ROBERT NEIHOFF v. TICK BROTHERS, INC., D/B/A TBI STEEL; CENTRAL STEEL AND WIRE COMPANY; CHAPARRAL STEEL COMPANY; AND CO-STEEL LASCO, INC. ROBERT NEIHOFF v. BIRMINGHAM STEEL CORPORATIONAnnotate this Case
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 98-CI-00918
TICK BROTHERS, INC., D/B/A
TBI STEEL; CENTRAL STEEL AND
WIRE COMPANY; CHAPARRAL STEEL
COMPANY; AND CO-STEEL LASCO, INC.
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 98-CI-00918
BIRMINGHAM STEEL CORPORATION
** ** ** ** **
JOHNSON, KNOPF, AND MILLER, JUDGES.
In November 1997 while on the job as a metal
worker for VMV Enterprises of Paducah, Kentucky, Robert Neihoff
suffered a compound fracture of his left femur when a steel bar
he was attempting to fashion into a locomotive part broke and a
portion of it sprang back against him.
He brought suit for
damages against several sellers and manufacturers of industrial
steel, alleging negligence, breach of warranty, and strict
By summary judgments entered April 25, 2000, and
April 28, 2000, the McCracken Circuit Court dismissed Neihoff’s
complaint against the named defendants on the ground, apparently,
that he had failed adequately to allege which defendant was
In appeal number 2000-CA-001338, Neihoff contends
that he has narrowed the field of potentially responsible parties
enough to shift the burden of proof to them and that the trial
court erred by failing to so rule.
By summary judgment entered May 25, 2000, the trial
court also dismissed “all claims” against Birmingham Steel
Corporation, another manufacturer of industrial steel and a
potential maker of the bar that injured Neihoff.
Not long before
the April summary judgments, Birmingham had been named a thirdparty defendant, and Neihoff had sought leave to add to his
complaint a claim against it.
In appeal number 2000-CA-001486,
Neihoff contends that the trial court erred by denying, in
effect, his motion to amend his complaint.
been consolidated for our review.
The two appeals have
In both, we affirm.
Neihoff first filed his complaint in September 1998
against Tick Brothers, Incorporated (TBI), an industrial-steel
He alleged that TBI had supplied the steel bar that
On December 3, 1998, Neihoff amended his complaint
by adding claims against Central Steel and Wire Company
(Central), a second steel supplier, and against steel
manufacturers Chaparral Steel Company and Co-Steel Lasco,
He now alleged that either TBI or Central had sold
the bar to VMV and that, if TBI had supplied it, then one of the
two named manufacturers had made it.1
Trial was scheduled for
July 2000, with discovery to be completed by the preceding May.
In February 2000, the trial court granted Central leave
to file a third-party complaint for indemnity against Birmingham,
the alleged manufacturer of steel bars Central had sold to VMV.
At roughly that same time, all the defendants filed motions for
summary judgment on the ground, among others, that Neihoff had
failed to state a claim against any of them by failing to specify
either the bar’s manufacturer or its supplier.
Relying on Bryant
v. Tri-County Electric Membership Corporation,2 the trial court
granted the motions for summary judgment, thereby prompting this
The general rule, of course, is that the plaintiff in a
tort action has the burden of proving not only that he or she has
been injured, but also that the defendant committed a tort and
that the tort caused the injury.3
Generally, lack of proof of
Neihoff’s amended complaint also included claims against manufacturers Bayou Steel
Corporation and Nucor Corporation, but subsequent discovery showed that neither of these
companies had made this particular bar.
844 F. Supp. 347 (W.D.Ky. 1994).
Perkins v. Trailco Manufacturing and Sales Company, Ky., 613 S.W.2d 855 (1981);
any of these elements defeats the plaintiff’s claim.
particular, the plaintiff has the burden of proving legal
causation, or proximate cause.
Proximate cause has been defined
in terms of the substantial factor test: was the defendant’s
conduct a substantial factor in bringing about the plaintiff’s
Causation may be proved by circumstantial evidence, but
“there must be sufficient proof to tilt the balance from
possibility to probability.”5
In Bryant v. Tri-County Electric Membership
Corporation, the court applied this general rule to a lumber
business’s claim for damages arising from a fire.
The fire had
been caused, the business alleged, by a defective electrical
It admitted that it could not identify the
particular transformer’s manufacturer, but argued that it should
not have to do so inasmuch as it had identified (and sued) one of
six potential manufacturers and the manufacturer was in a better
position than the plaintiff to provide evidence of the
In rejecting this argument and dismissing
the claim against the manufacturer, the court cited Cox v.
