Opinion
Civil Action Case No. 00-2471-JAR
May 17, 2002
MEMORANDUM ORDER GRANTING DEFENDANT ASSOCIATED WHOLESALE GROCERS' MOTION FOR SUMMARY JUDGMENT
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, 2000, 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 an antenna in the ceiling of the warehouse. Defendant AWG filed a motion for summary judgment on plaintiffs' res ipsa loquitur claim. For the reasons set forth below, the Court grants AWG's motion for summary judgment.
I. Summary Judgment Standard
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 of material fact and that the moving party is entitled to judgment as a matter of law." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The court must consider the record in the light most favorable to the nonmoving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied 469 U.S. 1214 (1985).
II. Facts
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to plaintiffs' case. Immaterial facts and facts not properly supported by the record are omitted.AWG is a wholesale distributor of food and grocery items to retailers across a ten-state area, including Kansas and Missouri. AWG is the owner of three warehouse facilities in Kansas, Oklahoma and Missouri and is headquartered in Kansas City, Kansas.
Prior to April 1, 2000, AWG both owned and operated its warehouse facility in Kansas City, Kansas ("the warehouse"), and it independently employed a workforce in its warehouse. AWG's workforce was responsible for all aspects of distribution within the physical confines of the warehouse, and included warehouse employees, maintenance employees, and transportation employees.
Prior to April 1, 2000, AWG employed nearly 600 non-management employees at the warehouse, the majority of whom were Teamster union members employed pursuant to a collective bargaining agreement that expired March 31, 2000. AWG chose not to extend its agreement with the Teamsters and entered into an agreement with CSI to operate the warehouse. CSI hired its own employees and operated the warehouse for approximately 60 days, until June 1, 2000.
Prior to June 1, 2000, CSI and AWG terminated their agreement and AWG entered into a contractual agreement with Elite Logistics, Inc. ("Elite") for Elite to operate the warehouse (the "Operating Agreement"). The Operating Agreement was effective as of June 1, 2000.
Pursuant to the Operating Agreement, AWG was given the right to have its own employees in the warehouse from time to time, but was specifically prohibited from engaging in day to day warehouse operations or exercising any control over Elite's employees. The Operating Agreement specifically prohibited AWG from being Elite's partner, agent or alter ego.
Elite also purchased equipment from AWG, effective June 1, 2000. The Elite equipment included, among other items, the forklift driven by Elite employee Steve McMullin on July 5, 2000, and the work platform used on that same date. After June 1, 2000, Elite was responsible for maintenance on the forklift involved in the accident. Prior to June 1, 2000, AWG owned the forklift, which it purchased from the manufacturer, defendant Raymond in 1984. AWG and Elite were the only owners of the forklift.
Pursuant to the Operating Agreement, Elite had responsibility for operations of the warehouse and use of the equipment. In operating the warehouse, Elite has used its own managers, employees, and equipment. AWG does not, and has not, played any role in determining whom Elite hires, how Elite trains its employees, or how Elite operates the warehouse. In operating the warehouse, Elite directs its own employees, conducts its own payroll and maintains its own safety program. Elite operated the warehouse from June 1, 2000 until the date of Mr. Stadtherr's death on July 5, 2000. Elite continues to operate the warehouse pursuant to the Operating Agreement to this day.
Prior to July 5, 2000, Elite experienced trouble with a non-functioning Telxon antenna located in the ceiling of the warehouse. Mr. Stadtherr was the Telxon representative who arrived to do the on-site evaluation of the antenna. Mr. Ng was employed by AWG as a customer support analyst who was called by Elite to look at the problem. After June 1, 2000, Mr. Ng's job duties took him on occasion to the warehouse. Mr. Ng was primarily involved in setting up Mr. Stadtherr's visit to the warehouse. Prior to Mr. Stadtherr's arrival at the warehouse, Mr. Ng communicated with John Lusby, Elite's maintenance supervisor, requesting a fork operator, a forklift and a work platform be available to effect the repairs to the equipment in the warehouse ceiling.
