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Hinken v. Sears Roebuck and Co.

United States District Court, E.D. Kentucky, Central Division, Lexington

January 13, 2015

MARVIN HINKEN, Plaintiff,
v.
SEARS ROEBUCK AND CO., Defendant.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOLT, Jr., District Judge.

This matter is before the Court upon Defendant Sears Roebuck and Co.'s Motion for Summary Judgment [Docket No. 28]. The motion has been fully briefed by the parties [Docket Nos. 30 and 31]. For the reasons set forth herein, the Court finds the Defendant is entitled to judgment as a matter of law.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is a products liability case in which Plaintiff Marvin Hinken alleges he sustained damages for injuries to his leg and hand while operating his Sears Craftsman tractor mower. He further alleges that Defendant Sears Roebuck and Co. ("Sears") was negligent in its design of the lawn tractor and, as such, is liable for his injuries.

The product at issue is a Sears Craftsman tractor mower, model number 917.289240, serial number 081109A021850. It has two safety features which are relevant to this case: an Operator Presence Control ("OPC") and a Reverse Operation System ("ROS"). The OPC is an electrical system that senses the presence of the operator in the seat and shuts the engine of the tractor down if the operator leaves the seat while the blades are engaged. The ROS is an operating position on the ignition switch that allows the tractor to mow under power in reverse. If the operator attempts to mow in reverse without the key in the ROS position, the engine will shut off. The ROS and OPC systems are separate and distinct, allowing them to work independently of one another.

In his deposition, Plaintiff testified that he purchased the mower sometime in 2010 [Deposition of Marvin Hinken, Docket No. 28-1, p. 79]. He also testified as to the accident which forms the basis of this lawsuit: On August 8, 2012, Plaintiff was mowing the front of his property using the mower. Id. at p. 11. He began to cut the grass around a culvert or drainage area on his property. Id. This culvert was approximately fifteen or sixteen feet down with slopes as high as sixty or seventy degrees. Id. at p. 13. Plaintiff testified that rocks moved from underneath the right front tire of the mower and it tipped from left to right. Id. at pp. 11-14. When this happened, Plaintiff attempted to put the mower in reverse but was unable to do so before being thrown from the mower downhill into the culvert. Id. at p. 11. The mower landed between Plaintiff's legs and on top of his left leg. Id. at pp. 11, 52. According to the Plaintiff when the mower landed, the engine did not shut off and the blades cut his left leg. Id. at p. 11. In order to get the mower off of him, Plaintiff reached under the mower deck with his right hand to lift the mower. Id. at p. 11. As the blades were still running, the blades severed off two fingers and broke and mutilated other fingers. Id. at p. 11. Once freed from the mower and its running blades, the Plaintiff began to crawl to the top of the culvert but lost consciousness before reaching the top of the culvert and nearby road. Fortunately, Plaintiff's dog was able to get the attention of a passing car and the driver called 911. The Plaintiff was airlifted to University of Kentucky where he received treatment for his injuries. Plaintiff's left leg had to be amputated from his knee down. He lost the baby finger on his right hand, and severely injured each finger on his right hand. [Plaintiff's Complaint, Docket No. 1-1, ΒΆ 13].

In his deposition, Plaintiff admits that he read and understood the directions for safe operation of the tractor and the dangers associated with improper. He concedes that he disregarded the explicit safety instructions and operated the tractor near a drop-off, ditch or embankment at the time of his accident:

Q. Do not mow near drop-offs, ditches or embankments. You were mowing near a drop-off, ditch or embankment, weren't you?
A. Near, yes, sir.
Q. Okay. Tells you not to do that right?
A. Yes, sir.

[Deposition of Marvin Hinken, Docket No. 28-1, p. 60]

Plaintiff contends that the engine and blades did not shut off when he was thrown from the mower, because the OPC system had failed. Additionally, Plaintiff does not state long it took from the time he was thrown from the subject tractor until the blades and engine did shut down. Id. at p. 61.

There is no evidence in the record of problems with the mower prior to the accident. Plaintiff placed two service calls to Sears for repairs to the mower approximately seven to eight months after the accident. [Affidavit of Michael Schwegmann, Docket No. 28-3]. Michael Schwegmann, an In-Home Service Technician for Sears, responded to both service calls and performed repair work that was requested by the Plaintiff. Mr. Schwegmann stated that he completed the first service call on March 7, 2013, which was for a "tune up". Id. At the time of the first call, seven months after Plaintiff's accident, Mr. Schwegmann determined that the mower, including the OPC control, was in good working condition. The only repair that Mr. Schwegmann advised Plaintiff that the mower needed was a new blade shaft, because "it looked as though Mr. Hinken had been running into things" and Mr. Hinken declined this repair. Id.

On April 18, 2013, Mr. Schwegmann responded to another service call regarding the mower. Mr. Schwegmann was called to fix the ROS. Mr. Schwegmann observed that the wire which runs to the ROS switch appeared to have been "cut with a sharp tool". Id. The OPC was working. Plaintiff did not tell Mr. Schwegmann that the mower had been in an accident.

On August 7, 2013, Plaintiff instigated this lawsuit against Sears in Fleming Circuit Court. Plaintiff's Complaint alleged that the mower was defective and asserted four claims against Sears for "strict liability", "negligence", "failure to warn", and "injuries and damages". Sears filed the instant dispositive motion as to all claims alleged. In his response, Plaintiff conceded that summary judgment is appropriate as to the claims for strict liability, failure to warn and "injuries and damages" but maintains that his negligence claim is not subject to summary judgment.

Defendant argues that Plaintiff and his expert witness Clinton R. Parks, P.E., have failed to establish that a defect existed in the mower and/or that the alleged defect was the legal cause of Plaintiff's injuries.[1] As ...


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