Huffman v. SS. Mary & Elizabeth Hospital, Ky., 475 S.W.2d 631 (1972); King v. Ford Motor
Company, 209 F.3d 886 (6th Cir. 2000) (citing Morales v. American Honda Motor Company,
Inc., 151 F.3d 500 (6th Cir. 1998). We shall limit our discussion to tort actions because that is the
focus of both Neihoff’s complaint and his appeal. As the cited cases indicate, however, the
requirement that a plaintiff identify a responsible defendant applies to breach of warranty actions
Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980).
Huffman, supra, 475 S.W.2d at 633.
Cooper,6 a negligence action, in which the general rule with
respect to causation was expressed as follows:
Though it may be uncontroverted that either A
or B or both were negligent and that such
negligence caused C's injuries, a verdict
against either one must be predicated on the
jury's belief from the evidence that he in
particular was negligent. The certain
knowledge that one or both were guilty cannot
sustain the burden against either individual.
That burden begins with the plaintiff and
remains with the plaintiff. If he does not
succeed in convincing the jury that A was
guilty, or that B was guilty, or that both
were guilty, he is not entitled to a verdict.
The practical result of the type of
instruction under discussion is to shift the
burden to the defendants, and that is wrong.
The onus cannot be thrust upon the jury to
decide something the plaintiff has failed to
prove to its satisfaction.7
Neihoff concedes that he cannot identify the particular
manufacturer or the particular supplier of the steel bar that
There being no dispute about this lack of proof, we
agree with the trial court that, under the general rule just
discussed, Neihoff’s claim must fail as a matter of law.
judgment was therefore appropriate.8
Against this conclusion, Neihoff observes that courts
have recognized various exceptions to the general rule that a
plaintiff must prove causation with particularity and argues that
this case, too, is exceptional.
He claims that all of the
potential defendants are before the court and that the odds that
a particular defendant either made or supplied the injury-causing
Ky., 510 S.W.2d 530 (1974).
Id. at 534.
Steelvest, Inc. v. Scan Steel Service Center, Inc., Ky. 807 S.W.2d 476 (1991).
instrument are greater here than they were in Bryant.
differences, he insists, should serve to shift to the defendants
the burden of proving their freedom from responsibility.
Although courts have fashioned exceptions to the
causation rule, these exceptions are narrow.
Doctrines such as
concurrent liability, enterprise liability, or alternative
liability, have justified relaxing the plaintiff’s burden of
proof in certain instances, but each such doctrine still requires
the plaintiff to show that he was injured by a tortfeasor.9
Where the plaintiff can show that there was more than one
tortfeasor, but it is not clear which one or ones caused the
injury, one or another of these doctrines will sometimes shift to
each tortfeasor the burden of proving that his or her conduct did
not cause the injury.10
Here, however, Neihoff has not alleged
that more than one of the defendants committed a tort.
asking, not that several tortfeasors be required to sort out
responsibility among themselves, but that utterly innocent
defendants be required to prove their freedom from liability.
There is no exception to the general rule in these
Dawson v. Bristol Laboratories, 658 F. Supp. 1036 (W.D.Ky. 1987); Smith v. Eli Lilly &
Company, 560 N.E.2d 324 (Ill. 1990).
Farmer v. City of Newport, Ky. App., 748 S.W.2d 162 (1988); Murphy v. Taxicabs if
Louisville, Inc., Ky., 330 S.W.2d 395 (1959); Summers v. Tice, 199 P. 2d 1 (Cal. 1948). Neihoff
also refers us to Ybarra v. Spangard, 154 P. 2d 687 (1944), an often cited application of the
doctrine of res ipsa loquitur. In Dobbs, The Law of Torts, § 175 (2001), professor Dobbs
cautions against confusing the causation exceptions with this doctrine. In any event, it is clear
that the doctrine of res ipsa loquitur has no application to this case.
The trial court did not err, therefore, by
dismissing Neihoff’s claims against the named defendants.
