Delaney v. Deere and Co.

985 F.Supp. 1009

Gene DELANEY, Plaintiff, v. DEERE AND COMPANY, and John Deere Limited, Defendants.

No. 96-1107-JTM.

United States District Court, D. Kansas.

October 3, 1997.

John Gehlhausen, Lamar, CO, Kevin L. Diehl, Ralston, Diehl & Pope, Topeka, KS, for Plaintiff.

Larry A. Withers and Alan R. Pfaff, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

MARTEN, District Judge.

The present action arose when a large round bale fell from a John Deere front loader attached to plaintiff Gene Delaney's tractor. Delaney brings the present product liability and negligence action against the manufacturer of the tractor and front loader, alleging inadequate design and warnings.

Two motions are currently outstanding. First, Deere moves for summary judgment, largely on the grounds that warnings given were adequate and Delaney knew and understood those warnings. Second, Delaney moves to amend the complaint to advance a claim for punitive damages. The court finds it is unnecessary to address the second motion because the uncontroverted evidence clearly establishes plaintiff has failed to prove a defect or inadequate warning.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita).

One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The uncontroverted facts submitted to the court permit the following findings of fact. To the extent additional claims of fact advanced by the parties are not included herein, it is because such claims have been found to be unsupported by admissible evidence in the record or not properly before the court pursuant to the rules relating to summary judgment motions.¹

FINDINGS OF FACT

Baling machinery capable of making large round bales was first introduced into the market in 1972-73. To eliminate the hazard of bale drops or rolldowns—accidents in which a bale drops from a front loader onto an operator—Deere designed, manufactured and marketed special round bale handling equipment which could be used on a model 158 front end-loader to safely move large round bales. The bale spear (sometimes called a bale spike or fork) was introduced by the 1970s; the bale clamp was introduced in 1976; and the bale hugger was introduced in 1992.

The round bale clamp uses two hydraulic arms and a hoop which swing down over the bale to hold it to the loader. The clamp can be attached to a bucket with tines, a forklift or a manure fork attachment. The loader is positioned so that the tines are under the bale and the clamp is closed to keep the bale fixed.

The bale spear or fork designed by Deere has a frame and three tines. The central tine is two inches thick and four feet long, and is used to penetrate the end of the bale and secure it for moving or stacking. The other two, 16-inch long, tines are located below and on either side of the main tine and serve to stop the bale from rotating on the main tine.

The bale hugger is an attachment made up of a frame and two horizontal arm assemblies. One arm is stationary; one pivots hydraulically. The bale is clamped between the two. The hugger allows the handling of bales without puncturing either the bale or the plastic wrapping which is sometimes used to cover bales.

One paramount feature of a front-end loader, manufactured either by Deere or by other makers, is its versatility. A customer can purchase one front-end loader and customize it to his own particular needs by purchasing optional attachments. At the time of the accident, John Deere offered the following attachments for the model 158 front-end loader: material buckets in 61", 73", 85" and 97" sizes; a 60" manure fork; a silage grapple, a round bale clamp or grapple; a round bale fork or spear; a forklift, and a forklift boom. Other manufacturers' attachments for use on Deere loaders included hydraulic booms, front blades, stone buckets or rakes, brush rakes, and crane booms.

It is uncontroverted that a significant number of Deere's customers do not use the front-end loader to move large round bales and do not need special bale handling equipment. Front-end loaders are also used for moving manure, silage, grain, or stones; clearing snow; grading gravel or dirt; scraping feedlots and reclaiming land; craning heavy objects; and killing weeds with a wick boom. To preserve the general utility of the loader, Deere has never offered a bale clamp or grapple as standard equipment. Deere knows, based on its experience in marketing front-end loaders, that farmers do not want to buy multiple loaders, nor do they want to pay for equipment they will never use.

A front-end loader is not the only way to move large round bales. For example, a forklift, bale spear or hugger can be attached to a tractor three-point hitch. A self-loading bale mover can be used. Another option is use of a pickup truck with a rear-mounted bale spear.

Between 1972 and 1996, Deere made and sold 348,000 front-end loaders.

Delaney grew up on a farm, and as a result had the opportunity to do farm work. Between 1958, when he graduated from high school, to 1972, Delaney spent about five or six years farming. By 1972, Delaney considered himself an experienced, competent farmer who understood and knew what he was supposed to do. In the spring of 1990, he went back to farming as a full-time occupation and continued in the farming business full time until his accident in 1995.

Delaney started using a John Deere 4020 tractor in 1971; he purchased the tractor in 1978. He purchased the subject John Deere front-end loader new in 1979.

The "SCV" or hydraulic control valves on the tractor are used to power the front-end loader and its attachment. Delaney described operating the SCV lever in his deposition:

Q. ... To raise the loader you pull the outside lever, the tallest lever, to the rear, do you not?

A. That's true.

Q. And to lower the loader you push the outside lever forward, do you not?

A. Yes, sir.

Q. Are you familiar with the term detent?

A. Yes, sir.

Q. What do you understand that word to mean?

A. When the lever is in full back position, the loader would raise until it reached the top and then it would come back to neutral.

....

Q. If you pull the lever all the way back as far as it will go rearward —

A. (Witness motioned head affirmatively.)

Q. and let go of the lever, what will it do?

A. If you pulled back as far as it possibly will go, it will stay in a raised position until the cylinders are fully extended.

....

Q. Now, does the center level control the tilt on the bucket?

A. Yes, got the tilt.

Q. And when you want to change the posture of the bucket by tilting it down in the front or tilting it up in the front, how do you do that with the lever?

A. Forward, tilt it down to dig. Back to lift it up.

Q. And there is a range of travel or motion of that bucket such that it can be tilted so far downward and so far upward?

A. Yes, sir.

Q. And can you change that tilt on that bucket at any time you want to?

A. Yes, sir.

(Delaney Depo. at 44-45; 50-51.)

In the five years before the accident, Delaney usually used a fork on the back, three-point hitch of the tractor to move large round bales. He would back up to the bale, push forward on the control lever to drop the three-point hitch down so the fork would go under the bale, back under it, and pull back on the control lever lifting the bale. Delaney was not aware of any danger to the operator from using this method of moving large bales.

During the same period, Delaney sometimes moved large bales, using the front-end loader. He did this by removing the original loader bucket and attaching a homemade fork. This fork has two prongs that are four to two and a half feet long.

When Delaney used this procedure, he would pull up to the bale, pick up the bale by moving the fork under it from the end, lift it up a foot or two, then transport the bale. When asked whether he had ever, prior to the accident, picked up a bale with the front fork from the...