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W.F.P. v. Buckle, Inc.

United States District Court, D. Kansas

June 13, 2018

W.F.P., a minor, by and through her natural mother and Next Friend, Alyssa Jordan Pierce, MATHEW DAVID PIERCE, and ALYSSA JORDAN PIERCE, Plaintiffs,



         This matter is before the court on motions for partial summary judgment by The Buckle Inc. and Midwest Custom Case, Inc. (Docs. 43, 47.) The motions are ripe for decision. (Docs. 44, 45, 46, 48.[1]) Defendants' motions are GRANTED for the reasons stated herein.

         I. Facts

         The court finds the following facts to be uncontroverted for purposes of summary judgment.

         Plaintiff W.F.P. is the minor child of Plaintiffs Mathew and Alyssa Pierce. W.F.P. alleges she was an invitee at The Buckle retail store on November 16, 2016, and that she sustained injuries when a dangerous multi-level textile display tipped over and crashed down upon her. W.F.P. was accompanied by her mother, Alyssa, during her visit to The Buckle. (Doc. 45 at 1-2.)

         On the day of the occurrence, Alyssa had picked up W.F.P. from her husband, Mathew, and took W.F.P. shopping with her inside the Oak Park Shopping Mall, so that Mathew could go to work. Mathew was not present at The Buckle on November 10, 2016, was not directly injured himself, and neither witnessed nor perceived the occurrence causing injury to W.F.P. (Id. at 2.)

         Alyssa was not physically injured herself and did not see the display fall on W.F.P. Alyssa was three or four feet away from W.F.P. at the time of the accident. Alyssa heard something behind her and saw the store manager, Scott Marconnet, “jolt.” Alyssa quickly turned around and saw part of a table on top of W.F.P., with one of the sides of it on the child's face. W.F.P. was on her stomach, with her face flat on the ground, facing the cash register. Alyssa picked W.F.P. up and noticed she wasn't crying but was starting to pass out. Alyssa also noticed W.F.P.'s left leg was instantly swelling, so she pulled W.F.P.'s jeans down, at which point the child started to pass out again. Alyssa cradled W.F.P. in her arms and took her to the back of the store so she could lay her down on a table. The child “came to” and started crying. Alyssa then asked someone to call 911. (Doc. 45 at 3-4.)

         Alyssa's back was to the display at the time of the accident and she did not see W.F.P. fall. She did not see what W.F.P. was doing in the moments before the display ended up on top of the child. The child later told Alyssa that she had “grabbed on to that pole, ” indicating a pole supporting one of the display's tiers. (Doc. 45 at 5.)

         II. Summary Judgment Standards

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all evidence and reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

         III. Summary of Arguments

         Plaintiffs' Amended Complaint alleges that W.F.P. suffered a fractured femur and other injuries from the incident. Count I alleges a claim on behalf of W.F.P. for personal injuries allegedly caused by The Buckle's negligence. Count II alleges a claim by Alyssa and Mathew Pierce against The Buckle for loss of W.F.P.'s services and companionship, medical bills incurred for W.F.P.'s treatment, and mental and emotional suffering as a result of W.F.P.'s injuries. Count III alleges a claim on behalf of W.F.P. against Midwest Custom Case for injuries caused by a defective or dangerous product. Count IV alleges a claim by Alyssa and Mathew Pierce against Midwest Custom Care for the damages listed in Count II. (Doc. 34.)

         Defendants contend they are entitled to judgment as a matter of law on Counts II and IV to the extent these counts seek damages for loss of consortium and emotional distress.[2] Insofar as Alyssa and Mathew Pierce seek damages for loss of the services and companionship of W.F.P., Defendants point out that Kansas has refused to allow minor children to assert “parent/child consortium” claims arising from injuries to their parents or caretakers, and argue by analogy that Kansas would not allow a parent to recover for the loss of companionship of an injured child. (Doc. 44 at 5-7.) As for the claim by Alyssa and Mathew for emotional pain and suffering, Defendants argue Kansas rejects such claims where the parent “is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child.” (Id. at 7) (quoting Smelko By & Through Smelko v. Brinton, 241 Kan. 763, 773, 740 P.2d 591, 598 (1987)). Defendants contend neither parent meets this standard.

         In response, Plaintiffs contend the court should recognize their claim for loss of consortium. They point out that Defendants cite “no Kansas cases holding that a father and mother do not have a claim for loss of services arising out of an injury to their child, ” and argue the court should allow the claim because Section 18 of the Bill of Rights to the Kansas Constitution guarantees a remedy to all injured persons. (Doc. 45 at 9.) As for damages for pain and suffering, Plaintiffs argue Alyssa meets the Kansas standard because she was present and perceived the occurrence ...

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