Mr. Ng met Mr. Stadtherr when he arrived, in order to show him where the problem was. Mr. Stadtherr wanted to view the problem area, so he and Mr. Ng went to the maintenance department in the warehouse. Mr. Ng asked John Lusby, Elite's maintenance supervisor, to obtain a forklift, a forklift operator and a work platform. Mr. Lusby directed Steve McMullin, an Elite employee, to get the Elite forklift and the Elite work platform (to be attached to the front of the forks) and to transport Mr. Ng and Mr. Stadtherr to the location of the antenna. Prior to June 4, 2000, McMullin was employed by AWG in the maintenance department, in the same job he later held with Elite. On July 5, 2000, Steve McMullin was acting within the course and scope of his employment for Elite. On that date, Mr. Ng was operating within the course and scope of his employment for AWG. Mr. Ng had ridden on a forklift with a work platform in the warehouse on numerous occasions prior to July 5, 2000. While Mr. McMullin was driving the forklift, with Mr. Ng and Mr. Stadtherr riding in the work platform, the forks of the forklift rose, in turn raising the work platform. Mr. Stadtherr's head struck the ceiling, resulting in his death.
On July 5, 2000, Elite owned the forklift driven by its employee McMullin, as well as the work platform in which Mr. Stadtherr and Mr. Ng were riding. AWG did not employ McMullin on July 5, 2000. On that date, AWG owned, but did not operate, the warehouse in which the accident took place.
III. Discussion A. Plaintiffs' adoption of defendant Raymond's claim against AWG
Although plaintiffs have not pled an affirmative negligence claim against AWG, they have purportedly adopted defendant Raymond's allegations of comparative fault against AWG, which they contend is sufficient to prevent summary judgment. In the Pretrial order, plaintiffs alleged that if at trial Raymond proves that travel on the work platform is dangerous, then AWG was negligent, and that Raymond bears the burden of proof on this claim.
Raymond is no longer a party to this suit, after being dismissed by the Court on March 28, 2002 (Doc. 223), as reaffirmed in its order denying motion for reconsideration entered May 7, 2002 (Doc. 244). Consequently, Raymond's comparative fault allegations against AWG are no longer at issue, and there are no allegations for plaintiffs to "adopt."
Upon request of Elite, Raymond remains as a party for comparative fault purposes only.
The Pretrial order states that Elite seeks comparison of fault as to AWG only to the extent that either plaintiffs or Raymond produce evidence to support their allegations of comparative fault.
Moreover, even if Raymond's comparative fault claim against AWG was still viable, plaintiffs could not rely on it to prevent summary judgment. Plaintiffs cite the case of Gust v. Jones in support of their proposition that if they adopt another defendant's claims of comparative fault against another party, that party stays in the case, subject to pay any judgment against it. As discussed fully in its previous order (Doc. 244), the Court does not agree with plaintiffs' reading of Gust.
1996 WL 635703 (D.Kan. 1996), aff'd 162 F.3d 587 (10th Cir. 1998).
In that case, plaintiff Gust was a passenger in a car driven by Dighera that was involved in an accident with defendants. Gust sued the defendants, who sought to compare the fault of Dighera. Gust joined Dighera as a party plaintiff, then subsequently filed a cross-claim against Dighera. Prior to trial, Gust indicated that he would adopt the defendants' allegations of comparative fault against Dighera if they were proved at trial. Dighera objected, claiming that the court must enter a directed verdict in his favor at the end of Gust's case, if Gust failed to present evidence of Dighera's negligence. The court held that a directed verdict would be inappropriate until the defendants put on their evidence of comparative fault against Dighera. The court relied in part on K.S.A. 60-250(b), which states that a motion for a directed verdict by a party joined pursuant to the comparative fault statute cannot be considered until all evidence has been presented by any party asserting the movant's fault. In essence, the court held that the defendants' evidence of Dighera's fault could be used by plaintiff to support his existing affirmative cross-claim for damages against Dighera. Although denied, Dighera renewed his motion for directed verdict at the close of the defendants' case.
