MARLA J. RIEDLING AND MARTIN A. RIEDLING v. HAY DAY, INC.
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RENDERED: DECEMBER 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002862-MR
MARLA J. RIEDLING AND
MARTIN A. RIEDLING
APPELLANTS
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 98-CI-00492
v.
HAY DAY, INC.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Marla J. Riedling and Martin A. Riedling have
appealed from an order entered by the Bullitt Circuit Court on
August 23, 2000, which granted summary judgment in favor of Hay
Day, Inc.
Having concluded that the trial court erred by
granting summary judgment to Hay Day because the Riedlings have
presented a genuine issue as to a material fact, we reverse and
remand.
In July 1996 Martin Riedling purchased a used Kubota
farm tractor from Hay Day.
Hay Day, which is owned by Mr. and
Mrs. Robert Shickel, is an Indiana corporation, located in
Lanesville, Indiana.1
hay and straw.
Hay Day’s primary business is the sale of
However, Hay Day also performs some repair work
on farm equipment and sells some used equipment and vehicles.
Kubota, the manufacturer of the tractor, is a Japanese
corporation with a sister company doing business in the United
States.
The American division of Kubota is headquartered in
Torrence, California.2
It was revealed during discovery that the Riedlings’
tractor was manufactured in the early 1970's by the Japanese
division of Kubota.
The tractor was manufactured for sale in the
Japanese market, and its warnings, labels and instruction manuals
were printed in Japanese script.
Further, the tractor was
designed differently from its counterpart that was sold in the
U.S. market.
Due to the demands of the rice farmer, the Japanese
model is much lighter in weight, is equipped with tires more
suitable for traction in marsh-like conditions, has a smaller
turning radius, and, most importantly, does not come equipped
with many of the safety features that are standard on Kubota
1
Lanesville, Indiana, is located in southern Indiana west of
Louisville, Kentucky. Apparently, Hay Day either knew that Mr.
Riedling lived in Kentucky or it regularly did business in
Kentucky; thus it was subject to Kentucky jurisdiction through
its long-arm statute. Kentucky Revised Statutes (KRS) 454.210.
2
The U.S. Division of Kubota Tractor Company was initially
named in the lawsuit. However, the Bullitt Circuit Court granted
Kubota summary judgment after it was proven that the tractor was
not manufactured by Kubota’s U.S. division. There has been no
appeal of that ruling.
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tractors designed for sale in the U.S. market.3
Hay Day
purchased the used tractor from Georgia Auto Parts located in
Braselton, Georgia.
According to Shickel, no alterations or
repairs were made to the tractor by Hay Day from the time of its
purchase until its sale to Mr. Riedling.
Shickel claims that he
merely changed the fluids and sold the tractor “as is.”
Mr. Riedling claimed that during the sale negotiations
with Hay Day that he noted the Japanese script on the tractor and
that he specifically asked Shickel whether there were any
differences between the American Kubota tractor and the Japanese
Kubota tractor.
Mr. Riedling alleged that Shickel told him the
tractor “was just like the American one that was here [at Hay
Day’s].”
Mr. Riedling stated that Shickel told him that “the
only difference [between the Japanese and American Kubota
tractors] is the model number on the front.” Mr. Riedling claimed
that he “realized that the United States has got a different set
of safety features than anybody else” and that he interpreted
Shickel’s comments to imply that the tractor contained all the
safety features that would have been included in a 1970's model
Kubota tractor that had been manufactured for sale in the United
States.
Mr. Riedling claimed that when he purchased the tractor
that he relied on these expressed representations by Shickel.
3
The tractor in question was allegedly sold on what is known
in the industry as the “gray market”, i.e., it was illegally
imported into the U.S. In 1997 Kubota Manufacturing of America
brought suit against several alleged importers of Japanese Kubota
tractors. The suit accused the defendants of infringing on
Kubota’s U.S. trademark.
-3-
Shortly after Mr. Riedling began using the tractor, he
discovered a problem with the engine.
Mr. Riedling informed
Shickel of the problem and Shickel agreed to pay for one-half of
the cost of the new parts if Mr. Riedling agreed to install them
himself.
These terms were acceptable to Mr. Riedling and the new
engine parts were bought and installed on the tractor.
After the tractor was repaired it ran well, but Mr.
