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Lane v. Deere and Co.3/21/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Caswell P. Lane, as the administrator of the estate of Jimmy D. Denniston (Denniston), and Judith R. Denniston, the widow of Denniston, appeal from a jury verdict in favor of Deere and Company (Deere) in a products liability case involving the accidental death of Denniston while operating a bull dozer manufactured by Deere. The appellants also appeal from an order of the trial court granting, prior to trial, summary judgment to Kingsley Equipment Company (Kingsley), the distributor of the dozer. The appellants contend that the trial court made various erroneous evidentiary rulings, improperly instructed the jury, and erroneously granted summary judgment to Kingsley under KRS 411.340, the middleman statute. Having considered the arguments of the appellants and determining that there was no error, we affirm.
In 1986, Denniston purchased a 1985 John Deere 450E Crawler Dozer from Kingsley. Richard Little was the salesman in the transaction. The dozer was manufactured by Deere and Company. It appears from the record that Denniston operated the dozer for ten years without incident.
On October 27, 1996, Denniston was operating the dozer while attempting to alter the course of a creek bed on some recently acquired property he was developing. Along the creek bank was a tree with a limb five to six inches in diameter sawed to a length of five to six feet. As Denniston was backing the dozer out of the creek bank, the left rear upright of the dozer's roll-over protection system made contact with the tree limb. As the dozer continued to move backwards, the branch was placed under increasing tension. Eventually, the dozer backed far enough against the limb that the limb swung into the operator space of the dozer, striking Denniston in the face. After the branch struck Denniston, the dozer continued to travel backward for over 1,000 feet. A passerby eventually discovered Denniston slumped in the dozer, and medical and law enforcement personnel were called to the scene. Following their arrival, the medical personnel determined that Denniston had been killed in the accident.
On October 22, 1997, Caswell P. Lane, acting as the administrator of the estate of Denniston, and Judith Denniston, Denniston's widow, filed a complaint against Deere and Company and Kingsley in Fayette Circuit Court. The complaint sought damages for the accident under the theories of strict liability pursuant to the Restatement of Torts (Second) ' 402A (Restatement 402A), ordinary negligence, and breach of warranty. As the case proceeded, the plaintiffs developed as their primary allegations (1) that the dozer was defectively designed in that side screens, which would have prevented the intrusion of the tree branch into the operating compartment of the dozer, were offered as optional equipment which could be added rather than as standard equipment which could be rejected; (2) that the dozer's Roll Over Protection System (ROPS) was designed so that the rear bars obstructed the operator's view when backing up; and (3) that the defendants failed to provide Denniston with adequate warnings of the dangers inherent in operating the dozer in the vicinity of trees without side screens.
On October 19, 1999, Kingsley filed a motion for summary judgment. Deere also filed several motions for summary judgment and/or partial summary judgment. On May 8, 2000, the trial court granted Kingsley's motion for summary judgment pursuant to the middleman statute, KRS 411.340. The trial court ultimately denied Deere's motions for summary judgment with respect to all issues.
The first trial in the case began on July 24, 2000. At the conclusion of the plain
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