correct.
The Defendant submits that Keim’s testimony is otherwise erroneous, noting first
that Keim directly acknowledged that he was unable to recall if he himself spoke with
Shaw, or if Sallee did. Further, all of the other evidence in the case shows that Show
worked to move the loading lines from the side to the rear, not vice versa.
According to Shaw, Keim wanted to change “the internal vapor valve at the front
and plumb it to both sides, and he wanted to change the load lines . . . from the side to the
rear. During the conversation, he wrote out a work order during the conversation:
MOVE REAR VAPOR LINES & VALVES TO PUMP / INSTALL INTERNAL
VALVE. INSTALL & RUN CABLES TO SINGLE CONTROL – ELBOW
VAPOR, SPRAY, & LIQUID LINES TO REAR OF TLR CUT
CROSS-MEMBER – INSTALL BRACKETS. INSTALL VALVES – FITTINGS,
CAPS & BLOW DOWNS ON ALL REAR VALVES.
The loading lines flow into inlet openings in the tank and do not connect to the
pump, which is used to unload the ammonia. Thus, Shaw worked to change the trailer to
allow it to be loaded from the rear. High Gear did no work in the unloading area of the
trailer except to install an internal valve and plumbing for a vapor line.
Shaw has done similar plumbing work on between 1,500 to 2,000 trailers. He has
never, however, worked on a trailer’s PTO drive shaft, and has never installed for a
customer a safety guard for a trailer’s PTO drive shaft. Before Hoskinson’s accident Shaw
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had never seen a trailer with a safety guard for a PTO drive shaft.
Shaw uses a “workbook”—a calendar, a “daily deal”—“that I write down all the
jobs that we’re going to do.” For each job, he creates a written work order stating what
work had been ordered by the customer. He also notes any parts that were used during the
work, the labor hours expended, and the work that was done. He later prepares invoices
from the work orders. After an invoice was prepared, Shaw would throw away the work
order because he did not have room to keep them.
A notation in Shaw’s workbook reflects that Trailer 58 arrived at High Gear on
March 30, 2009, and “needs plumbing.” Another notation indicates that High Gear finished
its work on May 4, 2009. Shaw and a helper did the work on Trailer 58, and he prepared
the invoice, which indicated 21 hours in labor.

Figure 2 is a general depiction of an MC-331 cargo tank, which Shaw marked during
his deposition to show the locations of the work that he performed on Trailer 58. He
numbered those locations #1, #2 and #3.
At location #1, Shaw installed an internal valve for a vapor line and plumbed it to
both sides of the trailer.

7

Figure 3

Figure 3 is a photograph of Trailer 58 that Shaw marked during his deposition to
show the vapor line he installed.
Shaw did not work on or above the pump. He did not work on the liquid line from
the tank to the pump, on the internal valve at the outlet above the pump, or on the PTO
driveline to the pump.
Before Shaw worked on Trailer 58, there were three loading lines at location #2
which were plumbed to the passenger side. Following his instructions from Sallee, Shaw
changed those lines so they ran to the rear of the trailer. At location #3, Shaw installed
external valves for a rear loading operation.
Shaw only does work that has been ordered by the customer. It is uncontroverted
that the customer for Trailer 58 gave no instructions regarding work on the PTO. Shaw had
no understanding he was to “do anything to the power take-off.” It is uncontroverted that,
even if a customer had asked him to fabricate and install a PTO safety guard, Shaw would
have declined the work, because that would be a “safety issue” that High Gear would not
8

“have anything to do with” because it has “no guidelines for those.”
Shaw has no expertise regarding safety guards for a PTO drive shaft. He was not
aware of any “safety standards or regulations that require a power take-off to have a
guard.” He has never attended a course or a seminar that addressed guards for power
take-offs.
In her Response, Plaintiff cites the testimony of her retained expert, Dennis
Guenther, who notes that the Truck Trailer Manufacturers Association has recommended
the placement of guards around trailer drive shafts. It is uncontroverted, however, that
defendant High Gear is not a manufacturer or seller of tanker trailers. Guenther expressly
stated in his deposition that he has no opinion as to whether High Gear had any
responsibility to install a guard on the drive shaft of Trailer 58.
Before the accident, High Gear did not provide any services to customers to train
or instruct about the dangers of a power take-off or about OSHA PTO regulations for a
power take-off. High Gear was not in the business of selling MC 331 cargo tankers, and did
not sell the tanker involved in the accident. Sallee had not contracted with High Gear to
perform annual cargo tanker inspections required by DOT regulations.
Trailer 58 was subjected to additional work after it left High Gear. A repair order
dated May 27, 2009 indicates work done by Sallee at its own repair facility. The repair order
indicates that the work included the replacement of the trailers hubs, wheel seals, wheel
bearings, and wheel studs; replacement of the brakes and brake drums; installation of eight
used tires; installation of an interlock valve, manifest holder and mud flaps; and eleven
gallons of paint for refinishing the tank. According to Keim, this work was “a whole bunch
of work just to make the trailer safer and more durable . . . to ensure an old trailer
was—was very operational.”
Another repair order, dated June 26, 2009, indicates work done by Bob Dailey,
supervisor for Sallee’s Dodge City, Kansas maintenance shop. Dailey changed the bearings
9

