Ellingsworth v. Vermeer Manufacturing Company et al

Filing 151

ORDER Based on the findings of fact and conclusions of law set forth on the record on November 6, 2018, (doc. # 150 ) it is ordered that Defendant Vermeer Manufacturing Company's Motion for Summary Judgement (doc. # 120 ) is granted. Signed on November 20, 2018 by Magistrate Judge Sarah W. Hays. (Clinton, Erica) (Additional attachment(s) added on 11/20/2018: # 1 Exhibit transcript from 11/6/18 hearing) (Chorny, Traci).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
ROBERT DALE ELLINGSWORTH,
Plaintiff,
v.
VERMEER MANUFACTURING
COMPANY,
Defendants

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Case No. 16-05042-CV-SW-SWH

ORDER
On January 27, 2016, plaintiff filed a Petition for Damages against Vermeer Manufacturing
Company (hereinafter “VMC”) and Dwayne Marshall in the Circuit Court of Stone County,
Missouri. (Doc. #1-1) The Petition alleged that plaintiff was injured while he was feeding a tree
into a wood chipper manufactured by VMC. Plaintiff alleged that unbeknownst to him the winch
line had become entangled in the branches of the tree, and thus, as the tree went into the chipper,
the rope/line, log-chain and hook were propelled violently and at high speed, hitting and crushing
his legs. Dwayne Marshall was alleged to be his foreman and supervisor on the job site. As a
result of the accident, plaintiff made the following claims: Strict Products Liability for Design
Defect and Failure to Warn against defendant VMC (Counts I and II); Negligence for a Defective
Product and for Failure to Warn against defendant VMC (Counts III and IV); Co-Employee
Negligence against defendant Marshall (Count V); and a claim of Purposeful and Dangerous Acts
that Increased the Risk of Danger against defendant Marshall (Count VI). (Doc. #1-1) VMC
removed the matter to this Court on April 22, 2016, on the basis of diversity jurisdiction. (Doc.
#1)

On December 6, 2016, plaintiff filed a First Amended Complaint which added Vermeer
Sales of Oklahoma as a defendant. (Doc. #23) The First Amended Complaint alleged that Vermeer
Sales of Oklahoma was liable under the same theories of strict liability and negligence plead
against VMC.

In addition the First Amended Complaint added a claim against VMC for

Negligence for Failure to Train and Instruct Distributors (Count V) and a claim against defendant
Vermeer Sales of Oklahoma for Negligent Assembly and Failure to Warn (Count VI). (Doc. #23,
at 12, 14) Defendant Marshall remained in the case on the same theories of liability now plead in
Counts VII and VIII. (Doc. #23, at 17, 20) Plaintiff filed a proof of service showing that service
was effectuated upon Vermeer Sales of Oklahoma by serving KD Lackey Jr. on January 24, 2017.
(Doc. #28) On April 11, 2017, plaintiff filed a notice of voluntary dismissal as to defendant
Marshall1. (Doc. #43)
Vermeer Sales of Oklahoma never filed an answer or other responsive pleading. The
parties agree that Vermeer Sales of Oklahoma is a defunct corporation. On November 2, 2018,
plaintiff filed a motion to voluntarily dismiss without prejudice defendant Vermeer Sales of
Oklahoma. (Doc. #139) During a hearing on November 6, 2018, the Court granted the motion and
dismissed Vermeer Sales of Oklahoma without prejudice2.
On June 22, 2018, defendant VMC filed a motion for summary judgment. (Doc. #120) The
Court heard argument on the motion on November 6, 2018. At the conclusion of the argument,
the Court granted the motion for summary judgment making findings of fact and conclusions of
law. A transcript of the hearing is attached to this Order and incorporated by reference. Based on
the findings of fact and conclusions of law set forth on the record on November 6, 2018, it is,

1

This resulted in the dismissal of Counts VII and VIII of the First Amended Complaint which were brought only
against defendant Marshall.
2
This resulted in the dismissal of Vermeer Sales of Oklahoma from Counts I and II of the First Amended Complaint
and the dismissal of Count VI, brought only against Vermeer Sales of Oklahoma.

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ORDERED that Defendant Vermeer Manufacturing Company’s Motion for Summary
Judgment (doc. #120) is granted.

/s/ Sarah W. Hays
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE

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