1996 WL at *3.
Id.
Id.
In contrast, neither Raymond, nor any other party has a cross-claim against AWG and plaintiffs have admittedly failed to file an affirmative claim for damages against AWG, independent of its claim of res ipsa loquitur, infra. Instead, plaintiffs seek to "adopt" Raymond's allegations of comparative fault without setting forth any evidence of their own. The Court declines to extend Gust under these circumstances.
Gust can also be distinguished in that it involved a motion for directed verdict while this case is at the summary judgment stage. While a directed verdict in a comparative negligence case cannot be considered until all parties asserting the movant's fault have presented evidence, there is no corresponding statutory requirement for a motion for summary judgment. If the Court were to apply Gust as urged by plaintiffs, summary judgment would never be granted in a case where the moving party's co-defendants have signified their intent to compare the moving party's fault. As the Kansas Court of Appeals held in Hull v. Agustin, this is simply not the law.
22 Kan. App. 2d 464, 918 P.2d 651 (Kan.App. 1996).
In Hull, plaintiffs initially filed suit against a hospital for medical malpractice involving the birth of their child. The hospital sought to compare its negligence with a doctor. Plaintiffs amended their petition to add the doctor as a party defendant. The hospital did not bring a cross-claim against the doctor. The doctor defendant moved for summary judgment on the grounds that none of plaintiffs' experts had opined that the doctor had deviated from the applicable standard of care. The plaintiffs failed to respond, but the hospital opposed the summary judgment, informing the court that it intended to compare the doctor's fault at trial without contesting the merits of the motion. The trial court granted the doctor's motion for summary judgment, but ordered that he remain on the verdict form for the sole purpose of comparing his fault. At some point, plaintiffs settled with the hospital. The plaintiffs subsequently appealed the decision in an attempt to reinstate their action against the doctor.
Id. at 652.
Id.
Id.
The court of appeals affirmed, noting that the plaintiffs had the responsibility under K.S.A. 60-256(e) to oppose the motion for summary judgment and show the court evidence of a claim against the moving defendant. The court rejected plaintiffs' argument that summary judgment was not appropriate because the hospital had controverted the facts set out in the doctor's motion for summary judgment, noting that "[t]here may have remained material issues of fact between [the hospital] and [the doctor], but no such material issues of fact remained to be determined in the lawsuit between plaintiffs and [the doctor]." The court stressed that to defeat a properly supported motion for summary judgment, the nonmovant must come forward with specific, material facts showing there is a genuine issue for trial. Whether there remained issues between the doctor and the hospital was irrelevant.
Id. at 653.
Id.
Id. (citation omitted).
Id.
Similarly, plaintiffs in this case have failed to adequately oppose AWG's motion for summary judgment. Gust does not override plaintiffs' obligations under Rule 56 to oppose AWG's motion with evidence, not merely allegations. Plaintiffs could have avoided summary judgment by adopting Raymond's evidence of AWG's fault. This evidence was readily available to plaintiffs. Instead of doing this, however, plaintiffs merely adopted Raymond's bare allegations of AWG's comparative negligence. The Court is not persuaded by plaintiffs' novel "adoption" argument and grants AWG's motion for summary judgment on this ground.
B. Res Ipsa Loquitur
The doctrine of res ipsa loquitur has been construed and applied by Kansas courts under many different factual scenarios. The phrase is commonly understood to mean "the thing stands for itself." It is intended to operate solely as a rule of evidence rather than as substantive law. The doctrine recognizes that some circumstances give rise to an inference of negligence even in the absence of direct proof of a negligent act. Essential to the application of the doctrine of res ipsa loquitur is that (1) it must be shown that the thing or instrumentality causing the injury or damage was within the exclusive control of the defendant; (2) the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone's negligence; and (3) the occurrence must not have been due to contributory negligence of the plaintiff.
