Jenks et al v. New Hampshire Motor Speedway, Inc. et al

Filing 103

///ORDER granting 96 TFC's Motion for Summary Judgment. TFC is entitled to judgment in its favor on the contribution and indemnification claims (Counts I and II) in the third-party complaint (document no. 66). So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Melissa Jenks, Individually
and as g/n/f of Roderick Jenks
v.

Civil No. 09-cv-205-JD
Opinion No. 2011 DNH 127

New Hampshire Motor
Speedway, Inc., et al.
v.
Textron Financial Corporation
and A.B.L. Inc.
O R D E R
Melissa Jenks, as the guardian and next friend of her
husband, Roderick Jenks, and on her own behalf, sued New
Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.,
alleging negligence claims against Thompson and the Speedway and
product liability claims against Textron.

Textron brought cross

claims against Thompson and the Speedway for contribution and
indemnification, and Thompson and the Speedway brought thirdparty claims for contribution and indemnification against Textron
Financial Corporation and A.B.L. Inc.

Textron Financial

Corporation moves for summary judgment on the third-party claims
against it.

Standard of Review
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).

The party seeking summary judgment must

first demonstrate the absence of a genuine issue of material fact
in the record.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 323

A party opposing a properly supported motion for summary

judgment must present competent evidence of record that shows a
genuine issue for trial.

See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986).

All reasonable inferences and all

credibility issues are resolved in favor of the nonmoving party.
See id. at 255.

Background
In July of 2006, Roderick and Melissa Jenks worked at the
Speedway in exchange for a contribution to a charity of their
choice.

On Sunday, July 16, 2006, Mr. Jenks arrived at the

Speedway early in the morning to begin work.

As he was walking

in the racetrack infield with another volunteer, they saw
Thompson, a Speedway employee, driving a golf cart toward them,

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and they flagged her down to ask for a ride.

Thompson agreed to

give them a ride to the other side of the infield.
The golf cart had only two seats so Mr. Jenks rode in the
rear of the cart, where golf clubs are typically carried.
Thompson drove a short distance and then swerved suddenly to
avoid hitting a person in the roadway.

Mr. Jenks fell off the

back of the golf cart, suffering serious head injuries.
The golf cart that Thompson was driving was manufactured by
Textron Inc.

Textron Financial Corporation (“TFC”) provides

financing programs for products, such as golf carts, that are
manufactured by Textron Inc, which is TFC’s parent company.

TFC

provided financing to A.B.L., Inc., through a finance lease, to
purchase the golf carts from Textron.

A.B.L. then leased the

golf cart Thompson was driving at the time of the accident to the
Speedway.
Melissa Jenks brought suit against Thompson, the Speedway,
and Textron Inc. under diversity jurisdiction, 28 U.S.C. § 1332.
The defendants’ cross claims and third-party claims are also
based on diversity jurisdiction.

The parties agree that New

Hampshire law applies to the third-party claims against TFC.

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Discussion
In the third-party complaint, Thompson and the Speedway
allege that if Melissa Jenks recovers a judgment against them,
TFC and A.B.L. are liable to them for contribution and
indemnification.

Thompson and the Speedway allege, pursuant to a

strict product liability theory, that the golf cart was defective
and unreasonably dangerous, which caused the accident that
injured Roderick Jenks.

TFC moves for summary judgment on the

claims against it on the grounds that the contribution claim is
premature pursuant to New Hampshire Revised Statutes Annotated
(“RSA”) § 507:7-g(IV)(c) and that as a financial lessor, it is
not subject to strict product liability.

A.

Contribution Claim
Under New Hampshire law, contribution claims generally must

be resolved in a separate action after judgment is rendered
against a defendant.

RSA 507:7-g(IV).

Under the statute, a

defendant can bring a third-party claim for contribution as part
of the plaintiff’s suit only if the plaintiff agrees.
g(IV)(c).

RSA 507:7-

The application of RSA 507:7-g has been handled

differently by several judges in this court.

See McNeil v.

Nissan Motor Co., 365 F. Supp. 2d 206, 213-14 (D.N.H. 2005); Z.B.
ex rel. Kilmer v. Ammonoosuc Cmty. Health Servs., Inc., 225
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F.R.D. 60, 61-62 (D. Me. 2004) (discussing decisions in the
District of New Hampshire).
TFC asserts that the contribution claim is premature because
judgment has not been entered on Jenks’s claims.

In response,

Thompson and the Speedway point out that Jenks assented to their
motion for leave to file the third-party complaint.

They contend

that Jenks’s assent satisfies the requirement of RSA 507:7g(IV)(c).

TFC does not dispute that Jenks agreed to have the

contribution claim as part of the principal action.
Because it is undisputed that Jenks agreed to have the
contribution claim brought in the principal action, it is
unnecessary to decide whether RSA 507:7-g provides the governing
standard.

B.

Strict Liability
New Hampshire recognizes strict liability claims as provided

in section 402A of the Restatement (Second) of Torts.

