Opinion
Civil Action No. 3:02CV-390-H
January 2, 2003
MEMORANDUM OPINION
The Court now considers whether Plaintiffs have met their burden of showing that Defendant Jeffersontown Hardware "knew or should have known" that the sled disc was in a defective condition, unreasonably dangerous to the consumer, when it was sold. Plaintiffs' claim that the sled disc contained no steering mechanism; that Jeffersontown Hardware knew of this; and that Jeffersontown Hardware should have known this to be an unreasonably dangerous design. Defendant readily admits the first two allegations, but denies the third and argues that KRS 411.340 bars the claim against it.
Because this court's jurisdiction is based solely on diversity, the Court must look to the substantive law of Kentucky. The parties agree that KRS 411.340 — also known as the "middleman statute" — governs. Salisbury v. Purdue Pharma, L.P., 166 F. Supp.2d 546 (E.D.Ky. 2001). KRS 411.340 provides,
In any product liability action, if the manufacturer is identified and subject to the jurisdiction of the court, a wholesaler, distributor, or retailer who distributes or sells a product, upon his showing by a preponderance of the evidence that said product was sold by him in its original manufactured condition or package, or in the same condition such product was in when received by said wholesaler, distributor or retailer, shall not be liable to the plaintiff for damages arising solely from the distribution or sale of such product, unless such wholesaler, distributor or retailer, breached an express warranty or knew or should have known at the time of distribution or sale of such product that the product was in a defective condition, unreasonably dangerous to the user or consumer.
Jeffersontown Hardware claims it is entitled to the protection provided by KRS 411.340. As this Court has previously noted, the only issue applicable to Jeffersontown Hardware is whether the "knowledge of defective condition" exception applies.
As the statute's text suggests, the legislature intended KRS 411.340 to shield retailers from both liability and suit. It is written in such a way as to presumptively afford protection to a retailer unless Plaintiff can prove that, in this case, Jeffersontown Hardware knew or should have known that the sled was unreasonably dangerous. The rational underlying this shield is clear: retailers are unaware of design and manufacturing considerations and it is therefore unfair to hold them responsible for the mere sale of a defective product where the manufacturer is also before the Court. See Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 782 (Ky. 1986) (noting that the manufacturer has a "non-delegable duty to provide a product reasonably safe for its foreseeable uses, a duty not abrogated by warning to the immediate purchaser"). In such a case, like this one, the retailer merely serves as the middleman.
Here, not only were the alleged defects were open and obvious, but the sled contains a statement concerning the absence of a steering mechanism. As to the manufacturer, the issues of liability could focus on whether the absence of a steering mechanism causes an increased likelihood of injury, whether the manufacturer had any knowledge of accidents caused by the absence of a steering mechanism and whether the product warning was adequate. See Nichols v. Union Underwear Co., 602 S.W.2d 429, 433 (Ky. 1980) ("In design defect cases liability is founded upon the premise that the design selected by the manufacturer amounted to a defective condition which was unreasonably dangerous; actual knowledge of the design is not in question"). Whether the sled is deemed unreasonably dangerous from a manufacturing and design standpoint cannot be known until after full discovery and a trial.
Plaintiffs make precisely the same allegations against Jeffersontown Hardware as against the manufacturer. However, they make no allegation that Jeffersontown Hardware knew of prior accidents or that it had knowledge about design considerations for the disc sled. Plaintiffs only alleges that Jeffersontown Hardware knew what was open and obvious to any other person — that the sled had no steering mechanism. Consequently, Jeffersontown Hardware had no reason to know any more than the average citizen that the sled was dangerous. See Funk v. Wagner Machinery, 710 S.W.2d 860 (Ky App. 1986) (dismissing case against the seller where the record was "void of any facts from which the court could infer that the distributors should have been aware of the product's alleged defect"). Ultimately, a jury may find the sled is unreasonably dangerous. But, Plaintiffs have made no allegation that Jeffersontown Hardware had any special knowledge to foresee such a danger.
Kentucky courts have not defined the kind of allegations necessary to overcome KRS 411.340 in these circumstances. However, Kentucky courts would undoubtedly require that to maintain a non-frivolous action against a retailer such as Jeffersontown Hardware, Plaintiff state something more than that the seller bore the same knowledge as the buyer. A contrary finding would render the statute's language superfluous; virtually any retailer under any circumstances could be subject to suit and liability by merely selling an item. At the very least, Plaintiffs must allege some more specific or special knowledge of dangerousness by the retailer to avoid the protections afforded by KRS 411.340. Plaintiffs have failed to do so in this case. Consequently, naming Jeffersontown Hardware as a party defendant is completely without merit.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Having considered the motions in a supplemental memorandum of the parties and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiffs' complaint against Jeffersontown Hardware, Inc. is DISMISSED and Plaintiffs' motion to remand is DENIED.