Riedling did have a problem when the tractor on one occasion
“rolled-over” on him.
Mr. Riedling then purchased and installed
a roll-bar and a seatbelt on the tractor.
This incident occurred
prior to the accident which is the subject matter of this action.
On July 7, 1997, Mrs. Riedling was using the tractor to
mow her lawn, when she was thrown from the tractor and into the
path of the mower.4
The tractor and mower continued to run and
Mrs. Riedling was run over by the mower.
She suffered a partial
amputation of her right hand, multiple fractures to her fingers,
an 18-inch laceration to her right thigh, and a puncture wound on
her left thigh.5
On July 6, 1998, the Riedlings filed a complaint in
Bullitt Circuit Court against Hay Day, Kubota, and the City of
Pioneer Village.6
The complaint alleged (1) a breach of implied
4
The tractor, which does not contain a mower, was pulling a
mower.
5
Apparently, Mrs. Riedling was not wearing the seatbelt at
the time of this accident.
6
Kubota and Pioneer Village were both granted summary
judgment in the case prior to this appeal. Pioneer Village had
(continued...)
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and express warranties by Kubota and Hay Day, (2) that the
product was unreasonably dangerous due to a defective design
and/or manufacture, and (3) that Hay Day was negligent in its
sale of the tractor to the Riedlings.
The complaint sought
compensatory and punitive damages for personal injury and loss of
consortium.
On July 5, 2000, Hay Day filed a motion for summary
judgment7 claiming (1) that Hay Day had specifically disclaimed
any warranties on the tractor, (2) that as an occasional seller
of used tractors, Hay Day was exempt from liability under the
Kentucky Products Liability Act; (3) that Mrs. Riedling’s own
negligence was the proximate cause of her injuries; and (4) that
Hay Day’s sale of the allegedly “gray market” tractor did not
violate any statute, regulation, or common-law duty.
On August
23, 2000, the trial court granted Hay Day’s motion for summary
judgment and dismissed the Riedlings’ complaint against it.8
This appeal followed.
Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, stipulations, and
6
(...continued)
been originally named in the complaint because the accident took
place on a city right-of-way, just off the Riedlings’ property.
Following the dismissal of Kubota and Pioneer Village, the
plaintiffs amended their complaint to include Georgia Auto Parts
for its role in importing a “gray market” tractor.
7
Kentucky Rules of Civil Procedure (CR) 56.01.
8
On November 7, 2000, the trial court entered an order
denying the Riedlings’ motion to set aside the summary judgment
and this second order was amended to include finality language by
an order entered on November 28, 2000.
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admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”9
There is no requirement that the appellate court defer to the
trial court since factual findings are not at issue.10
“The
record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be
resolved in his favor.”11
Summary “judgment is only proper where
the movant shows that the adverse party could not prevail under
any circumstances.”12
Consequently, summary judgment must be
granted “only when it appears impossible for the nonmoving party
to produce evidence at trial warranting a judgment in his favor.
. . .”13
The Riedlings claim that the trial court erred by
granting a summary judgment to Hay Day and by dismissing their
claim for breach of an express warranty because there is a
genuine issue as to a material fact.
Specifically, the Riedlings
point to Mr. Riedling’s deposition testimony, wherein he stated:
9
CR 56.03.
10
Goldsmith v. Allied Building Components, Inc., Ky., 833
S.W.2d 378, 381 (1992); Scifres v. Kraft, Ky.App., 916 S.W.2d
779, 781 (1996).
11
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476, 480 (1991).
12
Id. (citing Paintsville Hospital Co. v. Rose, Ky., 683
S.W.2d 255 (1985)).
13
Huddleston v. Hughes, Ky.App., 843 S.W.2d 901, 903
(1992)(citing Steelvest, supra).
-6-
Q:
Did this tractor have anything on
it that the other tractors that you
were looking at including the new
Kubotas did or didn’t have?
A:
The new Kubota would have come with
the new — the U.S. safety equipment
on it.
Q:
And you had seen the new ones with
the U.S. safety equipment on it?
A:
I had seen the new ones.
Q:
At Parrish and the other place that
you had gone to?
A:
I had seen the new tractors, and
being in business I realized that
the United States has got a
different set of safety features
than anybody else. So if it’s
here, you know, it’s hard to look
at something and tell something is
missing.
