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BAUMANN v. EXCEL INDUSTRIES3/16/1993
This is a product liability case raising issues of statutory interpretation which are of first impression in the appellate courts> of Kansas. David Baumann brought this action on July 27, 1990, for injuries he suffered when he attempted to prime the fuel pump of a lawn mower while the mower's engine was running. The mower was manufactured by Excel Industries, Inc., in May 1966. Baumann was injured on July 31, 1988. The district court entered summary judgment in favor of Excel, after concluding Baumann's action was barred by the "useful safe life" 10-year period of repose. The court also found the statutory exception to the 10-year period of repose, K.S.A. 1991 Supp. 60-3303(b)(2)(D), was inapplicable because the injury-causing aspect of the mower was readily discoverable by a reasonably prudent person at the time of delivery. Baumann appeals the district court's entry of summary judgment in favor of Excel.
In determining whether Baumann's product liability action is time barred, we affirm the district court's application of the statute of repose in 60-3303 of the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq. While concluding the court erred in holding Baumann to a clear and convincing standard rather than a
preponderance of the evidence standard at the summary judgment stage, we affirm the district court's ultimate conclusion that Baumann failed to overcome the presumption under 60-3303(b)(1) that the mower's useful safe life had expired. Finally, we affirm the court's ruling that the injury-causing aspect of the mower was discoverable by a reasonably prudent person within 10 years of delivery.
The parties do not dispute the underlying facts. The injury-causing product in this case was a Model XL 172 Hustler heavy-duty riding lawn mower which was manufactured in 1966. The mower was last in the control of Excel no later than 1978 as Leroy Tenbarge bought the used mower from Excel in 1977 or 1978. Baumann purchased the mower from Tenbarge in 1980. When Baumann purchased the mower, he had to make some repairs to it.
Baumann was injured on July 31, 1988, when he attempted to prime the engine of the mower while the engine was running. Before the injury occurred, Baumann placed his hand between moving parts of the mower in an attempt to prime the mower's fuel pump by using the manual valve to pump fuel into the engine. This manual valve is located between the upper and lower sides of the drive belt, which rotates rapidly when the engine is running and moves the pulleys to transfer power from the mower's engine to the mower's transmission and blades. Four fingers of Baumann's left hand were severed when his hand was pulled into the drive belt and against a moving pulley. Two of his fingers were later reattached, but have not regained full mobility. Prior to his injury, Baumann was a mechanic. He now supervises the work of other mechanics.
I. Applicable statute of repose.
The threshold question in this case is whether the general statute of repose, K.S.A. 1991 Supp. 60-513(b), controls over the specific statute of repose, 60-3303(b). A statute of repose limits the time during which a cause of action can arise and usually runs from an act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. By contrast, a statute of limitations extinguishes the right to prosecute an accrued
cause of action after a period of time. See Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). In Harding, the court concluded both 60-513(b) and 60-3303(b) are statutes of repose.
Excel argu
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