Opinion
Civil Action Case No. 00-2471-JAR
March 26, 2002
Plaintiffs' decedent, William Stadtherr, was killed while riding on a work platform mounted on the forks of a forklift. This incident occurred on July 5, 2001, in Kansas City, Kansas, in a warehouse owned by defendant Associated Wholesale Grocers (AWG) and operated by defendant Elite Logistics, Inc. (Elite). The forklift was manufactured by defendant The Raymond Corporation (Raymond). Elite was the registered owner of the forklift and the work platform; an Elite employee was driving the forklift at the time of the incident. William Stadtherr, an employee of Telxon, had come to the AWG warehouse to make repairs on inventory control equipment in the ceiling of the warehouse.
Raymond moves for summary judgment on plaintiffs' Amended Complaint claims for negligence and product liability. Plaintiffs did not respond to Raymond's motion. Instead, on March 14, 2002, plaintiffs filed a motion for summary judgment against defendant Elite, asking that Elite's claim of comparative fault against defendant Raymond be dismissed in the event the Court grants plaintiff's Daubert motion against Elite's expert. Meanwhile, Elite filed a response to Raymond's summary judgment motion stating that it did not oppose Raymond being granted summary judgment or dismissal of Raymond as a party defendant, as long as Elite's right to compare Raymond's fault was preserved under K.S.A. 60-258a, citing Hull v. Agustin.
On March 14, 2002, Plaintiffs filed a motion for summary judgment (Doc. 202) against all defendants on the defendants' claim of comparative fault against both the decedent and the decedent's employer Telxon, on the basis that Kansas law does not permit the comparison of the employee's fault and the employer's fault when the employer is vicariously liable for acts of the employee. In this same motion, Plaintiffs further moved for summary on the assumption of risk defenses raised by defendants Raymond and AWG.
22 Kan. App. 2d 464, 918 P.2d 651 (1996)[co-defendant seeking to compare fault of another defendant responded to summary judgment motion to preserve right to compare fault.]
For the reasons discussed below, the Court grants Raymond's motion for summary judgment against the plaintiffs and orders Raymond to remain joined in this action, not as a party, but for the limited purpose of a determination of Raymond's comparative fault in accordance with K.S.A. 60-258a.
FACTS
There is no dispute that although plaintiffs named Raymond as a party defendant in this action for negligence and product liability, plaintiffs have offered no evidence establishing a prima facie case against Raymond. Plaintiffs have two liability experts, but neither opines that the forklift was defective nor that Raymond's negligence caused the decedent's injury. Elite, who seeks to compare the fault of Raymond, has an expert witness, Way Johnston, who opines that Raymond has some fault.
DISCUSSION
Because plaintiffs have no expert testimony or other evidence to show that Raymond has any fault, Raymond is entitled to summary judgment as a matter of law on plaintiffs' claims against Raymond. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Raymond has met its burden by showing that plaintiffs have no expert testimony or other evidence of Raymond's fault; plaintiffs have not met their burden of showing any genuine issues. Thus, Raymond is entitled to summary judgment. Neither Elite nor any other party has cross-claimed or instituted a third party action against Raymond and there are no other claims against Raymond in this action. But, Elite has placed Raymond's comparative fault in issue. Elite has an expert witness who opines that Raymond has some fault and that the forklift manufactured by Raymond caused the decedent's injury.
To prove their claim of product liability, under the Kansas Products Liability Act, plaintiffs must show: (1) that the injury resulted from the condition of the product; (2) that the condition was unreasonably dangerous; and (3) that the condition existed at the time the product left the manufacturer's control. Plaintiff must also prove a specific defect in the product. Samarah v. Danek Med. Inc., 70 F. Supp.2d 1196, 1203 (D.Kan. 1999).
Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993).
Applied Genetics Int'l Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Under Kansas's comparative fault statute, K.S.A. 60-258a, the trier of fact considers each party's negligence when assigning the percentage of fault, and also considers the fault of other, nonparty tortfeasors whose actions have contributed to the injury. The comparative fault statute applies to product liability claims, as well as claims of negligence. As the court explained in the seminal case Brown v. Keill,
[T]he intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.
K.S.A. 60-258a states:
On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.
DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 378, 16 P.3d 986, 991 (Kan.App., 2000) citing Fitzpatrick v. Allen, 24 Kan. App. 2d 896, 905, 955 P.2d 141, rev. denied (1998).
Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). [comparative fault applies to product liability actions, both strict liability claims and claims based on implied warranty].
224 Kan. 195, 207, 580 P.2d 867, 876 (Kan., 1978); Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127 (1981).
Since Elite seeks joinder of Raymond to determine its comparative fault, Elite has the burden of proving Raymond's fault; plaintiffs do not bear this burden. Elite's allegations that the forklift or Raymond's negligence caused decedent's injury must be supported by adequate evidence before Elite may argue Raymond's negligence to the jury and before the Court may instruct the jury to compare Raymond's fault. Thus, although Raymond is granted summary judgment on plaintiffs' claims against Raymond, the issue of Raymond's comparative fault is preserved pursuant to K.S.A. 60-258a.
McGraw v. Sanders Co. Plumbing Heating, Inc., 233, Kan. 766, 667 P.2d 289 (1983)[plaintiff is entitled to a jury in struction that defendant has the burden of proof concerning these additional parties].
See Mason v. Texaco Inc., 862 F.2d 242, 246 (10th Cir. 1988); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, 1060 (Kan.), cert. denied, 469 U.S. 965 (1984).
Typically, it is unjoined parties whose fault is compared with that of joined parties pursuant to K.S.A. 60-258a. Formal joinder is not a prerequisite to a determination of comparative fault. Raymond was a party to this action, but is now being granted summary judgment. Nevertheless, K.S.A. 60-258a requires that Raymond's comparative fault be submitted to the jury, if defendant Elite bears its burden of proving Raymond's comparative fault by a preponderance of the evidence. Although Raymond cannot be held legally responsible, and is not jointly or severally liable for any judgment, Raymond's fault will be considered at trial and submitted to the jury, if defendant Elite bears its burden of proof.
Kennedy v. City of Sawyer, 228 Kan. at 460. But the federal courts in Kansas employ a phantom party concept, because joinder is not authorized under the federal rules of procedure. See Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 750 (D.Kan. 1978)[" While K.S.A.s 60-258a(c) does provide a joinder mechanism whereby a defendant may bring in a co-defendant regardless of the possibility of liability Intersese, federal courts of this district have viewed this provision as merely a procedural device inapplicable in federal courts. Joinder in such a situation is not authorized by the Federal Rules of Civil Procedure."]
Brown v. Keill, 224 Kan. at 204, 580 P.2d 867.
See Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978)[this procedure benefits a defendant by potentially reducing the percentage of fault attributable to him, rather than benefitting the plaintiff through increased recovery, a case can be forced to make a claim against the added party.]
CONCLUSION
Because the Court grants Raymond summary judgment on plaintiffs' claims and because no other party has cross-claimed, in the event the jury determines that Raymond has some comparative fault, Raymond is not subject to judgment. The jury's determination of Raymond's comparative fault is for the limited purpose of determining the allocated portion of the judgment rendered against other parties found to be at fault. By the Court granting Raymond's motion for summary judgment the following matters are rendered moot:
(1) that part of Plaintiff's Motion for Summary Judgment (Doc. 202) directed to Raymond's assumption of risk defense;
(2) Raymond's Daubert motion (Doc. 187); and
It should be noted that on March 4, 2002, Plaintiff filed its own Daubert motion (Doc. 206) seeking to strike the testimony and portions of the report of Elite's expert, Johnston. That motion is not yet under advisement, pending response and reply by the parties.
(3) Elite's motion to defer response to Raymond's Daubert motion (Doc. 195); plaintiffs' motion in opposition (Doc. 204); and Raymond's memorandum in opposition (Doc. 210).
IT IS THEREFORE ORDERED THAT Raymond's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that Raymond will remain joined in this action for the limited purpose of the comparative fault procedure in K.S.A. 60-258a. IT IS ALSO ORDERED that the following matters are MOOT:
(1) that part of Plaintiff's Motion for Summary Judgment (Doc. 202) directed to Raymond's assumption of risk defense.
(2) Raymond's Daubert motion (Doc. 187)
(3) Elite's motion to defer response to Raymond's Daubert motion (Doc. 195); plaintiffs' motion in opposition (Doc. 204); and Raymond's memorandum in opposition (Doc. 210).
IT IS SO ORDERED.