Kelleher

v. Marvin Lumber & Cedar Co., 152 N.H. 813, 831 (2005).

“Under

the doctrine of strict liability, one who sells any product in a
defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer.”
824 (internal quotation marks omitted).
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Id. at

In addition, the seller

of the product must be in the business of selling such products.
Brescia v. Great Road Realty Trust, 117 N.H. 154, 157 (1977).
TFC contends that it cannot be strictly liable for a defect
in the golf cart because it did not sell the golf cart and is not
in the business of selling golf carts.

TFC provides the

affidavit of Robert L. Hotaling, Jr., Senior Vice President of
Operations at TFC, to explain the transaction between TFC and
A.B.L.

Hotaling states that TFC provided financing to A.B.L. to

purchase golf carts from Textron, that the arrangement was a
finance lease, that Textron supplied the carts, and that TFC is
not in the business of selecting, supplying, or manufacturing
golf carts.

Thompson and the Speedway argue that TFC is in the

business of leasing golf carts and should be deemed to be a
seller for purposes of strict liability.
In Brescia, the owner of a construction company formed a
land trust that rented property to the construction company.
N.H. at 155-56.

117

At a time when the construction company was low

on cash, the trust bought a crane that it then leased to the
construction company.

Id. at 156.

The New Hampshire Supreme

Court concluded that the trust could not be held strictly liable
for injuries caused by the crane because the trust was not in the
business of supplying cranes to the general public and instead

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the lease was merely a business arrangement between the trust and
the construction company.

Id. at 157.

TFC’s circumstances are different from those discussed in
Brescia.

TFC provides financing arrangements through finance

leases to members of the general public who are buying products
from TFC’s parent company, Textron.

As such, TFC is in the

business of supplying financing for the purchase of Textron’s
products.

The issue then is whether a company that provides

financing for the purchase of products from another company can
be held strictly liable for injuries caused by the financed
products.
Other courts that have considered the application of strict
liability to finance lessors have concluded that providing
financing does not provide a basis for strict liability.

See

Wright v. Newman, 735 F.2d 1073, 1078 (8th Cir. 1984); Abco
Metals Corp. v. Equico Lessors, Inc., 721 F.2d 583, 585-86 (7th
Cir. 1983); Massey v. Cassens & Sons, Inc., 2007 WL 2710490, at
*5 (S.D. Ill. Sept. 13, 2007); Arriaga v. CitiCaptial Comm.
Corp., 85 Cal.Rptr.3d 143, 152-53 (Cal. App. 2008); Draleau v.
Center Capital Corp., 732 N.E.2d 929, 933 (Mass. App. Ct. 2000).
In Wright, the Eighth Circuit was guided by the policy
underlying strict liability as expressed in the Restatement
(Second) of Torts § 402A, comment c, “that as between the
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consuming public and those responsible for placing a defective
product on the market, the latter should bear the burden of any
attendant losses.”

735 F.2d at 1077.

The strict liability

policy is supported by the understanding that the seller of a
product “is in a position through inspection and pressure on the
manufacturer to control the flow of dangerous products into the
market [and] . . . is also generally better able to bear and
distribute the costs resulting from injury due to a defective
product.”

Id.

The court concluded that because Ford Motor

Credit Company was in the business of financing the purchase of
Ford products from dealers, it was in a different position than
commercial entities that were responsible for distributing the
products.

Id. at 1078.

As a financier, the court concluded,

Ford Motor Credit Company was not in the distribution chain that
supplies the product to the public and therefore could not be
held strictly liable.

Id.

The Seventh Circuit also focused on the relationship between
the parties to determine whether Equico could be held strictly
liable for a defective wire chopper that Equico purchased and
leased to Abco.

Abco, 721 F.2d at 585.

The court noted that

Equico had no part in the production, marketing, or distribution
of the wire chopper and that instead Equico’s role was to provide
financing.

Id.

As such, the court concluded that Equico was not
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part of the distribution chain and could not be held strictly
liable.

Id. at 586.

In Arriaga, the California court considered whether a
finance lessor of a glue spreader could be held strictly liable
for injuries to the plaintiff.

The court concluded that even if

the finance role could be deemed to be a part of the chain of
distribution, policy considerations did not support the
application of strict liability.

85 Cal.Rptr.3d at 152.

The reasoning in the cited cases is persuasive here.
Thompson and the Speedway do not dispute that TFC’s only role in
this case was to provide financing for A.B.L. to purchase the
golf carts.

As such, TFC remained outside the chain of

distribution and did not engage in the business of supplying the
carts to the public.

Therefore, the doctrine of strict liability

does not apply to TFC.

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Conclusion
For the foregoing reasons, TFC’s motion for summary judgment
(document no. 96) is granted.

TFC is entitled to judgment in its

favor on the contribution and indemnification claims (Counts I
and II) in the third-party complaint (document no. 66).

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
August 17, 2011
cc:

R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Dona Feeney, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
John A.K. Grunert, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Michael D. Shalhoub, Esquire

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