and seals on the pump; built a driveline for the pump; and installed new smart hose and
vapor hose. In performing this work, Dailey replaced the existing power take-off drive
shaft attached to the pump. The parts list for the repair order included six yokes, three
u-joints, a bearing carrier, a three-foot shaft, a three-foot tube, and a 21-inch shaft. Dailey
used these parts to build the replacement PTO drive shaft for Trailer 58.
Prior to Hoskinson’s accident, the pump on each of Sallee’s thirteen cargo tankers
was powered by a drive shaft connected to a truck’s PTO. Trailer 58, like all of Sallee’s
thirteen cargo tankers, had an open drive shaft without a safety guard.
Sallee had a “Comprehensive Operating Procedure Pressure Tank Product Transfer
Procedure.” The original version of the Procedure was written by Roger Sallee. Brent
Woods modified the document.
This Procedure was in effect when Hoskinson was employed by Sallee. Woods
participated in Hoskinson’s job orientation at Sallee. During the job orientation, Hoskinson
was given the Procedure, and the Procedure was discussed. According to Woods, the
Procedure was also “part of the truck permit book, the truck manual that’s kept in the
truck.”
On the first page of the Procedure, centered below the title of the document, was the
following message:
YOUR SAFETY IS PARAMOUNT: Remember the hose is the weak link in
the delivery chain - DO NOT STRADDLE HOSES. Clothing can be caught
up in an open shafted PTO. DO NOT STAND NEXT TO OR IN LINE
WITH THE PTO SHAFT.
(All emphasis in original.)
The Procedure enumerated sequential steps for the transfer of product from a cargo
tanker to a customer’s storage tank. Before transferring the product, Step # 8 of the
Procedure instructed the operator to “hook up PTO shaft.” With the tractor’s PTO
disengaged and the its engine shut down, the operator then connects the jackshaft to the
tractor’s PTO output stub shaft. Step # 8 then instructs the operator to “open Fisher valve,”
10

which was the cargo tanker’s internal self-closing stop valve on the outlet above the
product pump.

Figure 4

Figure 4 shows the equipment used to off-load ammonia. The photo depicts the
Fisher valve, its operating lever, the pump and the post-accident guard for the PTO shaft.
This photo was taken from the driver side of the trailer. The operating lever on the Fisher
valve is in the down (or open) position.

11

Figure 5
Figure 5 shows the Fisher valve operating lever in the open position, and the PTO
shaft without the guard.

Figure 6
Figure 6 shows the Fisher valve operating lever in the closed position, and the PTO
shaft without the guard.

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Figure 7
Figure 7 shows the Fisher operating lever when the internal valve is open, and the
proximity of the lever to the PTO shaft without the guard.
When the internal valve above the product pump is closed, a spring-loaded
assembly seats a pin into an indentation in the operating lever, which locks the lever in the
closed position.
To open the internal valve above the product pump, the set pin must be retracted
and the operating lever must be forced down. When the operating lever for the internal
valve above the product pump is moved down to open the valve, the set pin, under spring
tension, is designed to extend forward.
When the internal valve above the product pump is open, the operating lever for the
internal valve is under spring tension toward the closed position, and the operating lever
is positioned below and in tension against the set pin.
At Step # 11 of the Procedure, the operator starts the tractor engine and engages the
tractor’s PTO to start the transfer of product from the cargo tanker to the customer’s
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storage tank.
After the anhydrous ammonia is transferred to the customer’s storage tank, Step #14
instructs the operator to “close internal valve,” which was the cargo tanker’s internal
valve—the “Fisher valve”—on the outlet above the product pump.
To close the internal valve above the product pump, the set pin must be retracted
and then the operating lever, as designed, returns under spring tension to the closed
position.
On Trailer 58, the internal stop valve for the liquid outlet connection was equipped
with two manually-operated remote shutdown stations at diagonally opposite ends of the
tank. The spring-loaded mechanism that retracts the set pin is designed to be cable
operated from either shutdown stations. When the handle at a remote shutdown station
is pulled, the set pin retracts, causing the valve to close.
Sallee trains its operators to use the remote shut down stations to close the internal
valve above the pump. According to Woods, on all of Sallee’s cargo tankers, the “shutoff
valves are normally located as far – they should all be located in the same areas, so that if
you switch trailers, you should go to the same location, be able to shut it down.”