Nor did the trial court err by denying Neihoff’s motion
to add to his complaint a claim against Birmingham Steel
The pertinent limitations period had expired,12 and
CR 15.03, which in some instances allows an amendment to a
pleading to relate back to the date of the original, does not
There is no indication that Birmingham received actual
notice of Neihoff’s suit within the limitations period; and
Birmingham’s relationships to the named defendants, including its
relationship as independent supplier to Central Steel and Wire
Company, were not such as to require the trial court to impute to
Birmingham the notice given to the others.13
If Birmingham cannot be brought into the suit at this
point, Neihoff contends, then Central Steel and Wire Company,
Birmingham’s alleged retailer, should not be allowed out.
all, Neihoff argues, additional discovery may yet show that
Birmingham manufactured the injury-causing bar and that Central
Wood v. Eli Lilly & Company, 38 F.3d 510 (10th Cir. 1994); Tirey v. Firestone Tire &
Rubber Company, 513 N. E. 2d 825 (Ohio Ct. of Com. Pleas 1986); Cousineau v. Ford Motor
Company, 363 N. W. 2d 721 (Mich. App. 1985); Layton v. Blue Giant Equipment Company of
Canada, 599 F. Supp. 93 (E.D.Penn. 1984); Sheffield v. Eli Lilly and Company, 192 Cal. Rptr.
870 (Cal. App. 1983).
KRS 413.140 requires that personal-injury actions be brought within one year after the
cause of action accrued. In this case Neihoff was obliged to bring his action within one year after
the date of the injury.
Nolph v. Scott, Ky., 725 S.W.2d 860 (1987); Reese v. General American Door
Company, Ky. App., 6 S.W.3d 380 (1998).
Does not justice, as well this state’s cautious
approach to summary judgments, require that the case go on?
Against this contention, Central relies primarily upon
KRS 411.340, which shields wholesalers, distributors, and
retailers from products liability “if the manufacturer is
identified and subject to the jurisdiction of the court.”
Neihoff contends that the statutory protection should not apply
to Central because Central did not identify Birmingham, its
manufacturer, until the limitations period had expired.
time, Neihoff claims, Birmingham had ceased, in effect, to be
subject to the court’s jurisdiction.
Were there any evidence that Central had improperly
hampered Neihoff’s timely discovery of Birmingham, we would be
inclined to agree that Central had waived KRS 411.340's
But that is not the case.
Neihoff was in a better
position than any of the defendants to identify VMV’s suppliers.
He knew, the record indicates, or could have known of Central’s
role at any time, and it behooved him, of course, to inquire
promptly into Central’s sources.
We have not been informed when,
or even if, he made that inquiry, but in the absence of an
allegation that he would have discovered Birmingham within the
limitations period had Central not improperly interfered, we must
presume that Central did not interfere.
While KRS 411.340 may
impose a duty on a would-be beneficiary of the statute to
cooperate with the plaintiff, it does not require him or her to
prove the plaintiff’s case.
In these circumstances, therefore, we believe that KRS
Birmingham was identified as the manufacturer
of the steel Central supplied to VMV.
And the fact that
Birmingham had acquired a defense to Neihoff’s attempt to add it
to the case did not, within any ordinary meaning of the term,
remove Birmingham from the trial court’s jurisdiction.
was thus entitled to the statutory protection.
The trial court
did not err, therefore, by awarding Central summary judgment even
though it also denied Neihoff’s motion to add Birmingham to the
In sum, we are sympathetic to Neihoff’s plight.
good is a cause of action if the cost of proving the claim is as
great as or greater than the remedy?
This is a hard practical
question confronting many plaintiffs as well as a hard
theoretical question confronting our society.
to have a general answer.
We do not pretend
In the circumstances of this case,
however, we are not persuaded that Neihoff’s plight justifies
relaxing or shifting his burden of proof.
unable to meet that burden.
He admits that he is
The trial court did not err,
therefore, by granting the motions for summary judgment.
Accordingly, in both appeal number 2000-CA-001338 and appeal
number 2000-CA-001486, we affirm the judgments of the McCracken
BRIEFS AND ORAL ARGUMENT FOR
BRIEF FOR APPELLEE TICK
David V. Oakes
Saladino, Oakes & Schaff
Laura L. Pamplin
Fine & Hatfield
BRIEF AND ORAL ARGUMENT FOR
APPELLEE CHAPPARAL STEEL
Richard L. Walter
Boehl Stopher & Graves, LLP
BRIEF FOR APPELLEE CO-STEEL
J. David Boswell
R. Brent Vasseur
Boswell & Sims
BRIEF FOR APPELLEE BIRMINGHAM
Wm. Robert Long, Jr.
Bradley and Freed, PSC
ORAL ARGUMENT FOR APPELLEE
BIRMINGHAM STEEL CORPORATION:
ORAL ARGUMENTS FOR APPELLEE
TICK BROTHERS INCORPORATED:
ORAL ARGUMENT FOR APPELLEE COSTEEL LASCO, INC.:
R. Brent Vasseur
ORAL ARGUMENT FOR APPELLEE
Burke B. Terrell