Q:
Do you know what the U.S. tractors
have that this Kubota tractor
didn’t have as far as safety
features?
A:
Well, I was told they had a switch
seat to shut the tractor down.
Q:
What do you mean by that?
A:
If you come off the seat or you are
not sitting in the seat, the
tractor stops.
Q:
On a diesel?
A:
When it was explained to me it
wasn’t explained that there was a
difference between safety options,
between a diesel and gas, so. The
clutch pedal safety. This tractor
had no safeties on it. But it’s
kind of too late for me to find
that out now.
-7-
Q:
Not necessarily by too late, I
mean, you saw the new ones while
you were looking and then you saw
this one. Did Hay Day tell you
this tractor had any safety
features on it, or did you even ask
them that question?
A:
I had asked him about the tractor
because it has Japanese writing all
over the tractor.
Q:
And what were you told?
A:
And I was told it was just like the
American one that was here.
Q:
I’m sorry?
A:
It’s just like the American model.
The only difference is the model
number on the front.
Q:
Who told you that?
A:
That’s Robert [Shickel].
Q:
Anything else?
A:
Basically that’s about it.
Later in Mr. Riedling’s deposition, the issue of an express
warranty was again addressed:
Q:
So you had seen new Kubota tractors
of approximately this height before
you purchased this Japanese market
tractor; is that right?
A:
That’s correct.
Q:
Had you actually looked at 7100
Model Kubota tractors before you
purchased this tractor?
A:
I may have.
Q:
Did Mr. Shickel say anything to you
about this tractor being similar to
the U.S. versions of this tractor?
-8-
A:
He said it was just like it except
for the stickers.
Hay Day responds to the Riedlings’ argument by pointing
to one answer provided by the Riedlings to the interrogatories
where they allege only generally that the tractor did not have
adequate safety mechanisms to prevent the injuries to Mrs.
Riedling and another instance in Mr. Riedling’s deposition where
he answered that the only warranty provided by Hay Day was a
general guarantee that the tractor would run for 30 to 90 days.
Hay Day argues that these statements constitute an admission by
the Riedlings that they were not claiming a breach of an implied
or express warranty.
We disagree.
While it is certainly arguable that various portions of
Mr. Riedling’s testimony are inconsistent, the resolution of such
a conflict in the evidence is properly reserved for a jury.14
When Mr. Riedling’s testimony is considered in the light most
favorable to the Riedlings’ case,
it is clear that a genuine
issue of material fact exists regarding any implied and express
warranties that were made by Hay Day.
Hay Day is correct when it claims in its brief that
none of the other claims made by the Riedlings can survive the
summary judgment.
Hay Day contends that summary judgment was
proper as to any claim that the tractor was defective or
14
Meyers v. Chapman Printing Co., Ky., 840 S.W.2d 814, 822
(1992).
-9-
unreasonably dangerous under Kentucky’s Product Liability Act15
since the tractor was more than eight years old and since Hay Day
was only an occasional seller of used farm equipment.16
However,
we conclude that it is unnecessary to address these issues since
the Riedlings have conceded in their brief that they “have
pursued no claim under KRS 411.310 that the tractor was
defective.”
Additionally, we conclude that it is unnecessary to
address any claim against Hay Day related to the alleged illegal
importation of the tractor since the Riedlings have not made such
a claim against Hay Day.17
Therefore, the only surviving claims
against Hay Day are for breach of an express and/or implied
warranty and general negligence in selling the tractor.18
Accordingly, since the Riedlings have presented a
genuine issue as to a material fact, the summary judgment of the
Bullitt Circuit Court in favor of Hay Day is reversed and this
matter is remanded for further proceedings consistent with this
Opinion.
ALL CONCUR.
15
KRS 411.300 to 411.350.
16
See KRS 411.310 (creating presumption of no liability for
seller of used equipment eight years or older).
17
We find no support for the existence of these claims in
either the original complaint or the appellants’ brief on appeal.
We note that to the extent these claims exist, they have been
alleged against Georgia Auto Parts and not against Hay Day.
18
We note that the negligent sale claim does not appear to
be addressed by the appellee’s brief. As best as we can
determine, this issue is very similar to the breach of warranty
claim, and would involve the same genuine issues of material
fact.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brentley P. Smith
Louisville, Kentucky
P. Kevin Ford
Louisville, Kentucky
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