United States District Court, D. Kansas
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,
THE BUCKLE, INC., and MIDWEST CUSTOM CASE, INC., Defendants.
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
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.) Defendants' motions are GRANTED for
the reasons stated herein.
court finds the following facts to be uncontroverted for
purposes of summary judgment.
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
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.)
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.)
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.)
Summary Judgment Standards
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).
Summary of Arguments
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.
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. 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.
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 ...