Bias v. Montgomery Elevator Co. of Kansas, Inc., 216 Kan. 341, 343 (1975) (citing Chandler v. Anchor Serum Co., 198 Kan. 571 (1967).
Id. (citing Vieyra v. Engineering Inv. Co., Inc., 205 Kan. 775 (1970); Blue Stem Feed Yards, Inc. v. Craft, 191 Kan. 605 (1963).
"The rationale behind the doctrine is said to be that when the defendant has exclusive control of the instrumentality he has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances." It is well settled in Kansas that res ipsa loquitur is applicable to multiple defendants.
Id. (citing Worden v. Union Gas System, Inc, 182 Kan. 686 (1958).
Bias, 216 Kan. at 343 (citations omitted);Robinson v. Nightingale, 188 Kan. 377, 381 (1961).
Plaintiffs cite Robinson v. Nightingale in support of their position that res ipsa applies to AWG. That case involved claims for negligence against defendants in successive control of a collapsing truck hoist. The hoist had been constructed and erected by two of the defendant contractors, who, pursuant to a contract with a third defendant, Simlo, agreed to construct and erect the hoist from materials prepared and supplied by, and upon advice and instruction of Simlo. The court held that "where one or some or all of the interdependent defendants (the contractors and Simlo) were in successive control and burdened with the performance of contractual duties to complete the hoist, it is incumbent upon them to explain their action and conduct when the completed hoist suddenly collapsed with resultant injury to another." AWG cites the case of Seely v. Chambers Plastering and Exterior Coating, Inc., as more analogous to this case than Robinson. In Seely, the plaintiff's car was hit by a trailer that came loose from the U-Haul van to which it was attached. The plaintiff sued both the owner U-Haul and Chambers, who employed the van's driver. U-Haul moved for summary judgment on all of plaintiff's claims, including a claim of res ipsa loquitur. The facts showed that the driver's employer, and not U-Haul, attached the trailer. To attach the trailer, Chambers modified the trailer attachment and welded a larger trailer ball onto the attachment. U-Haul had no knowledge of the alterations to the van's trailer attachment. The court granted U-Haul's motion for summary judgment, finding that although U-Haul owned the van and trailer attachment, the van had been "within the control of others at the time of both the modification and the injury." Thus, U-Haul did not have exclusive control over the instrumentality causing the accident.
188 Kan. 377 (1961).
Id. at 433-34.
Id. at 438.
993 F. Supp. 1381 (D. Kan 1998).
Id. at 1382.
Id. at 1383.
Id.
Id.
Id. at 1384.
Id.
Plaintiffs cannot show that AWG had exclusive control of the forklift. In contrast to Robinson, there is no allegation in this case that AWG and the other defendants were involved in a contract or joint venture when the accident occurred. Further, unlike Robinson, there does not appear to be any question as to what caused the accident. It was Elite who had control of the forklift at the time the forks were raised because Elite's employee selected the driver of the forklift, the forklift itself, and the work platform to be used, and an Elite employee operated the forklift. Although Mr. Ng requested Elite to provide the equipment and operator, there is no evidence that AWG had exclusive control over the forklift. Accordingly, the Court grants AWG's motion for summary judgment, and AWG shall be dismissed as a party to this suit.
By the Court granting AWG'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 AWG's assumption of risk defense;
(2) AWG's Daubert motion (Doc. 248);
(3) AWG's adoption of Elite's Motion for partial summary judgment (Doc. 246); and
(4) AWG's Motion in Limine to strike affidavit of Donald Pojman (Doc. 247).
IT IS THEREFORE ORDERED THAT AWG's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the following matters are MOOT:
(1) that part of Plaintiff's Motion for Summary Judgment (Doc. 202) directed to AWG's assumption of risk defense;
(2) AWG's Daubert motion (Doc. 248);
(3) AWG's adoption of Elite's Motion for partial summary judgment (Doc. 246); and
(4) AWG's Motion in Limine to strike affidavit of Donald Pojman (Doc. 247).
IT IS SO ORDERED.