Figure 8
14

Figure 9
Figures 8 and 9 show the remote shutdown stations on, respectively, the passenger
and driver sides of the trailer.
When a remote shutdown station is not used, and the operator uses the Fisher lever,
he or she would need to force the lever down to relieve the force of the lever against the
set pin, and then pull on the loop of the spring-loaded assembly to retract the set pin.
Step # 18 of the Procedure instructs the operator to “disengage PTO and put up
shaft.” At this step, before the jackshaft was disconnected from the tractor’s PTO, the
operator would typically shut down the tractor’s engine and close the internal valve on the
outlet above the product pump. The operator then would disconnect the jackshaft from the
tractor’s PTO output stub shaft. The operator then places the jackshaft in a hangar on the
trailer for travel.
On March 10, 2010, Sallee dispatched Hoskinson to deliver anhydrous ammonia to
a storage tank at Cox Farms, approximately 10 miles north of Sublette, Kansas, using
Trailer 58. At or around 8:00 to 8:30 p.m., while at Cox Farms, Hoskinson was injured when
he came into contact with Trailer 58’s PTO drive shaft while on its passenger side.
15

At the time of the accident, the anhydrous ammonia had been transferred to the
customer’s storage tank, and Hoskinson was trying to close the internal valve above the
product pump. Hoskinson extended his right arm into an area to the right of the product
pump and above the PTO drive shaft, when the right sleeve of his jacket got caught on the
shank screw of the PTO drive shaft pulling his arm into the shaft.
At the hospital in Garden City, Hoskinson told his son that he “made a high speed
fuckup,” explaining “that it was cold that night and he started to get out [of the truck] and
he got back in an put on his jacket; and when he reached in to push that Fisher lever down,
that square shank set screw that they had put on that driveshaft caught the sleeve of his
jacket.”
Keim visited Hoskinson on at least two occasions at the hospital in Wichita. He
testified:
Q. Did you have any conversations with Mr. Hoskinson about how the
accident occurred?
A. Nothing that I could really quote.
Q. Did he tell you that he knew better and should not have reached for the
valve from the passenger side?
A. Yes.
Woods spoke to Mr. Hoskinson at the hospital in Wichita. Hoskinson told Woods
that he had made a serious mistake, and that as “he tried to shut off the valve, he reached
through the driveshaft and the driveshaft caught him, caught his coat.”

Conclusions of Law
The plaintiff advances claims for negligence, strict liability, failure to warn, and
breach of implied warranty of fitness for a particular purpose. (Dkt. 106, at 14-19). In its
Motion for Summary Judgment, High Gear argues that its contractual relationship
extended only to Sallee, Inc., and thus whether it had any duty to Hoskinson is a separate
16

question of law for the court. See Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187
(2007) (“
High Gear advances three arguments. First, it was not responsible for Hoskinson’s
injuries under negligence or any common law theory, because there was no “special
relationship” between itself and Hoskinson, and because it did not undertake to protect
him against injury as reflected in Restatement (Second) of Torts, § 324A. Second, it argues
the claims for strict liability or breach of warranty have no application because it was not
a seller of the product or in its chain of distribution. See Stephenson v. Honeywell
International, 703 F.Supp.2d 1250, 1261 (D. Kan. 2010) (“Kansas courts have recognized strict
liability and implied warranty claims only in the context of the sale of a product”). Third,
High Gear contends that Sallee, Inc., had a absolute duty to maintain a safe working
environment for its workers, and the actions of Sallee in rebuilding the PTO and liquid
product pump are intervening or superseding cause of the accident.
Because the plaintiff’s Response agrees that her claim is not premised on the
existence of any “special relationship” between the decedent and High Gear, the plaintiff’s
common law claims depend upon the application of Restatement (Second) of Torts § 324A.
Section 324A, which was adopted by the Kansas Supreme Court in Schmeck v. City of
Shawnee, 232 Kan. 11, 27, 651 P.2d 585 (1982), provides:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the protection
of a third person or his things, is subject to liability to the third person for
physical harm resulting from his failure to exercise reasonable care to protect
his undertaking, if
i.

