United States District Court, D. Kansas
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, as subrogee of Robert and Mandy Harris, et al., Plaintiffs,
TECHTRONIC INDUSTRIES NORTH AMERICA, INC., et al., Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
American Family Mutual Insurance Company, Robert Harris and Mandy Harris bring suit against Techtronic Industries North America, Inc. ("TI North America"), OWT Industries, Inc. and Techtronic Industries Factory Outlets, Inc. ("TI Factory Outlets") asserting that a defective gasoline-powered pressure washer caused a fire on August 22, 2010. Specifically, under the Kansas Product Liability Act ("KPLA"), K.S.A. § 60-3301 et seq., plaintiffs assert claims for inadequate warning, design defect and manufacturing defect. This matter comes before the Court on Plaintiffs' Motion For Summary Judgment On Defendants' Fourth Affirmative Defense And Memorandum In Support Thereof (Doc. #60) filed October 25, 2013; defendants' Motion For Summary Judgment (Doc. #62) filed October 25, 2013; Defendants' Motion To Strike Or Disregard The Declaration Of Plaintiff Robert Harris And Supporting Memorandum (Doc. #86) filed December 13, 2013; and Defendants' Motion To Strike Or Disregard The Declaration Of Jennifer Chick, CPA, And Supporting Memorandum (Doc. #83) filed December 13, 2013. For reasons stated below, the Court sustains defendants' motion for summary judgment in part.
I. Legal Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits and other materials, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a), (c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); Kaufman v. Higgs , 697 F.3d 1297, 1300 (10th Cir. 2012). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby , 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla. , 942 F.2d 737, 743 (10th Cir. 1991). 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 he carries the burden of proof. See Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc. , 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics , 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp. , 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby , 477 U.S. at 250-51. In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith , 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby , 477 U.S. at 251-52.
The following facts are either undisputed or construed in the light most favorable to plaintiffs.
A. Fire On August 22, 2012
On August 22, 2010, Robert Harris used a reconditioned Power Stroke Pressure Washer Model No. PS80903B ("Power Stroke") for at least five continuous hours to clean exterior portions of his home in Overland Park, Kansas. The pressure washer operated as Harris expected, and did not cause concern that he was in danger or that it might cause a fire. Harris did not smell gas fumes and did not see gas leaking or seeping from the machine.
After cleaning his house, Harris left the Power Stroke on his deck for "five to fifteen" minutes, i.e. the time it takes to get and drink a beer. Harris then carried the pressure washer from his deck down at least seven stairs to the garage, a distance of less than 20 feet, with the muffler guard away from his body. The Power Stroke included an on-product warning label which stated "Hot Surface, " with an arrow pointing in the general direction of the muffler guard. The muffler guard is made of metal and is stamped with the word "HOT." Harris does not remember any gas spilling or any remarkable smell of gas while he carried the product to the garage.
Before putting the Power Stroke away, Harris observed that a clamp was missing from the gas line. Harris does not recall if he noticed the missing clamp while he was operating the pressure washer but he definitely remembers noticing it in the late afternoon. Harris Depo. at 77-7-78:17; 111:14-112:7. The gas line was indented, so Harris believes that the clamp was present at some point in time. Harris does not know when the clamp came off or what caused it to come off.
After Harris put the Power Stroke away, a fire caused significant damage to his home and personal property. The parties agree that the Power Stroke was the source of ignition.
The Overland Park Fire Department investigated the fire. Based on evidence at the scene and multiple interviews with Harris, Investigator Mark Sweeney concluded as follows: The fire appeared to be accidental, in that a hot manifold was located too close to combustible mower bags and a flammable liquid container. The flammable liquid container was within inches of the hot manifold. The area of origin was just inside the lower level garage door, behind the riding lawnmower.
Plaintiffs' cause and origin expert, Dan Anderson, agrees with Sweeney's findings. Anderson concluded that the fire was the result of the hot power washer exhaust manifold being place against combustible materials located near floor level between the right rear tire of the riding mower and the overhead door in the east rear garage. Anderson testified that the garage contained four containers of gasoline: (1) the gas tank of the Power Stroke, which was sitting behind a riding lawnmower; (2) a partially-full gas can near the Power Stroke; (3) the lawnmower gas tank; and (4) the gas tank of a nearby all-terrain vehicle ("ATV"). None of the gas tanks, or their contents, survived the fire. Anderson Depo., Defendants' Exhibit K at 145:16-147:21. Anderson cannot determine the order in which the gasoline components burned. Id. at 146:22-147:18.
B. Power Stroke Operator Manual
Harris purchased the reconditioned Power Stroke at the Direct Tools Factory Outlet Store in Osage Beach, Missouri. Harris purchased a floor model which had been assembled by Factory Outlet personnel. When Factory Outlet personnel assemble pressure washers to use as floor models, they do not inspect them. Also, Factory Outlet personnel do not inspect floor models before selling them.
When Harris purchased the Power Stroke, he received its operator manual. Harris skimmed the manual for a couple of minutes to see if it contained anything "neat." Harris Depo. at 37:20-25; 114:20-115:6. Harris noticed that the Power Stroke had an automatic soap feature, which he thought was neat. Id. at 115:7-23. He glanced through the manual to find out how it worked, but the information did not stick out to him and he never figured it out. Id . Harris saw the triangle-shaped warning symbol on the first page which indicated that the product gets hot and can burn you. Id. at 37:25-38:4. Harris did not fully read the manual and does not recall reading any specific part of the manual. Harris assumed that the operator's manual contained safety information.
The Power Stroke operator manual is 16 pages long. See Power Stroke Operator Manual, Exhibit H to Memorandum In Support Of Motion For Summary Judgment ("Defendants' Memorandum") (Doc. #63) filed October 25, 2013. The front cover states as follows: "Warning. To reduce risk of injury the user must read and understand the operator's manual before using this product." Page five contains an explanation of symbols in the book. One symbol shows a person reading a book. The name of the symbol is "Read the Operator's Manual." The explanation of the symbol states as follows: "To reduce the risk of injury, user must read and understand operator's manual before using this product." Regarding unpacking and assembly, the operator manual states as follows: "Operation of a product that may have been improperly preassembled could result in serious personal injury."
The manual provides "IMPORTANT SAFETY INSTRUCTIONS" which advise, in part, as follows:
Stay alert and exercise control. Watch what you are doing and use common sense. Do not operate tool when you are tired. Do not rush.
* * *
Do not operate around dry brush, twigs, cloth rags or other flammable materials.
Id. at 3 (emphasis in original).
The manual also provides "SPECIFIC SAFETY RULES" which advise, in part, as follows:
Keep cooling air intake (recoil starter area) and muffler side of engine at least 3 feet away from buildings, obstructions, or other combustible objects.
Keep the engine away from flammables and other hazardous materials.
Keep away from hot parts. The muffler and other engine parts become very hot; use caution.
* * *
Before storing, allow engine to cool.
* * *
Make sure minimum clearance of 3 feet is maintained from combustible materials.
Id. at 4 (emphasis in original).
In the maintenance section, under the heading "Storing the Pressure Washer, " the manual states as follows:
Store the pressure washer with the gas tank empty by either draining the tank or running the pressure washer until the gas runs out. Allow 30 minutes of "cool down" time before storing the machine. Store in a ...