His failure to exercise reasonable care increases the risk of such
harm, or

ii.

He has undertaken to perform a duty owed by the other person
17

to the third person, or
iii. The harm is suffered because of reliance of the other or the third
person upon the undertaking.
The court finds that summary judgment is appropriate as to the plaintiff’s common
law claims for two reasons. First, the plaintiff has failed to show that High Gear undertook
to perform work to protect the decedent, as required under Section 324A. See Calwell v.
Hassan, 260 Kan. at 784, 925 P. 2d 422 (1995). Such undertakings are not commonly found.
See South v. McCarter, 230 Kan. 85, 109 , 119 P.3d 1 (2005) (noting that “in most cases we
have not found an undertaking sufficient to give rise to a duty”). A defendant is not “liable
[under Section 324] for a task he did not agree to assume.” Anderson v. Scheffler, 248 Kan.
736, 742, 811 P.2d 1125 (1991).Ad 430 (1994).
Here, Sallee hired High Gear to change how Trailer 58 was loaded, not how it was
unloaded. The only work High Gear did which related to the unloading of the trailer was
the installation of additional vapor lines, which do not affect the method of unloading
liquid product from the tanker. High Gear’s plumbing work did not change how the
operator used the tanker for delivering anhydrous ammonia to customers. High Gear did
not do anything with respect to the PTO shaft or liquid product pump because it was not
engaged to do so. Sallee’s owner explicitly acknowledges that he only wanted the trailer
capable of hauling anhydrous ammonia, and that he did not ask High Gear to put any
guard on the PTO shaft.
Second, even if High Gear had made such an undertaking, summary judgment is
appropriate under Section 324A because High Gear’s work did not increase the risk of
harm to Hoskinson, Sallee did not delegate its duty to protect its workers to High Gear,
and Hoskinson did not rely on High Gear’s supposed undertaking. As noted earlier, the
facts show that High Gear’s work did not affect the method for, or dangers of, delivering
liquid product. Sallee, Inc.’s explicit unloading procedures were the same, before and after
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High Gear’s work on Trailer 58. Because High Gear did not make any “physical change”
or “material alteration” to the area around the PTO shaft or liquid product pump, it is not
liable under Section 324A. See Deines v. Vermeer Mfg. Co., 752 F. Supp. 989, 995 (D. Kan.
1990), aff’d 969 F.2d 977 (10th Cir. 1992).
Further, there is no evidence that Sallee, Inc. delegated to High Gear its absolute
duty under Kansas law to provide a safe working environment to its employees. See P.I.K.
Civ. 4th 107.51. Nor is there evidence that Hoskinson relied on any undertaking by High
Gear. Rather, the evidence shows that Hoskinson was an extremely knowledgeable
operator of anhydrous ammonia equipment, with some 30 to 40 years of experience.
Hoskinson was familar with Sallee, Inc’s procedures for the safe handling of anhydrous
ammonia. Hoskinson essentially could have trained everyone else at Sallee how to do the
job. Moreover, Sallee, Inc., is a sophisticated business entity, which operates 75 trucks and
301 trailers (including thirteen cargo tankers) in 31 states. Its mechanical shops employ 15
persons.
Here, the plaintiff does not controvert that Sallee and Ronald Hoskinson were
sophisticated users and operators of anhydrous ammonia cargo tankers. Nor does the
plaintiff dispute that Sallee gave an adequate written warning to its employees about
working near the unguarded PTO shaft. The PTO shaft was an open and obvious hazard,
and accordingly the plaintiff cannot show any reliance by Hoskinson on the actions of High
Gear. See Hartman v. Miller Hydro Co., 499 F.2d 191, 194 (10th Cir. 1974).
The plaintiff’s opposition to the motion for summary judgment depends almost
exclusively on argument by counsel rather than evidence in the record. Thus, the plaintiff
repeatedly asserts that High Gear’s work was a “conversion” rather than a repair, but the
facts do not support this conclusion. As noted above, Trailer 58 was already configured to
carry anhydrous ammonia, and High Gear simply changed to plumbing on the tanker to
allow for rear loading. It did nothing with respect to the PTO shaft or liquid pump for
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unloading the ammonia.
Similarly, the plaintiff repeatedly asserts that High Gear installed “a new plumbing
system” on the trailer, without supplying any evidence for the assertion. This argument
attempts to gloss over the fact that High Gear changed the plumbing system for loading the
trailer, which is performed without reliance on the pump. High Gear made no material
modifications to the system for unloading the tanker.
Finally, the plaintiff asserts that High Gear’s work somehow changed the “work
area” where the operator stood to perform the unloading. Again, however, this is simply
argument by counsel; it is not reasonably founded on any evidence. The plaintiff
introduces no evidence showing that the operator’s work area changed, relying instead on
confusion of loading and unloading operations. The frequent repetition of an argument by
counsel is not a substitute for a fact.
And the plaintiff’s argument is indeed contradicted by the facts. The Sallee
procedure for unloading ammonia was the same, both before and after the High Gear
work. That work centered on how the trailer was loaded, not how it was unloaded. Thus,
High Gear did not work on any of the liquid-handling equipment which was involved in
the accident — the Fisher valve, the pump, the power takeoff driveshaft, or the external
valve for the liquid line.
Under the Sallee procedure, the operator connects a hose from the external valve on
the liquid line below the pump to the customer’s tank, and opens the Fisher internal valve
above the pump. This starts the product flow from the tank. From inside the truck, the
operator engages the PTO to start the pump. The operator stops the pump using the
remote shutdown handles at either end of the trailer. The operator disengages the PTO
from inside the truck. High Gear’s work altered nothing in these procedures, and in no way
affected either the location or danger to the operator.
With respect to the claims sounding in product liability, the plaintiff agrees that
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“this is not a manufacturing case,” and that as a result, neither K.S.A. 60-3301 et seq. or
Restatement (Second) of Torts § 402A are applicable. (Dkt. 98, at 1, 20). She asserts,
however, that these claims remain valid under the Restatement (Second) of Torts § 395.
However, § 395 by its express terms applies only to “[a] manufacturer who fails to
exercise reasonable care in the manufacture of a chattel.” The plaintiff’s concession that
“this is not a manufacturing case” is as fatal to a claim under § 395 as it is to one under §
402A. The uncontroverted facts fail to show that the defendant “manufactured” any trailer
component involved in the accident, and accordingly the plaintiff’s claims must be
dismissed.
As Judge Lungstrum noted in Stephenson v. Honeywwell International, 703 F.Supp.2d
1250, 1261 (D. Kan. 2010), “Kansas courts have recognized strict liability and implied
warranty claims only in the context of the sale of a product.” In Kansas, “strict liability
requires a defect at the time of the sale of the product.” Id. (citing and quoting Patton v.
Hutchinson Wil–Rich Mfg. Co., 253 Kan. 741, 755, 861 P.2d 1299, 1310–11 (1993) (“[a]
negligence analysis is more appropriate than an application of strict liability in the post-sale
context”)).
Stephenson is directly analogous here. In that case, plaintiff brought suit following
an airplane crash. The court held that strict liability theories were not applicable to the
defendant, who had repaired the engine, replacing some of its worn parts. The plaintiff
attempts to distinguish Stephenson on the grounds that in that case the defendant was a
“mere repairer” of the engine, while High Gear performed substantially more work on the
Trailer 58.
This attempted distinction fails under the facts, however. The evidence shows that,
as to the components of the trailer involved in the accident – the PTO shaft and liquid
product pump – High Gear performed no work. As to those components, High Gear was
not even a “mere repairer.” In any event, the court follows Stephenson and holds that, given
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the post-sale nature of the product, Kansas law limits the plaintiff’s claims to those
sounding in neligence.
Finally, the court finds that it need not resolve the issue of intervening or
superseding cause. High Gear presents a strong argument that such a cause exists in Sallee,
Inc.’s extensive work on and replacement of the PTO shaft and liquid product pump, and
thus that High Gear’s repair work months earlier was therefore not the proximate cause
of the accident. See Puckett v. Mt. Carmel Reg. Med. Center, 290 Kan. 406, 228 P.3d 1048 (2010)
(discussing elements of legal causation). However, the issue of intervening causation “‘does
not come into play until after causation in fact has been established.’” Id. (quoting Waste
Management v. South Central Bell, 15 S.W.3d 425, 432 (Tenn. App. 1997). Here, for the
reasons stated earlier, the plaintiff here has failed to show that High Gear’s work was the
cause in fact of the accident. Thus, while High Gear’s intervening cause argument has some
support in the facts, the the court need not resolve the issue.
IT IS ACCORDINGLY ORDERED, this 12th day of November, 2013, that the
defendant’s Motion for Summary Judgment (Dkt. 81) is hereby granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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